CHAN KWOK KEUNG v. R.

IN THE COURT OF APPEAL

1993, No. 357
(Criminal)

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J U D G M E N T

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Kaplan J. giving the judgment of the court

1. On 30th June 1993, this Applicant was convicted by a jury following a trial before Leonard J. of two offences. Count one alleged trafficking in dangerous drugs for which he was sentenced to 7 years' imprisonment. Count 3 alleged possession of a dangerous drug for unlawful trafficking for which he was sentenced to 8 years' imprisonment. The judge directed that the sentence on Count 3 should commence 1 year after the sentence on Count 1 making 9 years' imprisonment in total.

2. The Applicant seeks leave to appeal against conviction.

3. The Applicant was tried together with a man called 'Hui' who faced one count which was identical to the first count against this Applicant. Hui was acquitted by a majority of 5 to 2.

4. The events giving rise to these charges took place at about 12.55 a.m. on 5th June 1992. Police officers testified that they saw the Applicant in Portland Street. They said he was carrying a black bag. He spoke to Hui. It was alleged that the Applicant opened the black bag and took something out and gave it to Hui who put it in his right hand jeans pocket. A police officer said that before Hui put this object into his pocket, he opened the bag to take a look. Complaint was made (and this clearly troubled the jury as can be seen from their question to the judge) that the officer made no mention of this in his record of interview with Hui.

5. At about this point, the police identified themselves and the Applicant turned and made an attempt to run away, but was grabbed by a police officer. During the struggle, the Applicant dropped his bag. This was then picked up and opened in front of the Applicant, and inside, the police say, they found three transparent plastic bags containing something white. The Applicant, as he was entitled to do, elected to make no response.

6. The Applicant's bag was duly searched and his identity card was found inside it. Drugs were also found in Hui's pocket.

7. Count 3 related to the drugs found in the Applicant's bag and there was a quantity of 50.66 grams of salts of esters of morphine. Count 1 related to the drugs passed by the Applicant to Hui which consisted of a total of 33.13 grams of salts of esters of morphine.

8. Hui made a response to the police which indicated an admission to possession.

9. Neither the Applicant nor Hui elected to give evidence and their defence consisted of an all out joint attack on the police. The credibility of the police witnesses was a crucial issue in the case.

10. Mr. Whitehouse, who appears for the Applicant before us, but not below, makes three complaints.

11. Firstly, he submits that inadmissible evidence was led during the trial which would have led the jury to believe that the police witnesses had information to the effect that the Applicant was involved in drug dealing. This evidence was given by PW1 in chief. An application to discharge the jury was refused.

At page 11 of the summing up, the learned judge said this :-

"During the course of the evidence you have heard three officers at least say that they were on an anti-drug operation and you heard PC 46714 say that he was there to keep observation for a person and that the 1st defendant resembled the person that he had been told to look out for.

I cannot stress too strongly that you must put that evidence right out of your minds. That evidence cannot in any way be treated as a basis for making any inference of guilt against the 1st or the 2nd defendant. You must decide on the evidence of what the 1st defendant and 2nd defendant actually did on that day, and you must not allow yourselves to be influenced by suggestions that the 1st defendant might have resembled someone for whom a police officer was for some reason looking out.

The fact that the police were on an anti-drug operation does not take the matter any further at all. It means nothing that they were on an anti-drug operation when it comes to your decision of guilt or innocence. You must not be tempted to think that because they were on an anti-drug operation they had some particular reason for believing that these defendants were going to traffic in dangerous drugs. You must decide the case on the evidence and you must not speculate."

At page 30, the judge gave the jury another warning to ignore any evidence of a suggestion that the 1st defendant looked like somebody else that the police were looking for.

12. Mr. Whitehouse says the judge did all he could to neutralize this evidence, but he submits it was an impossible task and that all he achieved was to remind the jury of the evidence. He submitted that the jury should have been discharged.

