HKSAR v. CHEUK KA TAM

CACC 189/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 189 OF 2000

(ON APPEAL FROM HCCC 280 OF 1999)

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

Background

1. On 5 May 2000, the Applicant was convicted, following a trial in the Court of First Instance before Madam Recorder J. Leong, SC, of trafficking in a mixture containing just over 412 grammes of heroin hydrochloride for which he was sentenced to sixteen years' imprisonment. He now seeks leave to appeal against conviction.

Prosecution's case

2. Having regard to the grounds of appeal, no more than a brief summary is required of the prosecution's case. All relevant events occurred on 19 June 1999 after the Applicant had been seen at about 6.00 a.m. in Anderson Road, Sau Mau Ping. He alighted from a car at the entrance to an area of vacant ground carrying a blue rucksack and he entered the site on foot. The Applicant was still carrying the rucksack when he returned to the car. He then drove back the way he had come.

3. As the result of a surveillance officer's signal, a hastily formed road block comprised of two police vehicles was set up to halt the Applicant's vehicle. As he drove towards them, officers jumped out of their vehicles to tell the Applicant to stop. Their shouts were ignored. The Applicant simply mounted the kerb and drove along the pavement to get around the police vehicles. A third police vehicle then gave chase until, eventually, the Applicant drove into an access road leading to a car park. As he attempted to reverse away, the front of his car was rammed by the police van.

4. Shortly afterwards, the Applicant was arrested and the car he had been driving was searched. Two blocks of heroin were found inside the blue rucksack which was then lying on the front passenger seat. Also found inside the car were three sets of scales and a knife bearing traces of heroin.

5. When the Applicant was spoken to at the scene, he denied responsibility for the drugs, claiming that they had been planted in his vehicle and that he had been framed. He said that he had been looking for his son's goods vehicle. This was normally parked at the side of Anderson Road because, according to him, there was no parking space available in the public housing estate. He had panicked and taken flight when he saw about four or five Chinese males jumping out of the two vehicles in the centre of the road.

Defence case

6. The Applicant and his son both gave evidence. The Applicant repeated the account he had given at the scene, alleging specifically that PW2 (the arresting officer), PW4 (the exhibits officer) and Inspector Wong (the most senior officer at the scene) were all involved in a conspiracy to frame him.

7. The Applicant's account to the jury provided rather more detail than his replies to PW2 at the scene. In particular, he denied going down Anderson Road as far as the vacant site, and he denied also getting out of his car. As regards the vehicle chase after he had managed to drive around the road block, he said that he had been unaware that PW2 was following in his van. He had merely driven straight on to look for police assistance. He said that he had driven into the car park access road to let other vehicles pass and to enable him to make a U-turn in order to find police to assist him.

Grounds of appeal

8. Mr James McGowan, who was originally appearing on behalf of the Applicant in these proceedings, raised five grounds of appeal when submitting that the Applicant's conviction was unsafe or unsatisfactory.

9. He submitted firstly that the Recorder had allowed the Applicant to be cross-examined at "undue length" about his previous convictions. Mr McGowan accepted that the Applicant's 'shield' under section 54(1)(f) of the Criminal Procedure Ordinance, Cap. 221, protecting a defendant, in normal circumstances, from being asked questions about his previous bad character, had been thrown away and that the prosecution were entitled to cross-examine the Applicant about his previous convictions. However, he contended that, given that the only relevance of such questions was in relation to the Applicant's credibility, the cross-examination was too lengthy.

10. In fact, it was the defence, no doubt for tactical reasons, who had first brought out the Applicant's convictions when he was called to give evidence in chief. His convictions included desertion from the Police Force.

11. The cross-examination on the topic of the Applicant's character began with prosecuting counsel asking the Applicant about his service in the Hong Kong Police Force between 1964 and 1969. However, when the questioning moved to the details of the Applicant's prior conviction for accepting an advantage, there followed, at defence counsel's request, a legal discussion in the jury's absence between the judge and counsel as to how far the prosecutor should be permitted to go on this topic. Ultimately, the Recorder very sensibly ruled that there could be cross-examination about the Applicant's convictions but that she would keep the questions on a "fairly tight rein".

