Case Detail

CACC000271A/1998

CACC 271/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 271 OF 1998

(ON APPEAL FROM DCCC NO. 190 OF 1998)

BETWEEN
	HKSAR

	AND

	YAU CHI-LUNG

-------------------------------

Coram: Hon. Power, V.-P., Leong & Stuart-Moore, JJ.A.

Date of Hearing: 9 February 1999

Date of Judgment: 9 February 1999

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J U D G M E N T

----------------------

Power, V.-P. (giving the judgment of the Court):

1. This applicant seeks leave to appeal against his sentence out of time. For reasons which are plain from our judgment, we consider this is a proper case in which to give leave to appeal out of time and we so do.

2. The applicant was sentenced on 28th April 1998, to imprisonment for 61/2 years on a charge of trafficking in a dangerous drug. This charge read that he, on 11th December 1997, in Sau Mau Ping Estate, had unlawfully trafficked in midazolam maleate and heroin hydrochloride. We need not go into the particulars of that charge as there is no challenge made to the propriety of the sentence of 6 1/2 years. The difficulty arose because the applicant had, on 27th January 1998, some three months before, been sentenced to imprisonment for 9 months on a charge of simple possession of dangerous drugs.

3. The trial judge, Judge Toh, when sentencing, made no mention of any sort of this previous sentence, of which three months had been served. She simply said:

"Having considered all of the relevant facts, you will go to prison for a total of 6 1/2 years."

4. There would normally have been no difficulty arising out of that sentence because it would have run from the date on which it was imposed, i.e. 28th April, and the applicant would, in effect, have been serving a concurrent sentence as regards the balance of the nine months that he had left to serve. The difficulty arises because the trial judge signed a certificate of sentence on 28th April which states: "Sole charge imprisonment for 6 1/2 years to run consecutively to the sentence he is now serving." As we have already observed, there was no mention made of the other offence or, indeed, that the sentence was to be a consecutive one at the time when the sentence was imposed in open court.

5. Section 80 of the District Court Ordinance states:

"1. The verdict and any sentence shall be delivered orally and be recorded in writing at the time of that delivery.
2. The reasons for the verdict and any sentence -

(a) shall be delivered orally;
(b) shall be reduced to writing within 21 days after the hearing or the trial,

and the reasons so reduced to writing shall be signed by the judge."

6. It seems to us clear that the certificate did not comply with s.80(1) insofar as it stated that there was an order that the sentence run consecutively. There was no such order made in open court. We are satisfied that the certificate of sentence was, therefore, a nullity as it was not in compliance with that section and has no effect. The sentence that was actually imposed was one of 6 1/2 years which runs from the date upon which it was imposed. This court will issue its own Certificate of Sentence which will so indicate. The effect of this will be that the applicant will be serving the balance of the 9 months, i.e. the amount left after 28th April 1998, concurrently with the first part of the 6 1/2 years sentence.

7. The sentence is as we have indicated and an appropriate certificate will be issued by this court.

8. The appeal is allowed.

(N.P. Power)	(A. Leong)	(M. Stuart-Moore)
Vice-President	Justice of Appeal	Justice of Appeal

Representation:

Mr. Wesley W.C. Wong (D.P.P.) for Respondent

Mr. Wong Chi-kwong assigned by D.L.A. for Applicant.

CACC000271/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No.271
(Criminal)

BETWEEN
	HKSAR

	AND

	YAU CHI-LUNG

-------------------------------

Coram: Hon. Power, V.-P. Mayo & Stuart-Moore, JJ.A.

Date of Hearing: 29 October 1998

Date of Judgment: 29 October 1998

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J U D G M E N T

----------------------

Power, V.-P. (giving the judgment of the Court):

1. The applicant in this matter faced one charge of trafficking in a dangerous drug. It states that on or about 11th December 1997, at the ground floor of Block 37, Sau Mau Ping Estate, Kowloon, he unlawfully trafficked in dangerous drugs namely, 300 tablets containing 6.15 grammes of midazolam meleate and 84.79 grammes of a mixture containing 30.95 grammes of heroin hydrochloride. He pleaded not guilty to that charge but was found guilty after trial before Judge Toh in the District Court and sentenced to imprisonment for 6 1/2 years. He now seeks leave to appeal against that conviction.