13. To support this submission, Mr. Whitehouse referred us to a number of cases. In The Queen v. Chan Tat-wah, Cri. App. 545/1983, the applicant was convicted of two counts. The first alleging possession of a revolver and the second alleging possession of rounds of ammunition. A number of reasons were given by the Court of Appeal for allowing the appeal. At page 9, Li J.A. referred to the fact that evidence was permitted to be adduced that the police were acting upon information and that it was the applicant himself for whom the police were looking. This evidence, which the Court of Appeal thought was highly prejudicial, was not only before the court but counsel for the prosecution relied upon it in her closing address to the jury. Li J.A. said this :-

"It is wrong that evidence should be led to indicate that the police went to a particular place as the result of information that they had received. It is very wrong that evidence should be led to the effect that the person on trial is the person referred to in that information. Such information is clearly hearsay of the most damaging kind."

14. It is unfortunately not clear from the judgment whether the trial judge gave the jury any warning to ignore this evidence but we are prepared to assume that no warning was given.

15. In The Queen v. Ko Po-kun [1989] 2 HKLR 8, the applicant was charged with possession of dangerous drugs for the purposes of unlawful trafficking. During the evidence of one police officer, a reference was made to "the target person". In his summing up, the trial judge, on three separate occasions, referred to the Applicant as "a target person". On appeal, it was held that the judge's reference to the phrase "a target person" was clearly wrong. The effect of what he said, and his omission to give directions, which he should have given, in relation to the evidence of the police witness that the words as evidence before the jury for them to make of it what they would. The appeal was accordingly allowed. In that case, the error was that of the judge. He repeated it several times to the jury. He gave them no warning whatsoever. However, it is implicit in this judgment that it was possible for the judge to have given the jury a direction which would have neutralized this prejudicial evidence.

16. The third case cited by Mr. Whitehouse was The Queen v. Li Chun Choi [1990] 1 HKLR 665. This was another trafficking case. In opening the case, Crown Counsel had told the jury that the police officer would give evidence to the effect that he had received information that the man called 'A Choi' often delivered or dealt with dangerous drugs at the particular place. The Applicant was subsequently arrested at that very place in possession of drugs. The court held that counsel's remark had been clearly inadmissible and was highly prejudicial. Although the trial judge had directed the jury generally that they had to reach a verdict on the basis of the evidence and should ignore counsel's comments, it was impossible to avoid the conclusion that the opening by counsel coloured the view of the jury. The conviction was therefore unsafe and unsatisfactory.

17. In that case, matters were exacerbated by the judge telling the jury in their summing up that the police officer was "pursuant to instructions, keeping surveillance at" the very place mentioned by counsel in his opening. Also, in this case, the judge merely gave general directions to the jury as to dealing only with the evidence and ignoring counsel's comments. As Silke V-P pointed out this jury were never explicitly told that they must completely ignore what was said. Silke V-P went on to say this :-

"We would add that in this particular case, such a direction might well not have been sufficient given that the only evidence led by the Crown was that of the constable and there being nothing from the applicant other than the contents of his cautioned statements. Combining all that with the ambivalent use made of the matter by counsel for the defence in his closing address, we are driven to the conclusion that this conviction is unsafe and unsatisfactory."

18. We do not take Silke V-P as stating that, in every case, a direction to ignore such matters would not be sufficient. Each case has to be judged upon its own facts, and no general rule can be laid down as to whether a warning by a judge is sufficient to neutralize the evidence.

19. Turning to the summing up in the present case, we are quite satisfied that Leonard J. gave a perfectly clear and unambiguous direction to the jury to ignore this evidence. We are satisfied that this was one of those cases where the judge was able to neutralize this evidence in a perfectly satisfactory manner. This case is very different from other cases, where the judge makes matters worse by repeating the prejudicial evidence and fails to give the jury a warning at all. We are perfectly satisfied that this jury were left in no doubt whatsoever that they were not to draw any adverse inferences from the fact that these officers were on an anti-drug operation or that the 1st Defendant resembled the person for whom one officer had been told to look out for. We therefore reject the first ground of appeal.

20. As to the second ground of appeal, which related to the way the judge directed the jury concerning character, Mr. Whitehouse characterized it as obscure. We would prefer to characterize it as wholly fallacious. During the course of the trial, Crown Counsel made an admission in writing that D2 had no previous criminal convictions. D1, this Applicant, did have a previous conviction, although not for a drug offence, and therefore there was no evidence before the jury relating to his character. The learned judge properly directed the jury that the 2nd Defendant had no criminal convictions and he gave a full direction as to the effect of this, in other words, he directed the jury as to both limbs of Vye [1993] 1 WLR 471.

