HKSAR v. LAM CHI CHEUNG

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

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JUDGMENT

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Power, Ag. Chief Judge HC (giving the judgment of the Court):

1. The applicant was charged with trafficking in a dangerous drug. It was particularized that he and Yuen Gang-shing, on 23rd October 1996, at Sun Fei Ma Restaurant, 286-298 Temple Street, Yaumatei, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 83.28 grammes of a mixture containing 36.96 grammes of heroin hydrochloride. He pleaded not guilty to that charge but was found guilty after trial before Deputy Judge Wright. He now seeks leave to appeal against that conviction.

2. It was the prosecution case that on 23rd October 1996, police officers had set an ambush outside the Sun Fei Ma Restaurant in Temple Street. A Nissan taxi driven by the applicant drove up to the restaurant. The man Yuen, who was D1 in the charge sheet, got out. He was stopped and searched in the restaurant and the dangerous drugs were found on his person. He had already, at the time of trial of the present applicant, pleaded guilty to the charge.

3. The evidence came principally from PC53155, who was PW2 at trial, and from another PC, who was PW4. They said that they stopped the taxi outside 239A Temple Street and arrested the applicant who said upon arrest:

"I am only responsible to deliver the goods. Give me a chance."

The applicant and the other man were taken to Yaumatei Police Station. In his statement which he gave to PW2, the applicant said:

"I am only responsible to drive Ah Shing to some restaurant to send White Powder to customers. I only drive and would not meddle in other affairs. Moreover, my wife is still in the Kwong Wah Hospital now as she has overstayed to give birth to a child. I am in need of money and have to take care of my wife and the baby. I thus drive for them."

4. The applicant at trial denied making that statement and, indeed, denied any involvement at all with the trafficking in dangerous drugs.

5. The trial judge, when convicting, said:

6. Mr. Allan, who appears for the applicant, originally had three grounds in his Notice of Appeal. He has only argued one and has not sought to pursue the other two. This ground is in three parts. The first part reads as follows:

          "The verdict in the case was unsafe and unsatisfactory for the following reasons:

7. The ground arises out of the following passage in the transcript which occurred during the cross-examination in the trial proper by Mr. McKenzie Ross, who appeared for the prosecution.

8. The trial judge made reference to this passage in his reason saying:

"He was asked whether he was surprised that the 1st defendant had told the police that he, the 2nd defendant, had handed over the dangerous drugs to the 1st defendant to take him to the restaurant. He said that he was surprised and denied any knowledge of those allegations by the 1st defendant until that question had been put to him. He later contradicted that stance by saying that he had known about it for a month. It seems to me that where you are facing a charge of trafficking in a substantial quantity of dangerous drugs, it is unlikely to escape your attention that such allegations are being made against you."

9. It is Mr. Allan's contention that this question was clearly an improper one. He has referred us to a passage in Archbold at 8-116 dealing with the form of questioning in cross-examination. It refers to R. v. Baldwin 18 Cr.App.R. 175, and to the judgment of Lord Hewart C.J. The passage reads as follows:

"The observations of Lord Hewart in Baldwin are too often disregarded. As he said, referring to cross-examination, 'What is wanted from the witness is answers to questions of fact.' An advocate must not in the course of cross-examination state matters of fact or opinion or say what someone else has said or is expected to say. Defending counsel on occasion break this rule by saying, e.g. 'the defendant's recollection is' or 'the defendant will say' or 'my instructions are that ...' The time to make such statements is in an opening speech, not as cross-examination. Nor is it permissible to evade this rule by putting the statement in the form of a question, e.g. 'What would you say if the defendant were to say?' " (Emphasis supplied)

10. The question asked by Mr. Mackenzie-Ross in cross-examination placed hearsay evidence indicating guilt before the court. Such evidence should have come and come only from the mouth of the maker of the statement who, moreover, was available and could have been called by the prosecution. The extreme likelihood, as any cross-examiner must realize, was that the question would elicit a denial. The hearsay content of the question, and not the answer, was what was really being placed before the court. A hearsay statement in the form of a question was put before the court. This was prejudicial and should have been disallowed. Further the judge should have held that he was placing no reliance on the following sequence of questions which sprang out of the prejudicial question. The application must succeed on that ground.

11. Grounds 1(b) and (c) state that the decision was unsatisfactory because the trial judge allowed the cautioned statement of the 1st defendant to be put in evidence.

12. The trial judge said when admitted the statement:

"P2 and P3 respectively, the post-record first, and the interview second. They produced only for the purposes of identifying the documents obviously."

He clearly was not admitting them as to the truth of their contents and the passage we have already read from his judgment makes it plain that he did not make any improper use of those documents.

13. The application must be allowed for the reasons we have already given. We will hear counsel as to whether or not we should apply the proviso.

(After argument)

Power Ag. Chief Judge:

14. Before referring to the cross-examination as to the 1st defendant's statement to the police, the trial judge had already set out his reasons for admitting the cautioned statement. In that regard, he made the following finding:

          "In the circumstances of this case it will be more convenient to deal firstly with the defendant's evidence. He is a witness unworthy of any belief. Even allowing for the fact that he is a layman who is presumably not familiar with giving evidence in court, it would be fair to describe him as one of the more evasive and unconvincing witnesses I have seen in a long time. He was particularly evasive over what he had allegedly told the doctor at the time of attending hospital. He was asked questions repeatedly which he sought to avoid answering. There were a number of instances where he simply did not answer questions. Even as to whether he was given a card to copy or whether he merely wrote down what was read out to him in the statements by PW2, he contradicted himself. He initially indicated that it was he who had written that he was willing to answer questions and then changed that evidence. He denied that PW1 had taken any statement from him whatsoever. When the details of the statement were provided to him he accepted that indeed PW1 had taken his antecedent statement. Although it had never been suggested at any stage up until the end of cross-examination of the 2nd defendant that he had not been cautioned, towards the end of his evidence he suddenly claimed this to be the case. He then went on to deny as well that he had been arrested at the scene. He subsequently sought to suggest that this was because he did not know what a caution was. I reject his evidence entirely."

15. We have no doubt that, even if the question, about which complaint is made, and the questions which followed it had not been asked, the result would, and properly, have been the same. There has, we are satisfied, been no miscarriage of justice. This is a proper matter in which to apply the proviso.

16. The application is allowed. The hearing of the application is treated as the hearing of the appeal and the appeal is dismissed.