HKSAR v. WONG YI CHING

CACC 374 /2018

[2020] HKCA 93

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 374 OF 2018

(ON APPEAL FROM HCCC NO 112 OF 2017)

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J U D G M E N T

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1.  On 12 December 2018, the applicant was convicted after trial before Campbell-Moffat J (“the judge”) and a jury on a single count of trafficking in a dangerous drug, namely 26.9 grammes of a crystalline solid containing 26.3 grammes of methamphetamine hydrochloride (commonly known as “Ice”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. She was sentenced to 8 years’ imprisonment.

2.  Having filed a Notice of application for leave to appeal (by way of Form XI) on 20 December 2018, she now applies by counsel for leave to appeal against her conviction only.  On 21 January 2020, for reasons explained at para 33 infra, I reserved my decision on this matter.

The prosecution case

3.  At about 00:50 am on 24 August 2016, the applicant was observed walking up and down Whampoa Street by plain clothes police officers.  In due course, a taxi with a passenger on board arrived in Whampoa Street.  The applicant got into the taxi for about 15 seconds and then alighted. As she emerged from the taxi, she was holding a green plastic bag, which she was not holding when she boarded the taxi.

4.  The applicant was intercepted by the officers.  A search of the green plastic bag revealed a mobile telephone box; and inside the box there was a packet of “Ice” (the subject-matter of the indictment).  Under caution, the applicant said she was carrying the bag to someone but did not know what the bag was.

5.  The applicant was taken to her home for a search but the police found nothing relevant to any criminal activity.  In a later video recorded interview (VRI) with the police, the applicant said it was a friend called Ah Po who paid her to deliver the mobile telephone, but she was unable to get in touch with him.

6.  The estimated value of the “Ice” was $9,000.

The defence case

7.  The applicant elected to give evidence.  She said she met Ah Po by chance two days before her arrest and was offered a job to deliver mobile telephones.  They later made an appointment by telephone to meet in Whampoa Street.  The applicant waited in Whampoa Street at the appointed time.  In due course, Ah Po arrived by taxi.  The applicant got into the taxi and was given a plastic bag with a mobile telephone box inside and was instructed to deliver the telephone to a skewer shop nearby.  She said the mobile telephone box was sealed with cellophane, “like a brand-new phone”[1].  She was on her way to the skewer shop when she was intercepted by police.

8.  She said she told the arresting officer (PW1) not to break the cellophane and open the box, but this was ignored by PW1 who broke the cellophane wrapping and threw it away.  She did not know that the box contained “Ice”. 

9.  The applicant also said she did not sign on PW1’s notebook at the scene, as PW1 had testified, but instead signed everything in the police station.  PW1 also did not read to her the contents of the post‑record in the notebook, nor did he explain her rights before she signed the Notice to persons in custody. 

10.  In relation to the home search, the applicant said the police did not in fact enter her home to conduct any search; instead they merely stood in the staircase outside her home for a while before taking her back to the police station.

11.  As for the VRI, even though the applicant had told the police that she could contact Ah Po if she could be given her seized mobile telephone back, PW1 told her before the interview that, if she said she could contact Ah Po during the interview, she might not be allowed to leave.  During the interview, PW1 gave the applicant a kick under the table to remind her not to say that she could contact Ah Po.

Cross-examination on previous convictions

12.  On the basis that the applicant had cast imputations on the character of prosecution witnesses, the prosecution applied to cross‑examine her on her previous convictions.  The previous convictions were for possession of dangerous drugs in 2010 and 2015 respectively, and breach of Probation order in 2010 (which arose from the drug possession conviction in 2010, for which she was made the subject of a Probation Order).  The judge allowed the application but limited cross‑examination to the fact that she had been convicted and detained; however, the nature of the offences was not to be mentioned.  Prosecuting counsel was also permitted to put to the applicant that she had only been released in February 2016, about six months prior to her present arrest.