21. Having directed the jury, quite properly, that D2 was a man of good character, the judge was then faced with the common dilemma of what to tell the jury in relation to the Applicant. The judge could have said nothing or he could have given the jury a direction. He decided upon the latter course and said this :-

"Of course, it is my duty to tell you about that because the 2nd defendant has put his character in, and I have no doubt that you may be wondering now about the situation regarding the 1st defendant, so I must tell you this: that so far as the 1st defendant is concerned you have heard nothing whatever about his character, whether it be good or bad, and in case you might be tempted to draw some conclusion from the fact that you have heard nothing about his character I direct you, as a matter of law, that you must accept from me that you must not draw any conclusion from that matter. There is no evidence whatever about his character and so you must not speculate about it."

22. In taking this course, Leonard J. was following the course adopted by the English Court of Appeal in Vye. Between pages 478 and 479 of the report in Vye, Lord Taylor deals with the very situation where there are two or more defendants of good and bad character. He referred to the earlier case of Gibson [1991] 93 Cr. App. R 9, where Lord Lane C.J. said at page 12 :-

"It may be that when there are two defendants, one of good character and the other not of good character, it would be advisable for the judge to say very little, if anything, about the character of the defendant who has no previous convictions."

23. At page 479 in Vye. Lord Taylor concluded that this suggestion was not satisfactory and ought not to be followed. He continued :-

"In our judgment, a defendant A of good character is entitled to have the judge direct the jury as to its relevance in his case even if he is jointly tried with a defendant B of bad character. This leaves the question as to what, if anything, the judge should say about the latter. In some cases, the judge may think it best to grasp the nettle in his summing up and tell the jury they must try the case on the evidence, there has been no evidence about B's character, they must not speculate and must not take the absence of information as to B's character as any evidence against B. In other cases, the judge may however think it best to say nothing about the absence of evidence as to B's character. What course he takes must depend upon the circumstances of the individual case, for example, how great an issue has been made of character during the evidence in speeches."

24. We respectfully agree with the approach of Lord Taylor in Vye. However, Mr. Whitehouse submitted that we should refuse to follow this part of Vye and instead approve the approach of Lord Lane. We decline this invitation because the defendant with good character should not be prejudiced merely because he is being tried with a defendant of bad character, and we are satisfied that it can safely be left to the judgment of the trial judge as to how to deal with the situation relating to the defendant of bad character. There is absolutely nothing in this ground of appeal which is rejected.

25. The third ground of appeal raised by Mr. Whitehouse relates only to the conviction on Count 1. He submits that the conviction on Count 1 is wholly inconsistent with Hui's acquittal on the one count facing him. Mr. Whitehouse agrees that the burden is upon this Applicant to establish that there is such an inconsistency. (See R. v. Smith [1973] 57 Cr. App. R.)

26. In our judgment, there is nothing in this ground of appeal. The jury were clearly troubled about the police evidence against the 2nd Defendant. They asked a question of the judge because it appears that the relevant officer had told the jury that the 2nd Defendant had looked inside the bag whereas that had not been put to the 2nd Defendant when he was being questioned by the police and a statement taken from him. The jury obviously thought there was some point to be made about this supposed discrepancy, and we can only assume that it influenced their verdict. However, the simple fact remains that there was ample evidence upon which the jury could have convicted this Applicant, and we cannot say that his conviction on Count 1 is in any way inconsistent with the 2nd Defendant's acquittal on the one count he faced.

27. The fourth submission made by Mr. Whitehouse was that in the light of the three previous submissions, we should come to the view that the conviction of this Applicant was unsafe and unsatisfactory. We disagree. This submission is really based upon the fact that Mr. Whitehouse submits that the jury must have been prejudiced by the matters the subject of the first two grounds of appeal. As we have decided that there is nothing in any of these grounds of appeal, and as we are satisfied that there was ample evidence upon which this jury could have convicted the Applicant on both counts, we cannot possibly conclude that either verdict is unsafe or unsatisfactory .

28. For these reasons, therefore, this application for leave to appeal against conviction is refused.