CACC 292 /2018
[2020] HKCA 396
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CRIMINAL APPEAL NO 292 OF 2018
(ON APPEAL FROM HCCC NO 174 OF 2016)
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| BETWEEN | | |
| | HKSAR | Respondent |
| | and | |
| | LAU Ka-shing (劉嘉誠) (D1) | Appellant |
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Before: Hon Macrae VP, Zervos JA and Wong J in Court
Date of Hearing: 12 May 2020
Date of Judgment: 28 May 2020
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J U D G M E N T
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Hon Macrae VP (giving the Judgment of the Court):
1. The appellant and his elder brother (“D2”) were jointly charged with two counts of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. Count 1 alleged that on 28 July 2015, the appellant together with D2 unlawfully trafficked in 1 kilogramme of a crystalline solid containing 976 grammes of methamphetamine hydrochloride (hereinafter referred to as “Ice”) outside Block 8, Po Tin Estate in Tuen Mun; while Count 2 alleged that on the same date, the appellant together with D2 unlawfully trafficked in 1,997 grammes of a crystalline solid containing 1,956 grammes of Ice inside Room 1123 of Block 8, Po Tin Estate in Tuen Mun.
2. While D2 pleaded guilty to both Counts, the appellant contested both Counts and stood trial alone before Deputy Judge Lugar‑Mawson (“the Judge”) and a jury. On 19 September 2018, the appellant was unanimously convicted after trial on both Counts and sentenced to 25 years’ imprisonment.
3. On 27 September 2018, the appellant filed a Notice of Application for Leave to Appeal against both conviction and sentence and, on 16 April 2019, Mr Cheung, counsel at his appeal but not at trial, filed amended perfected grounds of appeal against both conviction and sentence on his behalf. On 1 November 2019, the Single Judge refused leave to appeal against conviction but granted leave to appeal against sentence, on the basis that it was reasonably arguable that the Judge had wrongly enhanced the starting point.
4. On 8 November 2019, the appellant filed a Notice of Renewal of Application After Refusal by the Single Judge in respect of his application for leave to appeal against conviction. It was not, however, clear in respect of which grounds the appellant was renewing his application for leave, particularly when Mr Cheung had filed a “further submission” on his behalf appearing to add to his earlier submissions, but in respect of only one particular ground of appeal. At the hearing of the appeal, Mr Cheung made clear that he was not proceeding with the other ground of appeal against conviction. With respect, neither the Court nor the respondent should be left in any doubt as to the ambit of the renewal of an application, when leave has been refused by a Single Judge. Counsel are expected to make clear in writing, if necessary by amending the grounds of appeal, what grounds of appeal are being renewed and what grounds are not.
Admitted facts
5. It was admitted at trial that a black bag (Exhibit P4) containing a plastic bag (Exhibit P1), which in turn contained the Ice particularised in Count 1, was seized outside Block 8 of Po Tin Estate on 28 July 2015; further, that a yellow bag (Exhibit P7) containing two plastic bags (Exhibits P2 and P3), which in turn contained the Ice particularised in Count 2, was later seized inside Room 1123, following a search of the premises with the consent of the appellant and D2. At the time, D2 was the sole tenant of Room 1123[1], although the appellant had sometimes stayed in the premises as well[2].
6. The authenticity, accuracy and integrity of certain CCTV recordings covering the lobby, mailbox, Lift 1 and Lift 2 of Block 8 of Po Tin Estate from 20:38 hours to 20:58 hours on 28 July 2015 were not contested. The appellant also admitted that he voluntarily and freely participated in a video-recorded interview (“VRI”) conducted between 02:27 and 03:02 hours on 29 July 2015. As at 28 July 2015, the total value of the dangerous drugs in both counts was HK$866,133.
The prosecution case
7. The prosecution called five prosecution witnesses, all of whom were police officers involved in the investigation of the case. The prosecution further relied on admissions by the appellant, which were post‑recorded in the notebook of DPC 5778 (“PW5”), as well as answers given during the VRI.
