HKSAR v. WONG SAU MING

CACC 85/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 85 OF 2001

(ON APPEAL FROM HCCC 17 OF 1998)

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J U D G M E N T

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Stuart-Moore VP:

Introduction

1. On 16 February 2001, the Applicant was convicted in the Court of First Instance of trafficking in a mixture containing 63.8 grammes of heroin hydrochloride, following a trial before Deputy Judge McMahon and a jury. He now seeks leave to appeal against conviction.

Prosecution's case

2. The prosecution evidence related to events on 5 October 1997, when PC 3432 (PW1) and six other members of his team were engaged in a surveillance operation near the junction of Kansu Street and Shanghai Street in Mongkok. They watched the Applicant get into a taxi with a second man called 'Tong'. In due course, the taxi, driven by a man named 'Li', was intercepted and the Applicant was told to get out. He was searched by PW1 and was allegedly found to have an open black plastic bag (Exhibit P4) in the left, front pocket of his jeans containing white powder in 'brick' or partial brick form. The other two occupants of the taxi were also searched but were found to have nothing which incriminated them in their possession. Li was searched by PC 19847 (PW3) and PC 52767 (PW5) searched Tong. Nothing of relevance was found in the taxi.

3. The finding by PW1 of what duly turned out to be the heroin referred to in the single count of this indictment was the only evidence against the Applicant.

Defence case

4. The Applicant's testimony was that he had been offered by Tong a lift to Yaumatei in Li's taxi. After they had been stopped by police, he was searched and no drugs were found in his possession. On the contrary, he said that Sgt 17246 (PW4) had searched the taxi and found the black bag containing the heroin on the front seat of the taxi. It had nothing to do with him, but he was later made the scapegoat for the drugs by Tong who was his triad 'big brother'. This came about because PW4 had asked the Applicant if he had any information he could give in relation to dangerous drugs. When he said nothing he was taken by PW4 to speak to the inspector who made a similar enquiry. The Applicant said that he could not contact that sort of person. PW4 then took him to the police van where Li and Tong were being kept by PW1, PW5 and a police sergeant. They were then offered a deal by PW4 who said they were "doomed" if one of them did not accept responsibility. However, if one of them admitted the offence, the other two could be released. They were told that the punishment for the one who took the blame for the drugs would be a 'bind over' or a fine. The Applicant spoke with the others about what to do. Li was said to have had a family and could not take the blame without it affecting them and eventually the Applicant agreed with the others that he would take the blame.

Police credibility attacked on findings in HKSAR v Leung Tat-ming (NKCC 7674/1997) and the application of R v John Edwards [1991] 93 Cr App R 48

5. Bearing in mind that in the present case the credibility of PW1 and other members of his team was all-important, Mr Richard Wong, who appeared not only for the Applicant in these proceedings but also for the defence in the court below, decided perfectly properly to launch a full-scale assault on the credibility of the police officers whose combined evidence cast blame on his client. In order to pursue this line, Mr Wong had been made aware that PW1 had given evidence in the North Kowloon Magistrates' Court, together with others from his team, in R v Leung Tat-ming (NKCC 7674/1997) which gave him ammunition for cross-examination.

6. It is necessary firstly to look at this aspect of the case in some detail in order to follow both grounds of appeal which were advanced. The trial at North Kowloon Magistrates' Court resulted in the acquittal of the defendant, Leung. In the course of his Reasons for Verdict, to which I shall turn in due course, the magistrate expressed certain reservations about the credibility of three officers (PW1, PW3 and PW5 in the case we are presently considering) who had given evidence in that trial.

7. The facts in NKCC 7674/1997 were summarized by Mr Wong and introduced by agreement with the prosecution as Exhibit D1 in the trial relating to these proceedings. A transcript of the magistrate's Reasons for Verdict were produced as Exhibit D2. The introduction of the evidence followed a ruling by the judge whereby Mr Wong was given leave, pursuant to the judgment in R v John Edwards [1991] 93 Cr App R 48, to cross-examine PW1 and other officers on issues related to their credibility arising from the facts and the magistrate's findings in NKCC 7674/1997. There were similarities between the two cases. These are readily discernible from a reading of Exhibit D1 which was in the following terms:

"HKSAR v Leung Tat Ming, NKCC 7674 of 1997

1. The prosecution was that:

(i) The Defendant was intercepted at the junction of Ferry Street and Shantung Street, Mongkok by PC 3432 (PW1 in the present proceedings). Upon search, a transparent plastic bag, containing suspected dangerous drugs was found at the left shirt pocket of the Defendant;

(ii) The Defendant was arrested and cautioned. Under caution, the Defendant said 'Ah sir, I have just received pay therefore I purchase more drugs for my own consumption so that it is cheaper.'

