THE QUEEN v. LI CHUN CHOI

Headnote : Prejudicial comment by counsel for the Crown in opening.

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JUDGMENT OF THE COURT

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Silke, V.-P.:

1. Li Chun Choi - "the applicant" - was convicted after trial before His Honour Judge Sharwood, sitting as a Deputy Judge of the High court, and a jury of the offence of possession of dangerous drugs for the purpose of unlawful trafficking and was sentenced to a period of imprisonment of 10 years. He now seeks leave to appeal against that conviction.

2. He had been further charged, in count 2 on the indictment, with the offering of an advantage to a police officer. The facts relating to this were part of the general fact relating to the first count out on this particular count he was acquitted.

3. The only witness at trial was DPC19557 Lam Tak Min. It was his evidence that on 12th June 1988 at about 9:15:a.m. he was keeping surveillance at the corner of Castle Peak Road and Camp Street. He saw the applicant, lie described his dress and he said that the applicant held a briefcase. He watched the applicant crossed Camp Street, buy some cigarettes in a store at the other side of the road and then return across the road. The applicant walked along that street to Shun Hing Road which bisected Camp Street. He turned left. A man came up to the applicant and handed over to him a plastic bag. The applicant continued his walk and the man who had handed over the bag went in the opposite direction.

4. The constable who was alone ran up to the applicant, pushed him to a place near the entrance to an alley and produced his warrant card. The applicant dropped the plastic bag. His briefcase was seized and he was searched. He was asked what the plastic bag contained to which lie replied "goods sample". The constable opened the, bag and in it he found a carton and in that carton he found seven polythene bags. These bags contained the dangernous drugs particularised in the charge: 3,180.91 grammes of a mixture contianing 136.10 grammes of salts of esters of morphine.

5. The applicant was arrested, handcuffed and told lie was being taken to the police station. At that point, he said: "Sir, would you give me a chance? Please let me go. I ask someone to pay you $30,000." That piece of evidence was the reason for the bringing of the second count.

6. In a statement made later at the Regional Crime Unit of Kowloon Police Headquarters the applicant denied that the drugs seized were his. He also raised a matter which was put to the witness in cross-examiantion and was the effective defence at trial, though the applicant gave no evidence. The suggestion was that he was framed by the constable. He had said in that statement that after he had been stopped another man came along, handed the bag of things to the policeman and then left. This statement was produced by the prosecution, we understand, by agreement.

7. At the conclusion of, the evidence there was, also by agreement, read to the jury a second statement which the applicant made on 8th July 1988 in which the applicant said "There was no such case. It was Lam Tak Min who wronged me."

8. Mr. Westbrook, who appears for the applicant in this Court, contends that the conviction is unsafe and unsatisfactory and he sets out three particulars of that main ground. The first is the one which concerns us. We have not asked to be addressed on the second and third particulars for reasons which will be apparent.

9. Ground 1 reads:

"There was a material irregularity during the course of the trial in that prosecuting counsel during his opening speech to the jury told them that the police had received information that a man called Ah Choi matching the Defendant's description often dealt in dangerous drugs in that area, this being hearsay of the most damaging kind."

10. When experienced and competent counsel opened the Crown's case to the jury he said this:

"And the facts of the case that the prosecution undertakes to prove to you are very simple, and I will outline them as follows: Early in June of last-year, a detective 'police constable called LAM Tak-min, who will be giving evidence to you shortly, received information that a man called Ah Choi often delivered (or dealt with) dangerous drugs at the junction of Castle Peak Road and Camp Street in Kowloon. And the detective police constable received information that this man Ah Choi was said to live at 118 Castle Peak Road. And the police officer also received information as to the description of this man Ah Choi." (Emphasis supplied)

Counsel then went on to inform the jury that the police constable had kept observation on the 10th and on the16th June and, finally, on the 17th June which, of course, was the date of the arrest of the applicant, referred to as "Ah Choi".

