HKSAR v. Tang Chi Ho

Case No.CACC 459/2012[2013] HKCU 2131

Court

Court of Appeal

Date04 Sep 2013

Judge—

Case Document

100%Judiciary

CACC 459/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 459 OF 2012

(ON APPEAL FROM HCCC NO. 284 OF 2011)

________________________

BETWEEN

	HKSAR	Respondent
	And
	TANG CHI HO (鄧志豪)	Applicant

________________________

Before: Hon Fok JA, Lunn JA and Macrae J in Court

Date of Hearing: 4 September 2013

Date of Judgment: 4 September 2013

Date of Reasons for Judgment: 13 September 2013

________________________

REASONS FOR JUDGMENT

________________________

Hon Lunn JA (giving the Judgment of the Court):

1.The applicant sought leave to appeal against his conviction after trial by Beeson J and a jury of a count (Count 3) of unlawfully trafficking in a dangerous drug, contrary to section 4 (1) (a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The applicant was sentenced to 10 years’ imprisonment. He pleaded guilty to 2 other counts on the indictment of possession of dangerous drugs, contrary to section 8 (1) (a) and (2) of the Dangerous Drugs Ordinance on the same day, but in different places from that alleged in Count 3. Count 1 concerned his possession of dangerous drugs in his car when he was stopped at a roadblock at 01: 20 on 5 December 2010, whereas Count 2 was concerned with his possession of dangerous drugs found at his home at 02:05 that day at 1^st Floor, 59 San Lung Wai, Pat Heung.

2.Having heard counsel in the application we dismissed the application for leave to appeal against conviction and said that we would give our reasons in due course. That we do now.

COUNT 3

3.Count 3 alleged that the applicant trafficked unlawfully in 347.47 g of ketamine and 17.46 g of cocaine on 5 December 2010 at a covered car parking space in San Lung Wai, Fan Kam Road, Pat Heung in Yuen Long in the New Territories.

THE TRIAL

The prosecution case

4.There was no dispute at trial that the applicant was the driver of a blue Mercedes sports car that had been stopped at a police roadblock at about 01:20 on 5 December 2010 at Shek Kong San Tsuen, Kam Tin Road. It was an admitted fact that the applicant was arrested for an offence “not connected” to Count 3. Having been arrested he was taken by police officers to his home in San Lung Wai Village. From his home, he was taken to a motor car, registration number HZ-9708, to which the applicant provided a key, parked near the village entrance. Nothing suspicious was found after a search of the vehicle.

5.It was the prosecution case that thereafter he led SPC 20831, referred to as PW1 in the summing-up, and Sergeant 45853 to the vicinity of where one of those officers found the dangerous drugs, the subject of Count 3, concealed beneath some cardboard in a covered empty car parking space. SPC 20831 said that the applicant had led the two police officers to that place in answer to an enquiry made of him by the Sergeant in respect of the whereabouts of a third car. He identified that car as occupying the car parking space next to the place where the dangerous drugs were found. Found with the dangerous drugs was the paraphernalia for packaging dangerous drugs. At issue was whether or not, as SPC 20831 testified, he had then cautioned the applicant, in response to which he had made an answer, of which he had made a note in his notebook and which he had post-recorded later.

Voir Dire

6.Objection having been taken to the admissibility of the written records of the alleged statement made by the applicant, the judge conducted a voir dire. The prosecution called a number of police officers, including SPC 20831, but not Sergeant 45835, who had left the police force and whose whereabouts were not known. The applicant testified on the special issue.

Ruling

7.The judge ruled the notebook entry and the post-recorded statement admissible in evidence.

8.SPC 20831 testified that the applicant had responded to the words of caution by saying:

“Last night a friend called Keung Chai said he would put some stuff at my garage. He said he would give me $2,000, but I did not know what the stuff was once. He said he would come to take it back two days later.”

He testified that he had made a notebook entry of that there and then, which entry the applicant acknowledged by appending his signature. Later, shortly after 6 a.m., after the applicant had been taken back to Pat Heung Police Station, the officer testified that he made a more detailed post-recording of what had happened, which entry the applicant acknowledged by writing a declaration and by appending his signature.