2. The Defence was that:-

(i) He was not arrested by PC 3432 and he was just responsible to take a cautioned statement from him;

(ii) He was intercepted by PC 52767 and PC 19847 (PW5 and PW3 in the present proceedings, respectively). He was taken to a lane where he was searched. Nothing was found;

(iii) PC 52767 told the Defendant that 'some one said you sold heroin and I have witness to that, if you have, you'd better take it out'. The Defendant denied;

(iv) PC 19847 left them and came back with the drugs in question and alleged that the drugs were the Defendant's;

(v) Sgt 17236 (PW4 in the present proceedings if, as may be assumed for these purposes, the sergeant's number was 17246 and not, as stated here in Mr Wong's summary, 17236) was called to the scene and then the Defendant was taken back to police station;

(vi) At the police station, PC 3432 took a statement from the Defendant;

(vii) After the statement, the Defendant went to the toilet. Inside the toilet, PC 19847 asked for the pager number of the Defendant. PC 52767 gave his pager's number to him so that if he had any drugs information, he would inform PC 52767;

(viii) On 5th November 1997, the Defendant was paged by PC 52767. When the Defendant returned call, Sgt. Keung, Sgt. 17246, asked the Defendant to come out. The Defendant refused. Sgt Keung then threatened the Defendant that 'When he was seen, he would be arrested every time.'"

8. The date in paragraph 2(viii) reveals that part of the activity covered by the North Kowloon case took place on 5 November 1997, only a month after the events with which we are presently concerned.

9. The Reasons for Verdict given by the magistrate at the end of that trial are, in the copy with which we have been supplied, undated. They are certainly not a model of clarity and in some respects they are difficult to follow. These read as follows:

"I accept it was a fact that the defendant was requested by the police to act as an 'informer'. The sixth witness PC 52767 (PW5 in the present case) also admitted the same in his testimony. According to the witness, he talked with the defendant about something after the first witness (also PW1 in the present case) had taken a cautioned statement from him. The witness said he was not sure whether the first witness was still present there that time. If the witness' testimony is true, that means the defendant agreed to be his informer and gave him his pager number. At this stage, the defendant had already been arrested, and as said in the allegations made by the prosecution for the case, were found in possession of dangerous drugs, and has admitted verbally to the charge after being cautioned by the police. As it shows, the defendant would not have any benefits if he agreed to be the police's informer.

I have reservations as regards the sixth witness' testimony. When he was asked by the defence counsel about his conversation with the defendant, he was trying to get away from the question by saying that he was not sure whether the first witness was there at the scene. There were also contradictions in some other areas of the witness' testimony. For example, when the defence counsel pointed out to him that he or his colleagues had rung the defendant about a week after the incident arranging an interview for him to meet Sergeant Keung, the second witness, he denied such allegation. He even said up to today, he had not rung the defendant. However, at another point, he agreed that (he) had talked with the defendant on the phone. He said he was returning the defendant's call. Why did the defendant ring him? According to the witness, he was told don't have any information to give right now. (I'll) call you if I've any later. I've reconsidered the defendant's testimony as regards this area. When giving his testimony, the defendant talked about the telephone conversation which shows clearly that he was not willing to be an informer. His attitude remained the same when he went to lodge a complaint with the CAPO later. In this respect, the possibility that the defendant's version is true and is greater.

The sixth witness' statement has an impact on that of the first witness. As the first witness said in his testimony, he had never left the defendant until he brought the defendant to see the duty officer and handed to him the dangerous drugs. If this is the case, I wonder why he said had not heard any conversation between the sixth witness and the defendant. In the defendant's testimony, which I considered again, he said it was the sixth witness and the third witness, PC19847 (also PW3 in the present case), who had intercepted him instead of the first witness. If the third witness was not playing an important role in this case nor was he taking part in anything special, why did the defendant have such a deep impression of him and could even identify him in the ID Parade conducted four or five months later?

After considering all the testimonies of the prosecution, I conclude that there are some dubious points in the case. Therefore, I'll give this benefit of doubt to the defendant and the defendant is not guilty of the charge." (Emphasis added)

10. These findings have to be considered in the light of what was said in John Edwards (above) where the English Court of Appeal quashed a conviction for robbery after its attention had been drawn to two other cases which had resulted in acquittal, in circumstances which cast doubt on the reliability of three police officers (who had figured in John Edwards) and in which cases there was sufficient connection between the evidence given by the police officers and the eventual outcome of those trials to have entitled the defence in John Edwards to cross-examine the officers as to their credibility.

