HKSAR v. KO WAI CHEUNG

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY CRIMINAL APPEAL NO. 43/98

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J U D G M E N T

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1. The Appellant appeals against a conviction on a charge of possession of dangerous drugs for which he was sentenced to 9 months' imprisonment. At the trial, the Appellant was represented.

2. On going through the transcript of that trial, it appears that the Magistrate apparently in an effort to speed things up asked most of the question in evidence-in-chief himself, the prosecutor asked very few questions. That could be overlooked; there could be reasons to explain that course, although if the Magistrate is eliciting the evidence in chief, it does mean that his task of observing and listening to the witnesses may not be carried out properly. Further, if he is conducting the prosecution it endangers his role as dispassionate observer.

3. However, of much greater concern in this case are some comments made by the Magistrate in the course of cross-examination of the prosecution witnesses. There is a comment at page 19L of the appeal bundle where it appears that the court is stopping defence counsel from putting a question relevant to the defence case on the grounds the witness has earlier denied the gravamen of the question. At page 20H, again in the cross-examination of the first prosecution witness, the court tells counsel that a certain question does not arise out of the evidence-in-chief and thus cannot be put. Defence counsel rather lamely withdraws the question and rephrases it. The court then says: "Whatever took place during the course of the interview is irrelevant because it's not been led in evidence-in-chief." The defence counsel then said "Sir, I'm cross-examining" and the court stated: "Yes, but your cross-examination has to be confined to matters which are relevant and which arise from the evidence-in-chief. This doesn't arise from the evidence-in-chief."

4. Later in cross-examination of the second prosecution witness 27K, the court in response to a question that the defence counsel started to put says: "No, this is cross-examination, not examination-in-chief. You have to put specific questions to him." Defence counsel, whether through ignorance or surprise at this novel view of the nature of cross-examination is not clear, said nothing further, accepted the Magistrate's ruling and proceeded as best he could with the defence case.

5. I am well aware of the difficulties that Magistrates face in trying to complete large numbers of cases in busy courts. I am aware that Magistrates may hear the same type of incredible, or inept, defences day after day, particularly in relation to cases of dangerous drugs. Nevertheless, a Defendant is entitled to have his defence put to the court either by himself, or through counsel, in a proper manner and the court is obliged to listen to it and consider it, without prejudging it, however hopeless he thinks it might be. A Defendant is not confined in cross-examination to asking questions that arise out of the examination-in-chief. The Magistrate appeared to lack a very basic understanding of the role of the cross-examiner and the nature of cross-examination. Subject to considerations of admissibility and, eventually, relevance, a cross-examiner is entitled to ask whatever questions he or she chooses in cross-examination in an attempt to discredit the prosecution witnesses, or to put forward elements of the defence case.

I cannot regard as safe or satisfactory a conviction where it appears, from the transcript, that this Appellant was prevented from having his defence put to the court in the way his counsel felt it should be. For that reason, I allow this appeal against conviction and quash it. I do not consider it in the interests of justice to order a re-trial.