Defence case

9.The applicant testified that he had not led the police officers to the place where the dangerous drugs the subject of Count 3 had been found. Rather, the Sergeant had left him in the company of SPC 28031 a short time after which, following a radio message to SPC 28031, the latter had taken him to the place where it was said that the dangerous drugs had been found. The applicant denied having made the alleged admissions. He testified that the oral admission attributed to him and recorded in the notebook and the post-record was concocted by the police officers. Both records were made at Pat Heung Police Station. He had appended his signatures to both records only after he had been threatened and promised that if he complied with the requests to sign the documents he would be granted bail.

10.The applicant testified that he had been shown the two bags of suspected dangerous drugs and asked if they were his. He had replied:

“No, they do not belong to me. Don’t say the two bags are mine. Do not frame me.”

The applicant denied having been cautioned or having made the oral statement attributed to him by SPC 28031.

GROUNDS OF APPEAL AGAINST CONVICTION

Ground 1

11.By Ground 1, it was submitted that the judge had erred in admitting into evidence the admissions of the applicant recorded in the notebook of SPC 28031. Although on SPC 28031’s evidence he had cautioned the applicant at the place where the dangerous drugs the subject of Count 3 had been found, he had not done so in respect of the offence of unlawful trafficking in dangerous drugs. Accordingly, the applicant’s choice not to exercise his right to silence was not an informed choice. Further, by failing to call Sergeant 45835 to give evidence the prosecution had failed to establish that the admissions were voluntary.

Grounds 2 and 3: unfair and/or unbalanced summing-up

12.It was submitted that the judge’s summing-up was unfair and/or unbalanced, in particular in that the judge had described the defence case as being that the police officers had ‘planted’ the drugs or ‘concocted’ a story or ‘framed up’ the applicant. Rather, the defence case was that the applicant had no knowledge of the presence of the dangerous drugs. He did not know how they came to be where they were found.

13.Further, it was suggested that he erred in directing the jury[1]:

“The issue you have to decide is knowledge. Are you sure that the defendant knew that what he was storing was dangerous drugs? You have to decide first the question of credibility: are you sure that the police evidence is true and accurate? If so, you must convict.”

Rather, the judge ought to have directed the jury that even if they accepted the evidence of the police officers, they must have regard to the exculpatory assertion made by the applicant, namely “but I did not know what (the) stuff was.”

14.Next, it was submitted that the judge erred in failing to direct the jury that “mere storage is not in itself trafficking, and not all forms of possession of a dangerous drug necessarily constitute ‘dealing with’ the drug.”

Ground 4: good character direction

15.By Ground 4, it was contended that the judge had erred in failing to direct the jury to have regard to the good character of the applicant when considering the exculpatory out-of-court assertion in respect of the dangerous drugs, “I did not know what (the) stuff was”.

Ground 5: alternative and lesser offence

16.Finally, it was submitted that the judge erred in failing to leave to the jury the alternative and lesser offence, contrary to section 37 of the Dangerous Drugs Ordinance, namely being the occupier or person in charge of a place permitting others to store dangerous drugs.

A CONSIDERATION OF THE SUBMISSIONS

The judge’s ruling in the voir dire

17.Mr Grossman SC accepted that, although the applicant was represented at his trial by leading counsel, Mr Cheng Huan SC, who provided the court with no less than 6 pages of objections to the admissibility of the written records made by SPC 20831 of the alleged admissions by the applicant, nowhere was objection taken on the basis that the applicant had not been cautioned and arrested in respect of unlawful trafficking, rather than for possession only, in dangerous drugs on the discovery of the dangerous drugs in the covered car park. Similarly, no such submission was advanced by counsel in his closing address to the judge. At the hearing, Mr Grossman made it clear that no allegation was made of incompetence by counsel representing the applicant at his trial.

18.That no such objection was taken is understandable in the context of the evidence adduced by the prosecution. SPC 20831 testified that at about 01:20 he arrested and cautioned the applicant for possession of a small quantity of dangerous drugs found on his person after he had been stopped by the police at the roadblock. Then, he was handcuffed.[2] SPC 20831 said that he made an entry in his notebook at the scene of arrest, which the applicant signed.[3] Then, the applicant was driven to his home village, San Lung Wai, where he was arrested and cautioned in respect of another small quantity of ketamine. Again, SPC 20831 said that he had made an entry in his notebook of those events, which the applicant had signed.[4] After a search of a motor vehicle, for which the key was provided by the applicant, proved fruitless it was the prosecution case that he led the police officers to the covered car park, where the dangerous drugs the subject of Count 3 were discovered.