11. Lord Lane CJ, applying two earlier authorities, (R v Thorne (1978) 66 Cr App R 6 and R v Cooke (Gary) (1987) 84 Cr App R 286), said at p. 57:

"The result of those two decisions seems to be this. The acquittal of a defendant in case A, where the prosecution case depended largely or entirely upon the evidence of a police officer, does not normally render that officer liable to cross-examination as to credit in case B. But where a police officer who has allegedly fabricated an admission in case B, has also given evidence of an admission in case A, where there was an acquittal by virtue of which his evidence is demonstrated to have been disbelieved, it is proper that the jury in case B should be made aware of that fact. However, where the acquittal in case A does not necessarily indicate that the jury disbelieved the officer, such cross-examination should not be allowed. In such a case the verdict of not guilty may mean no more than the jury entertained some doubt about the prosecution case, not necessarily that they believed any witness was lying." (Emphasis added)

12. Earlier in the same judgment, the court had considered a number of situations where questions relating to the credibility of police officers might arise, having recognized (at p. 55) that:

"The distinction between the issue in the case and matters collateral to the issue is often difficult to draw, but it is of considerable importance. Where cross-examination is directed at collateral issues such as the credibility of the witness, as a rule the answers of the witness are final and evidence to contradict them will not be permitted ..... The rule is necessary to confine the ambit of a trial within proper limits and to prevent the true issue from becoming submerged in a welter of detail."

13. The court went on (at p. 56) to ask itself whether questions should be permitted as to (1) complaints by members of the public about the behaviour of the witness on other occasions not yet adjudicated upon by the Police Complaints Authority (the equivalent to CAPO in Hong Kong); (2) discreditable conduct by other officers of the same squad; and, importantly in the present context, (3) other cases in which the witness has given evidence which has resulted in the acquittal of the defendant at the trial or the quashing of the conviction on appeal. The court concluded that:

"This is an area where it is impossible and would be unwise to lay down hard and fast rules as to how the Court should exercise its discretion. The objective must be to present to the jury as far as possible a fair, balanced picture of the witnesses' reliability, bearing in mind on the one hand the importance of eliciting facts which may show, if it be the case, that the police officer is not the truthful person he represents himself to be, but bearing in mind on the other hand the fact that a multiplicity of complaints may indicate no more than what was described before us as the 'band-wagon' effect." (Emphasis added)

14. In the present case, the judge had made a purely formal ruling that the Summary of Evidence and Reasons for Verdict taken from NKCC 7674/1997 should be admitted, and that the police witnesses could be cross-examined about the magistrate's reservations relating to their testimony in that case, because a similar ruling had already been made by the same judge in another case (HCCC 431/1997) where, following the exclusion of the defendant's alleged confessions, no evidence was offered against that defendant. The facts of that case (and of a further case in the District Court, where a prosecution, involving some members of the same police team from Mongkok, collapsed) were, it seems, of no direct relevance for present purposes. We were informed of the former trial (HCCC 431/1997) to explain why only a formal ruling had to be given in the present case and about the District Court trial in what may be assumed to have been a desire to keep this court fully informed of the background. For present purposes, HCCC 431/1997 and the District Court case can be disregarded. We do not know the basis of the failure of those two prosecutions and it is not for this court to speculate about what they may have been.

15. Having set the background for the introduction of the evidence in NKCC 7674/1997 in the present case, I have considerable doubt that the judge had been right to admit it. It is far from clear that the evidence of the three officers in question had, to adopt the phrase in John Edwards' case, been "demonstrated to have been disbelieved". The magistrate had said he had "reservations" about PC 52767 (who, for present purposes, was PW5) and that in one particular respect that there was a greater "possibility" that the defendant's version was true. He had gone on to say that this officer's "statement (had) an impact" on PW1's testimony. He had queried also the evidence of PW3. This led to the magistrate's conclusion that because "there (were) some dubious points in the case" he would give "the benefit of the doubt to the defendant" and acquit him.

16. Returning to the judgment in John Edwards, Lord Lane CJ made clear that the kind of case, where evidence about previous acquittals might cast a doubt on an officer's credibility could be introduced in subsequent trials, is effectively confined to situations where it has been proved beyond doubt that lies have previously been told by the officer in question. The Lord Chief Justice said (at pp. 56-57):

"There remains the problem of other cases in which the witness has, so to speak, unsuccessfully given evidence. We have the advantage in this respect of earlier decisions of this Court. In Thorne (1978) 66 Cr App R 6, the judge at trial had refused an application by the defence to have a police officer recalled for further cross-examination about verdicts of acquittal which had been returned by other juries in other cases in which he had been involved. Lawton LJ in the course of giving judgment said this (at p. 15):

'The fact that [the police officer] may have given evidence against other accused in other cases which did not lead to convictions, did not begin to prove that he was biased against any of the appellants in this case in any sense known to the law of evidence. The fact that a jury returns a verdict of not guilty does not go to prove that an important witness for the prosecution, albeit the sole witness, is a liar.'"

