THE QUEEN v. NG HANG YEE

IN THE COURT OF APPEAL

1987, No. 6
(Criminal)

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JUDGMENT

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Headnote: Accused giving evidence "against" co-accused: cross-examination on previous convictions.

Silke, V.P.:

1. This is the judgment of the Court.

2. On the 29th April, we granted the application for leave to appeal, treated the hearing as the appeal and dismissed the appeal. We stated that we would give our reasons later and this we now do.

3. Ng Hang Yee appeared for trial before His Honour Judge Ryan, sitting as a Deputy Judge of the High Court, and a jury upon an indictment containing three counts. He was jointly charged with Yu Wai Kan - "D2" -. The 1st count alleged that on the 27th May 1986 at Block 3, Tropicanna Gardens, Lung Cheung Road, Kowloon, they both had in their possession a dangerous drugs namely 1,762.81 grammes of a mixture containing 191.24 grammes of salts of esters of morphine for the purpose of unlawful trafficking.

4. The 2nd count alleged possession of 987.9 grammes of cannabis also for the purpose of unlawful trafficking; and the 3rd possession of 31 tablets containing a total of 0.31 grammes of dipipanone hydrochloride, again for the purpose of unlawful trafficking.

5. Both were convicted after trial on all three counts. Ng Hang Yee now seeks leave to appeal against his conviction and, in the alternative, his sentence of a totality of 9 years' imprisonment.

6. The flat at Tropicanna Gardens was let to D2 in October 1985. Both the Applicant and D2 were present at the time when the letting was made. On the 27th May, a police party raided the premises. They rang the bell, the wooden door was opened. They thrust a crowbar in to keep it open and found it necessary to break the iron grille in order to gain entrance. A man had been seen running back and forward between the living room and kitchen.

7. When the police party gained entrance, the Applicant was found in the bathroom wearing only his underpants. Bath water was running and there were traces, which were subsequently shown to be dangerous drugs, in the bath and on the person of the Applicant. Clippings of his finger nails were taken and these also contained traces of dangerous drugs.

8. Some of the police officers who were keeping watch outside the flat, had seen a person throwing items from the kitchen window. These items were seized and upon testing were found to be the dangerous drugs set out in the 1st and 2nd charges. There were traces of dangerous drugs on the kitchen window sill and a phial of pills was found outside the kitchen window.

9. Both of the Defendants gave evidence at trial. Briefly it was the defence of the Applicant that he was a drug addict, that he had gone to the premises to buy drugs from his supplier, D2, that D2 had gone out after he arrived, that he was in his underpants because be had decided to take a shower and that when the police arrived he was thrown into a panic and attempted to avoid connection with the drugs in the flat by throwing them out of the window.

10. It was the defence of D2 that he had lived there for sometime with Dl but that he had moved out in April 1986 when he discovered D1 was a drug addict. He had kept the keys to the flat because of his tenancy of it. The flat showed signs of being occupied and mattress, a T.V. set and other household items were found in it. He said that one of the mattress was used by the Applicant to sleep upon and that books found in the premises were those of the Applicant as was also the television set. The Applicant was not found to have had any keys at the time of his arrest though D2 gave evidence to the effect that he had given his a set.

11. These were cutthroat defences.

12. Mr. Polson who appeared for the Applicant both here and below cross-examined D2 at some length. In the course of this, D2 said that he was shocked to discover that the Applicant was a drug addict. This point was taken up in cross-examination. The counsel then appearing for the Crown asked D2 what was the method used by the Applicant. The answer he received to this was:

"As shown on the advertisement in television. I was not quite clear how he smoked the dangerous drugs. I do not "know how to explain."

The following passage then occurred:

"Q. Of course, chasing the dragon, is it?

A. What is the term you use?

Q. It is called 'chasing the dragon' that is smoking heroin.

A I do not understand what is 'chasing the dragon'."

13. At that point, Mr. Polson attempted to raise what he termed a legal matter. It was suggested that this was not an appropriate time to raise it and that he should wait until the cross-examination had concluded. This he did.

14. The application was renewed and it was that Mr. Polson be allowed to cross-examine D2 upon his previous convictions, he having given evidence "against" the App1icant. Those convictions included one for simple possession of dangerous drugs and another for possession of apparatus used in the inhaling of dangerous drugs. Mr. Polson relied on section 54 of the Criminal Procedure Ordinance and in particular its sub-section (1) paragraph (f)(iii). This reads:

“A person charged and called as a witness in pursuance of this section shall not be asked, and if asked shall not be required to answer any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character, unless -

(i) ……

(ii) ……

(iii) he has given evidence against any other person charged in the same proceeding.”

15. Having heard submissions from all counsel concerned, the trial judge ruled:

"I don't think that that question, phrased as it was, and answer, as it was, is sufficient for me to open up the previous conviction of this accused. It is a matter which has to be approached with great caution in a trial particularly of this nature, and I don't think that from what I have heard that I ought to allow his previous convictions to be cross-examined on."

16. It is Mr. Polson's main ground of appeal that this ruling was wrong.

17. In R. v. Varley[1], the English Court of Appeal set out guidelines - and these guidelines are repeated in paragraph 4/368 of the 42nd Edition of Archbold - for determining whether an accused has given evidence "against" a co-accused. The emphasis was on the word "against". Our section 54(1)(f)(iii) is para-materia with the 1898 Criminal Evidence Act which there lay for the consideration of the Court.