13.  The relevant cross-examination went as follows[2]:

Q. Ms Wong, in the course of your evidence-in-chief, you have made specific allegations of impropriety against the arresting officer and the --- well, mainly the arresting officer, you agree?

A. Yes.

Q. But you yourself are not a person of good character, are you?

A. It all depends on how you define "of good character".

Q. All right. Well, l'll try and help you.  You have appeared in court, in magistrates’ courts before, on three occasions?

A. That means?

…

Q. Do you remember in April 2010 you appeared in front of Eastern Magistrates Court?

A. Yes.

Q. And the magistrate sentenced you to probation for 18 months?

A. Yes.

Q. The next occasion was in September 2010 for breach of that probation, you were detailed in custody?

A. Yes.

Q. And then finally in July 2015, you went to Kowloon City Magistrates Court?

A. Yes.

Q. As a result of that hearing, you were again remanded in custody? You were detained in custody?

A. Yes.  I want to say is that even I have done something wrong, that doesn't mean that I am not a person of good character.  I'm not a person of not having a good character.

Q. Well, the learned judge will give certain directions to the jury, no doubt, in due course. But do you agree that you were kept in custody and only released in February 2016?

A. Yes.

Q. So I suggest that you are not a person to be trusted to tell the truth.

A. Every time when I had done something wrong, I admitted that and I also had received the punishment that I have.

Q. Yes, no doubt that's true, but I'm suggesting that you are not a person who is trustworthy when it comes to telling the truth.

A. Disagree.

Summing-up

14.  The judge gave the jury directions on the relevance of the applicant’s previous convictions in her summing-up[3]:

“Now, you have heard in this case that the defendant has been before the courts before on previous occasions. This has been given in evidence because she has attacked the character of the prosecution witnesses and it is right that in those circumstances you should know the character of the person making that attack. What is the relevance to you of those convictions in this case? The only reason you have heard about her previous convictions is that knowledge of the character of the defendant who has made this attack upon the character of the prosecution witnesses may assist you to judge the truthfulness of her evidence when you come to consider this matter. It goes back to credibility again.

You must not assume that the defendant is guilty of this offence or that she is not telling the truth just because of her previous convictions.  Her convictions are not relevant at all to the likelihood of whether she has committed this offence.  They are only relevant to whether you feel you can believe her or not.  You do not have to allow those convictions to affect your judgment about her guilt or innocence.  It is for you to decide the extent to which, if at all, her previous convictions help you about whether she is telling the truth or not.”

Grounds of appeal

15.  Mr Leung Chun Keung, on behalf of the applicant, has advanced two perfected grounds of appeal:

(1) the judge erred in permitting cross-examination on the applicant’s previous convictions; and

(2) the judge failed to direct the jury that they could take account of the fact that the applicant had pleaded guilty in respect of the previous convictions when considering her truthfulness.

Ground 1

16.  Mr Leung submits that this ground has three aspects.  First, whether there was an imputation as to character; secondly, whether the judge properly exercised her discretion; and thirdly, the extent of the applicant’s criminal record that was made known to the jury.

Imputation on character

17.  Mr Leung submitted that the judge erred in ruling that section 54(1)(f)(ii) of the Criminal Procedure Ordinance, Cap 221 had been triggered.  It was submitted that the way the defence had been conducted did not involve a significant or sufficient imputation as to character so as to warrant the applicant losing her shield against cross-examination as to her criminal record.  The defence never challenged the core of the prosecution case, namely, that the applicant was holding the plastic bag at the material time, nor did the defence materially challenge what she had said under caution.

18.  Accepting that PW1 was challenged as to whether the box was sealed with cellophane and whether he broke open the cellophane and threw it away (it being a material exhibit), Mr Leung pointed out that the applicant had repeatedly mentioned in her VRI that the box was sealed[4]. It was therefore natural to ask PW1 why he did not put to the applicant that the box was not sealed as she claimed, or clarify with her what she meant.  It was submitted that the defence did no more than ask the obvious questions which any juror, on seeing the contents of the VRI, would want to know.