(Emphasis added)

17. A limited extension of this principle was examined in Cooke (Gary) [1987] 84 Cr App R 286. The court in John Edwards then (at pages 58 and 59) considered two further (unreported) cases (Dandy and Ors and Jones and Ors) where, in each case, scientific evidence had established that the police interview notes could not be relied upon. Both these prosecutions were ultimately discontinued. In the light of an examination of these and two other cases (Parchment and Khan), where the officers' evidence had not positively been established to be false, the Lord Chief Justice went on (at page 59) to say:

"Relevance, and therefore admissibility, is a matter of degree and has to be considered not by rule of thumb but against the background of each individual case. One of the considerations, we repeat, is the necessity of keeping the criminal process within proper bounds and avoiding the pursuit of side issues which are only of marginal relevance to the jury's decision. It will accordingly, as the judgment in Thorne made clear, be rare that the Judge in his discretion will allow cross-examination about the activities of a witness in other cases and the outcome of those cases. The reason is that an acquittal, save in exceptional circumstances, by no means necessarily means that the jury has disbelieved the police officer who has given evidence of the defendant's admissions. So far as Parchment and Khan are concerned, these two cases, in our judgment, fall fairly and squarely within the decision in Thorne. The fact that the Court of Appeal was not satisfied about aspects of the police evidence provides no proper foundation for the cross-examination of individual officers as to their veracity in general or the truthfulness of their evidence in the instant case. Such cross-examination would not properly have been permitted. Different considerations however apply to the other two cases, Dandy (supra) and Jones (supra). In our judgment, if the circumstances surrounding those two cases which we have described had been known to the defence, it would have been relevant and admissible to put to the officers in question that they had given evidence in the trials; that in each of the trials there was an issue as to whether alleged confessions had been fabricated and that the trials had ended in the way described. There was in each case a sufficient connection between the evidence given by the police officers and the eventual outcome of the trial to entitle the defence to cross-examine the officers concerned about these matters upon the question of their credibility in the instant case."

18. With all these considerations in mind, when the judge in the present case decided to exercise his discretion in favour of the defence, it seems that he had uppermost in his mind the objective to which reference is made in John Edwards of presenting to the jury, as far as possible, a fair and balanced picture of the witnesses' reliability. Whilst it is easy to understand a judge's motive in attempting to do all that he can in the interests of a defendant in circumstances such as these, the way matters developed indicates the practical sense in complying strictly with what the court in John Edwards stated.

The application

19. Mr Wong submitted in his first ground of appeal that having allowed the defence to introduce the facts and the magistrate's reasons for verdict in NKCC 7674/1997, the judge erred in permitting the prosecution to examine that case in order to see whether the magistrate "disbelieved the evidence of PW1, PW3 and PW5" or merely "gave the benefit of the doubt to that defendant".

20. Mr Wong also complained, in what is effectively on extension to this ground, about a direction in the judge's summing up which invited the jury to consider "to what extent the magistrate disbelieved those witnesses on that previous occasion". It was not, he submitted, a matter for the jury to examine the issue of disbelief when the evidence in NKCC 7674/1997 had been specifically introduced pursuant to John Edwards which, in turn, could only have meant that the evidence of the police witnesses had been demonstrably discredited on a previous occasion. He contended, therefore, that the jury should have been directed that they should take into account the fact that the police officers had been disbelieved by the magistrate and that they could take this into account when assessing the reliability of PW1, PW3 and PW5.

21. We have been supplied with a transcript of prosecution counsel's final speech in the present case. It is plain that he carefully analysed the findings of the magistrate in the case tried in the North Kowloon court before inviting the jury to find that, because the magistrate had found "some dubious points" which had left him dissatisfied with the police evidence, this did not "necessarily mean" that they should similarly find themselves dissatisfied with the police evidence in an "entirely different case".

22. Prosecution counsel's analysis involved doing no more than going through the magistrate's Reasons for Verdict, emphasising the approach the magistrate had taken to each of the witnesses in that case. I do not think that counsel or the judge can be criticised for respectively making these submissions or allowing them to be made. It would have amounted to a distortion of the factual position for prosecuting counsel to have accepted that the magistrate had found, as a fact, that the officers had given false evidence.

