HKSAR v. CHIU KIN MAN

CACC 93/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 93 OF 2005

(ON APPEAL FROM DCCC NO. 1098 of 2004)

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J U D G M E N T

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Hon Yeung JA (giving judgment of the Court):

1.  On 11 August 2004 at about 3.30 p.m., a party of police officers laying ambush outside the only flat on the 1/F at No. 306, Shanghai Street (the flat) saw the applicant – Chiu Kin-man walking out in a furtive manner. The police officers intercepted him and declared their identities. The applicant resisted by hitting the chest of an officer before fleeing down the stairs.

2.  The officer caught hold of the applicant on the street when he jumped down the stairs and lost his balance. The applicant continued to resist until other officers assisted in subduing him. The officer was slightly injured and his T- shirt was torn.

3.  The applicant was arrested and taken back to the 1/F of the building for a search. From his shoulder bag, the police found 90 white packets and 60 red packets of heroin as well as 90 tablets of midazolam. They were all put inside transparent resealable plastic bags.

4.  In the same shoulder bag that the applicant was carrying, the police found cash totaling over $22,000.00, $15,000.00 in one compartment and $7,000.00 in a wallet.

5.  There was also a bunch of keys, three of which were subsequently found to fit the first unit inside the flat. After gaining entry to the first unit, the police found various items of drug-related paraphernalia including large number of resealable plastic bags, a walkie-talkie and an electronic scale.

6.  Police investigation showed that the first unit was sublet to Lam Ka-hung whom the police could not locate.

7.  The incident led to the applicant’s prosecution on a charge of trafficking in dangerous drugs and a charge of assaulting a police officer.

8.  The applicant pleaded not guilty before Judge Sweeney in the District Court, but was convicted of both charges and sentenced to a total of 6 years and 3 months’ imprisonment.

9.  The applicant sought leave to appeal against conviction only. He relied originally on the following written grounds, namely:

1.	Defendant’s criminal record was disclosed during the trial;
2.	During the trial, the judge said that the prosecution witnesses colluded in their evidence; and
3.	The judge was mistaken about certain facts.

10.  Before us to day, the applicant abandons grounds 2 and 3 and relies on ground 1 alone. He suggests that the disclosure of his criminal record resulted in an unfair trial and he asks for a re-trial.

Defence Case

11.  The defence case at trial was that it was a police frame-up.

12.  The applicant said he was helping in his father’s snack shop situated near No. 306 Shanghai Street and his duties included delivering takeaway meals to customers.

13.  On 11 August 2004 shortly after 3 p.m., there were two lunch boxes to be delivered to the 1/F and the 3/F of No. 306 Shanghai Street. The applicant said after making delivery to the 3/F and when he was walking down, he saw two police officers escorting a man in handcuffs down the staircase. He knocked on the door of the 1/F flat, but there was no reply and he decided to leave.

14.  As he was walking down to the street, two officers approached him and demanded a body search. The police found the money in his shoulder bag and demanded an explanation. The applicant said it was money belonging to his shop and that he was just making lunch delivery.

15.  The police asked the applicant to go up the staircase for a search. The applicant refused and there was a struggle after which he was handcuffed and taken up to the 1/F and then into the third unit of the flat. Subsequently, the applicant was taken to the first unit where he was accused of trying to flush drugs down the toilet.

16.  The applicant said the police found no keys from his person. He said the $20,000.00 odd was in-takes of his father’s snack shop given to him at about 2 a.m. to be deposited into his father’s bank account. The applicant said he carried the money in his shoulder bag to work as the bank was too far away from home and he intended to go to the bank at about 4 p.m., after delivering the lunch boxes.

17.  The applicant denied that the drugs were found from his person.

18.  A girl working in his father’s shop sought to confirm that the applicant too, worked in the shop and there was a telephone order for lunch from the 3/F of 306 Shanghai Street at about 3 p.m. on 11 August 2004.

The Judge’s Findings

19.  The judge was quite critical of the applicant’s evidence. He noted that the applicant had not invited the officers to walk a few yards to his father’s shop to confirm his explanation. The judge was surprised at the snack shop’s large daily turnover of $5,000.00 and the applicant’s father’s practice of allowing the turnover to build up over three or four days when the money was put in a plastic bowl or an unlocked drawer.

