HKSAR v. AYIVOR MARK

IN THE COURT OF APPEAL

No. 137 of 1997
Criminal

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J U D G M E N T

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Barnett, J. :

1. The Applicant faced an indictment containing ten counts. Nine counts were of trafficking in a dangerous drug; one was of possession of a dangerous drug. The Applicant pleaded not guilty to each count. After trial before Deputy Judge Wong and a jury, the Applicant was acquitted of one offence of trafficking and convicted of the other 9 offences. He was sentenced to a total of 3 years 10 months' imprisonment. Against conviction, the Applicant now seeks leave to appeal. His application for leave to appeal against sentence was abandoned and has been dismissed.

2. Counts 1 and 2 on what was a re-amended indictment involved trafficking in small quantities of dangerous drugs. Count 1 related to 2.58 grammes of a mixture containing 0.28 gramme of heroin hydrochloride. Count 2 involved 10.26 grammes of cannabis resin.

3. Count 3 involved possession of 1.64 grammes of methamphetamine hydrochloride commonly known as "ice".

4. The dangerous drugs involved in those 3 counts were seized by the police on 24th March 1996 when they raided a room in a flat at Ash Street, Tai Kok Tsui occupied by the Applicant. The Applicant and a female companion were intercepted as they were leaving the flat and the Applicant was arrested.

5. Count 4 was of supplying heroin to a female known as Shamala, who was the female intercepted with the Applicant. This person was not apparently arrested and was certainly not available as a witness at the trial. The evidence in relation to this offence was contained in a video recorded interview of the Applicant on 26th March. The evidence was extremely vague. Unsurprisingly, the jury acquitted the Applicant of this offence.

6. Counts 5 to 10 involved supplying cannabis to 5 students and to one of the them also heroin. These students were apparently traced through photographs found in the Applicant's room. They gave evidence under immunity. It is their evidence upon which this application principally focuses.

7. For the Applicant, Mr. Fenton who did not appear at the trial advanced 4 substantive grounds of appeal. Ground 1 is

"The Learned Judge erred in law and exercised his discretion wrongly when he allowed PW1 to PW5 to give oral evidence of previous dealing between the Appellant and each of the above prosecution witnesses in alleged illegal substances (which were not subject of the charges against the Appellant) in that:-

a) Evidence of these alleged previous dealings were highly prejudicial.

b) The dealings were not subject of any of the charges.

c) The dealings were irrelevant and had little or no probative value.

d) This ruling did not fall into any of the exceptions to the rule that the prosecution may not adduce evidence tending to show that the accused has been guilty of acts other than those charged against him or that the accused has a propensity to commit crimes of that kind as charged."

8. PW1 to PW5 there referred to were the students. Through the students the prosecution had to establish three things

1) that the Applicant supplied each student with something

2) that what was supplied was cannabis and in one instance heroin, and

3) that the Applicant knew what he was supplying.

9. The second matter which the prosecution had to prove was the subject of an application under Section 16 of the Criminal Procedure Ordinance. That application was made upon the basis of the students' depositions. In spite of what was contained therein about the students' experience and knowledge of cannabis and heroin, counsel then for the Applicant submitted that the students were neither experts nor competent to give evidence as to the nature of the substance supplied to them. The deputy judge rejected this submission and found that there was a prima facie case. Immediately after making that ruling, however, he expressed concern as to whether the existing counts on the indictment were duplicitous because the students' depositions showed that the Applicant had been supplying them with drugs over a substantial period of time. Counsel for the prosecution said that the counts on the indictment were in fact sample charges, one having been selected in respect of each student. He went on to say, however, that in order "to establish the so called expertise of these witnesses" it was necessary for the prosecution "to lead evidence as to his previous dealing with each witness".

10. The judge was rightly concerned about the prejudicial nature of such evidence. Counsel for the prosecution then put the matter squarely

"Such evidence may have some prejudicial effect on the defence - but the probative value outweigh the prejudicial effect in this particular case."

11. There followed lengthy debate about the ability of lay persons to give evidence about or express an opinion on matters such as whether a particular substance was a particular dangerous drug. More importantly, however, counsel referred to Makin v. Attorney-General for New South Wales (1894) AC 57 and later cases in that line of jurisprudence. In Makin, at p. 65 : Lord Herschell LC said:

"It is undoubtedly not competent for the prosecution to adduce evidence tending to shew that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to shew the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused."

