HKSAR v. LAU KA SHING

CACC 292 /2018

[2020] HKCA 834

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 292 OF 2018

(ON APPEAL FROM HCCC NO 174 OF 2016)

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J U D G M E N T

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Hon Macrae VP (giving the Judgment of the Court):

1.  The applicant applies for a Certificate for leave to appeal to the Court of Final Appeal in respect of no less than four questions, albeit pleaded as two, which are said to arise out of the Judgment of this Court of 28 May 2020 and raise questions of great and general importance. The questions are as follows:

1(a)   In a criminal case, would an accused not be regarded as depriving himself of the protection of Section 54(1)(f)(ii) of the Criminal Procedure Ordinance, Cap 221 as long as the imputation against the prosecution witness is a necessary part of the defence being put forward? 

See Stirland v DPP[1]

1(b)   Is Viscount Simon’s proposition in Stirland v DPP ante, solely confined to cases of rape?

“An accused is not to be regarded as depriving himself of the protection of the section, because the proper conduct of his defence necessitates the making of injurious reflections on the prosecutor or his witness.”

See R v Selvey[2]

1(c)   Ought some limitation be placed on the words of the statutory provision since to do otherwise would be to do grave injustice never intended by the legislature? 

See R v Turner[3]

2.      Notwithstanding there is a breach of the statutory provision, ought judicial discretion to be exercised in favour of the accused where the evidence is overwhelming or where the prosecution has a strong case? 

See R v Britzman[4]; R v Tong Cho Yan[5]; Phipson on Evidence (19^th ed), paras 20-30

2.  The parties have agreed that this application may be determined on the papers on the basis of their written submissions.  

3.  In addressing these various questions, it is necessary to bear in mind that the defence advanced at trial carried with it the imputations that certain prosecution witnesses, who gave evidence at trial, had (i) fabricated a case of possession of a large quantity of dangerous drugs against the applicant, which he contended he had never possessed; and (ii) subsequently tricked him into signing two admissions to trafficking in the drugs he had allegedly been carrying, as well as other drugs found in the premises from which he and his brother (D2) had just emerged.  Mr Cheung does not now take issue with the fact that the imputations were made: his argument is that they were not such as to engage the loss of his shield under section 54(1)(f)(ii) of the Criminal Procedure Ordinance (“the Ordinance”).

4.  Assuming, therefore, that section 54(1)(f)(ii) of the Ordinance was engaged, it fell to the trial judge to exercise his discretion whether or not to permit the prosecution to cross-examine the applicant on his criminal record.  In the event, as we observed at paragraph 21 of our Judgment, such cross-examination was limited to two previous theft convictions and three possession of dangerous drugs convictions, although the applicant in fact had five previous convictions for dishonesty, four convictions for possession of dangerous drugs, one for assault occasioning actual bodily harm and one for assisting in the management of an unlicensed massage establishment.

5.  If such imputations had been made, which the trial judge and this Court found they had, a finding with which the applicant now takes no issue, then ultimately this application impugns the exercise of a judicial discretion; and one that was exercised by the trial judge after full argument and following recourse to relevant authority.  The principles upon which an appellate court may overturn the exercise of a judicial discretion have been clearly established and were referred to at paragraph 40 of our Judgment. In his summary of those principles in Selvey, Viscount Dilhorne held[6]:

“In my opinion the cross-examination of the accused was permissible under the section and it cannot be said the judge exercised his discretion wrongly in allowing it to take place. As Pickford J said in Watson, 8 Cr App R 249, 254, 255:

“…in order to see if the conviction should be quashed it is not enough that the court should think it would have exercised its discretion differently.  It is necessary to show that in law the cross-examination of the prisoner was inadmissible.”

And as Devlin J said in Cook [1959] 2 QB 340, 348:

“…It is well settled that this court will not interfere with the exercise of a discretion by the judge below unless he has erred in principle or there is no material on which he could properly have arrived at his decision.””

6.  The applicant argues, by Question 2, however, that such a judicial discretion ought to be exercised in favour of an accused where the prosecution evidence is overwhelming; or, indeed, even where the prosecution case is strong.  We have already explained that such a limitation is not to be found in the plain wording of the statute and such a determination during the currency of the trial would be outside the normal scope of a judge’s duty and would be particularly inadvisable if a judge was required to give his view openly as to what he thought of the strength of the prosecution case.  Giving evidence in front of a jury can be enough of an ordeal for a defendant, without the judge telling him before he embarks on that exercise, or when he is in the middle of cross‑examination, that the evidence against him is, in his view, overwhelming. We described this exercise, at paragraph 34 of our Judgment, as “fraught with difficulties”.

