THE QUEEN v. LAM HING NAM AND OTHERS

Headnote

                Antecedents statements - cross-examination on - whether they may be used during trial.

BETWEEN

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JUDGMENT

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Yang, J.A.:

1. There were originally four applicants, namely, D4, D6, D7 and D10.

2. D4 has abandoned his application to appeal against conviction and sentence. D7 abandons his application in respect of sentence, and D10 similarly abandons his application for leave to appeal against sentence. Mr. Lunn acting for D7 as well as D10 submits that he is unable to advance any grounds for appealing against D10's conviction, whereupon D10 applies for his application to be adjourned to enable him to seek legal assistance elsewhere. Having heard Mr. Lunn and D10, we granted the adjournment sought.

3. We are therefore concerned only with D6's and D7's convictions.

4. D6's application may be disposed of shortly. The evidence against him was that he and D7 were found in the first bedroom of a flat at the time of the police raid. Whilst dangerous drugs were found in the second and third bedrooms, and a number of empty polythene bags with traces of dangerous drugs were found in the kitchen, nothing incriminating was found in the first bedroom. However D6 had in his possession the keys with which he might gain access to the whole flat. The doors to the second and third bedrooms were seldom shut and D6, D7 and D10 had ready access to these rooms as well as the kitchen, the sitting room and the first bedroom. In finding D6 guilty of possession of the dangerous drug found in the flat for the purpose of unlawful trafficking, the judge stated that he was not satisfied on the balance of probabilities that either of D6, D7 or D10 had rebutted the presumption of possession or knowledge under section 47 of the Dangerous Drugs Ordinance.

5. Mrs. Yew acting for D6 submits that the conviction is unsafe and unsatisfactory in that (i) there was no dangerous drug found in the first bedroom, (ii) D6 gave evidence that he did not know there was dangerous drug in any of the rooms, (iii) D6's evidence.on the life style of the occupants was substantially the same as that given by D5, whose evidence was accepted by the trial judge, and D5 was acquitted.

6. We are of the view that evidence of life style of the occupants does not touch upon the central issue as to D6's knowledge. The judge was quite clearly entitled to come to the conclusion that D6 had failed to rebut the presumption under section 47. D6's application is dismissed.

7. We now turn to D7. As D6, D7 too was in possession of keys which gained access to the whole flat. The trial judge found him to be a "blatant liar" and did not believe him. Mr. Lunn submits on D7's behalf that the judge's assessment of D7's credibility could well have been.influenced by the cross-examination of this accused by counsel for the first accused and by Crown Counsel on D7's antecedents statement made to the police following his arrest. Mr. Lunn further submits that cross-examination on an antecedents statement is wrong in law.

8. The judge made no mention of this aspect of the case in his reasons for verdict. We therefore do not know what his views were in this respect. Nor did he explain why he found D7 a blatant liar.

9. The notes of proceedings (at p.246-p.248) show that counsel for the first accused had in his possession a copy of D7's antecedents statement and, he attempted to cross-examine D7 on it. Counsel for D'7 objected, giving as reason for his objection that counsel for the first accused "should not have a copy of my client's statement given to the police". The judge ruled that the manner in which counsel for the first accused had obtained the statement was not a matter for the judge, and he allowed counsel to cross-examine D7 on it. Cross-examination revealed that in the antecedents statement was D7's admission that he had been a drug trafficker before. D7 denied having made that admission, and said in effect that some of the contents of the statement were added after he had signed it (see also p.252-p.253). The police constable who took the antecedents statement was called to give evidence in rebuttal, and he confirmed that the antecedents statement contained all that was said by, D7 (see p.260).

10. On that evidence, a question arises as to the extent to which an antecedents statement may be used during trial.

11. R. v. Cheng Chung-yat ⁽¹⁾ is a case where an antecedents statement was obtained after arrest and caution, and after the suspect had been formally charged. The Full Court held that a statement "so obtained" should not be used for any purpose whatsoever at the trial up to the point of verdict.

12. In R. v. Cheung Ping-kei ⁽²⁾an antecedents statement was recorded from the accused by a police officer shortly after his arrest. This document was neither proved nor produced in evidence and Crown Counsel made it clear that he was not proposing to call the witness who had taken the statement. It would appear that Crown Counsel held this document in his hand when cross-examining the accused upon it. It was sought in cross-examination to show that the accused had admitted, by his statement, that he was an ordinary member of the King Yee Triad Society. In delivering the judgment of the Court of Appeal, McMullin, V.-P. followed Cheng Chung-yat ⁽¹⁾ and said,

"         Although in theory Counsel was fixed with the negative answers to his questions, the effect upon the minds of the jury must inevitably have been to convince them that counsel had in his hands positive proof of the defendant's involvement in triad society activities so that not only was the case against him strengthened to that extent but also in his credit as a witness was likely thereby to have been seriously undermined.

13. It is not clear from the judgment precisely when the antecedents statement was taken, whether it be before or after the accused had been cautioned or charged. But it would appear that the true reason for not permitting cross-examination on the statement was as stated in the passage cited above. And of course the same considerations apply.whether the trial is by a judge sitting alone or with a jury. Whether the cross-examination is conducted by Crown Counsel or by counsel for a co-accused is immaterial.

14. In the present case, there was, by the cross-examination on D7's statement, a possibility that the judge might have been influenced in his assessment of D7's credibility or led to believe in D7's guilt.

15. Mr. Jackson, Crown Counsel, with his customary fairness, concedes that as the judge did not deal with this important issue in his judgment this Court may well entertain a lurking doubt and find the conviction unsafe and unsatisfactory. We agree with this submission.

16. We have been asked to consider the question of a re-trial. D7 was convicted and sentenced on 7th September 1984. The sentence is two years. He has therefore served nine months. For reasons which is not necessary to go into, there has been a long delay before this application is heard. In the light of the sentence and the delay, we do not think it a proper case for a re-trial.

17. In the circumstances we treat D7's application as an appeal, allow the appeal, set aside the conviction and quash the sentence.

(1)    (1970) H.K.L.R. 269

(2)    Criminal Appeal No. 125 of 1982 (unreported)