12. The Applicant had three convictions comprised of seven offences all recorded thirteen or more years beforehand. The Applicant had chosen to minimise his convictions and the prosecutor, not unnaturally, wished to challenge the picture the Applicant had presented on this topic. This was a permissible course to have adopted and from our reading of the transcript we have concluded that it was done with proper restraint. If the cross-examination was extended to some extent this was because of the Applicant's inability from time to time to give straightforward answers to questions that were properly asked.

13. Much of prosecuting counsel's questioning was concerned with whether or not the Applicant had pleaded guilty in his previous trials. This was directed at the Applicant's credibility and, as such, it was in accordance with what was said in R v McLeod [1995] 1 Cr App R 591, where seven 'propositions' are set out at pages 604-605. These have to be borne in mind when a defendant has put his character in issue. It seems to us, so far as these propositions were relevant to the present case, there was proper adherence to them.

14. One additional factor about this ground which Mr McGowan made adverse comment upon arose from a passage to be found in the cross-examination of the Applicant where there was the following interchange with prosecuting counsel:

"Q. You're not a drug addict, are you?

A. No.

Q. And you've never been a drug addict?

A. No, never, I'm not even a smoker." (Tr. p. 81)

15. Mr McGowan complained that although the Applicant had lost his 'shield', this did not allow the prosecutor to ask questions for which there was no evidential basis.

16. There are two things which can be said about this complaint. Firstly, this was a trafficking case and counsel was permitted, character having been put in issue, to demonstrate by such questions, that the only reason the Applicant could have for being in possession of this quantity of heroin was that he was a trafficker as opposed to being a consumer. Secondly, the summing up contained ample warning to the jury that the Applicant's convictions were relevant only to credibility and not to any propensity to commit crime.

17. This ground fails.

18. The second ground of appeal sits a little strangely alongside the first as it complained that the Recorder "erred in telling the jury that the Applicant was 'claiming to be of good character' ". This apparently curious phraseology on the Recorder's part, in the light of the evidence about the Applicant's admitted bad character, stemmed from a passage in the summing up where she was dealing with the legal approach to evidence about bad character.

19. Mr McGowan described this as a "misrepresentation" of the Applicant's case amounting to a material misdirection. With respect, we disagree entirely. As so often occurs when a small section of a summing up is taken in isolation and put under the glare of the spotlight, divorced from its wider context, the sense of the remark is completely lost. The Recorder had only a few minutes earlier explained to the jury how and why the Applicant had put his convictions before the jury. Then, after the passage which was criticised, she went on to direct the jury as to their approach to such evidence. Her directions were as follows:

"You have heard that the defendant has previous convictions for accepting an advantage and for desertion, when he was a police officer in the 1960s. For common assault in 1986 and for disorderly conduct, resisting an officer, assaulting a police officer and common assault in 1987, which he says involved an altercation with the police and some traffic wardens. He has told you something of the circumstances in which these offences were committed.

Now, normally, a jury does not hear about a defendant's previous convictions because it gives rise to a risk that a jury may think quite unfairly, I might tell you, that merely because the defendant has committed an offence in the past, that he is likely to have committed this offence. And such a train of thought, members of the jury, I tell you, is dangerous and it can easily lead to injustice.

Here, the defendant has himself come forward and volunteered the information about his background and the relevance of his previous character and his convictions is relevant in this way and in this way only. The defendant has attacked the character of the police witnesses by suggesting that they joined together to create a completely false case against him. The three officers - the arresting officer, the exhibits officer and the inspector conspired to plant drugs on him and the other officers at the roadblock presumably have lied deliberately by saying that something occurred which did not happen at all.

So he says that they have joined together to create a completely false case against him by planting drugs on him and telling lies about him. He is claiming to be of good character and says that he is an innocent victim of what must, by all accounts, be a vicious conspiracy against him by the police. Now, the law provides that when that happens, evidence may be introduced about the convictions of the defendant who has made such an attack and no doubt, that is why the defendant has thought it right and proper to himself tell you about his own background.