19.SPC 20831 testified that, at about 02:05, having been asked by the Sergeant, whether the two bags that had been discovered underneath the cardboard in the covered car parked belonged to him the applicant denied that to be the case[5]. In the face of the denial, SPC 20831 said that he had then administered yet another oral caution to the applicant, after which he had arrested him for the offence of possession of dangerous drugs.

20.It is in the context of the evidence of how the applicant had been dealt with prior to that moment that the submission made on his behalf in this application that the applicant was not properly apprised of his right to silence, by the failure to caution and arrest him in respect of unlawful trafficking in dangerous drugs, is to be viewed. By the time the applicant was cautioned in respect of the alleged dangerous drugs discovered in the covered car park, the applicant had been under arrest, having been cautioned in respect of possession of dangerous drugs, and in police custody for about 45 minutes. For most of that period, he had been in handcuffs as the police conveyed him, first to the police station, then to his home in the village, next to a parked car and finally to the covered car park space. Clearly, it was obvious to the applicant, from the very size of the two bags shown to him at the covered car park space, that the quantity of alleged dangerous drugs in respect of which he was now being cautioned and arrested was quite different from the small quantities found on his person and at his home.

21.The authority upon which Mr Grossman relied to support his submission that in those circumstances the applicant was not properly apprised of the circumstances in which to exercise his right to silence is of no assistance. In HKSAR v Pang Ho Yin[6], this court was dealing with an appellant who had been arrested and cautioned in respect of possession of a small quantity of dangerous drugs (‘Ice’) and an imitation firearm (an air pistol). The applicant had been intercepted by police officers as he sat at the driving wheel of a motor car in Hoi Fai Road, Mongkok. The dangerous drugs were found on his person (Charge 2). In answer to the caution the applicant said that the ‘Ice’ was for his own consumption. The imitation firearm (Charge 3) was concealed beneath the carpet next to the driver’s seat. In answer to the caution the applicant says that he kept the air pistol in the car all the time. Later, a golf club was found in the boot of the motorcar (Charge 4).

22.At Mongkok Police Station a video recorded interview after caution was conducted of the applicant. The applicant provided details of the circumstances of his purchase of the ‘Ice’. However, in the course of enquiries in respect of his possession of the imitation firearm, the appellant said that he kept it in the car because a person he named had attacked his car with others damaging the windscreen. Then, he explained the cause of that conduct as arising from the fact that he was “engaging in dangerous drugs redistribution”. He explained that the attack was aimed at preventing him from undertaking that activity in the Tin Shui Wai area. Rather than cautioning the appellant in respect of that admission first, the applicant answered in the affirmative the suggestion that he had engaged in selling dangerous drugs and there then followed “an extensive series of questions” in respect of that unlawful trafficking.

23.The applicant’s admissions to unlawful trafficking in dangerous drugs was the basis of the charge of conspiracy to traffic in a dangerous drug (Charge 1). At trial he pleaded guilty to Charges 2 to 4, but not guilty to Charge 1.

24.In quashing the applicant’s conviction this court said that it was satisfied that the failure of the police officers to caution the appellant in respect of that much more serious conduct was a matter to which the trial judge failed to have regard, but to which he ought to have had regard in determining to admit the admissions. Stock VP, in the judgment of the court, said[7]:

“We are of the opinion that in the particular circumstances we have described, the applicant’s assertion – implicit if not explicit in his testimony – that had he appreciated, after his initial mention of drug dealing, that his open explanation for possession of the airgun was no longer merely an explanation but had moved into the realm of prime interest for the police as evidence of a grave offence in itself, he might well have refused to provide the detail that followed, is an assertion that cannot readily be dismissed. Up to that stage, the police had concentrated upon three offences for each of which he was expressly arrested and cautioned; they were interested in his explanation for one of them and he knew of that interest and addressed it, in the hope no doubt that it would somehow mitigate that offence. That explanation, by way of suggested mitigation, led into new territory altogether and it was that new territory in which the police became interested to the exclusion of all else, territory into which the police invited the applicant deeper with each following question – of which there were many – yet without in any way alerting the applicant to the fact that he was now suspected of a further and much more serious offence for which he might very well face prosecution. The failure in these circumstances to caution was not, therefore, a mere technical failure but was one whose consequences required some analysis."

