R. v. CHAN KA SHING

IN THE COURT OF APPEAL

1993 No. 269
(Criminal)

HEADNOTE

Failure to put defence case to Crown witness because of a misunderstanding by defence counsel of his instruction. Conviction quashed. New trial ordered.

IN THE COURT OF APPEAL

1993 No. 269
(Criminal)

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J U D G M E N T

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Power, V.-P.:

1. This is the judgment of the Court.

2. The applicant in this matter was charged that on 4th November 1992 near the Standard Chartered Bank on the ground floor of Kam Pik House in Choi Hung Estate, he unlawfully trafficked in a dangerous drug, namely 217.37 grammes of a mixture containing 122.72 grammes of salts of esters of morphine. He was convicted after trial before Bewley, J. and a jury and was sentenced to imprisonment for ten years. He now appeals against that conviction.

3. It was the prosecution evidence that the applicant was stopped and searched at the place named in the charge and that the drugs were found in a waistband. The applicant, when asked what the things were, made no reply.

4. The applicant, when giving evidence, said that he had gone to Choi Hung Estate to look for a friend and that he had no drugs on him on that day.

5. His evidence was dealt with by the judge when summing up in the following way:

"He said that near the flower-bed in photograph 5 he was approaching the staircase to Kam Pik House when a man in white bumped against him and both fell to the ground. This is the spot that he has marked with an 'X' with a red pen. He remonstrated with the man, but the man ignored him and stood up quickly, threw something into the flower-bed and walked away quickly. The defendant then got up and he had walked only a few feet when the two officers came up from behind him, grabbed his arms and said 'Police !' The man who had bumped into him had already walked way."

The judge then commented that:

"Now the defendant told you that he believes that there was a misunderstanding and that the police officers mistook him for the other man because both were wearing white."

The judge quite properly told the jury that the essential question for their decision was whether they were sure that the police officers were witnesses of truth.

6. The first of the matters put before us in this application is a suggestion by the applicant, who was unrepresented here having been refused legal aid, that the jury were not properly directed as to the onus of proof. This was clearly not so. Full and adequate directions in that regard were given.

7. The second matter raised does, however, give us concern. It is stated in the Grounds of Appeal in the following way:

"Furthermore, having listened to my narration of the course of events of this case, the barrister representing me did not realize that he had misunderstood what I said until I appeared in court and gave evidence. Such being the case, the defence arguments in the whole case were erroneous. Although the barrister apologized to the court for this, the mistake made could not be corrected. I feel that convicting me in such a way was unfair."

It is quite true that the defence as outlined in the evidence of the applicant was never put to the two police officers. Indeed, it appears from the record that they were never cross-examined even as to the existence of the man in white. That this is so seems clear from a passage in the transcript of the cross-examinaton of the applicant when Crown Counsel suggested to him that his original case had been that one of the police officers had dropped the drugs into the flower bed and that he had then altered his version to the evidence which he was then giving about the man in white. It was at this stage that Mr. Cosgrove, who appeared for him, said:

"My Lord, I am sorry to interrupt at this stage. There is something I wish to mention to you, and I think perhaps if we could do it without the jury being present."

8. The jury having left the court room, Mr. Cosgrove said:

"My Lord, I am very sorry about this, but I think I have done the court and my client a certain disservice here because I've just re-read the written instructions to me, and I have inferred from those instructions that the person who threw the bag -- threw the packet into the flower-bed was in fact one of the two police officers, and in fact on a reading of my instructions, it doesn't in fact say that.

Court:

It does not say it was one of the arresting officers?

Mr. Cosgrove:

And I have inadvertently drawn that inference.

Court:

Does it say it was a police officer?

Mr. Cosgrove:

No, it doesn't. It says it was a man who bumped into him at the back. I have assumed because it was the -- I have assumed it was the same person who came up behind him."

9. In consequence of that exchange the judge, when the jury returned, told them that:

"... counsel has told me that in fact he has misread the instructions, the written instructions that the defendant gave to him. The defendant had not instructed him that it was one of the arresting officers, or indeed even a police officer, who was alleged to have thrown the drugs into the flower-bed. The instructions were that it was the man who bumped into him. So please disregard Crown counsel's cross-examination on that point."

This direction in our view could only go part of the way towards correcting the position that had arisen. The jury were properly told to ignore the falsely based cross-examination but nothing was done to remedy the failure by defence counsel properly to present and to cross-examine upon the defendant's case.

10. That the jury were concerned in this regard is apparent from two of the questions which they asked of the judge after two hours of deliberation. The first question was: "Why didn't Crown Counsel ask the police officers about whether they saw the man in the white jacket who knocked the defendant down?" The trial judge quite correctly told the jury that "Crown Counsel knew nothing about that evidence at that stage, because we only heard about that when the defendant went into the witness box and told his evidence, so she could not have asked any questions about that." The second question was as follows:

"Did the defendant's counsel know from the defendant that there was that man in the white jacket before the defendant presented in court on the 26th of May?"

The trial judge, in answer to that question, said to the jury:

"Well, this was an integral part of the defence case. So clearly Defence Counsel knew about that. But he did not consider it was useful or helpful to the defence to put that to the police officers."

In the circumstances it is very difficult to know what the jury would have made of that direction. However that may be, neither of the judge's answers did anything to remedy the failure by defence counsel to cross-examine the prosecution witnesses upon the defence. His failure to do so, having misunderstood his instructions, was, in our view, a matter of considerable gravity. As the defence was never properly put the trial was gravely defective.

11. The application for leave must be allowed. The hearing of the application will be treated as the hearing of the appeal and the appeal will be allowed.

12. The trial was defective to an extent which, we consider, precludes us from applying the proviso but in light of the strength of the Crown's evidence we accede to the application of Crown Counsel Mr. Newall and order that there be a new trial upon a fresh indictment