12. Counsel submitted that

" The evidence the Crown seeks to produce goes beyond showing a tendency to commit crimes of the kind charged and is positively probative in regard to the crime charged, in that: firstly it is probative in respect of the issue that what had been supplied to the school children were in fact the alleged dangerous drugs, i.e. whether it was heroin or cannabis as alleged; and it is probative in respect of the issue whether the defendant knew what he was supplying were in fact the alleged dangerous drugs."

13. Shortly after counsel continued

" To establish the expertise of the witnesses, there must be evidence that these witnesses have previous dealings of dangerous drugs themselves. They had previous dealings with the defendant. It was the defendant who supplied the dangerous drugs to them. The defendant had told the witnesses what the substance was. The witnesses believed what they had consumed was cannabis because it was the defendant who told them it was the substance. The defendant himself was in a position to tell that the substance he supplied was in fact cannabis, because he himself has sufficient previous dealings and experience so that he can tell what the substance is.

My Lord, it is on this basis that the Crown seeks to produce the evidence on previous dealings of dangerous drugs, both on the part of the witnesses and of the defendant. The evidence is not produced to prove the propensity of the defendant to commit the offences as charged."

14. Towards the end of this lengthy interchange, counsel for the Applicant said that it was "quite clear that the drug addiction, or the drug history of the Defendant is prejudicial in trials of drug related offences". She also said that she still objected "to the Crown leading evidence on previous dealings between the witnesses and the defendant."

15. Shortly thereafter the judge ruled "the previous dealings of the witness admissible". That ruling was somewhat cryptic but it is evident to us that the judge was making a blanket ruling that the evidence contained in the students' depositions concerning all their dealings with the Applicant could be led in evidence, and exercising his discretion in favour of the prosecution.

16. Armed with that ruling, counsel for the prosecution took full advantage. When the trial proper began he called the first student. After the usual formalities, he established that the student had been taking cannabis since August 1995 by smoking it in cigarette form at weekends. Examination in chief then continued

"Q. How did you come to know that the substance was cannabis?

A. I was told that when it was given to me.

Q. Who supplied the cannabis to you?

A. At the time there was one I met - Mark.

Q. Mark?

A. Yes. That was how I came to meet him.

Q. Is Mark in court today?

A. Pardon me?

Q. Is Mark in court today?

A. Yes.

Q. Please point him out.

A. He is there sitting at the back.

MR WONG: My Lord, the defendant is identified.

COURT: Yes.

Q. From now on you may refer to Mark as the defendant.

A. Yes.

Q. For how many times did the defendant supply cannabis to you?

A. I guess around 50 times.

Q. Did you have to pay?

A. Yes, most of the time.

Q. "Most of the time."

Can you remember when was the last time you bought from the defendant cannabis?

A. It's long time ago.

Q. Perhaps I give you a time frame. Do you remember whether you had bought cannabis from the defendant in March last year?

A. It was the very beginning; I guess March or April - beginning of the year last year.

Q. All right. So at the early part of last year.

A. Yes.

Q. Would it be January or February or March?

A. I think it was early March.

Q. "Early March." Do you remember how much cannabis did you buy from the defendant on that occasion?

A. I don't really know how much now.

Q. Was it of the usual quantity you consumed or a much larger quantity?

A. It was of the usually quantity.

Q. "Usual quantity." How much money did you pay for it?

A. Like I said, I don't remember how much I bought that day; but usually it costs maybe around HK$200.

Q. What form of cannabis did you receive on that occasion - was it hash or the other form?

A. I think it was the other form, it was not hash.

Q. So it was tobacco form.

A. Yes.

Q. Can you remember under what circumstances did the defendant supply cannabis to you on that occasion?

A. I am sorry. I don't understand your question.

Q. Did you ask or were you approached by anybody?

A. I asked for it.

Q. You asked for it.

How did you contact the defendant?

A. Called him by phone.

Q. "By phone."

And then what did you do?

A. And then we made an arrangement to meet at a time, and we usually met at one of his apartments.

Q. Where was his apartment?

A. There were two or three, but they were round the Chung King Mansion area.

Q. Had you ever been to an apartment in Tak Kok Tsui?

A. I had not. No.

Q. "No."

On that occasion that you bought from the defendant in early March, did you consume the substance the defendant gave you?