23. The more important point made by Mr Wong relates to the way in which the judge summed up the approach which the jury should take to this evidence. The judge firstly explained to the jury, in a way which is not criticized, that the reason they had heard about the evidence and findings in the other case before the magistrate was so that they could "take it into account in assessing the credibility" of the officers concerned. He went on to say to the jury that "what weight (they) placed on this evidence" was entirely a matter for them to decide. He went on to remind the jury that Mr Wong had urged them to regard the evidence in the other case as showing that the officers had been previously disbelieved, and that the magistrate's expressions of disbelief in the officer's evidence was important evidence to be taken into account "in assessing their credibility in this case". The judge then said, in the passage which was specifically criticised by Mr Wong:

"Bear in mind it is a matter for you to decide to what extent the magistrate disbelieved those witnesses on that previous occasion. It is also a matter for you to decide to what extent, if at all, the magistrate's disbelief of the witnesses in that case undermines their credibility in the present case." (Appeal bundle p. 33)

24. In my judgment, this direction was unobjectionable. It would have been a different matter if the evidence of the police officers in the case before the magistrate had been demonstrated to be false. In such circumstances there could be no justification for the jury being invited to form their own opinion when the evidence had established, as a fact, that the officers had previously given false evidence. Whilst the jury in the present case was entitled to consider whether this is what, effectively, the magistrate's findings may have amounted to, they were equally, in my opinion, entitled to consider whether the witnesses' evidence had simply been doubted which, from the evidence in the North Kowloon case, seems to be indicated. If the judge had directed the jury that the magistrate had disbelieved the officers, which is another way of saying that the magistrate had found them, as a fact, to have been lying, this would not have summarized the true factual position.

25. It is, of course, unfortunate that the jury were left having to analyse a magistrate's findings of fact and it may be precisely for this reason that the admission of such evidence should only rarely be occasioned and then only when the facts clearly establish that the witnesses in question have lied on a previous occasion. An acquittal, where a defendant has been given the benefit of the doubt, plainly does not amount to a demonstration that a particular witness has told lies.

26. In the present case, the evidence was admitted for one purpose only. This was to enable the jury to test the credibility of the witnesses in the light of the findings in the case before the North Kowloon magistrate. If this was to be done with fairness, which means not only towards the defence but towards the prosecution as well, it had to be done on a proper factual basis. If the fact was that the magistrate acquitted because he doubted the prosecution witnesses, then that was the proper factual basis upon which the jury had to proceed when deciding the extent to which the earlier case cast doubt on the credibility of the police.

27. The fallacy in Mr Wong's argument, or so it seems to me, was that he appeared to consider that as the evidence about the earlier case had been introduced pursuant to the judgment in John Edwards' case, this necessarily meant that the police evidence had been demonstrated to have been disbelieved or it should never have been introduced. Perhaps, as I indicated earlier, it should not have been admitted. Nevertheless, having been admitted, it had to be examined on a true factual premise.

28. For these reasons, this ground should in my opinion fail.

29. There was a second ground of appeal which merely asserted that the conviction was unsafe and unsatisfactory.

30. I do not accede to this submission. The summing up at the end of a trial, which Mr Wong accepted was in all respects fair outside his criticisms in the first ground, was impeccable. The defence had benefited from an over-generous ruling to admit the evidence taken from the North Kowloon case and, in all other respects, the defence case was fully and fairly placed before the jury for their consideration.

Conclusion

31. I would grant leave to appeal but, treating the hearing as the appeal, I would dismiss this appeal.

Stock JA:

32. Upon careful consideration of the magistrate's ruling, it does not appear to me, from that ruling, that it was demonstrated that the officers had been disbelieved, in the sense intended by Edwards. From Edwards, it is clear that the sort of prior case which is open to disclosure for the jury's consideration is one where there can be no doubt but that lies have been proved; for example, the cases of Jones and Dandy to which the Edwards judgment refers at page 59, cases in which there had been scientific evidence to prove falsity of records. The rationale for this is that, otherwise, the subsequent tribunal is left to tackle issues of fact which submerge the true issue "in a welter of detail" (see Edwards, at page 55).

33. Whilst in such cases there should be no hard and fast rules (Edwards page 56), it is very doubtful in my view whether the judge in the instant case should have admitted the evidence of the magistrate's findings in NKCC 7674 of 1997. Nonetheless, he did so, no doubt in an attempt to allow material to be placed before the jury, which material might be of assistance to the defence. Given that the evidence was admitted, we have then to look, not at the label under which it may have been admitted or expressed to be admitted, but at the actual case which has been admitted and the actual finding in that case. If it is the fact that the court in the other case merely entertained doubts about the accuracy of the officers' evidence, rather than that the other case clearly established falsity, then that is the basis upon which the jury must examine it. It cannot be that they must examine it on a false factual premise.

34. If the earlier case had established falsity by the officers, I agree that the jury could not be invited to second-guess that finding. They had to take it as they found it. If, on the other hand, the earlier case showed that the earlier court had been unsure about evidence, rather than that evidence had been disproved, then, equally, the jury must take that, as must the defendant, as they find it; and not on a false factual premise that the court had found as a fact that the officers had been lying. I accept that this engages the jury in an analysis of the ruling of the magistrate, which is undesirable and difficult. That is why admission of evidence in such cases should be limited to adverse findings which are clear cut. But the fact is that the evidence of the earlier case was admitted. It was admitted for the jury to test credibility in the present case against the events and findings of the earlier case. If they are to do that fairly to both sides, then they must do so on a proper factual basis; and if the proper factual basis is that the magistrate acquitted because he doubted the prosecution witnesses, as opposed to finding as a fact that they had lied, then that is the factual basis upon which the jury should proceed to decide the extent to which the earlier case cast doubt upon the credibility of the police witnesses.