19.  Although PW1 was also challenged on other matters including inducing the applicant not to say that she could contact Ah Po, it was submitted that these kind of challenges should not put the applicant’s shield at risk, since they often happened in criminal trials and did not normally result in defendants losing their shields.  It was asserted that even more serious accusations against the police did not usually cause a defendant’s shield to be lost.

Discretion

20.  The credibility of the prosecution witnesses was not directly relevant to the main issue, which was whether the applicant knew there was “Ice” inside the box she was carrying.  It was not a case, for example, where the defence had alleged that drugs were planted on the defendant, in which case the jury would inevitably have to decide whether the prosecution witnesses were credible or not. 

21.  It was submitted that the defence challenge to the credibility of prosecution witnesses was only in respect of relatively insignificant matters.  The damage caused to the prosecution case would not have been fundamental.  However, the disclosure of the applicant's previous convictions had disastrous consequences for her case.  The judge’s ruling was therefore unbalanced and wrong in principle.

Extent of disclosure

22.  Mr Leung laid particular emphasis on the fact that the judge was wrong to allow the prosecution to tell the jury that the applicant had been detained twice and released 6 months before the present offence.  The revelation that the applicant had been detained twice was unnecessary, since her previous convictions would have been more than sufficient for the purpose of showing that she was not believable.  Bearing in mind that the applicant was only about 21 at the time of the offence, the damage done to the defence by the disclosure of her previous criminal record was already enormous without revealing the actual sentences.

23.  However, more importantly, the revelation that the applicant had only been released six months prior to the offence with which the jury were concerned was prejudicial and unnecessary and made her defence and fair trial impossible.  Despite directions not to use her convictions as evidence of guilt, Mr Leung submitted that it was unrealistic to expect the jury not to do so and the jury would quickly jump to the conclusion that the applicant must, as a person of bad character, have known there was “Ice” in the box.

Ground 3

24.  The applicant gave evidence that she pleaded guilty in relation to all her previous convictions.  It was submitted that the judge failed to mention this to the jury and further failed to direct that they may take this into account when considering the issue of credibility.

Respondent’s submissions

25.  Mr Franco Kuan, on behalf of the respondent, referred to section 54(1)(f)(ii) of the Criminal Procedure Ordinance, which provides that:

“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 been convicted of or been 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 establish 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...”

26.  In Selvey v DPP [1970] AC 304, 339C-F per Viscount Dilhorne said of the English statute, which was in pari materia with section 54(1)(f)(ii) of the Criminal Procedure Ordinance:

“The cases to which I have referred, some of which it is not possible to reconcile, in my opinion finally establish the following propositions:

(1) The words of the statute must be given their ordinary natural meaning

(2) The section permits cross-examination of the accused as to character both when imputations on the character of the prosecutor and his witness are cast to show their unreliability as witnesses independently of the evidence given by them and also when the casting of such imputations is necessary to enable the accused to establish his defence.

(3) In rape cases the accused can allege consent without placing himself in peril of such cross-examination. This may be because such cases are sui generis, or on the ground that the issue is one raised by the prosecution.

(4) If what is said amounts in reality to no more than a denial of the charge, expressed, it may be, in emphatic language, it should not be regarded as coming within the section.”

27.  In R v Burke (1986) 82 Cr App R 156 (where police misconduct was alleged), it was held that:

“In the ordinary and normal case the trial judge may feel that if the credit of the prosecutor or his witnesses had been attacked, it is only fair that the jury should have before them material on which they can form their judgment whether the accused person is any more worthy to be believed that those he has attacked. It is obviously unfair that the jury should be left in the dark about an accused person's character if the conduct of his defence has attacked the character of the prosecutor or the witnesses for the prosecution within the meaning of the section...” (page 161, para 3)

“In order to see if the conviction should be quashed, it is not enough that the court think it would have exercised its discretion differently. The Court will not interfere with the exercise of a discretion by a judge below unless he has erred in principle, or there is no material on which he could properly have arrived at his decision.” (page 161, para 4)

28.  These principles were applied in Hong Kong in R v Tong Cho Yan [1982] HKC 254, 257 B-F, where the Court of Appeal held that it was not enough on appeal to argue that the discretion should have been exercised differently, but that it was necessary to show that the cross‑examination was inadmissible in law.  Further, an appellate court should not lightly interfere with the exercise of discretion by a trial judge.

