THE QUEEN v. MOK WING HUNG

  ---------

----------------

JUDGMENT

----------------

Penlington, J.A.:

1. At the conclusion of the hearing of this application we said it would be granted, the hearing of the application treated as the appeal, which would be allowed and the conviction quashed. We ordered a re-trial. We said we would give our reasons in writing at a later date. This we now do.

2. This was an application for leave to appeal against a conviction for trafficking in dangerous drugs before Wong, J. and a jury on 24th July 1990.

3. The Crown's case was that on 27th August 1989 the applicant was about to depart from Hong Kong for Canada with a group of tourists when he was taken aside by officers of the Customs and Excise Department and his clothing searched. Inside a pair of sports shoes which he was alleged to have been wearing were found 628.91 grammes of a mixture containing 522.49 grammes of salts of esters of morphine (i.e. No. 4 heroin). Following his arrest the applicant made a statement admitting that he knew of the drugs found inside the soles of his shoes and that he intended to take them to Canada on behalf of a person who he referred to as "An John".

4. The prosecution witnesses were cross-examined and it was put to them that their evidence about the applicant wearing a pair of sports shoes was a total fabrication and that he had in fact been wearing a pair of plain leather shoes. The sports shoes were never in his possession and that for some reason the customs officers had deliberately given false evidence so as to obtain a conviction against the applicant for an offence on which they must have known he was not guilty.

5. The applicant gave evidence and said that he was wearing a pair of plain leather shoes when he went to the airport and that the sports shoes were only produced when he was being detained in a search room. They were not his and he knew nothing whatever about their contents.

6. In light of the view that we have taken of this matter we consider that we should not go any further into the evidence which was before the trial judge and jury.

7. At the hearing of this application Mr. McCoy, who did not appear in the trial below, raises two grounds of appeal which are substantially inter-related. The first was that during the course of his closing address Crown counsel addressed the jury in the following terms:

"         Among the factors that you will be considering, I would submit to you, apart from remembering Mr. Fung in the box, his demeanour, his attitude, will be the other sine of the coin of Mr. Mok's evidence, and that is that this Senior Customs Officer was telling you untruths. And an untruth in a court of law under oath or affirmation is called perjury. And you may be asking yourself why or whether a man such as Mr. Fung whom you examined in the box would commit the crime of perjury as part of an investigation into the charge before Mr. Mok. I think that's a fair question to ask yourself."

 

          The crime of perjury in fact is in the Crimes Ordinance, s. 31. And I will just read that out to you because I think it's quite relevant to you, because if Mr. Mok's evidence is accepted then Mr. Fung has, I would submit, by force been having to mislead you".

Crown counsel then read in terns the definition of perjury from the Crimes Ordinance. It was subwitted by Mr. McCoy that this was quite improper and went far beyond what prosecuting counsel should have said in an address.

8. However the main thrust of Mr. McCoy's argument is based on a comment which the trial judge made in summing-up which appears to have sprung out of Crown counsel. He said to the jury:

"         The case of the accused is not just that the pair of sports shoes and the drugs were not his. It goes much further. These officers, Officers Lau; Fung, Lee and Lai had committed perjury, and that is not just one of them, but three of them - four of them, knowingly, deliberately and viciously gave false and untrue evidence. Not only that,  they would have also committed another equally serious crime, if not more serious crime, of conspiring together to pervert the course of public justice by fabricating this wicked story against the accused. Do you think they would have risked their careers and future in doing what the accused said that they did? Again you have seen these officers in the witness-box and observed their demeanour. It is for you to say whether they are this sort of people who would do these evil things in complete disregard of human decency and fairness. It is a matter entirely for you."

9. Mr. McCoy says that no matter what was also said by the trial judge to the jury either before or after those remarks about questions of fact being entirely matters for them the passage complained of was couched in such pungent terms that it could not but nave prevented the jury from properly and fully considering in an impartial manner what was, for all its weaknesses, the defence case.

10. The trial judge, having at the beginning of his summing-up told the jury that they were the sole judges of fact and that what counsel or he himself said to them was not evidence and that they should decide the case entirely on the oral testimony given, plus the agreed statement of facts, went on, after the passage complained of :

"All these matters are for you and only you to decide. I am only expressing my views for your consideration during your deliberation. If these views have no appeal to you, you will ignore them completely. At the end of the day if you come to the conclusion that the accused was not wearing the pair of sports shoes in which the dangerous drug was found, in other words what the officers told you was a cock and bull story fabricated by these officers or if you have any reasonable doubt whether at the time the accused was stopped and searched he was wearing the pair of sports shoes in which dangerous drugs was found you will return a verdict of not guilty against the accused."

11. Mr. McCoy submits that while this was a passage with most of which he could not complain the judge's reference to a "cock and bull story" was unfortunate in the light of his previous remarks.

12. We have been referred to several cases where words similar to those used here were disapproved. In R. v. Culbertson 1970 54 Crim. App. Reports 310 the Recorder had said when addressing a jury regarding police evidence and the possibility of them having deliberately lied in court.

"You are not concerned with the consequences. The fact that these two police officers would be finished and would be out of the police within a very short time is of ho concern to you."

Lord Parker LCJ said in relation to that:

"It is true that the Recorder went on to say 'you are not concerned with the consequences' and later the fact that these two police officers would be finished and would be out of the police within a very short time is of no concern to you at all'. One asks oneself rhetorically why mentioned the fact if it is of no concern to them. But more important if this is emphasised the emphasis being on the fact that acquittal will produce ruination to certain witnesses then really that cannot be cured by going on to say that the consequences are not for the jury."

That passage has been referred to with approval in cases which followed such as R. v. Wellword-Kerr (1978) Crim. Law Review 760 and R. v. Fisher (19283) Crim. Law Review 486.

13. It has been said on many occasions that a trial judge is entitled to comment, and to comment strongly, on the evidence provided he makes it clear to the jury that questions of fact are entirely for them. We are satisfied however, and with some reluctance in view of the Crown's evidence, that here the judge went too far and that his remarks, coupled with the comments made by Crown counsel in his closing address, the jury may have been inhibited from giving  the appellant's evidence the impartial view to which he was entitled.

14. There are other grounds of appeal concerning the direction given as to the statutory presumptions but in light of the view we have taken above these need not concern us.

15. The Crown counsel submitted that if we were to take the view that we have concerning the comments made by Crown counsel and the trial judge we should order a re-trial. That was not opposed by Mr. McCoy. On the evidence here that clearly was correct.