HKSAR v. Lam San Yau

CACC 522/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 522 OF 2011

(ON APPEAL FROM HCCC 320 of 2011)

____________

BETWEEN

____________

Before: Hon Stock VP, Lunn JA and Macrae J in Court

Date of Hearing and Judgment: 24 October 2012

Date of Reasons for Judgment: 31 October 2012

__________________________

REASONS FOR JUDGMENT

__________________________

Hon Macrae J (giving the reasons of the Court):

1.The applicant was convicted before Derek Pang J and a jury of a single count of trafficking in dangerous drugs and sentenced to 12 years imprisonment. The drug which formed the principal component of the charge was 150.32 grammes of a crystalline solid containing 142.27 grammes of methamphetamine hydrochloride, commonly known as “Ice”. There were other substances in pill form in very small quantities found in his possession, but they need not concern us in this appeal. The applicant, who was unrepresented before us, appeals against his conviction only.

2.At the hearing of the application for leave to appeal, we refused the application and said we would hand down our reasons later. These are our reasons.

The prosecution case

3.The principal witness for the prosecution, DPC 3745 (PW1), was a police officer on anti-drug operation in the vicinity of Shanghai Street in the early hours of 15 April 2011.  At 4:43 a.m. that morning he observed the applicant alighting from a cross border bus at a bus stop in Shanghai Street.  The officer testified that his suspicions were aroused because the applicant appeared to be looking around nervously and he was walking as if he had something between his legs with his right hand pressed against his right buttock at a position very near to his anus.  When the applicant was intercepted by the officer, he appeared to be nervous and trembling. However, a street search upon the applicant found nothing of any significance. Nevertheless, the officer requested the defendant, and he agreed, to go to Mongkok Police Station for a more thorough search.

4.At Mongkok Police Station, PW1 and one of his colleagues conducted a strip search upon the applicant.  Although no dangerous drugs were discovered, PW1 found (according to his own computation) a sizeable sum of HK$69,673.50 and RMB1240.  The applicant, who was still acting nervously, was then conveyed to Kwong Wah Hospital by PW1 and his team of colleagues, arriving at about 6:30 a.m.  Having registered themselves at the Accident & Emergency Department, the officers and the applicant remained in the waiting area until a doctor was available to examine him.

5.At about 8:30 a.m., whilst still waiting to be dealt with, the applicant suddenly started having convulsions and fell onto the floor.  The officers immediately sought medical assistance and the applicant was forthwith taken into a resuscitation room.  About 45 minutes later, at 9:15 a.m., one of the hospital doctors, Dr Chau Hung Pan (PW3), informed the officers that the applicant had stabilised but they were still not clear what had caused his convulsions.  As a precaution, PW3 said that they needed to hospitalise the applicant for observation.  The applicant was then admitted into a ward where another doctor, Dr Lam Yuen Shan (PW4), took over the applicant’s management.

6.At some time around 9:50 a.m., PW4 drew PW1’s attention to some X-ray films which had been taken of the applicant and which showed the presence of three oval shaped objects inside the defendant’s body.  As a result of this information, PW1 asked the doctor if he could question the applicant in the ward, and she agreed.  At 10:06 a.m., PW1 duly informed the defendant about the X-ray results and asked him what the three objects were.  The applicant responded by saying “I will excrete them”.

7.This the applicant then did into a bed pan, after which PW1 arrested and cautioned him for trafficking in a dangerous drug. In response, the applicant said “What I ejected is the dangerous drug Ice.  All of it is mine”.  At 10:55 a.m., PW1 made a post recording of this admission in his police notebook, which was duly signed by the applicant.  The post recording was the subject of voir dire proceedings, following which the judge ruled the document admissible.

The defence case

8.The applicant gave evidence that after his interception in Shanghai Street and his strip search at Mongkok Police Station, he had himself suggested going to a hospital to be X-rayed.  During the wait for his name to be called at Kwong Wah Hospital, he asked police officers for a cup of water since he had had nothing to drink for several hours.  One of the officers then gave him a cup of water which he drank.  About 15 to 20 minutes later, the applicant said that he began to feel dizzy.  The police suggested that he should wash his face, as a result of which PW1 and another officer escorted the applicant to the washroom.  Whilst in the washroom, he said he felt very uncomfortable and seemed to lose his strength.  Accordingly, he sat down on the floor by one of the washbasins.

9.In his daze, he sensed that someone came into the toilet whom he knew as the ex-boyfriend of his girlfriend and a known drug trafficker.  He felt someone remove his trousers and then felt pain in his anus and fainted.  When he woke up he found himself in a hospital ward still feeling dizzy.  He had no idea what had happened.  He was given something to drink by a nurse and promptly fell asleep.  He woke up with an urge to go to the toilet but found himself attached to various tubes.  He was then given a bed pan into which he defecated and went back to sleep.  The next thing he remembered was an officer waking him up to say that he would be charged with trafficking in a dangerous drug.  The applicant said “Why? What drugs?” and he was told that he had excreted dangerous drugs.  Whilst the officer was counting the applicant’s money, he fell asleep again.  He was then conveyed to Queen Elizabeth Hospital.

