HKSAR v. CHAN HING CHI

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.375
(Criminal)

HEADNOTE

Criminal law - cross-examination as to previous convictions after defence have introduced general evidence of bad character - questions to be kept within permissible limits - jury not to be misled as to purpose - questions concern credibility not propensity.

Questions asked about previous acquittal - inaction by trial judge - courses to adopt after inadmissible material has been heard by jury.

Summing up - absence of directions regarding bad character - examples of directions to be given.

Counsel's duties - procedure where trial judge fails to give direction to jury on law - procedure where corrections needed for trial judge's material factual errors.

Compelling prosecution case - scrupulous fairness and impartiality required - inappropriate interruptions.

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.375
(Criminal)

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J U D G M E N T

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Stuart-Moore, J.A. (giving the judgment of the Court):

1. This Applicant was unanimously convicted on 11th June 1997, following a six-day trial before Deputy Judge Wesley Wong in the High Court, of trafficking in a dangerous drug, namely a mixture containing 118.28 grammes of heroin hydrochloride, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134. He now seeks leave to appeal against his conviction on the four grounds advanced on his behalf by Mr. Petrus Chan. It is conceded in advance that the application is well-founded. Mr. Cross has very properly indicated that he cannot seek to support the conviction.

2. The prosecution's allegation against the Applicant was straightforward. The Applicant had brought suspicion on himself by his general manner at 1:55 a.m. on 11th September 1996, as police were keeping surveillance in the region of Nam Cheong Street at the junction with Fuk Wah Street. He was stopped and searched. In his possession were six resealable bags containing the dangerous drugs referred to in the charge as well as $5,600 in cash. The Applicant admitted that he was in possession of "white powder" but said it was for his own consumption because, as he put it, he was "suffering from illness".

3. The defence case was that the Applicant had been framed for the offence. He earned a living as a hawker selling garments. He was also a heroin addict, now in his mid-50's and suffering from several illnesses. His explanation for being in the street at that hour of the morning was that he had an arrangement with his friend Fei Chai Sum to have a night snack with him. He left home carrying $5,600 in his pocket and a mobile telephone and a soup bowl in his hands. The bowl was so that that he could later buy some food to take home with him. The Applicant said that he met Sum who was with a young man. Sum introduced the youth as his "follower", which indicated that the youth's job was to deliver white powder for addicts. Sum asked the Applicant if he had any of the stuff with him because he wanted it desperately. The Applicant said that he would try to get some and took the follower away with him. Thereafter he did not obtain drugs for Sum and, as he was returning to find him, he realized that he was being framed by Sum. As he approached him, Sum ran off and police officers then arrested him. The drugs were never on him according to the Applicant. The first he saw of the white powder was at the police station.

4. It is against that general background that we can turn to look at the first ground that is left, now that the ground which was originally first has been withdrawn.

5. Complaint is made that the trial judge wrongly allowed the Applicant to be cross-examined at all and, in any event, permitted a cross-examination that was most damaging and misleading about his previous convictions. It is further said that part of the cross-examination even led to the disclosure of a previous conviction for a similar kind of offence to that which the jury were trying, where the outcome of the appeal had been the quashing of that conviction. Most importantly on this ground, it is submitted that the trial judge made the matter far worse by failing to give any adequate directions in his summing-up to the jury explaining the reasons why character evidence had been introduced, and the approach that the jury would need to adopt towards it. It is that aspect which Mr. Cross has conceded makes this application unanswerable.

6. Evidence of the Applicant's previous convictions was first introduced by counsel, Mr. John Wright, appearing for the Applicant at the trial, when he cross-examined a police officer and obtained confirmation that the Applicant had a very extensive criminal record. This was a perfectly natural and sensible tactic to adopt in a case where the defence had clearly thrown away their shield from cross-examination as to character, and where they would wish to show that they were not keeping anything from the jury.

7. When the Applicant was called to give evidence on his own behalf, he rightly described himself to the jury as someone who, as he put it, had "lots of criminal records because I was a drug addict". He went on to explain that he had been an addict since the 1960's. For present purposes it is necessary to consider the relevant parts of section 54(1)(f)(ii) of the Criminal Procedure Ordinance, Cap.221, which read as follows:

"(1) Every person charged with an offence, ................., shall be a competent witness for the defence .............

Provided as follows:

................

(f) a person charged and called as a witness in pursuance of this section shall not be asked, and if asked shall not be required to answer any question tending to show that he has committed, or being convicted of, or being charged with any offence other than that wherewith he is then charged, or is of bad character, unless:

.................