2. The facts were that he was observed by two police officers outside Block 37, Sau Mau Ping Estate. They approached him and, upon search, found the drugs the subject of the charge. One of the police officers told him that he suspected he was carrying something unlawful. When the plastic bags of drugs were found he was asked what they were, he did not reply and the officer then proceeded to caution and arrest him for trafficking in dangerous drugs. The officer said that the defendant then asked that he be given a chance and said that those things belonged to "Pun Nga Chai" and that he was told them to take them to Block 38.

3. Those words were not written down until they had returned to the police station where a post-record was made. The applicant refused to sign that post-record.

4. Both officers were cross-examined upon the basis that the drugs had not been found on the applicant but had been found in a nearby flowerbed and that when the applicant was searched, nothing was found on him.

5. There was a voir dire in relation to a statement which the applicant made at a later time in the police station. Objection was taken to that statement. The judge does not set out the grounds of the objection, and it is not clear from her reasons whether the applicant gave evidence in the trial. He certainly gave evidence in the voir dire and it seems that he also gave evidence in the trial. The judge held that that written statement be not admitted.

6. The applicant in his evidence said that when the police officers approached him, they told him that if they found nothing on him but that, if they found something in the vicinity, they would frame him with it. He said that that was exactly what they, in fact, did as they went to the flowerbed, took out the plastic bags and then alleged that they belonged to him. He said that he objected to this and told the police that they should obtain a fingerprint report but they ignored him.

7. There was no voir dire in relation to this oral admission at the scene. We refer to Thong Jai & Another v. The Queen, (1997) 2 H.K.C. 109, and in particular to the passage at p.126, in which Lord Hutton said when dealing with oral admissions:

"One situation is where the only allegation made by the defendant is that he had not made the alleged admission. The other situation is where the defendant alleges both that he had not made the admission and that he had been ill-treated before or at the time of the making of the alleged admission. In the latter situation the trial judge should hold a voir dire to decide whether (in case the jury find that the admission was made) the admission was made in circumstances which rendered it involuntary."

8. It seems to us clear, and Mr. Wong, who appears for the Respondent, does not argue otherwise that this was a situation in which the judge should have held a voir dire to determine whether the alleged admission was voluntarily made. However, the judge, when she ruled on the evidence that was given in the voir dire, which concerned the later written statement, said:

"The defendant's evidence on the voir dire did not in any way cause me to doubt the truthfulness of the police evidence that no pressure or force was ever applied on him."

9. When the judge came to give her reasons for finding the applicant guilty she said:

"On the general issue, I totally believe the evidence of PW2 and PW3. They were, in my view, honest and gave their evidence without embellishment. In fact, PW2 readily agreed that he had seen the defendant before 11 December and had also searched him. I had therefore no doubt at all that the defendant was indeed seen by them to have taken out the Exhibits P1 and P19 from the flowerbed and that PW2 found them on the defendant. I also find that the defendant in a moment of panic sought to disown the drugs by saying that they belonged to someone else, and later at the police station, as Mr. Mayne submitted, he thought better of it and decided not to sign the post-record. I have no doubt at all that the heroin and the midazolam tablets that were found were for trafficking, for apart from the defendant's own admission, they were packed ready for sale in separate packets."

10. Although the judge's failure to hold a voir dire to determine the admissibility of the oral admission was a material irregularity, we are satisfied that this is an appropriate matter in which to apply the proviso.

11. The application is allowed but the appeal is dismissed.

(N.P. Power)	(Simon Mayo)	(M. Stuart-Moore)
Vice-President	Justice of Appeal	Justice of Appeal

Representation:

Mr. Albert Wong, S.G.C. (D.P.P.) for the Respondent.

Applicant in person.

HKSAR v. YAU CHI LUNG

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