A. Yes.

Q. From your experience of consuming cannabis, what do you say was that substance the defendant gave you?

A. I would say it was cannabis."

17. This student was also involved in the count relating to heroin. Counsel adopted a similar approach to the student's evidence in relation to heroin although the number of times on which heroin had been purchased from the Applicant was only 5.

18. A similar approach was also adopted in relation to the other students who spoke of being supplied with cannabis by the Applicant on anything from 8 to 100 occasions.

19. It will be seen therefore that counsel first established that the Applicant was a frequent supplier to each student. In other words, the Applicant had committed a substantial number of offences when he faced only one specific offence in respect of each student. Having established that, counsel then went on almost as an afterthought to try and isolate the occasion which gave rise to the specific offence. The specific offence however was alleged to have occurred on an unknown day in a period which spanned several months. The effect therefore was really to have supplied the judge and jury with a whole menu of offences and invited them to select any one as the specific offence.

20. That that evidence was highly prejudicial hardly needs to be stated. For the Respondent, Mr. Bruce said that the prosecution had to take a common sense approach to the evidence and the problems which it faced. He said that the prosecution had to look forward to the trial and anticipate the defences which might be raised by the Applicant. In particular, there was concern about identification of the nature of the substance supplied and about establishing knowledge on the part of the Applicant as to the nature of what he was alleged to have supplied. To overcome these problems it was necessary to show the full picture of the dealings which had taken place between the students and the Applicant. This evidence, Mr. Bruce said, would be probative of the nature of the substance because it would establish that the students were in a position to say what it was, either because the Applicant had told them on a previous occasion when he had supplied cannabis, or because of their considerable experience of smoking cannabis. The evidence would also go to discredit any argument by or on behalf of the Applicant that he might not have known what he was supplying.

21. We understand and sympathise with that submission and with the position in which the prosecution found itself at the beginning of the trial. We are not persuaded, however, that the difficulties facing the prosecution merited the blanket approach which was sought from and approved by the judge. In our judgment, the error is demonstrated by the way in which the counsel approached the students' evidence. He approached it from back to front, adducing at the outset highly prejudicial evidence which may not have been necessary. In our view, counsel should first have asked the students questions which would have the effect of identifying the instance of supply of cannabis on which the prosecution relied. Counsel could then have elicited details of what took place on that occasion. It may well have been that the Applicant said on that specific occasion words to the effect "here is the cannabis you asked for". If that was the evidence, there would be no need to elicit details of other dealings because the prosecution had available other evidence, which had been ruled admissible, which was probative of the Applicant's knowledge of and familiarity with cannabis.

22. If the evidence of what took place on the occasion the subject of the count was less specific, then it might be permissible for counsel to seek to extend the students' evidence to cover perhaps one other dealing with the Applicant when the nature of the substance was confirmed by the Applicant. It would, however, have been necessary then to ask the judge to exercise his discretion to extend the ambit of the evidence.

23. What happened was that counsel for the prosecution crossed his bridge before he came to it. He had available a wealth of evidence from the students about their previous dealings with the Applicant which was probative of two matters which counsel had to establish before the jury. Unfortunately, he seems to have failed to consider whether this evidence would in fact be necessary for the reasons which we have attempted to indicate. Also unfortunately, he took the judge with him across the bridge and in following counsel over the bridge the judge fell into error, an error which, given the somewhat confused manner in which the various points arose for consideration is understandable. Error, however, it was, an error which, in our view, was not cured by the deputy judge's direction that:

"the previous dealings, I would stress, are relevant only in one aspect - and that is the issue whether the prosecution has proved that the children knew what was supplied was cannabis. That is only in respect of their experience and knowledge as to those drugs. If you think that evidence is relevant to any other issue, then I am duty bound to direct you that it is not. You must consider the previous dealings only in relation to the issue of knowledge of the drugs only."

24. The error undoubtedly renders the convictions in respect of counts 5 to 10 unsafe and unsatisfactory. Sadly, the error goes further than that because the prejudice generated by the evidence led as a result of that error must necessarily taint the convictions in relation to counts 1, 2 and 3.

25. In the circumstances, it is not necessary for us to deal with the other three substantive grounds of appeal.

26. Accordingly, we give leave to appeal and treating the hearing of the application for leave as the hearing of the appeal, we allow the appeal, quash the convictions and set aside the sentences. For the Applicant, Mr. Fenton asked only that the Applicant should have the opportunity of a re-trial unencumbered by highly prejudicial evidence. Subject to anything Mr. Bruce may have to say, we so order.