(ii) he has personally or by his advocate asked questions of the witnesses for the prosecution with a view to establishing his own good character, or has given evidence of his good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution."

8. In this case defence counsel would doubtless have appreciated, aside from the nature of the defence itself, that the answer given by the Applicant to the effect that he had a long record because he was an addict, was bound to be explored. Left in that way, the impression which might have been created was that all he had ever done was to possess drugs for his own consumption when there was a range of other offences, including crimes involving dishonesty, on his record.

9. Despite these factors which overwhelmingly suggest that the trial judge would have granted leave to cross-examine on character, we feel it would have been a wiser course, before the prosecutor launched into her cross-examination, first to seek the court's approval. That is what is usually done and should be done where, as in this instance, specific convictions had not been referred to at all, and where the prosecutor intended to make reference to them. This Applicant had convictions amongst others for trafficking and it was, at least in theory, possible that the trial judge might, in his discretion, rule that the introduction of that kind of evidence was more prejudicial than probative. There was, we observe, no objection in principle from defence counsel to this line of cross-examination and we are left wholly unimpressed with the argument now advanced that the trial judge should have prevented any cross-examination as to character. What he ought perhaps to have done is, in the absence of the jury, to have made certain that the cross-examination was both proper in itself and kept within proper limits.

10. However, Mr. Chan's criticisms of what occurred during cross-examination and, in particular, the manner of cross-examination, are more serious. In his submissions he argues that cross-examination was, after it had started, allowed to go beyond permissible limits, and that the jury should not have been misled about the purpose which lay behind cross-examination in these circumstances.

11. The topic was extensively reviewed in the case of R. v. McCloud, (1995) 1 Cr.App.R. 591. In a passage at p.596, Viscount Sankey L.C.'s quotation from Maxwell v. Director of Public Prosecutions, (1934) 24 Cr.App.R. 173, is quoted. It reads as follows:

"........ in general, no question as to whether a prisoner has been convicted or charged or acquitted should be asked or, if asked, allowed by the judge, who has a discretion under proviso (f), unless it helps to elucidate the particular issue which the jury is investigating, or goes to credibility, that is, tends to show that he is not to be believed on his oath; indeed, the question whether a man has been convicted, charged or acquitted, even if it goes to credibility, ought not to be admitted, if there is any risk of the jury being misled into thinking that it goes not to credibility but to the probability of his having committed the offence with which he is charged."

12. The submission that Mr. Chan makes in this regard is that the jury were, or may well have been, misled into thinking that the relevance of the previous convictions related to propensity and not to credibility. Firstly, as he sets out in his written submissions, Mr. Chan says that the whole effect of the cross-examination by the prosecutor, Miss Crebbin, was to leave the jury with an erroneous image of the Applicant's character. Secondly, the prosecutor should not have cross-examined about a previous acquittal. Thirdly, the trial judge did nothing, either at the time of the cross-examination or later in the summing-up, to correct the situation by giving the generally recognized standard direction where bad character has been introduced. Indeed, Mr. Chan submits that the deputy judge even made the matter worse by making basic errors of detail on factual matters which further distorted the picture that the jury were given about the Applicant's bad character.

13. Dealing now with those criticisms, in a passage which is too long to quote from the transcript, Miss Crebbin's cross-examination as to character began by suggesting correctly that there had been 30 previous court appearances made by the Applicant. She then inaccurately suggested that there had been getting on for about 100 different offences. The Applicant said that there were not so many. Miss Crebbin then did her sums and put the matter right by saying that there were nearer 60. Thereafter the cross-examination was somewhat muddled, with vague and general references being made to other offences including drug trafficking, with the positive suggestion behind them that this Applicant was an "habitual offender".

14. Towards the end of the questions that she was asking about character, she made a further inquiry about the background of the Applicant that had the unfortunate result of the jury learning about a previous acquittal. It happened in this way at p.46 of the appeal bundle:

".........it's correct, is it not, that having been sentenced to four months' prison in March of '88, once you came out from there, you haven't been in prison or in -- sorry, back before the courts since then before this occasion, is that right?"

No doubt that question was perfectly fairly, though clumsily, phrased because it was intended, perhaps, to let the jury know that the Applicant had been in no trouble since then. But the Applicant very honestly answered the question "Not so." The transcript goes on to record this:

"Miss Crebbin: Well, my Lord, perhaps I can confer with my learned friend. That's certainly the information that we have.

Q. Mr. Chan, I'll have to ask you then, because according to the records that we have, after March 1988 when you were sentenced to four months for possession of dangerous, what do you say -- further offences you've had since then?