7.  Moreover, this case depended on the veracity of police officers as to their observations of the applicant and D2, and on the reliability of the evidence as to the applicant’s verbal admissions.  If the jury entertained a reasonable doubt about the reliability of the police evidence on these matters, which is a common line of defence in drugs cases routinely engaged at all levels of the criminal courts in Hong Kong, the applicant would have been acquitted.  Furthermore, the jury would already have appreciated that D2 had pleaded guilty to both counts on the indictment and that he (D2) was assuming full responsibility for the possession and trafficking of all of the drugs.  Indeed, D2 went on to give evidence to that effect before the jury as a defence witness.  

8.  Notwithstanding our reservations about Britzman, this Court did not go so far as to say that the case was wrongly decided on this issue.  However, we pointed out, at paragraph 36 of our Judgment, that the factor of an overwhelming case did not find repetition in the leading modern authority on the topic, namely R v McLeod[7], and we left it on the basis, at paragraph 35 of our Judgment, that such a factor should not be given “any great emphasis at all, for the reasons we have earlier articulated”.  As we have said, an application under section 54(1)(f)(ii) of the Ordinance requires the judge to exercise a discretion and the different factors which go to that exercise in a given case will always vary in weight and cogency.

9.  Mr Chan, for the respondent, has further pointed out that in R v Burke[8], where the appellant was charged, inter alia, with an offence of possession of drugs with intent to supply, the English Court of Appeal described the police evidence as overwhelming[9], yet was nevertheless satisfied that the trial judge’s decision to permit cross-examination on the appellant’s previous convictions was fair, and there was no basis for suggesting that he erred in principle[10].  Ackner LJ, giving the judgment of the Court, made no mention of Britzman.  Nor, as we have said, was any mention of Britzman made in McLeod.

10.  In our judgment, Question 2 does not actually arise on the facts of this case, and nor does it amount to a question of great and general importance.

11.  Turning to the three questions, which form Question 1 of the questions sought to be certified, it is worth remembering that section 54(1)(f)(ii) was incorporated as part of the then Criminal Evidence Ordinance (since repealed) by virtue of Ordinance No. 14 of 1906, on 12 October 1906, and has been part of the law of Hong Kong ever since; the Act from which it was derived having been introduced in the United Kingdom in 1898.  It has long been settled by the House of Lords, at least since Selvey, 50 years ago, that courts should adopt an “ordinary and natural interpretation” of the equivalent section in the United Kingdom and that there is no exception where the imputation is a necessary part of the defence case.  We do not think that Question 1(a) amounts to a question of law of great and public importance, which has not already been well understood, thoroughly discussed and definitively settled in a long succession of cases of high authority.

12.  As for Question 1(b), we do not see how this question arises from the Judgment of this Court; indeed, this matter was never discussed at the appeal.  We were simply identifying how each of their Lordships in Selvey had dealt with the so-called fourth proposition of Viscount Simon LC in Stirland v DPP.  However, whether or not Lord Pearce (and Lord Wilberforce, who agreed with him) was correct in the view he expressed about Stirland in Selvey, it is rather obvious in a rape case where consent is in issue that an assertion, implicitly or explicitly, that the complainant is not telling the truth when she claims she did not consent to intercourse cannot ordinarily, as a matter of fairness and common sense, result in the defendant losing his shield against cross-examination on his previous convictions.

13.  Again, the question posed in Question 1(c) was answered as long ago as 1912 by Lord Alverston CJ, on behalf of the five-member division of the Court of Criminal Appeal in England and Wales in R v Hudson[11], and approved and applied in Selvey and a succession of judgments since.  It has also been approved and applied by the High Court of Australia in Curwood v The King[12], Dawson v The Queen[13] and Philips v The Queen[14].  

14.  Mr Cheung, nevertheless, argues that “it is high time for the captioned subject to be considered by the top court”[15].  Although it must be a matter for the Court of Final Appeal whether it wishes to forge a different approach to the interpretation and application of section 54(1)(f)(ii), the question posed has been well-settled for over a century and we do not consider that it gives rise to a point of law of great and general importance.

15.  We accordingly refuse the application.

[1] Stirland v DPP [1944] AC 315, at 327 per Viscount Simon LC.

[2] R v Selvey [1970] AC 304, at 356F per Lord Pearce.

[3] R v Turner [1944] 1 All ER 599.

[4] R v Britzman [1983] 1 WLR 350, 355G.

[5] R v Tong Cho Yan [1982] HKC 254, 261G-I.

[6] Selvey, at 342B-D.

[7] R v McLeod [1995] 1 Cr App R 591.

[8] R v Burke (1986) 82 Cr App R 156.

[9] Ibid., at 164.

[10]  Ibid., at 165.

[11]  R v Hudson [1912] 7 Cr App R 256.

[12]  Curwood v The King (1944) 69 CLR 561.

[13]  Dawson v The Queen (1961) 106 CLR 1.

[14]  Philips v The Queen (1985) 159 CLR 45.

[15]  Submission of the applicant, dated 23 June 2020, para 41.