25.In the instant appeal, we are satisfied that it must have been obvious to the applicant that the amount of dangerous drugs in respect of which he was arrested at the covered car park was wholly different in quantity and seriousness from the small quantities recovered from his person and his home. Here, the caution was administered in the face of the applicant’s denial that the two bags shown to him by the Sergeant belonged to him. In response to the caution, the applicant gave a short response. Thereafter, there was no further questioning of the applicant.

26.In those circumstances, we are satisfied that the applicant was fully aware of his rights and that the judge was entitled to admit the written records of the ensuing mixed statement by the applicant as being voluntary.

The prosecution’s failure to call Sergeant 45853

27.The failure of the prosecution to call Sergeant 45853, against whom many allegations were made, as a witness in the proceedings was explained by counsel for the prosecution as having arisen because the Sergeant had resigned from the police force in circumstances in which he had excessive debt. The court was informed at the outset of proceedings that attempts to contact the Sergeant, at the Police Officers Quarters still occupied by his wife, failed. She advised those attempting to contact him that he had not been seen for a long time.[8] At the end of the prosecution case in the voir dire the court was informed that attempts to serve a witness summons on the Sergeant had failed.[9]

28.Although the prosecution had failed to secure the attendance of Sergeant 45853 at the trial of the applicant it is clear that, on the prosecution case, SPC 20831 was present with the Sergeant, together with the applicant at all times material to the allegations made in the voir dire proceedings. There is no doubt that, whilst it is desirable that the prosecution call a witness against whom specific allegations are made in a voir dire, it is not a necessity to do so, so long as other witnesses can testify to the impugned events.[10]

29.In the general issue before the jury, the prosecution called Inspector Chow to testify to the absence of Sergeant 45853 as a witness before the jury. In her summing-up, the judge reminded the jury[11]:

“Originally he was not a witness, but when the defence required him, the police looked for him. They were unable to find him. He had resigned voluntarily on 22 July 2011, and he faced five disciplinary charges. Those charges included two charges of contravention of orders and three charges of making a statement false in a material particular, and that of course is an offence of dishonesty. He left before any disciplinary hearings could take place.

You should note that the charges related to the sergeant’s ability to repay loans. They did not relate directly to his work as a police officer. He said that the police have rules about the level of indebtedness, and it is these that he was alleged to have breached. But the charges were not heard, so the allegations were not proved.”

30.We are satisfied that there are no merits whatsoever in the submission that the judge erred in admitting into evidence before the jury the written records of the applicant’s alleged oral admissions.

Unfair and/or unbalanced summing- up

31.There is no dispute that a judge is required to keep a fair balance in summing-up the respective cases of the prosecution and the defence, see the judgment of Chan PJ in the Court of Final Appeal, with whom all the other judges agreed, in Lin Ping Keung v HKSAR.[12] As part of that balance the judge must sum-up the salient features of the defence case. As Chan PJ observed, in his/her analysis, a judge is entitled to comment on the strengths or frailties of the evidence, including that of the defence. He cited with approval the statement of Simon Brown LJ, as he was then, in the Court of Appeal of England and Wales in R v Nelson[13]:

“Of course, the judge must remain impartial. But if common sense and reason demonstrate that a given defence is riddled with implausibilities, inconsistencies and illogicalities, there is no reason for the judge to withhold from the jury the benefit of his own powers of logic and analysis. Why should pointing out those matters be thought to smack of partiality.”