A. White powder.

Q. Another dangerous drugs offence?

A. Yes.

Q. When was that

A. I got acquitted during an appeal.

Q. So you haven't been charged with any other offences since 1988, is that the position - before the courts?

Mr. Wright: No.

Q. Sorry, you haven't been convicted -- sorry, my mistake.

..............

Q. ... you haven't been convicted of any other offence since 1988, before you were charged with this offence?

A. Not so. I have been convicted, but then I got acquitted during the appeal."

Miss Crebbin then very properly took responsibility for the error having occurred which had led to the introduction in front of the jury of this inadmissible material.

15. We feel that the judge should have immediately asked the jury to leave court to establish what the witness was saying or, if too late to do so, he should there and then have dealt with the matter by instructing the jury that there was no weight to be attached to this evidence and to put it out of their minds. At the very least, what he should have done was to have enquired from counsel at some suitable stage in the jury's absence how they felt that he should leave the matter with the jury. None of these courses was adopted.

16. So far as the summing-up is concerned, we are not surprised that there is no reference to this unfortunate incident because it may well be that a reference at that stage of the trial, some considerable time after those answers were given by the Applicant, would merely have served to remind the jury of something that was best left forgotten.

17. However, the most important and overriding matter raised by Mr. Chan is that the summing-up contained no direction as to how the evidence of previous convictions, which the jury had been properly told about, should be approached by them in the course of their deliberations.

18. A standard direction approved by the courts and incorporated in the Judicial Studies Board Specimen Directions for all cases where a reference has been made to the defendant's bad character would have been (suitably adapted) along the following lines:

"Normally, a jury does not hear about the previous convictions of a defendant but if he (attacks the character of a prosecution witness) or (claims to be of good character) or (has given evidence against the co-defendant), then he can be cross-examined about his own character. That is why you have heard about his previous convictions. But you must not assume that a defendant is guilty, or that he is not telling the truth, because he has previous convictions. Those convictions are not relevant at all to the likelihood of his having committed the offence. They are relevant only as to whether you can believe him. It is for you to decide the extent to which, if at all, his previous convictions helped you about that."

19. To that general direction should be added, as appropriate, and as in the present case to some extent it was:

"The defendant tells you that he (pleaded guilty on his previous court appearance) or (has always pleaded guilty on his previous court appearances.) If that be so, and it has not been challenged, it must follow that his previous conviction(s), does not indicate that he has lied on oath. You may therefore think that it does not assist the prosecution on the issue of the defendant's credibility, but that it does show that when in the past he has been charged with an offence of which he was guilty, he has pleaded guilty. You may take that into account in deciding whether he may be telling the truth in this trial."

20. The deputy judge, in a case where it was vitally important to say something, said nothing at all to the jury. We note with dismay that the prosecutor also said nothing to remind the deputy judge of what clearly needed to be said.

21. That failure to give such a direction was, as the Respondent to this appeal concedes, a material irregularity. Where an error or an omission of law is believed to have been made in the course of a summing-up, it is prosecuting counsel's clear duty to point out the possible mistake to the judge in the absence of the jury whether or not the judge has invited correction, so that the judge can consider making an amendment to what has been said to the jury. Defence counsel also has every right to draw attention to the possible error that may have occurred. In this case, if prosecuting counsel had done her duty, it may well be that the appeal would not have been so overwhelmingly unanswerable. For this purpose, it is generally advisable that the prosecutor should write out in advance of the summing up a check-list of all of the matters of law upon which legal directions need to be given to the jury so that nothing is left out.

22. In the present case, the way the matter then proceeded became considerably worse because it does not end there. The deputy judge carried on by giving (at p.19 of the appeal bundle) the effect of the general evidence concerning the Applicant's bad character in the following way:

"In cross-examination, he admitted he had, between 1981 and 1988, no less than 10 offences of drug trafficking."

23. As the full transcript of the evidence on this point reveals, the Applicant had no such record. The trial judge had himself been provided with a copy of the antecedents, as indeed we have. It is perfectly apparent that on his record, as Mr. Chan's Grounds of Appeal point out, this Applicant had three drug trafficking convictions in the past which were between 1981 and 1984. In 1981, he was sentenced to 30 months' imprisonment for trafficking. In 1984, again for trafficking, he received a two-year sentence and, coupled with that, a sentence of nine months' imprisonment concurrent for the possession of equipment fit and intended for injection of dangerous drugs. There was then a separate conviction, although it was imposed apparently on the same day, 19th April 1984, for the possession of drugs for the purpose of unlawful trafficking. This was also coupled with the possession of equipment fit and intended for injection of dangerous drugs, but the sentences revealed that this was quite a different case. Three years' imprisonment was imposed for the first offence and six months concurrent on the second, but those sentences were made consecutive to the two-year sentence. Finally in the 1980s, the Applicant had one other conviction. It was for simple possession of dangerous drugs in 1988, for which he was sentenced to four months' imprisonment.