11. When counsel had completed his opening, counsel then representing the applicant expressed a "little concern" about the reference to information received. There was an exchange between the judge and both counsel whereby counsel then. appearing for the Crown agreed not to lead that evidence and he suggested a formula to be used in relation to it. The judge suggested that it could be introduced by merely saying "I was keeping surveillance". He appeared to be under the impression that this would remove any suggestion from anyone's mind that anything about this was preconceived or that the accused had been named by others. Nothing was said to the jury at that point. No application was made to discharge the jury:

12. In the course of his summing up, and the trial was a short two-day one with one final address that by the defence, the judge made reference to the information point by saying:

"On the 17th of June at around 9.17 a.m. he was, pursuant to instructions, keeping surveillance at the corner of Castle Peak Road and Camp Street." (Emphasis supplied)

He had at an earlier stage, and quite properly, directed the jury that they were not bound in any way by comments of counsel nor by any views that he himself might offer unless those views coincided with the views on the evidence formed by the jury. He had further told him that they had to come to their decision solely upon the evidence which has been sworn to in that Court.

13. In his closing address counsel then appearing for the defence appeared to attempt to ride two horses at once. He advised the jury, again quite properly, that they must decide the case on the facts emerging from the evidence they had before them but he then, a little later into his address, said to them, that the constable, if he were to be believed, had "very good information, if I may put it that way, that a large dealing in dangerous drugs was taking place in a particular spot."

14. While the emphasis of that comment was directed to the fact that the constable was alone in the performance of his duty on that day, nevertheless, it was something which was not in evidence before the jury emerging only from the opening.

15. While it was excluded in actual evidence the matter referred to in that opening was clearly inadmissible: it was hearsay and could never have been introduced into evidence in the first place. Further, the remarks, though we have no doubt well intentioned, were of a highly prejudicial nature. That having been said the issue is what course should this Court take.

16. We have been referred to The Queen v. Chan Tat Wah Criminal Appeal No.545 of 1983 (unreported) where Li, J.A. (as he then was) made reference to evidence being led that the police were acting upon information and that it was the applicant for whom the police were looking. That evidence, which Li, J.A. described as highly prejudicial, was not only before the Court but counsel for the prosecution relied upon it in her closing address. Of it he said this:

"It is wrong that evidence should be led to indicate that the police went to a particular place as the result of information that they had received. It is very wrong that evidence should be led to the effect that the person on trial is the person referred to in that information. Such information is clearly hearsay of the most damaging kind."

17. That case was referred to in Criminal Appeal No. 77 of 1988 The Queen v. Ko Po Kun by Power, J.A. in delivering the judgment of the Court. He made reference to the passage in Chan Tat Wah quoted above and agreed with it. Ko Po Ku was a case where a witness had referred to the "target" person, a reference repeated a number of times by the trial judge in the course of his summing up. The Court was of the view that the judge's use of and reference to the phrase was clearly wrong and went on:

"The effect of what he said and his omission to give direction which he should have given was to leave the words as evidence before the jury for them to make of it what they would."

Given the nature of the facts in that case the reference might well have worked a particular prejudice. The appeal was allowed' and a retrial ordered.

18. In Regina v. Jackson [1953] 1 WLR 591 Lord Goddard spoke of the difficulties in which a judge finds himself when, inadvertently, inadmissible evidence comes out in the course of the trial: whether he should there and then draw the jury's attention to it by informing them that it should not be there and thus possibly emphasizing it or whether he should wait until it came to the summing up taking the same course with the possible same result - or whether he should do nothing at all.

19. As we have said earlier, we are fully aware that the comments complained of did not become evidence before the jury. But the solution suggested before the evidence was called, and put into effect in the course of the constable's examination in chief, that the witness be confined to the use of either of the phrases "I was keeping surveillance" or "pursuant to instructions"- wording adopted by the trial judge in the course of his summing up- was, in our judgment, unlikely in all the circumstances to:

" ... remove any suggestion from anyone's mind that any thing about this was preconceived or the accused had been named by others."

With respect to the judge that was an over optimistic view.

20. It is impossible to avoid the conclusion that that passage in the opening by counsel for the Crown must have coloured the views of the jury despite the later general directions as to dealing only with the evidence and ignoring counsel's comments. They were never explicitly told that they must completely ignore that which was said. We would add that in this particular case, such a direction might well not have peen sufficient given that the only evidence led by the Crown was that of the constable and there being nothing from the applicant other than the contents of his cautioned statements. Combining all that with the ambivalent use made of the matter by counsel for the defence in his closing address, we are driven to the conclusion that this conviction is unsafe and unsatisfactory.

21. In those circumstances, we would grant leave, treat the hearing of the application as the hearing of the appeal and allow the appeal. We would wish to hear counsel as to retrial.

(Having heard counsel)

22. We think this in the public interest and in the interests of the accused that a retrial be directed on a fresh indictment containing only the first count.