R. v. KWOK CHI KAN

IN THE COURT OF APPEAL

1996, No 84
(Criminal)

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J U D G M E N T

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Liu, J.A. (giving the judgment of the Court):

1. On 27 May 1995, the appellant and another man, Chan were travelling in a taxi which was tailed by police officers in two cars. The taxi was stopped by the police and the appellant was found carrying a black leather bag which contained 129.62 gms of crystalline solid containing 121.73 gms of methamphetamine hydrochloride, commonly known as "ice".

2. The prosecution's case was that the appellant responded to a police caution in this way:

"Ah sir, I know, but this stuff is only for self consumption."

3. The appellant was charged with trafficking of the above quantity of ice. He was tried before Saied, J and a jury, found guilty and was sentenced to 10 years' imprisonment. This is his appeal against conviction. The only legal point taken is that his conviction is unsafe and unsatisfactory "because prejudicial matter, in the form of previous convictions, was disclosed to members of the jury in the course of the trial."

4. The appellant gave evidence. His version was that he and Chan met by pre-arrangement in the afternoon of the day before. For a time they played video games and found themselves in a karaoke lounge at about 1 a.m. the next morning. On leaving the lounge, Chan was intoxicated and he was carrying Chan's black leather bag at Chan's request. They boarded a taxi and were intercepted by the police soon thereafter. The appellant also denied that he admitted being in possession of the drug for his own consumption.

5. It was a stop and search case. The direct conflict of evidence between the prosecution and the defence was within a short compass. The question was essentially one of credibility. In the examination-in -chief of the appellant, he was led to own up to two previous convictions, namely "tampering with a vehicle" and "wasteful employment of police time". The disclosure of these previous convictions forms the appellant's core complaint. These previous conviction would bear upon the jury's attempted evaluation of his evidence. Was such a disclosure within the bounds of forensic strategy?

6. In an affidavit filed before us, the appellant maintains that he was not consulted on nor explained the consequences of the revelation of his two previous convictions. He claims that if he had been consulted by counsel, he would have withheld consent to disclosing these previous convictions to the jury. The appellant was not then represented by Mr Kwok.

7. His former counsel wrote to the present solicitors of the appellant that the decision to disclose these previous convictions was taken "after consultation" and that their revelation was "a defence decision". It was further elaborated that "the decision to disclose two minor, non-similar convictions ..... is not unusual. It (enabled) (the appellant's) defence to proceed on the basis that he (was) hiding nothing from the court. It (allowed) his lack of connection with drugs or triads to be before (the jury). His convictions were irrelevant to the trial he faced". We look at these observations only insofar as they tend to reflect consistency with such conduct of the proceedings as borne out by the transcript. The papers in this appeal have been served on the appellant's former counsel. On 28 August 1996, another letter was caused to be sent to the appellant's former counsel seeking further particulars on the words "after consultation", but no response has yet been received.

8. At the invitation of this court, Mr Kwok proceeds on the assumption that the appellant had not in fact been consulted on the revelation of his two previous convictions. Mr Kwok submits that the appellant should have been consulted and that if the appellant had been consulted, he would not have given consent for his previous convictions to be disclosed and then his former counsel would have been acting contrary to instructions. Mr Kwok concedes that in either scenario the real question to be considered is whether the appellant's former counsel was flagrantly incompetent in leading him to disclose these previous convictions.

9. The appellant was 19 and single. He lived at home with his parents and an elder brother. His father was a mechanic and he himself worked as a vehicle/transportation worker. The message sought to be conveyed to the jury in his examination-in-chief was that he came from a decent family background. The appellant also told the jury in his evidence that he was not a drug addict and had no triad affiliation. It was at this juncture in his evidence that the appellant, led by counsel, volunteered particulars of his two previous convictions. One was "tampering with a vehicle". The other was "wasting police time" when he had been allegedly mistaken in his report of the sighting of a burglar. He was fined $1,500 in the first and put on probation in the second. Before the jury, his background and his past were being pitched at the serious nature of the charge and Chan's drug activities. It was put to Chan by the former counsel of the appellant that he, Chan had two previous convictions for drugs. Chan declined to answer the question. The jury was also told that Chan was charged with trafficking in 117 gms also of "ice" on another occasion close in time and he was held in custody without bail pending his trial. Reference was also made by the appellant's former counsel to the fact that Chan had been arrested with two other people in a car but that they were both released, leaving only Chan facing the "ice" trafficking charge.

10. In the final address to the jury, the appellant's former counsel compared Chan's refusal to answer the question put to him of his two previous convictions for drugs with the appellant's open and frank admission of his two previous convictions which were described as "very minor matters - nothing of consequence - no connection with drugs". On behalf of the appellant, the jury was asked rhetorically: "Who do you think is the more likely to be the possessor of these drugs, given the fact that it was Chan's bag and Chan's record and Chan's circumstances?"

11. We need proceed no further. It is only too clear that on any view of the issues of consultation and consent, the appellant's former counsel can in no way be said to have been suffering from flagrant incompetence in the conduct of the proceedings.

12. There is no substance in this appeal which is, accordingly, dismissed.