24. The trial judge had been seriously wrong to say that there were ten trafficking offences on the Applicant's record. Here the Applicant faced a charge of trafficking in heroin and the whole impact of that summary of the offences in the 1980s can only have left the jury with the impression that they were dealing with a persistent dealer in drugs.

25. Again, there was a deafening silence from both sides of the Bar table with no attempt by either side to correct a serious and very obvious factual error. This was a misstatement of the evidence on a topic that was crucially important in the interests of fairness to the defendant, where the jury had seen him exposed as a criminal of long standing. It was most important that he should not be seen in any worse light than he already was. The timing of this error was very shortly before the jury were due to retire to consider their verdict. The summing-up took exactly 55 minutes, and this mistake occurred on the 19th page of a 25 page summing-up.

26. In this case, a fair and balanced summary on this aspect of the evidence should perhaps have been along the lines that, whilst it was true that there had been three relatively minor drug trafficking offences on the Applicant's record between 1981 and 1984, he had committed no other offences of that kind, either before 1981 or since 1984, so that at least for 13 years there had been no repetition of a like offence.

27. The only other references made by the deputy judge, in the course of his summing-up as to character, were to remind the jury that the arresting officer had confirmed that the Applicant had an "extensive criminal record", and as to how the Applicant described himself as having "lots of criminal records".

28. In summary, therefore, what was said to the jury, and even more importantly not said, about the Applicant's character in the summing-up was, regrettably, neither fair to nor accurate about him. Obviously the trial judge should not have presented it in this way, but it was a failure on the part of counsel on both sides also, whose duty it was to correct those material errors, which has contributed to the material irregularity that has occurred. The factual errors can only aggravate the omission by the trial judge in his failure to direct the jury as to their approach to evidence of bad character.

29. Before concluding this judgment, there are other grounds of appeal which are referred to in the written submissions of Mr. Chan for which we were grateful. What has concerned us in particular amongst those other grounds is the criticism that the trial judge unnecessarily interrupted the Applicant while he was giving evidence in ways that would have further damaged his credibility in the eyes of the jury. One example we have had brought to our attention on the transcript reveals that, soon after the Applicant had taken the oath as a witness, and had given his background details which included describing himself as a hawker earning $30,000 a month, the trial judge then interrupted, it is said with some sarcasm (at page 33 of the appeal bundle):

"Court: How much tax do you pay?"

The answer given by the Applicant was:

"I didn't pay any tax because being a hawker, I did not do my tax return.

Court: You are not a hawker, aren't you?"

And then the deputy judge repeated an answer given earlier by the Applicant:

"We bought clothes from Cheung Sha Wan and you sell them to China."

There was no audible answer to that. The next question from the judge was:

"Court: But I thought hawkers only sell, isn't it?

A. That's right. I bought from there and then I would go to China to sell ...."

30. In another exchange a little later on, the Applicant was making a perfectly valid point that, just before his arrest as he was beginning to suspect that something was wrong, he considered that he might be seen as someone who was involved in a conspiracy to traffic in drugs. This brought an interruption from the judge, which is again said to have been sarcastically spoken, namely:

"Yes, Sir. Thank you for telling us about the law on conspiracy. You have told us a number of times. You need not repeat it again."

31. Obviously where a defendant is faced with a great deal of compelling evidence against him as this man was, and has even had to expose his long criminal record to the jury in order that his case can be presented properly, it is more imperative than ever that the judge should remain, and be seen to remain, scrupulously fair and impartial. We do not, therefore, think that these kinds of interruption were appropriate. There were many other interruptions but those, perhaps, were of less consequence. By itself, this is not a ground of such great force, but it does not stand alone because of the matters already covered in this judgment.

32. We do not, in any event, need to consider other grounds of appeal. We are satisfied that the material irregularity that has occurred, taken together with the other matters to which our consideration has been given, renders it inappropriate to consider the application of the proviso. We take the view, for the reasons that we have given, that the conviction is unsafe and unsatisfactory and cannot be allowed to stand.

33. Accordingly, we shall grant leave to appeal. We shall treat the hearing as the appeal. The appeal is allowed, the conviction is quashed and a retrial will be ordered.