8. On 28 July 2015 at about 20:20 hours, a team of police officers from the Intelligence Team of the Narcotics Bureau, conducted a surveillance operation in the Lau Fau Shan area of the New Territories. WPC 4343 (“PW1”) saw a silver-grey Mercedes Benz private car driven by a man called Wong with three passengers on board, namely the appellant, D2 and an unknown male (“the unknown passenger”), approach the roundabout at Lau Fau Shan Road. D2 was in the front passenger seat, while the appellant was seated in the left-hand rear seat, with the unknown passenger next to him. When Wong stopped the vehicle at the roundabout, D2 and the unknown passenger alighted from the car and took possession of a yellow bag from another unknown person nearby. The unknown passenger then returned to the car and placed the bag on the rear seat of the vehicle next to the appellant. The unknown passenger subsequently left the scene after hailing a taxi. D2 then re-boarded the vehicle and sat again in the front passenger seat, after which Wong drove the car away from the scene. At about 20:36 hours, PW1 saw the same vehicle again at Po Tin Estate, although only Wong was in it by this stage.
9. At 20:40 hours, DPC 4645 (“PW2”) observed the appellant carrying a yellow bag and entering the lift of Block 8 of Po Tin Estate with D2. About 18 minutes later at 20:58 hours, the appellant carrying a black bag with his right hand, and D2 carrying another black bag, were seen walking out of the lift on the ground floor of Block 8 of Po Tin Estate and leaving the building. D2 then passed the black bag he was carrying to the appellant, who then carried it with his left hand. The two men continued to walk towards a bus terminus, where they were intercepted by PW2 and DPC 6587 (“PW3). Initially, the appellant and D2 tried to escape but they only managed two or three steps before being apprehended by PW2 and PW3 respectively. The appellant was subdued and pinned to the ground. The black bag, which was found to have the logo “Lids” printed on the bag (“Lids Bag”), and which the appellant had been seen by PW2 to be carrying with his left hand, dropped to his left side and was later found to contain the dangerous drugs particularised in Count 1.
10. After the appellant and D2 had been placed under control, Woman Station Sergeant Lee Pui Yee (“PW4”) arrived at the scene. She picked up the Lids Bag containing the dangerous drugs in Count 1 for a preliminary inspection, before replacing it by the left hand side of the appellant’s body. She then inspected the other black bag, which the appellant had been carrying with his right hand, and which had also dropped to the ground. However, the contents of that bag were found to be merely innocuous, loose items.
11. At about 21:03 hours on 28 July 2015, PW5 of the Operations Division of the Narcotics Bureau arrived at the scene and declared arrest on the appellant for the offence of trafficking in a dangerous drug. In response to the caution, the appellant replied, “It’s only because I had no money, I then resorted to selling the dangerous drugs to the others. (I) had come to a dead end. Let me go.”[3] (“1st Verbal Admission”) This statement was later post‑recorded by PW5 in his notebook inside Room 1223 at 21:39 hours. The appellant signed in confirmation on various parts of the notebook and made a handwritten declaration.
12. Upon a search of Room 1123, a yellow bag with the logo “Le Petit Pois” printed upon it (“Le Petit Pois Bag”) was found on a mattress inside the premises, containing the dangerous drugs particularised in Count 2. Upon a further caution administered on the appellant by PW5 inside Room 1123, the appellant replied, “Ah Sir, I have already told (you) earlier, (I) really had no money. Give (me) a chance.”[4] (“2nd Verbal Admission”)
13. The appellant and D2 were initially taken to Tuen Mun Police Station, where PW5 post-recorded the 2nd Verbal Admission in his notebook at about 23:21 hours. Again, the appellant signed in confirmation on various parts of the notebook and appended a further handwritten declaration. The appellant and D2 were subsequently transferred to the Narcotics Bureau offices at Police Headquarters in Wan Chai, where PW5 conducted a VRI with the appellant.
14. In the VRI, the appellant denied making either the 1st Verbal Admission[5] or the 2nd Verbal Admission[6]. In respect of the two bags containing dangerous drugs, he admitted carrying the Le Petit Pois Bag from the car to Room 1123 for D2, during which time he had seen the two transparent re-sealable plastic bags containing white crystalline substance inside[7]. He then witnessed D2 take them out beside the mattress and weigh them[8]. However, he declared that he had never carried the Lids Bag for D2 at any time[9].
