R. v. CHENG CHIN PANG

IN THE COURT OF APPEAL

1995, No. 738
(Criminal)

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J U D G M E N T

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Liu, J.A.:

1. The applicant faced one count of trafficking in a dangerous drug. The case against him was that on 23 November 1994 outside 86, Waterloo Road, Kowloon, two police officers found on him 757.23 gms of a mixture containing 147.57 gms of heroin hydrochloride, a dangerous drug. The arrest of the applicant was made on information. The applicant was stopped and searched. He was carrying a yellow and black bag inside which was a plastic bag containing 30 packets of this quantity of dangerous drugs. He was found guilty by a jury after trial before Wong, J. He was convicted and sentenced to 10 years' imprisonment. He applies for leave to appeal against his conviction.

2. It transpired that at the time of his arrest, the applicant told the police that the substance was white powder. After he was cautioned, he told the police: "Ah Sir, give me a chance. I sell white powder because I owe people money." He was later interviewed at which he claimed to have been handed the dangerous drugs by a man known as Ah Leung. Statements, verbal and recorded at the interview, were produced at the trial without any objection. Before the jury, the applicant questioned the contents alleging that the same were given involuntarily because of threat and inducement. The trial judge preferred to and did focus on the circumstances at the time of the applicant's arrest. The applicant claimed that he had been framed by the police because of his poor criminal record. The applicant gave evidence and volunteered his past convictions which the judge described as "appalling". His record included several offences of dishonesty and violence as well as a 1991 conviction for possession of dangerous drugs for the purpose of unlawful trafficking. The applicant claimed that he had also been framed by the police in that 1991 prosecution. The case of the applicant was that after his arrest he was taken to Room 6 of the Kai Yuen Villa, where a search was conducted by the police officers. Nothing was found on him nor in the search. But very soon thereafter, a policeman retrieved a paper carrier bag in Room 7 and he triumphantly returned to Room 6 and virtually planted the drugs in question on the applicant. As I said before, the applicant's case is that he had been framed in this indictment by the police.

3. The applicant denied having lived in Room 7 of Kai Yuen Villa, and he called two witnesses: Pastor McKnelly, who testified as to his unsuccessful efforts in locating the caretaker for the applicant; a female prisoner was also called. She said she had visited Room 7 of the Villa in October or November 1994. It could readily be appreciated that the evidence led was intended to lend weight to the claim of the applicant that he had never been an occupant of Room 7. But neither of these witnesses gave evidence on the evening in question regarding the occupants of Kai Yuen Villa at the time of the applicant's arrest.

4. No less than six grounds of appeal have been canvassed for the applicant in his application for leave to appeal against conviction. Suffice it for us to concentrate on grounds 1, 5 & 5A and 6.

5. In ground 1, it is complained that the judge failed to identify the issue to which the applicant's given evidence of his past criminal record related. It is further challenged that the judge gave no warning that these previous convictions of the applicant would not and did not go to his propensity to commit the alleged offence in the indictment but merely to creditability in his version as to how he said he had been framed by the police.

6. As part of his case, the applicant volunteered to disclose his past criminal record. It was because of this poor criminal record, so the applicant maintained, that he had been framed by the police in this case. Counsel for the applicant submits that reference to past criminal record would call for a cautious direction. It is urged upon this court that failure of the judge to give a direction, in effect confining the previous record of the applicant to his credibility in the two plain issues raised, is a material misdirection that goes to the very root of his conviction. It is conceded by counsel for the Crown that such a direction forms part of the standardised summing up directions, requiring a trial judge to warn the jury that previous convictions of an accused should not be, in any way, taken to reflect on his propensity to commit the alleged offence. Counsel submits, however, that the two issues left to the jury by the judge, that is to say, the applicant being caught red-handed and his complaint of having been framed by the police, were narrow and that credibility must have been obvious to the jury as a question linked exclusively to these issues. Whilst there is some logic in this contention of counsel for the Crown, we are not able to accept that the usual direction with reference to previous convictions can, in the circumstances of this case, safely be omitted. Ground 1 of the applicant is therefore substantiated.

7. Turning to Ground 5 and Ground 5A together, it is a criticism that the judge was in error in his direction on police information. The judge said: "There is nothing unusual or wrong about information or using informers to obtain information. The police have to rely and use a number of methods to detect serious crimes. The police cannot just rely on reports made by citizens when certain crime was actually committed. So using information is very common, not just in Hong Kong but throughout the whole world. Sometimes information may be accurate and it may not be accurate. It may come from members of the public or it may come from paid informers. But this is not important. What is important is whether the police acted on information managed to detect the crime and arrest the right person. That is what is important".

8. The reference to police acting on information and arresting the right person is part of that direction which is particularly objectionable. The same judge gave a not dissimilar direction in the case of the R v. Law Wai Choi & Leung Yuk Keung in Criminal Appeal 28 of 1995, the judgment of which was delivered on 23 January 1996 by the Chief Justice for the Court of Appeal. In that case, Wong, J was said to have given the following direction in his summing up: "As a matter of public policy and for good reasons, police informers are protected and cannot be compelled to give evidence or to have his identity revealed. Sometimes the information is true and reliable, but very often as it turns out the information may be completely useless. In this case we are not concerned with information or the informer. What we are concerned is whether the information turned out to be true and it is whether the police arrested the right person and there is evidence before you that these people are connected with the dangerous drugs." That was criticised by the Court of Appeal as possibly having the effect of confusing the jury as to the significance of the information, and thereby likely to cause members of the jury to think that the information in some way provided additional evidence of guilt of the accused. We are unable to detect any significant difference between the direction on police information in this case and that given in the case of the R. V. Law Wai Choi & Leung Yuk Keung. We need take it no further. The applicant succeeds, therefore, on his grounds 5 & 5A as he is successful, we find, in Ground 6. Taking into consideration all the submissions advanced on his behalf by counsel and the matters I have referred to, not forgetting that there are other matters of concern in the other grounds of appeal, in all the circumstances, the conviction of the applicant is unsafe and satisfactory.

9. We allow his application for leave to appeal against conviction. Treating it as the appeal itself, we allow his appeal and quash his conviction.