10.When he came to, he discovered that a bottle of perfume, some cosmetic equipment and a Bluetooth headphone were missing from his property.  In due course, he made a complaint to the Complaints Against Police Office (CAPO) about the loss.  He subsequently discovered that $20,000 of his money was also missing, as a result of which he made a further report to CAPO.

The applicant’s grounds of appeal

11.The applicant makes a number of complaints.  Although he advances effectively 10 separate grounds of appeal, there is a measure of overlap between them.  All of the complaints fall into three categories: the first concerns the judge’s rulings and directions during the trial, the second concerns his directions (or non-directions) during the summing-up and the third concerns the discrepancies in the evidence of the prosecution witnesses.  We shall deal with each category in turn.

The judge’s rulings and directions during the trial (Grounds 1, 2, 4 and 6)

12.The applicant contends that the judge wrongly and unfairly directed counsel for both sides, before empanelment took place, not to reveal to the jury that the police were acting upon intelligence information.  Further, counsel were also told not to reveal to the jury that the applicant was a trader in parallel goods (Ground 1).  It is said that these preliminary directions were unfair to him in the context of his defence because this evidence would have supported his version that the police had in effect framed him up and that the whole extraordinary chain of events he described was in fact a pre-planned set-up.  So far as his business trading in parallel goods is concerned, he argues that this information would have explained the sizeable amount of money found on him at the time.

13.In relation to both of these complaints, it should be observed that the applicant was represented throughout the trial by experienced junior counsel.  It is invariably the case that matters which are considered unduly prejudicial to the character of an accused or his case, or which are otherwise not admissible or irrelevant to the issues before a jury, are not revealed to them.  The fact that the police are acting on information is one such matter.  That the accused holds dubious or illegal employment is another.  However, there is no reason why, if these matters are considered relevant and admissible to some issue by the defence, they could not be introduced into evidence at their behest.  That is a matter for counsel exercising his judgment as to what he needs to adduce by way of evidence in the best interests of his client.  We see no evidence that the applicant’s counsel at trial made any application or attempt to introduce this evidence: indeed, we can well understand why he might have wished to keep it out.  Accordingly, the applicant cannot now complain of a tactical decision taken at trial which he now regrets.

14.The same may be said of the applicant’s trading in parallel goods.  Furthermore, the judge gave emphatic directions to the jury in his summing-up that they should ignore any suggestion or implication that the sizeable quantity of money found on the applicant might be connected with dangerous drugs.  He said this:

“…there is no suggestion that the large amount of money found on the defendant, the 70,000 or 90,000, was not clean money. So there is no basis for you to say, ‘Ah, this is a large sum to have in cash and in the middle of the night, too. The defendant must be up to no good.’ No, you cannot do that, you cannot say that to yourself, it is not allowed. As far as we are concerned this money has nothing to do with the drugs or drug trafficking. None whatsoever.”

There is nothing in this ground.

15.The second complaint in this category is that the judge should not have allowed the prosecution to cross-examine the applicant on his criminal record, which included offences of trafficking in a dangerous drug (Ground 2).  Although his complaint is arguably somewhat inconsistent with the position he puts forward under Ground 1, it must be remembered that the applicant’s defence involved a conspiracy between the police and a known drug trafficker to insert a sizeable quantity of dangerous drug into his anus whilst he was in police custody.  It carried with it the necessary implication that this was a set-up from beginning to end, during which an officer or officers took the opportunity to relieve the applicant of certain property and to steal HK$20,000 from him.

16.Although others might have ruled differently, given the strength of the case, the palpable weakness of the defence and the nature of the previous convictions, the judge was entitled to rule as he did, provided he made clear to the jury that they must not assume that the applicant was guilty simply because he had previous convictions.  In this connection, the judge’s directions were again emphatic:

“…you have heard that the defendant has previous convictions for various offences. This has been given in evidence because he has attacked the character of the prosecution witnesses, namely the police for drugging him, setting him up with drugs and stealing his money, and also the doctor to a lesser extent by saying that he was conscious. Anyway, since he did that so it is right that in those circumstances you should know the character of the person making that attack, namely, the defendant himself.

But what is the relevance of the defendant’s convictions? The only reason why you have heard about his previous convictions is the knowledge of the character of the defendant who has made this attack may assist you to judge the truthfulness of his evidence when you come to consider this matter. On the contrary you must not assume that the defendant is guilty because he has previous convictions.

I repeat, you must not assume that the defendant is guilty because he has previous convictions.  You must be extra, ultra-careful about this because you have heard the defendant has previous convictions for drug trafficking.  You must not be prejudiced by this information into thinking he had done it before so he is doing it again this time.  No, I am directing you that his convictions are not relevant at all to the likelihood of his having committed the present offence.  They are relevant only as to whether you can believe him.  As a matter of fact, you do not even have to allow these convictions to affect your judgment.  It is for you to decide to what extent, if at all, his previous convictions can help you about that.”