The defence case
15. The appellant elected to give evidence. He also called D2 as his defence witness.
16. The appellant testified that he had no knowledge of any dangerous drugs seized by the police. The reason he had accompanied D2 on the night of 28 July 2015 was in order to have dinner together. While he and D2 were inside Room 1223, the appellant focused on packing items in a black bag and did not know what D2 was doing inside the kitchen. When they both walked out of Block 8, the appellant said he was not carrying the Lids Bag. It was PW4 who pickup up the Lids Bag from somewhere near where the appellant was subdued and placed it by the appellant’s left side. He denied making either the 1st or the 2nd Verbal Admission to PW5. He claimed that PW5 had made all of the entries in his notebook in the vicinity of Room 1223. When the appellant signed on the notebook in the corridor outside Room 1223, the relevant entries were folded over and he could not see or read the contents. It was only at Lai Chi Kok Remand Centre that he received the copies of PW5’s notebook. The date and time of the acknowledgement of receipt of the notebook copy were false.
17. D2’s evidence supported the appellant’s claim that the appellant had no knowledge of what was inside the Lids Bag or the Le Petit Pois Bag and had not witnessed what D2 was doing inside the kitchen.
Application to cross-examine as to character
18. Since the appellant had alleged in evidence that police officers had fabricated evidence and planted evidence on him, counsel for the prosecution applied for leave to cross-examine the appellant on his previous convictions, pursuant to section 54(1)(f)(ii) of Criminal Procedure Ordinance, Cap 221. It is fair to point out that at an earlier trial, which had been discontinued, the then trial judge[10] had refused to allow the same prosecuting counsel to cross-examine the appellant on his previous convictions[11].
19. While accepting that the Judge was not bound by the ruling of the judge in the previous, aborted trial[12], and that the Judge had a discretion in the matter, defence counsel opposed the application on the basis that the prejudicial effect of revealing the appellant’s criminal record to the jury outweighed its probative value[13].
20. The Judge considered that the imputation against the witnesses for the prosecution was that there had been a conspiracy to pervert the course of justice[14], which was a very grave offence[15]. Having heard argument from the parties with reference to authority, in particular the English Court of Appeal decision in R v McLeod[16], he was satisfied that he should exercise his discretion in favour of the prosecution, but indicated that he would in due course give “a strong warning” to the jury that cross‑examination as to the appellant’s criminal record could only go to the character of the appellant[17]. The Judge was also mindful that the appellant’s previous criminal record was “not a grave record”[18] and that all of his offences had been tried in the magistrates’ courts; defence counsel having himself characterised the appellant’s convictions as “petty criminal offences”[19].
21. In the ensuing cross-examination, prosecuting counsel put some, but not all, of the appellant’s previous convictions and sentences to him for confirmation[20]; and concluded by suggesting to the appellant that, by virtue of his convictions for possession of dangerous drugs, for which he had been variously fined, imprisoned for 4 months and sent to a Drug Addiction Treatment Centre, he was “a man that’s familiar with dangerous drugs”[21].
Summing-up
22. When the Judge came to sum up to the jury in respect of the relevance of, and the approach they should take to, the appellant’s previous convictions, he directed them in accordance with Specimen Direction 38, as follows[22]:
“So what is the relevance of the defendant’s previous convictions in this case? Now, the only reason, and I stress it is the only reason why you have heard about the defendant’s previous convictions is that knowledge of the character of the defendant who has made that attack may assist you to judge the truthfulness of the evidence when you come to consider this matter. You must not, and let me stress this, you must not assume that the defendant is guilty or that he is not telling the truth just because he has previous convictions. His convictions are not relevant at all to the likelihood of him having committed the offence. They are only relevant as to whether you can believe him. You do not have to allow these convictions to affect your judgment but it is for you to decide the extent to which, if at all, his previous convictions help you about the issue of whether or not you can believe him.” (Emphasis supplied)
Having said that he would give a strong direction to the jury on the matter, the Judge laid stress on aspects of the Specimen Direction in the parts italicised above.
Grounds of appeal against conviction
23. In renewing his application for leave to appeal against conviction before this Court, Mr Cheung argued, firstly, that the circumstances did not even engage section 54(1)(f)(ii) of the Criminal Procedure Ordinance; but, secondly, even if they did, the exercise of the Judge’s discretion miscarried. He submitted, under the first limb of his argument, that the section would operate unfairly if it effectively penalised a defendant for emphatically presenting his defence. He maintained that the appellant in the present case was doing no more than denying possession of Exhibit P4 and the making of the alleged admissions recorded in PW5’s notebook. Mr Cheung placed particular reliance on the fourth proposition enunciated by Viscount Simon LC, giving the judgment of the House of Lords in Stirland v DPP[23],that:
“An accused is not to be regarded as depriving himself of the protection of the section, because the proper conduct of his defence necessitates the making of injurious reflections on the prosecutor or his witness.”