But what is the relevance of the convictions to this case? The only reason why you have heard about his previous convictions is that knowledge of the character of the defendant who has made this attack on the police, may assist you, may assist you to judge the truthfulness of his evidence when you come to consider the matter. You must not assume that the defendant is guilty or that he is not telling the truth simply because he has previous convictions.

His convictions are not relevant at all to the likelihood of his having committed this offence. They are relevant only as to whether you can believe him. You do not have to allow those convictions to affect your judgment. It is for you to decide the extent to which, if any, his previous convictions help you about that. The mere fact that the defendant has been convicted of offences of dishonesty and of displaying perhaps some aggression to others does not mean that he is not telling you the truth about what happened on the occasion that you are concerned with.

He is not on trial before you for corruption or for any aggressive behaviour towards others, and the fact that he has these convictions does not help you in the slightest to decide whether or not he is guilty of possession of dangerous drugs for the purpose of unlawful trafficking. Indeed, he is now a man in his 50s, he has not been in trouble with the law for some 13 years.

The first of those offences goes back to the 1960s, some 30-odd years ago." (Tr. pp. 24-25) (Emphasis added)

20. We have emphasised the passage criticised for ease of reference. Perhaps the Recorder might have been better advised to have confined this remark about the Applicant's defence as simply being one which proclaimed innocence. However, it is apparent that she could not be understood to have said that the Applicant was claiming to be of 'good character' in the legal sense of that expression, denoting no previous convictions, when she had just set out what the Applicant's convictions were.

21. There is no substance to this ground.

22. Ground 3 also alighted on an expression used in the same portion of the summing up we have set out in full (above), where the Recorder made a reference to what she termed the Applicant's "offences of dishonesty". She was presumably referring to the Applicant's acceptance of an advantage which is not strictly an offence of dishonesty although it is akin to one. In any event, this passage was immediately followed by a sentence which began: "He is not on trial before you for corruption ....," and there can have been no harm done by the loose phraseology, which incorporated the use of the word 'dishonesty'.

23. We are surprised that this was advanced as a ground of appeal. It was not a matter of any materiality.

24. The fourth ground of appeal alleged that as the prosecutor had: "specifically claimed that the defence should have led particular evidence (p. 256G), the Recorder failed to remind the jury that the burden lay on the prosecution throughout".

25. The reference in this ground to the transcript at page 256G revealed a remark made by prosecuting counsel in his final speech about the absence of fingerprints where he observed that there had been "no scientific evidence one way or the other". He went on to say, in the passage which gave rise to the complaint in this ground, that: "If the defence had wanted it, they could have called it."

26. As Miss Mary Sin, who appeared on behalf of the Respondent, pointed out in her written reply, the comment amounted to no more, in effect, than a legitimate submission as to the irrelevance of non-existent fingerprint evidence. The judge gave detailed and careful directions to the jury who could not have been left in any doubt about the burden and standard of proof as it applied to this case.

27. This ground was without foundation.

28. In the fifth and final ground, Mr McGowan submitted that as prosecuting counsel had referred in his final speech to evidence given by the Applicant which he alleged was untrue, this necessitated a specific direction on 'lies' from the Recorder.

29. As we have already indicated, the Applicant's defence was that the entire case against him was built on fabricated evidence. The prosecution invited the jury to treat the evidence called by the defence, where it contradicted the testimony of their witnesses, as untrue. This did not require a direction to the jury on the issue of lies. As this court said in HKSAR v Mo Shiu-shing [1999] 1 HKC 43 at page 57B:

"(1) In a large number of cases, where an allegation has simply been made against the defendant that he has been lying, this subject can be dealt with by the judge directing the jury in terms that this is an issue which relates solely to credibility, that is, that it is for the jury to decide whose evidence they believe. In such circumstances, no more needs to be said."

30. In that case (at page 53), reference was made to R v Burge & Pegg [1966] Cr App R 163 and to the specific circumstances where a 'lies' direction is required. The third circumstance was described as follows:

"3. Where the prosecution seek to show that something said, either in or out of the court, in relation to a separate and distinct issue was a lie, and to rely on that lie as evidence of guilt in relation to the charge which is sought to be proved."