32.However, if the judge does so comment the judge must make it clear to the jury that it is for them to accept or reject any such comment as they choose and to have regard to matters of which they were not reminded in the summing-up, if they wish. The judge did so, giving them the standard direction in the Judicial Studies Board’s Directions.[14]

33.The assertion made in the written submissions on behalf of the applicant, that the judge’s summing-up was unfair and/or unbalanced in characterising the defence case as alleging that SPC 20831 was part of “planting the drugs, or the concocting of the story, or the frame-up generally that is alleged to have taken place” is misplaced. SPC 20831 was cross-examined on the basis that he and the applicant had remained at one place whilst the Sergeant and another officer had gone off and discovered the dangerous drugs.[15] His evidence to the contrary was not true. The applicant had given evidence in support of that contention. Further, the applicant had testified that after he had denied anything to do with the two bags shown to him by the Sergeant, the latter had said that he would help him “concoct” more of an explanation.[16] Also, as the judge reminded the jury[17], the applicant testified that admissions attributed to him in the written records in the notebook of SPC 20831 were “a story concocted by the police”, which he had been forced to sign by threats and inducements.

34.In summarising the defence case, the judge reminded the jury that the applicant testified that he remained in one place whilst the Sergeant and another officer went up to where the covered car park was, “so … he was not present at the finding of the drugs or any search.”[18] Further, the judge reminded the jury that at the covered car park the applicant had said in response to the Sergeant that the two bags containing the drugs did not belong to him[19]. That evidence resonated with his testimony.[20] However, the judge also went on to remind the jury of the exculpatory part of the mixed statement made by the applicant to SPC 20831 in answer to the words of caution, namely that “he did not know what the stuff was”. It is to be noted that in his testimony the applicant had denied having made any of that statement. Nevertheless, clearly it was a matter of which it was appropriate that the judge remind the jury in their consideration of this case overall.

35.It is correct, as Mr Grossman emphasized in his oral submissions, that the judge made a number of observations in respect of the evidence of prosecution witnesses which were clearly favourable to the prosecution case. Perhaps the most significant of such observations, in the context of the issues at trial, was in respect of SPC 20831. Of him, the judge said[21]:

“You may think that he was a frank and honest witness. For example, he reported what the defendant had said about the bags not being his, whereas you might think that if he was trying to frame him, he would have reported that he had admitted that the drugs were his.”

36.As the judge observed in her further direction to the jury, the context in which that evidence was given was that SPC 20831 testified

“that he did not record those items in his notebook but he did remember them and he repeated them in court. You might wonder if the police were trying to frame the defendant, if it was likely that they would repeat his denial of ownership of the drugs.”

37.The rhetorical question posed by the judge obviously had force and clearly was relevant to the jury’s considerations. If, on the one hand, together with the Sergeant, SPC 20831 had falsely concocted and attributed to the applicant an oral statement in answer to caution, that was both exculpatory and inculpatory, why had he been prepared to testify that immediately before that the applicant had made a complete denial that the two bags in question belonged to him, the more so since he had made no written record of that denial to which account he was thereby committed?

38.We are satisfied that there is no merit in the submission that the comments that the judge made in respect of aspects of the defence case were “criticisms” which were “unfair and/or unbalanced”. Rather than being “criticisms”, they are perhaps better characterised as being questions arising from the evidence. To suggest to the jury[22] that they might be “puzzled” as to why the police officers would frame the applicant, by attributing to him a false oral admission, and then offer to help him “concoct” an explanation was a consideration that arose as a matter of common sense. The observation that the judge made that the covered car park would perhaps be useful to someone, like the applicant, running a car broking business was qualified by a reminder to the jury that, apart from the applicant’s admission, there was no evidence that connected the applicant to that car park space.[23]

39.Elsewhere in her summing-up, the judge clearly gave the jury balanced directions as to their approach to the evidence of SPC 20831. The judge reminded the jury on several occasions that the testimony of SPC 20831 was important to their considerations, in particular and obviously because he was the only witness to the oral admissions allegedly made by the applicant which were vital to the prosecution case. She directed the jury:[24]

“… you have to be extremely careful about your acceptance or otherwise of PW1’s evidence. You have to be sure that what he said actually happened, that he was present at the scene when the drugs were found. He did say that when the defendant was asked about the drugs he replied that they were not his and he did not know what they were. But you must be able to rely wholly and reliably on what PW1 said before you can find this defendant remotely guilty of this offence.” [Italics added.]