He submitted that Viscount Simon’s proposition was exemplified by the facts in R v Westfall[24], where the English Court of Criminal Appeal held that imputations against the prosecution that an appellant had been coached and struck in the face with a book by a police officer were not such as to permit the prosecution to cross-examine the appellant on his previous convictions at trial.
24. In respect of the second limb of his argument that the Judge should not have exercised his discretion in favour of the prosecution, Mr Cheung relied, in particular, on the third guideline in R v Britzman[25] that “there is no need for the prosecution to rely upon section 1(f)(ii) if the evidence against a defendant is overwhelming”. Although he accepted that this proposition had not been adopted in subsequent authorities, it had been cited with approval in the current edition of Phipson on Evidence[26]. He further argued that the Judge, if he was minded to accede to the prosecution’s application at all, should only have permitted cross‑examination on the appellant’s previous theft convictions, which being offences of dishonesty reflected on his character, and not on his convictions for possession of dangerous drugs, since such evidence of his connection with dangerous drugs would have led to an impermissible line of reasoning by the jury which could not be cured by judicial direction.
Discussion
25. The defence advanced by the appellant at trial was that he had never had possession of the Lids Bag, containing almost a kilogramme of Ice narcotic, outside Block 8 of Po Tin Estate[27]. Indeed, his evidence was that PW4 had picked up the Lids Bag on the ground “about 5 metres” away from where he had been subdued and deliberately placed it next to him[28]. As the Judge put it in summing-up to the jury, “in colloquial terms, he has accused the police of fitting him up”[29].
26. In respect of the admissions made upon arrest and on finding more drugs in Room 1123, the appellant alleged that PW5 had fabricated a confession; or as the Judge put it, again in colloquial terms, he had been “verballed” by the officer and then tricked into signing admissions in PW5’s notebook.
27. In our judgment, where a defendant alleges that police officers have framed him up with possession of dangerous drugs of which he claims he was never in possession and then tricked him into signing admissions to trafficking in those drugs as well as other drugs found inside premises, he has made serious imputations against the character of the officers concerned. And if they are witnesses at his trial, then he has made imputations on the character of the witnesses for the prosecution (section 54 (1)(f)(ii) of the Criminal Procedure Ordinance). We emphasise these words because, with respect, Mr Cheung may have misunderstood the ratio of the judgment in Westfall. The appellant there had given evidence at his trial, complaining that the magistrate had unfairly deprived him of the opportunity of calling an important defence witness; and, further, that he had been coached by a detective in the police station and struck in the face with a book by an Inspector when he protested. It was on the basis of these imputations that the trial judge determined that the appellant should lose his shield and could be cross-examined under the equivalent English provision, namely section 1(f)(ii) of the Criminal Evidence Act, 1898.
28. However, as the Court of Criminal Appeal pointed out, not only was the complaint against the magistrate incapable of justifying the appellant losing his shield, since the magistrate did not come within the terms of the section in the Criminal Evidence Act, but the police officers alleged to have coached and assaulted him in the police station were not “witnesses called in the case, nor were they prosecutors”[30] either. Since the appellant had cast no imputation on any of the witnesses for the prosecution, the judge had not acted lawfully within the terms of the section by allowing him to be cross-examined on his previous convictions.
29. It is fair to say that the Court went on to consider whether there was any other basis that might have justified the appellant losing his shield, in particular whether the appellant’s allegation of improper violence by the constable who arrested him was sufficient to engage the section. The Court was of the view that the imputation was not sufficient to permit cross-examination on his previous convictions[31]:
“Such questions often have to be asked if the evidence is to be properly tested. Instead of being an attack on the character of a witness with a view to shewing that he is unreliable, they are an endeavour to elicit the facts in connection with the very matter with which the prisoner is charged.”