35. How was the magistrate's ruling to be read? An examination of the magistrate's ruling in the previous case does not, in my judgment, take the prosecution evidence into the category of demonstrated falsity in the Edwards sense. The magistrate pointed to several items of evidence the nature of which threw the accuracy of prosecution evidence into doubt. They are not such that drive one to conclude that the magistrate meant anything other than what he said in terms, namely, that he had reservations about the evidence, and that he was giving the defendant in that case the benefit of the doubt. We should not, save in exceptional and very clear circumstances, assume that a professional tribunal does not mean what it says.

36. In the circumstances, I am of the view that, having admitted the record of the earlier proceedings, a step taken at the wish, or by consent, of the defence, the judge did not err in permitting the jury to see for themselves the extent to which the officers had been doubted; and that the submission that the jury should instead have been directed that the officers had been disbelieved, or shown to have lied, is a submission which is founded on an inaccurate premise, and must, therefore, fail. The strictly correct step in this case would have been not to admit the evidence at all. In the event, the applicant has derived a benefit to which, it might be said, he was not entitled.

37. Accordingly, whilst I would grant leave to appeal against convictions, I would dismiss the appeal.

Cheung JA:

38. The applicant was charged with the offence of trafficking in dangerous drugs, namely, 72.79 grammes of a mixture containing 63.8 grammes of heroin hydrochloride. He was tried before Deputy High Court Judge McMahon sitting with a jury and was convicted of the offence. He now applies for leave to appeal against conviction.

The prosecution's case

39. The prosecution's case is this : on 5 October 1997, PW1 (PC 3432) and his team totalled 7 police officers were in operation. He saw the applicant meet another person by the name of Tong in a food kiosk in Wong Tai Sin. The applicant and Tong then went to a taxi driven by a person by the name of Li. The police followed this taxi in three vehicles and later intercepted the taxi. PW1 told the applicant to get out of the taxi and conducted a body search of him at the side of the street while Tong and Li were arrested by the other officers. PW1 found a black plastic bag in the pocket of the applicant's jeans. Inside this bag were 5 other plastic bags containing brick forms or brick portions of white substance. The substance was later analysed to be heroin which is the subject matter of the charge. The taxi was subsequently searched and nothing was found inside. PW3 (PC 19847) searched Li and found nothing. PW5 (PC 52767) searched Tong. PW1 was the only witness who gave evidence that the dangerous drugs were found on the defendant.

The defence

40. The applicant gave evidence for his defence. He admitted that he was in a taxi together with Tong and Li when it was intercepted by the police. He said he happened to meet Tong who offered to give him a lift to Yaumatei in Li's taxi. The applicant also admitted PW1 had searched him but nothing was found on him. He said he saw PW4 (Sergeant 17246) get into the taxi and found the black plastic bag containing the dangerous drugs on the front seat. He immediately said that he had nothing to do with it.

41. The applicant was then taken back into a police vehicle and driven to a parking bay opposite the Yaumatei Police Station. There PW4 asked him if he had any information to give, and told him that if he could manage to get someone to come out with dangerous drugs, then one case could be "exchanged" or "swapped for another". The applicant said nothing. He was then taken by PW4 to meet the inspector who asked him if he had any information to give. He said he could not contact that sort of person. He was then taken by PW4 to a police van. Inside the van were Tong, Li, PW1, PW5 and another police sergeant. PW4 then offered the applicant, Tong and Li a deal. He said that they were all doomed to be convicted, but if one accepted responsibility, the other two would be released; the punishment would be a binding-over or a fine, and that the drugs were just "Hong Kong dollars". The applicant asked Tong what to do. Tong said Li could not take the blame as it would affect his family. Tong then told the applicant that he should take the blame. As Tong was his triad big brother, he agreed to do so and became the scapegoat.

The earlier case

42. If the matter rests here, this would be a typical case in which the jury would have to make a finding based on the credibility of the witnesses. However, the unusual feature of this case is that evidence was adduced of another case, namely, HKSAR v. Leung Tat Ming (NKCC 7674 of 1997) ("the magistracy case") in which PW1, PW3 and PW5 of this trial were also prosecution witnesses. The trial ended in an acquittal for the defendant ("Leung").

