LEUNG KIT CHUN v. R.

IN THE COURT OF APPEAL

1993, No. 291
(Criminal)

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J U D G M E N T

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Macdougall, V.-P.:

1. In this application the applicant seeks leave to appeal against her conviction of having in her possession a dangerous drug for the purpose of unlawful trafficking therein. The drug in question was 338.02 grammes of a mixture containing 132.79 grammes of salts of esters of morphine. She has abandoned her application for leave to appeal against sentence.

2. There was only one witness for the prosecution, namely, Woman Police Constable 18708 ("the WPC"). Her evidence was that at 9:45 p.m., on 28 April 1992, she and a team of police officers stopped a taxi in Tai Kok Tsui Road. Inside the taxi were two passengers, the applicant and her boyfriend LAI Kwok-wah ("Lai"). They were ordered out of the taxi and, upon a body search, a packet containing a No. 4 heroin brick was found under the applicant's jeans at her waist. The brick was the drug described in the indictment.

3. The WPC asked the applicant what the brick was but received no reply. In response to a caution the applicant simply said, "Senior sister, give me a chance. It has nothing to do with him. It is mine". By "him" she meant Lai.

4. At the police station an hour or two later, the WPC asked the applicant a number of questions. Briefly, her answers were that Lai asked her to deliver the brick of No. 4 heroin to someone, and that he had given her five hundred dollars to do so. Those answers were recorded and exhibited as Exhibit P7.

5. The applicant elected to give evidence. She testified that on the day in question, she and Lai were travelling in a taxi towards Tai Kok Tsui. When the taxi turned into Tai Kok Tsui Road, Lai, who had been looking back through the rear window of the taxi, took out a lock of something from his jeans and thrust it into her jeans. He said "in a soft voice" that, when the police came, she should admit that the thing was hers, whatever happened, and that it had nothing to do with him. His manner at the time was fierce: it "was such that he would allow her up". And he told her to be careful about her family members, saying also that he knew where they lived. She was frightened of Lai, because on a previous occasion he had become angry and had struck her. A few seconds after Lai had thrust the packet into her jeans a police car cut in front of the taxi, causing it to stop. When the WPC ordered her to alight, the applicant was at a loss and did not know what to do. She wanted the WPC to know that she was innocent and asked her to give her a chance.

6. In the course of the summing up to the jury, the judge said: -

" On the other hand, you have seen the accused and observed her when she was giving evidence before you. You are in a very good position to assess her credibility, whether she was telling lies or the truth before you, and whether she is capable of inventing and telling lies. Of course, there's every motive for her to lie to you, and it's also in her advantage to lie to you. You'll have to bear in mind, in assessing her credibility and reliability, that what she told the woman constable in exhibit P7 was completely unchallenged and uncontradicted."

7. The third sentence in the passage quoted above forms the subject matter of the first ground of appeal. It is argued that the direction casts the applicant as a "suspect witness" for no reason other than that she was the accused. The direction, it is said, undermines the presumption of innocence and strikes at the notion of a fair trial. Related to this argument is the second ground of appeal, that the judge failed to give a Broadhurst direction to the jury whilst "repeatedly referring to the 'lies' of the applicant". It is necessary to refer only to those two grounds.

8. It is convenient to deal with the second ground first. In the circumstances of the present case we are satisfied that there was no necessity for the judge to give a Broadhurst direction. The situation was similar to that in R. v. Man Bing Chou Criminal Appeal 383 of 1990 (unreported). If the jury came to the conclusion that the applicant had lied by saying that Lai had inserted the packet of drugs into her jeans, telling her that she should falsely tell the police that it was hers, it was inevitable that they would find her guilty. A Broadhurst direction was therefore not appropriate.

9. We think it fair to say that during the course of argument Mr. McCoy stated that, on further consideration of this ground, he would not press it.

10. With regard to the first ground of appeal Mr. Newall for the Crown submitted that the passage in the summing up complained of must be viewed in the context of the rest of the summing up, the evidence in the whole case, and the issue of credibility. He contended that in the circumstances of the case, the judge's comment was warranted, particularly in the light of the evidence that the drug was found on the applicant and that she admitted that it was hers and had nothing to do with her boyfriend.

11. In our view the passage cited clearly indicated to the jury that, because the applicant was the accused, she had every motive to lie and that it was to her advantage to lie. The only reasonable inference that the jury could have drawn from this was that she was a suspect witness whose evidence had to be scrutinised with particular care for no reason other than that she was the accused. Although we do not think that the judge intended it, this had the effect of depriving the applicant of the benefit of the presumption of innocence.

12. We respectfully agree with the following view expressed by the High Court of Australia in R. v. Robinson 55 A Crim. R 318 at 321:

"If [the] presumption [of innocence] is to have any real effect in a criminal trial, the jury must act on the basis that the accused is presumed innocent of the acts which are the subject of the indictment until they are satisfied beyond reasonable doubt that he or she is guilty of those acts. To hold that, despite a plea of guilty, any evidence of the accused denying those acts is to be the subject of close scrutiny because of his or her interest in the outcome of the case is to undermine the benefit which the presumption gives to an accused person.

Nothing in the above is intended to suggest that the evidence of an accused person is not subject to the tests which are generally applicable to witnesses in a criminal trial. Thus, in examining the evidence of a witness in a criminal trial - including the evidence of the accused - the jury is entitled to consider whether some particular interest or purpose of the witness will be served or promoted in giving evidence in the proceedings. But to direct a jury that they should evaluate evidence on the basis of the interest of witnesses in the outcome of the case is to strike at the notion of a fair trial for an accused person. Except in the most exceptional case, such a direction inevitably disadvantages the evidence of the accused when it is in conflict with the evidence for the Crown."

13. In the light of the direction complained of we are forced to the conclusion that the applicant was denied a fair trial. The conviction therefore cannot stand. We therefore grant the application and, treating the hearing as that of the appeal, allow the appeal, quash the conviction and set aside the sentence. We order that the applicant be retried on a fresh indictment.