17.We see no valid grounds to impugn the judge’s ruling on this matter, which was a proper matter for his discretion.

18.The third matter raised in this category concerns the judge’s ruling on the voir dire.  The applicant maintains that there were differences in the evidence of the witnesses adduced during the voir dire and in the general issue which call into question the judge’s ruling and which required him to tell the jury of these differences (Grounds 4 and 6).  In particular, he points out that the judge appeared to accept the explanation he gave during the voir dire for not immediately complaining to CAPO yet failed to tell the jury that he had accepted this explanation when prosecuting counsel sought to capitalise on his answer in his closing speech.

19.It was no part of the judge’s duty to inform the jury of the view he had formed during the voir dire about the absence of a particular complaint to CAPO.  Prosecuting counsel’s point was a matter which defence counsel might have countered in his closing speech to the jury, and ultimately it was a matter for the jury.  In any event, the judge gave the jury, in the circumstances, an extremely fair direction on the matter.  He said this:

“That being so, I must warn you not to use the defendant’s lack of mention of his version to CAPO for any other purpose. In particular you must not say to yourself he did not complain to CAPO or for that matter anyone else, so what he tells us now about being drugged and set up by the police must not be true. No, that is not allowed. Why? Because a person suspected of a criminal charge or someone who is charged with a criminal charge is entitled to say nothing. You must not hold his silence against him. In fact, the exercise of his right to silence cannot amount to any admission of any kind, nor can it be taken to reflect a guilty conscience.

So again, members of the jury, this lack of the defendant’s major complaint to CAPO or anyone else goes only to the question of the admissions - what the defendant allegedly said and was later taken down in PW1’s notebook.  It only goes to that.  It can have nothing, I repeat, it can have nothing to do with whether the defendant is guilty of the charge, the present offence.  This I cannot emphasise any stronger.  Alright? Good.”

20.There is no merit in these complaints.

The judge’s directions in his summing-up (Ground 7)

21.In this category of complaint, the applicant says that the judge should have directed the jury about the discrepancies in the evidence of the police witnesses about the money.  The point here is that PW1 said that initially he had found HK$69,673.50 and RMB1240 on the defendant’s person, whereas the exhibits officer, DPC 1557 (PW2), found HK$72,441.50 together with the renminbi when he counted the money in the ward at Kwong Wah Hospital.  Moreover, he later came to realise, whatever the figure, that  there was a shortfall of HK$20,000.

22.The judge, however, did direct the jury on this matter as follows:

“What you should consider, however, is whether it is or may be true that the police had stolen some of it from the defendant, about $20,000 plus a bottle of perfume, some cosmetic equipment and a Bluetooth headset. If it is or may be true, then you may think that the police witnesses in this case are bad people, scoundrels, not to be believed in their evidence. That is a matter that you.”

23.In the light of that direction, it is not correct to say that this matter and the implication which flowed therefrom was not placed fairly and squarely before the jury.  There is nothing in this ground of appeal.

The discrepancies between the prosecution witnesses (Grounds 3, 5, 8, 9 and 10)

24.Grounds 3 and 10 concern discrepancies between the witnesses as to the amount of money found on the applicant.  This matter has already been referred to when dealing with Ground 7.  The jury were plainly aware of these discrepancies and it was a matter for them whether they affected the truthfulness of the police officers concerned. 

25.Ground 5 concerns an inconsistency between PW1’s evidence in the voir dire and on the general issue as to whether the applicant was intubated in the Accident & Emergency Department of Kwong Wah Hospital. We cannot think how this inconsistency was of any real significance.  If it was, defence counsel would have been perfectly entitled to cross examine the officer as to the difference in his evidence.  In any event, PW3 testified that when he first attended the applicant shortly after 8:30 a.m.  inside the resuscitation room, he ordered that he be placed on a saline drip and that X-rays be taken.

26.Grounds 8 takes issue with PW1’s failure to refer to the applicant pulling a trolley bag when describing him as walking awkwardly; whilst Ground 9 refers to a slight time discrepancy between PW1 and PW2 as to when the applicant arrived at Mongkok Police Station.  Neither of these issues is in the least bit significant.  It was never in dispute that the applicant was pulling a trolley bag and PW2 did not even take the applicant to Mongkok Police Station.  In any event, the time discrepancy was very slight.

Conclusion

27.The evidence against the applicant in this case was overwhelming.  Notwithstanding what might be thought to be an extraordinary and bizarre defence, it was placed fully and fairly before the jury by the judge.   The jury unanimously rejected it.  We are in no doubt that the applicant received a scrupulously fair trial. 

28.For these reasons the application for leave to appeal against conviction was refused.

Ms Agnes Chan, ADPP for Director of Public Prosecutions, for the respondent

The Applicant in person, present