43. Leung was also charged with trafficking in dangerous drug. The prosecution's case was that Leung was arrested by PW1 and a plastic bag containing dangerous drugs was found in his shirt pocket. Leung's defence was that he was not arrested by PW1 who only took a cautioned statement from him after his arrest but rather by PW5 and PW3. He was searched but nothing was found on him. PW5 told Leung that "someone said you sold heroin and I have witness to that, if you have, you'd better take it out". Leung denied this. PW3 left them and came back with the drugs in question and alleged that they were Leung's. Later, after giving the cautioned statement, PW3 asked for the pager number of Leung. PW5 gave Leung his pager number and asked him to provide drug information. Later Leung was paged by PW5. On returning the call, PW4 told him to come out. Leung refused. PW4 then threatened him that "When he was seen, he would be arrested every time."

44. A summary of the prosecution and defence case together with the reasons for verdict of the magistracy case were admitted by the judge in this trial as evidence.

45. Earlier, in another case, namely, HKSAR v. Chan Kang Yiu, (High Court Criminal Case No. 431 of 1997) ("the first High Court case") the judge made a ruling on the admission of the above evidence at that case. After the judge ruled that certain confessions by the defendant to be inadmissible, the prosecution then offered no evidence against the defendant. As the judge had presided in both trials, the prosecution and defence in this case agreed that there was no need to re-argue the matter but to adopt the same ruling in this trial.

46. Mr. Wong, counsel for the applicant, who also appeared in the first High Court case, had in fact also applied for the facts of another case, namely District Court Criminal Case No. 915/1997 ("the District Court case") to be introduced in which serious allegations of misconduct were made to the team to which PW1, PW3 and PW5 belonged. The District Court case was stopped after certain evidence was received and the district judge referred the matter to the Secretary of Justice. PW1 and PW5, however, were not prosecution witnesses in that case. The judge declined to admit the evidence of the District Court case.

47. The offence in the District Court case took place in January 1997; the offence in the magistracy case took place in October/November 1997 (the exact date is not clear from the evidence); the offence in the first High Court case took place in 1997 and the present offence occurred in October 1997. There was close proximity in time in respect of the various offences.

R v. John Edwards

48. The ruling was based on R v. John Edwards (1991) 93 Cr. App. R. 48 in which Lord Lane C.J. held that :

"The acquittal of a defendant in case A, where the prosecution case depended largely or entirely upon the evidence of a police officer, does not normally render that officer liable to cross-examination as to credit in case B. But where a police officer who has allegedly fabricated an admission in case B, has also given evidence of an admission in case A, where there was an acquittal by virtue of which his evidence is demonstrated to have been disbelieved, it is proper that the jury in case B should be made aware of that fact. However, where the acquittal in case A does not necessarily indicate that the jury disbelieved the officer, such cross-examination should not be allowed. In such a case the verdict of not guilty may mean no more than the jury entertained some doubt about the prosecution case, not necessarily that they believed any witness was lying."

Lord Lane held that the test is primarily one of relevance, and this is so whether one is considering evidence in chief or questions in cross-examination. To be admissible, questions must be relevant to the issue before the court.

49. It is important to underline the basic decision of the quoted passage : what the jury should be told is that the prosecution witnesses' evidence had been disbelieved resulting in an acquittal of a defendant in an earlier trial.

The ruling

50. The judge in his ruling stated :

"It seems to me to fall squarely within the principle of Edwards' case as further approved by R v. Lam Wai Keung (1994) HKLR 9. In my view, the complaint as to misconduct in NKCC 7674/97 by both witnesses is sufficiently close in its nature to the complained of conduct in the present case so as to make the expressed disbelief of the magistrate of their evidence in that case relevant to their credit in this case." (emphasis added)

51. Reading the reasons for verdict of the magistrate, the judge was clearly right in his ruling. The magistrate, although he did not say so expressly, in essence disbelieved PW1, PW 3 and PW5. The magistrate questioned the credibility of the prosecution case. He expressed reservation about the evidence of PW5. He said PW5 admitted that Leung was invited to become a police informer; if Leung was in fact found in possession of the dangerous drugs and admitted it as such, he would not have received any benefit when he agreed to be a police informer. The magistrate also referred to the contradictory evidence given by PW5 on the subsequent telephone calls with Leung about information on drugs. He preferred the evidence of Leung. He said "the possibility (is) that the defendant's version is true and is greater." He said PW5's evidence had an impact on PW1's evidence. He also referred to the evidence of PW1 who claimed to be with Leung all the time, yet he said he had not heard of any conversation between PW5 and Leung. He also referred to Leung's case that he was not arrested by PW1 but by PW3. Leung was able to identify PW3 in an identification parade four or five months afterwards.