18. The headnote to Varley¹ set out those guidelines as follows:

(i) that evidence against meant evidence which supported the prosecution case in a material respect or which undermined the defence of the co-accused;

(ii) that where it was established that a person jointly charged had given evidence against a co-defendant, that defendant had the right to cross-examine the other as to previous convictions, and the trial judge had no discretion to refuse an application to do so;

(iii) that evidence against a co-accused might be given either in chief or during cross- examination;

(iv) that it was to be objectively decided whether the evidence supported the prosecution case in a material respect or undermined the defence of the co-defendant, hostile intent being irrelevant;

(v) that, where consideration had to be given to the question whether the co-accused's defence was undermined, care had to be taken to see that the evidence was clearly to that effect; inconvenience to or inconsistency with the co-accused's defence was not of itself sufficient;

(vi) that a mere denial of participation In a joint venture was not of itself enough to rank as evidence against a co-defendant other than in special cases; and

(vii) that, where one defendant asserted a view of a joint venture which was directly contradicted by the other, that contradiction might be evidence against, the co-defendant.

19. Mr. Bruce had sought to argue what he has termed a “narrow point”, that while the evidence here was adverse to the Applicant, it was not “against” him. With respect to Mr. Bruce, the point is so narrow that it is almost non-existent. Viewed objectively the evidence of D2 clearly implicated the Applicant and was an attempt to disassociate himself both from the charges which he faced and from any real knowledge of drugs. It undermined the defence raised by the Applicant. It supported the prosecution's case t hat this was no casual visit by the Applicant to the flat.

20. With respect, we think the judge's ruling to have been wrong and that cross-examination should have been permitted. It would then, of course, have been necessary to give the jury very careful directions that any such cross-examination was directed only towards the credibility of D2 and was not to be taken as any indicator of guilt.

21. If guideline (ii) in Varley¹ were to be strictly followed, then there was no real discretion residing in the judge to refuse Mr. Polson's application once it was established that D2 had given evidence against the Applicant.

22. An Australian case, The Queen v. Ransom[2] supports the no discretion point. We can, however, envisage circumstances in which the introduction of previous convictions could be so deleterious to the co-accused that a trial judge might well feel their prejudicial value to far outweighed the effect of any attack upon a fellow accused. It having no direct bearing here we would perfer to reserve the issue of discretion until such time as the point is of substance. In this connection, it is interesting to note Murdoch v. Taylor[3] - where differing opinions were expressed by members of the House of Lords as to the existence of a discretion. Lord Morris took theview that if a judge rules as a matter of law that questions may be put, then he is not called on either to give or withhold any permission to put them. Lord Pearce dissented.

23. The issue then arises as to the application of the proviso. Mr. Polson submits that it would be wrong of us to speculate. It cannot be said that the jury could have come to no other conclusion on the evidence as it stood. He says the refusal by the trial judge amounted to a denial of the right of the Applicant to put his defence. Mr. Bruce says the evidence was overwhelming, an assessment with which Mr. Polson does not agree. Further that no jury could seriously have come to any other view. He goes on that if the cross-examination had taken place it would not have strengthened the Applicant's case but simply gone to a weakening of the defence raised by D2.

In our judgment, the evidence was very strong. We accept that the Applicant was prevented from attacking the credibility of D2 but we do not think that that prohibition prevented the Applicant from putting his defence. The Applicant was found on the premises. He had said that he went there to buy drugs from D2, but the circumstances in which he was found and, in particular, the throwing of the drugs out of the window, were such as to make it almost inevitable that the jury would find him, bearing in mind the presumptions, in possession of the drugs, knowingly in possession and in possession for the purpose of unlawful trafficking. We do not consider there to have been any miscarriage of justice.

24. Mr. Polson has also raised the issue that certain of the comments made by the trial. Judge in the course of his summing up were such that, taken as a whole they misled the jury and gave a wrong impression of the evidence. This is based in particular on one passage in the summing up wherein the trial judge said:

“Again, I have to warn you to approach this evidence with great caution”

- he was then talking in the context of the Applicant’s evidence implicating D2 -

“just as I did warn you about the evidence of the 2nd accused in relation to the case against the 1st accused. He is a co-accused and the case against him is, I think it is fair to say, I think you'd agree with me, it is up to you, but I think you'd agree with me that the case against the 1st accused is very strong. So you have to take into account that he has a heavy burden on him if he has to rebut the presumption, and that would be, in my view, an incentive to him to try and point the finger at somebody else, and the logical prson to point the finger at is of course the 2nd accused.”

25. At the conclusion of the summing up, Mr. Polson brought this passage to the attention of the judge and emphasized to him that the burden is only on the balance of probabilities and that it was not a "heavy burden" to rebut the presumption. To this, the trial judge, and in the presence of the jury, made reply:

"Yes, thank you, Mr. Polson. I'll speak to the jury about that. I think during the course of my summing up, I made it pretty clear that when the presumption arises that the burden of proof on the defendant to rebut it is a much less burden than that on the Crown. The Crown has got to prove the primary facts beyond a reasonable doubt whereas the accused, in rebutting the presumption, only has to reach a level of on the balance of probabilities more likely than not that his story is true."

26. In the earlier parts of his summing up, the judge had clearly and concisely directed the jury upon the proper burden or proof. While the passage we have first quoted might, taken in isolation be thought to imply a burden greater than the "more likely than not", it must be viewed in the context of cutthroat defences and the directions necessary in such cases. It would have been obvious to the jury that each was attemtping to blame the other. In the event they convicted them both.

27. Given the final direction, immediately before the jury retired to consider their verdict, and in the light of the other passages in the summing up which correctly set out the burden, we do not think this point to have substance.

Sentence

28. Having heard submissions by Mr. Polson, we refused the application for leave to appeal against sentence.