It is significant that in referring to counsel's comments about lies in the present trial, Mr McGowan suggested that prosecuting counsel relied on those lies as "impinging on credibility". We agree, and since, as is so frequently the case, the suggested lies impinged on credibility and were not relied on as evidence of guilt, no lies direction was required.

31. Mo Shiu-shing's case followed the earlier Court of Appeal decision in R v Ng Chi-wai & Anor, CACC 346/1996 (unreported) to which reference is made in Mo Shiu-shing at page 54E. (See also: R v Barnett [2002] Cr App R 168.)

32. Mr McGowan, perhaps somewhat unhelpfully, relied solely on the much earlier decision given in R v Li Wai-keung [1994] 1 HKC 243 at 248 where it was said that "if the lies are relevant only to credibility, the jury should be given the usual simple warning that an accused may lie for many reasons other than guilt". As we have tried to make plain in more recent times, where a defendant has given evidence which is at odds with testimony given by prosecution witnesses, this will generally not require the judge to give any direction on 'lies'. It is, as we said in Mo Shiu-shing, an issue relating solely to credibility, requiring no more to be said. In the present case, the Recorder made this abundantly clear to the jury in a most fair and comprehensive summing up. Amongst other things, the Recorder said:

"It is, as I say, a matter for you how you want to view it. The viewing of the two different versions put forward by any witnesses, but indeed, in this case, the police witnesses on the one hand and the defence witnesses on the other. You must appreciate that the matter of credibility will be, of course, of vital importance and in deciding this issue, you must understand that it is not correct to approach the question of guilt or innocence of the defendant on the basis of deciding which of the two versions you should believe.

You must always bear in mind, members of the jury, the possibility that neither version may be true and the law requires that in a criminal case, you must be satisfied not only that the prosecution's version is true, but that the prosecution has also satisfied you beyond all reasonable doubt, that all the essential elements of the offences charged had been proved and made out. It is a fundamental part of your function to resolve any conflict in the material evidence, keeping in mind that in a criminal case, the conflict is not between the stories told by the witnesses for the prosecution and the witnesses for the defence, but between the truth and the possible falsehood of the story told by the witnesses for the prosecution.

There are usually two matters, members of the jury, which might enable you to resolve that conflict. One is the inherent likelihood or improbability of the story told by the witnesses for the prosecution and the other is your assessment of the credibility of those witnesses from their demeanour. You had an opportunity obviously, to see the prosecution witnesses and indeed, to see the defendant and his witness give evidence.

If, after considering all the evidence which you feel relevant to the issue, you are left in any reasonable doubt (about) the evidence of the police witnesses, then you may well feel that such a doubt should extend to the rest of the evidence of those police officers as well. And in those circumstances, your duty would be to acquit......... Even if you do not accept the defendant's evidence, you still have to be satisfied beyond a reasonable doubt on the prosecution's evidence that the defendant committed the offence charged." (Tr. pp. 28-30)

33. By way of contrast to the general issue of credibility, the Recorder noted the specific reliance placed on what the prosecution alleged was the deliberate evasion by the Applicant of the road block in his effort to get away, and on this issue she gave the jury a full direction, following Mo Shiu-shing, as to their approach to potential evidence of 'flight'.

34. This ground was without merit.

35. After the conclusion of his submissions, Mr McGowan very properly informed the court that the Applicant wished to advance additional grounds of appeal. Mr McGowan considered that these were not arguable and, following an adjournment, he again, very properly, announced that he would unfortunately have to cease representing the Applicant.

36. After this, the Applicant made an application for an adjournment on the ground that he needed time to instruct another lawyer in order to put forward his further grounds. After the Applicant had informed the court about the nature of his further grounds of appeal, his application was refused.

37. The Applicant then addressed the court covering issues which had been dealt with at trial. These were factual matters which were for the jury to resolve. It is unnecessary to deal with any of them. They did not advance the application.

Conclusion

38. There are no grounds for saying that the conviction was unsafe or unsatisfactory. The evidence in this matter was overwhelming.

39. The application is dismissed.