52. The magistrate's reasons for verdict was a brief one and it may not be as felicitous as one may hope, but is it important to bear in mind the nature of the defence raised in that trial. It was not a case of Leung admitting he was in possession of the drugs and then sought to give an explanation of the possession. His case, as apparent from the facts disclosed, was that the drugs were never found on him. He was not arrested by PW1 who allegedly arrested him but by PW3 and PW5. PW3 took the drugs from some place else and told Leung that they were his. In essence the defence was that the police had fabricated a case against him. By finding for Leung, the magistrate must have disbelieved PW1, PW3 and PW5. He may use words such as "dubious points" or giving "benefit of the doubt" to Leung. This would not distract from the core decision that the police were disbelieved. Mr. Cheung, counsel for the respondent, accepted that the magistrate disbelieved the prosecution witnesses, although he did not concede on the issue of fabrication.

The approach

53. The only basis in which the evidence of Leung's case was admitted at this trial was that the evidence of PW1, PW3 and PW5 was disbelieved by the magistrate. The jury may rely on this to assess the credibility of PW1, PW3 and PW5 in this trial. They are entitled to form a view that because of the earlier evidence, these witnesses are not credible witnesses. They are equally entitled to say, notwithstanding the earlier evidence, the witnesses had given credible evidence in this trial. But what must not be allowed is to undermine the foundation in which the earlier evidence is admitted, namely, these witnesses had previously been disbelieved, resulting in the acquittal of Leung in the magistracy case. It is only on this basis that the task of assessment by the jury on credibility will begin. Otherwise, if the jury are not even convinced that the witnesses had been disbelieved, how can they begin to use this evidence to assess their credibility?

54. This is a matter of fundamental importance, otherwise the rule in Edwards would not have been cast in such strict terms. The actual decision in Edwards was, of course, concerned with the police tampering with and fabricating evidence in the nature of confessions. However, this is only an instance of misconduct. The decision was about the approach the court should adopt in a subsequent trial where the same prosecution witnesses' evidence had been disbelieved and resulting in the acquittal of a defendant in an earlier trial.

55. No doubt, as Lord Lane CJ had held, this is an area where it is impossible and would be unwise to lay down hard and fast rules as to how the Court should exercise its discretion. It is matter of discretion for the court on whether to allow cross examination or admitting the previous evidence.

56. As pointed out by Lord Lane CJ, how the previous evidence is to be adduced is not a matter of real substance. However, once the discretion is exercised in admitting the earlier evidence, my view is that in order to give effect to the rule in Edwards, the judge is required to give an unambiguous direction that the relevance of the earlier evidence is that the witnesses had been disbelieved and then invite the jury to assess their credibility in that light. It is not an answer to say that the jury can read the reasons for verdict themselves and they can form a view on whether the witnesses were disbelieved or not. The jury are lay persons. The rule in Edwards is clearly one formulated for the benefit of a fair trial and there should not be any second-guessing by the jury.

What had happened in this case

57. Unfortunately in this case the prosecution was allowed to invite the jury to do just that. Counsel for the prosecution in his closing submission referred to the reasons for verdict. He proffered reasons which challenged the magistrate's reasoning and submitted that :

"Please look at the last paragraph. Obviously, this magistrate did not get a free answer from the evidence in that case to two questions posed by him. There he said there are some dubious points in the case and thus he gave it to the benefit of the defendant in that case. The magistrate did not satisfy with the police evidence in that case does not necessarily mean that you as well should not be satisfied with the police evidence in this case which is an entirely different case." (Emphasis added)

The intention was clearly to invite the jury to form the view that the acquittal was not because PW1 and PW5 were disbelieved but because of some doubtful points and benefit of the doubt was given to Leung.

58. The impression was not corrected by the judge. Instead his direction to the jury was that :

"Mr Wong (i.e. defence counsel) says that the disbelief expressed by the magistrate as to PW1, PW3 and PW5's evidence is important evidence you should take into account in assessing their credibility in this case.

Bear in mind it is a matter for you to decide to what extent the magistrate disbelieved those witnesses on that previous occasion."

The use of the words "to what extent" is unfortunate. It certainly raised the possibility that the magistrate did not disbelieve the witnesses. The jury were, in fact, invited to consider afresh whether PW1 and PW5 were disbelieved by the magistrate. In my view this is a serious misdirection. The irony is that if such ambiguous words were used, the reliance of such evidence may well be viewed adversely by the jury against the defendant. They may well question why the defendant referred to the evidence when it is not even clear that the prosecution witnesses had been disbelieved. This is a possibility that one cannot lightly dismiss.

Conviction unsafe

59. This is a case in which a proper assessment of the credibility of the prosecution witnesses is of vital importance to a determination to the guilt or innocence of the applicant. The misdirection would seriously affect the assessment, rendering the conviction unsafe and unsatisfactory. I also would allow this application but, treating the hearing as the appeal, I would have allowed the appeal.

Stuart-Moore VP:

60. By a majority, this appeal is dismissed.