R. v. PAW CHAM FUNG

IN THE COURT OF APPEAL

1995, No. 740
(Criminal)

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J U D G M E N T

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Hon Yang, C.J.:

1. The applicant faced three counts in the High Court. He was acquitted of the count of manufacturing a dangerous drug (Count 3). The jury could not agree on a count of trafficking in a dangerous drug (Count 1). He was convicted by a majority verdict of six to one by the jury on a second count of trafficking in a dangerous drug (Count 2). This is his application for leave to appeal against his conviction on Count 2.

2. The case for the prosecution was that in the evening of 13 February 1995, a party of customs officers saw a white private vehicle at about nine o'clock from which the applicant emerged. He was seen to enter the Hing Man Mansion at Hing Man Street, Shau Kei Wan. The applicant was carrying a rucksack on his back as he entered the Mansion. About half an hour later, i.e. at about 9:30 pm, the applicant was seen coming out of the Mansion. In his right hand was a black plastic bag. He was intercepted by the customs officers, whereupon he put up a struggle and tried to run away. The customs officers succeeded in subduing the applicant and took the contents of the plastic bag away for examination.

3. Upon being arrested and handcuffed, the applicant was cautioned. Then he was taken to Flat 8 of Hing Man Mansion, 13th Floor, where a large quantity of drugs was found together with paraphernalia consistent with the manufacture of dangerous drugs.

4. The case for the defence throughout was that this was a frame-up by the customs officers, that he was never in possession of any of the drugs found nor did he has any knowledge.

5. It is not necessary, for the purpose of this application, for us to go into the evidence of the case or the evidence which he gave in a previous trial on behalf of the prosecution. Having consulted counsel and with their agreement, we decide that this application can be disposed of on one point and one point only. Miss Remedios, acting on behalf of the applicant, is content not to argue her other grounds of appeal.

6. The point which causes us grave concern is a question asked by Crown counsel in the court below in front of the jury. The question, we are told, was based on certain unused material, i.e. a transcript of the evidence given by the applicant in a previous trial relating to a drug offence which operated from the same address, as the present case.

7. The question asked was this:

"You also told the court, on that occasion, you were employed by CHOW Siu-kwong to operate drug business after CHOW Siu-kwong was released on bail on 31 August 1994, is that right."

8. It has been drawn to our notice that there are two factual errors contained in this question. Firstly, nowhere in the applicant's evidence in the previous trial did he admit in so many words that he was in the employ of Chow Siu Kwong to operate a drug business. Nothing could be gleaned from the long questions and answers in that trial that such an admission was implied.

9. Secondly, the case for the applicant was that he did not know Chow Siu Kwong until October 1994 and in the previous trial he maintained that position.

10. This was a question asked not only as an attempt to impugn the applicant's credibility in the present trial. It also went to show the applicant's guilt in the present case. It could be said that Crown counsel was here attempting to show that the applicant could not deny knowledge that the premises in question was used for a drug business. It therefore pointed directly to the guilt of the applicant in the present trial.

11. In our view, this question asked in the presence of the jury as it were was highly damaging and prejudicial. Unfortunately, counsel for the applicant, who was also Miss Remedios in the court below, was unaware of the basis on which this question was asked because she did not receive the transcript of the evidence in the previous trial until this trial was over.

12. Counsel for the Crown, Mr Reading, candidly concedes that in the light of the prejudicial and damaging effect of this question, he is not in a position to support the conviction. This is sufficient for us to dispose of this application.

13. However, there is another point which has arisen in the course of argument, and that is whether the Crown, in referring to unused material for the purpose of cross-examining defence witnesses to attack their credibility, is obliged to disclose that unused material to the defence. Mr Reading submits that the Crown is under no such obligation and Miss Remedios on her part is unable to say whether the obligation exists or not, but she does seek to argue that in the case of a defendant who goes into the witness box to give evidence on his own behalf, the Crown is obliged to disclose any unused material if they seek to attack his credibility.

14. In the light of the view we have taken of this application, it is not necessary for us to decide this point. We therefore leave it open.

15. Accordingly, on the ground that the question that we have just referred to was so damaging that the applicant did not have a fair trial, we allow the application, treat the hearing of the application as the hearing of the appeal and allow the appeal. The conviction is quashed and the sentence set aside. We have also heard submissions from both Mr Reading and Miss Remedios on the question of a re-trial and after anxious consideration, we have come to the view that in the interest of justice, a re-trial should be ordered and we so order.

16. The applicant acting on his own also submits an application for the return of certain properties which were ordered to be confiscated by the trial judge in this case. This application is deferred and it will be dealt with by the trial judge after the re-trial.