Ground 1

Imputation on character

29.  Returning to the applicant’s case, Mr Kuan submitted that the line of defence, that PW1 tampered with the telephone box by breaking the cellophane wrapping, knowingly discarding it and then lying about it in court, clearly resulted in an imputation on his character, as the applicant herself agreed in cross-examination, viz[5]:

Q. Do you agree you are, by implication, accusing the arresting officer of dereliction of duty and of destroying evidence?

A. Agree.

30.  When PW1 was cross-examined, it was further put to him that the applicant had been coached by PW1 to say that she could not contact Ah Po.  It was alleged that PW1 had induced the applicant not to provide the contact details of Ah Po, since it might affect her prospects of bail.  It was further put to PW1 that he had kicked the applicant during the VRI.

31.  The applicant repeated her allegations of police misconduct in her examination‑in‑chief, including the fact that police officers did not conduct a house search, but only stayed in the staircase outside the applicant's home.  These allegations amounted to an imputation as to the character of the prosecution witnesses. 

Discretion

32.  Before permission to cross-examine was given, there was a detailed discussion between judge and counsel concerning how the discretion was to be exercised and the scope of any cross-examination[6]. The applicant’s main objection was that the two previous convictions were drug-related, so that their prejudicial effect would be considerable.  In the event, the judge confined the scope of the cross-examination so that the nature of the convictions was not mentioned.  Mr Kuan submitted that this was a perfectly fair exercise of her discretion.

Extent of disclosure

33.  The cross-examination actually conducted was fair, restrained and in full compliance with the judge's directions.  Mr Kuan added that one of the applicant’s claims in front of the jury was that she did not know what a ‘caution’ was.  It was relevant, therefore, for the jury to know that the applicant was someone who would be familiar with such matters and that, as the judge put it during the argument, “she knows what the system is”[7].  It is clear from the transcript that both the judge[8] and prosecuting counsel[9] proceeded on the basis that the applicant had given evidence to that effect, although such evidence is not in the transcript before me and neither counsel could find reference to it.  It was for this reason that I reserved judgment, so as to look further into the evidence and what may be missing from the existing transcript.

34.  It now seems to me that there is a part of the applicant’s evidence-in-chief that is missing from the transcript, namely between 11:22 am and 2:33 pm on 6 December 2018.  In the event that this matter goes further, I shall order that the missing transcript be inserted at the relevant page.  For present purposes, I shall accept that the applicant did indeed say in her evidence that she did not know what a ‘caution’ was.

Ground 3

35.  The respondent accepts that in most circumstances, where the defendant says he has always pleaded guilty in relation to previous convictions, it would have been better to give the additional direction that the jury could take this into account when considering his truthfulness, as indeed suggested by Specimen Direction 38.

36.  However, it was submitted that the judge and the parties were in the best position to detect the nuances of the trial and the reactions of the jury.  It might not, for example, have been in the applicant's favour to have laboured the point about her criminal record before the jury.

37.  The applicant touched upon her guilty pleas in her evidence.  It was not canvassed in re-examination.  The issue of the additional direction was never raised at any stage, neither during the application, nor at any time before or after the summing-up.  Mr Kuan submitted that the applicant was bound by the tactical decisions of his counsel.  In any event, the direction that was given was fair and sufficient. 

Consideration

38.  As is made clear in the authorities, it is not how the Court of Appeal might have exercised its discretion to allow cross-examination on an applicant’s criminal record, but how and why the judge exercised his/her discretion at trial and whether such evidence was admissible. Provided that the exercise of the discretion is principled, it is not for an appellate court to interfere with its exercise.