20.  The judge also wondered why the applicant ignored his father’s instructions and spent the day working with the money in his shoulder bag.

21.  The judge pointed out the discrepancies between the applicant’s evidence and what was put to the police officers by his counsel.

22.  The judge rejected the applicant’s evidence, saying that the allegation of the police’s decision to frame up the applicant before any drug was found was inherently incredible. The judge accepted the evidence of the police officers, saying that there was no major area of discrepancy in such evidence.

The Revelation of the Applicant’s Previous Convictions

23.  Towards the end of the applicant’s cross-examination, the prosecuting counsel – Mr Hui indicated to the judge that he would like to seek leave to refer to the applicant’s “previous convictions” on the basis that the applicant had alleged a police frame-up.

24.  Having reprimanded Mr Hui for not giving a prior warning and for using the term – “previous convictions” instead of a more neutral term of “criminal record”, the judge rejected the application, saying that it was more prejudicial than probative. There was then no attempt to ask the judge to recuse himself.

25.  Nevertheless, to minimize the impact of the revelation, the judge said: “We have heard a lot of the evidence and I am a professional judge and I’ll approach the case on the basis that if he does have any previous convictions they are of a very minor nature and need not be relevant to this particular charge” and then: “I will assume that any one or more criminal convictions possessed by the defendant are for relatively minor and not relevant offences”.

26.  In any criminal proceedings, a judge should not be told unnecessarily the criminal record of a defendant. However, when there is an attempt to put the character of the defendant in issue, revelation of the defendant’s convictions is inevitable and it hardly makes any difference either to use “criminal record” or “previous convictions”. It by no means follows that such revelation will result in the automatic quashing of a conviction.

27.  In A G v Siu Yuk-shing [1989] 2 HKLR 97, the Privy Council had to deal with the issue of how a judge sitting alone should approach probative, but prejudicial evidence. Lord Griffiths said at p 102:

“It is not without significance that this was a trial by judge alone. If the judge had been sitting with a jury he would have had to weigh carefully the probative value of such a previous conviction against the prejudice to the accused that would be likely to arise in the minds of the jury. This risk of such prejudice overbearing the probative value of evidence is of infinitely less significance when a case is tried by a judge alone. The judge must of course guard against any such result but his whole background and training have fitted him to do so. In a trial by a judge alone the exercise of excluding the evidence on grounds of prejudice becomes somewhat unreal when it is remembered that the judge must be informed of the nature of the evidence in order to rule upon whether or not it is admissible. (Emphasis added) If the judge having ruled it inadmissible is to be trusted to put the evidence out of his mind he can surely be trusted to give it only its probative, rather than its prejudicial, weight if he rules that it is admissible. The trial judge in the present case showed an entirely correct approach to this aspect of the case when he said:

‘The evidence of previous conviction will have prejudicial effect but  as I am sitting as both judge of fact and of law I can see it will be minimal compared with its possible effect on a jury.’”

28.  The nature of the applicant’s defence justified the prosecution’s attempt to put the applicant’s character in issue.

29.  The judge was not told the applicant’s actual previous convictions and after ruling against the prosecution, the judge clearly stated that he would assume the applicant’s convictions were of minor and not relevant offences. There was also no attempt to ask the judge to recuse himself.

30.  In the case of a trial by jury, the unnecessary disclosure of a defendant’s criminal record, whether deliberate or inadvertent and depending on all the circumstances, may constitute unfairness and a re-trial may have to be ordered.

31.  However, in the present case, a professional judge was hearing the case on his own and there is no reason to doubt what he said he would do. There is no indication that the judge was in any way affected by the revelation of the applicant’s criminal convictions.

32.  In our view, the revelation to the judge that the applicant had previous convictions does not render his conviction unsafe or unsatisfactory and is therefore not a valid ground of appeal.

33.  The case turned on the credibility of the witnesses. The judge was entitled to accept the evidence of the prosecution witnesses and to reject that of the applicant. The judge was right in concluding that the applicant’s allegation of a police frame-up was inherently incredible.

34.  We do not agree that the conviction against the applicant is in any way unsafe or unsatisfactory. The application for leave to appeal against conviction is therefore dismissed.