The judge gave similar directions later in her summing-up.[25]

Trafficking

40.Having directed the jury[26] that the term “trafficking” was defined widely in the legislation and that it included “dealing in or with” the dangerous drugs, the judge focused attention on the evidence relevant to that issue in the case. In particular, she directed the jury[27]:

“ ‘dealing in or with the dangerous drug’, and ‘dealing in or with’ is a sufficiently wide phrase to cover any activity which could be said to be related to or connected with the dangerous drugs, including storage for further disposal or subsequent disposal.”

41.Of course, it was the prosecution case, based on the inculpatory parts of the admission made by the applicant in answer to caution, that the applicant knew that what he was storing for a friend for the promise of the payment of $2,000 was dangerous drugs, which drugs were to be collected “two days later”. The judge reminded the jury of the case of each of the parties[28]:

“The prosecution says they do not accept all the admissions as true, especially the one where he says he does not know what the stuff was. They say that they amount to an admission he knew and agreed that the dangerous drugs would be stored there with a view to subsequent disposal.

The defendant denies making any such admissions and confirms that the story was concocted by the police.”

42.Mr Grossman’s reliance on various authorities of this court that ‘mere storage’ of dangerous drugs may not amount to unlawful trafficking is of no assistance in the factual context of this case. The applicant was not storing his own dangerous drugs for his own consumption.[29] Rather, on the prosecution case, he was storing dangerous drugs for reward for a third-party, whom he knew would retrieve the drugs for onward disposal. As was observed in the judgment of this court in HKSAR v Akhemetzyanova, Irina[30] it is the purpose for which dangerous drugs are stored that is relevant to whether or not unlawful trafficking has occurred. Clearly, if the jury accepted the prosecution case, the applicant’s conduct fell squarely within the phrase ‘dealing in or with’ the dangerous drugs and was trafficking.

43.The criticism of the judge’s direction in respect of the issue of credibility, “Are you sure that the police evidence is true and accurate? If so, you must convict” must be considered in the context of her directions to the jury overall. The judge’s direction was[31]:

“The issue you have to decide is knowledge. Are you sure that the defendant knew that what he was storing was dangerous drugs? You have to decide first the question of credibility: are you sure that the police evidence is true and accurate? If so, you must convict.

If, considering the evidence, you find that what the defendant said about events relating to what happened in the car park are true or might be true, you must acquit.”

44.When the passage is considered overall, it constituted a proper direction. In context, the jury was not being invited to convict the applicant having determined merely whether the evidence of the police, in particular SPC 20831, was true. Rather, they were being asked if they were sure on the whole of the evidence that the applicant knew that what he was storing the dangerous drugs.

45.That direction resonates with the direction given by the judge earlier[32]:

“There are a number of questions which you have to consider. Did events occur as the police say they did? If you decide yes, you would consider then if what the defendant said at the scene shows that he was aware that what his friend was storing at the car park was dangerous drugs-in other words, did he know what it was? If you decided after considering what he told the police that the admissions set out in the post-recording show that he had knowledge that what was to be stored was dangerous drugs, you would be able to convict.”

46.In the result, we are satisfied that the criticism of the judge’s summing-up as being unfair and unbalanced is wholly unjustified.

The good character direction

47.The applicant testified in the trial before the jury. That was the context in which the judge directed the jury in respect of the applicant’s good character. The applicant had testified not only that he knew nothing whatsoever about the two bags found in the covered car park which, in the event, proved to contain the dangerous drugs the subject of Count 3 but also that he had made no admissions to the police at the scene. In those circumstances, the judge directed the jury[33]:

“… his good character supports his credibility. That means it is a factor which you should take into account when you decide whether you believe his evidence.”

48.Given that the applicant had given evidence, the issue of what he had said in out-of-court statements to the police was subsumed within the issue of his credibility as a witness before the jury. There was no need for the judge to give a separate direction in respect of his credibility in respect of his out-of-court statements. The evidence that the applicant denied that the bags belonged to him or that he knew the nature of their contents was before the jury.

Alternative verdict

49.The contention that the judge ought to have left to the jury an alternative verdict, namely of an offence contrary to section 37 (1) of the Dangerous Drugs Ordinance was never canvassed by counsel for the applicant with the judge at the trial. It is extraordinary that, in those circumstances, it was raised with this court in the hearing of the application. There is no merit whatsoever in the submission.

Conclusion

50.For the reasons that we have given, we dismissed the application for leave to appeal against conviction.