39.  In the present case, the defence was that PW1 had torn the cellophane wrapping of the mobile telephone box, which he denied in cross-examination.  The issue was of some significance because if the box had been sealed, it tended to support the applicant’s case that she was delivering what she believed to be a brand-new mobile telephone to a customer/recipient on behalf of a third person.  If this were the only point of contention between the parties, I would not myself have exercised my discretion in favour of the prosecution.

40.  However, the person she claimed she was delivering the mobile telephone on behalf of was someone called Ah Po.  On this matter, the applicant’s evidence was that PW1 had coached the applicant not to provide Ah Po’s contact details during the VRI, when she had in fact offered to do so.  The coaching was reinforced by a warning kick from the officer during the interview.  This was a matter of credibility, which although, as Mr Leung submitted, did not go to the core issue of the applicant’s knowledge, did go to her credibility about the role and existence of Ah Po.  In effect, the applicant was saying that the police had prevented her from giving details about Ah Po, which might have strengthened her case that she believed she was on a genuine mission to deliver a genuine mobile telephone.  Instead, it was made to look as though she was protecting him, if he existed at all.  Together with the cellophane issue, it was surely relevant for the jury to assess her truthfulness as against the truthfulness of the prosecution witness, who denied tearing the cellophane or coaching the applicant prior to interview not to reveal the contact details of Ah Po.

41.  I do not think it is reasonably arguable that the judge was wrong to exercise her discretion as she did.  One thing is clear, considerable time was spent in argument before the judge on the issue and it could not be said that she was unaware of the arguments relevant to the exercise of her discretion.  In the event, the judge restricted cross-examination to the fact of the applicant’s convictions and detention, and did not permit prosecuting counsel to reveal the nature of the offences.

42.  I was at first disposed to agree with Mr Leung that it may not have been necessary to reveal that the applicant had recently been released from detention.  However, Mr Kuan’s point about the applicant’s familiarity with ‘the system’ was a fair one.  In any event, once the jury knew the date of the applicant’s last conviction for which she was detained, it would have been rather obvious that she had been relatively recently released.

43.  As for Mr Leung’s submission that a fair trial was impossible once this information as to the applicant’s previous convictions was revealed to a jury, I do not think it is a reasonable argument.  Our system of law must proceed on the basis that juries faithfully follow juridical directions: see the discussion in HKSAR v Chau Yui Ming[10] at paras 23-27.

44.  In respect of the failure of the judge to remind the jury that the applicant had pleaded guilty to her earlier offences, I note that while the applicant may have pleaded guilty to her first offence, for which she was placed on Probation, she went on to breach the terms of the Order. If the rationale of the direction contended for is that a jury should weigh in the balance that a defendant has always realistically and honestly faced up to his/her responsibilities when charged with a criminal offence, the fact that the defendant has breached an Order of the court and has not faced up to the responsibilities of the sentence might be said, perhaps, to undermine the contention. 

45.  Be that as it may, assuming that the judge could have given the direction in question, I do not think realistically that it would have made the slightest difference, particularly if the judge was correct to exercise her discretion as she did.  As Mr Kuan suggests, it may have been a case of the less said the better.

46.  I am not prepared to grant leave to appeal on either of the grounds put forward.  The application is accordingly refused.

47.  I should advise the applicant that she has the right to renew her application for leave to appeal against conviction to the Court of Appeal, but she is also warned that one of the consequences of so doing may be that the Court could make an order for the loss of any time which the applicant has spent in custody pending her appeal, if the Court were to come to the view that there was no justification for the renewal of the application.

[1] AB p 100 (counter 143).

[2] AB pp 286D-288Q.

[3] AB pp 21L-22C.

[4] AB p 92 (counter 45), p 93 (counter 57) & p 100 (counter 143).

[5] AB p 255 T-U.

[6] AB pp 117-128.

[7] AB p 127S.

[8] AB p 208G.

[9] AB p 257D-G.

[10] HKSAR v Chau Yui Ming [2018] 5 HKLRD 7.