However, it is not clear from what is a rather old report from 1912 precisely what the constable was alleged to have done to the appellant when he arrested him[32], and we think it would be unlikely that a mere allegation that an officer had been over-zealous, or acted improperly, in arresting a defendant would open that defendant to cross-examination on his previous convictions.
30. Be that as it may, later that same year, it was said by Lord Alverstone CJ, presiding over a five-member Court of Criminal Appeal in R v Hudson[33], that the decisions in Westfall and two other cited cases[34] “may well be supported on grounds which do not touch the question raised in the present case. They cannot be treated as laying down a general rule applicable to all cases, and in the opinion of the Court they are not a complete enunciation of the law under the section”. Moreover, Hudson was applied by the House of Lords in preference to Westfall in the seminal decision in R v Selvey[35],with Viscount Dilhorne, Lord Hodson, Lord Guest and Lord Pearce (with whom Lord Wilberforce agreed) citing with express approval[36] Lord Alverstone’s statement in Hudson[37] that:
“We think that the words of the section, ‘unless the nature or conduct of the defence is such as to involve imputations,’ etc., must receive their ordinary and natural interpretation, and that it is not legitimate to qualify them by adding or inserting the words ‘unnecessarily,’ or ‘unjustifiably,’ or ‘for purposes other than that of developing the defence,’ or other similar words.”
31. It should be noted that their Lordships in Selvey also considered the fourth proposition of Viscount Simon LC in Stirland v DPP, on which Mr Cheung also placed significant reliance. Lord Hodson declared[38]:
“It is, I think, right to say that the full width of Viscount Simon’s proposition has not been followed in the Court of Criminal Appeal in the sense of detracting from the validity of what was said in Hudson’s case [1912] 2 KB 464 (see Rex v Jenkins, 31 Cr App R 1, 13, where Singleton J giving the judgment of the court expressed the opinion that the Lord Chancellor in using those words had not in mind any idea of upsetting or weakening what had been said in Hudson’s case).”
Viscount Dilhorne also cited R v Jenkins with approval[39], while Lord Guest described Viscount Simon’s fourth proposition as obiter[40]. Lord Pearce (and Lord Wilberforce) held that Viscount Simon’s fourth proposition should be confined only to cases of rape[41].
32. Consequently, we are not persuaded that the decision in Westfall or Viscount Simon’s fourth proposition in Stirland v DPP supports the first limb of Mr Cheung’s argument, or that either case was intended to create an exception to the loss of the shield against cross‑examination as long as the imputation against the prosecution witness was a necessary part of the defence being put forward.
33. The second limb of counsel’s submission is that the Judge should not have exercised his discretion in the way that he did. In putting forward this argument, Mr Cheung reiterated many of the same arguments he had deployed to suggest that section 54(1)(f)(ii) of the Criminal Procedure Ordinance was never engaged in the first place; in particular, that the Judge should have factored into the exercise of his discretion that the very nature of the appellant’s defence necessitated it being put to PW4 that she had planted drugs on him; and to PW5 that he had tricked the appellant into signing two confessions. He laid particular emphasis on the Court’s third guideline principle in Britzman that there was no need for the prosecution to rely upon the equivalent section of the English Act if the evidence against the defendant was overwhelming.
34. We must say, on this latter point, that if the Court in Britzman were suggesting that every time an application was made by the prosecution to cross‑examine a defendant on his previous convictions on the basis that he had lost his shield under section 1(f)(ii) of the Act (or its equivalent in this jurisdiction), a judge must ask himself whether the evidence was or was not overwhelming, the exercise would be fraught with difficulties. In the first place, we do not see why the outcome of a ruling as to admissibility in respect of a particular category of evidence under a statutory provision should depend on the strength of the prosecution case; particularly when such a consideration is not mentioned in the statute. Secondly, it is not normally the task of a judge to determine during the currency of a trial whether the prosecution case is overwhelming: indeed, we think it would be rather unwise for judges to express the view that a case was overwhelming while the defendant was in the course of giving evidence. The only assessment of evidence a judge is generally required to make (admissions and confessions apart) during a trial is at the close of the prosecution case as to whether there is a prima facie case. Thirdly, the assessment of the quality of the prosecution evidence is one uniquely within the province of the jury. What the judge might regard as strong or overwhelming evidence may not ultimately impress the jury. And, as many criminal practitioners would agree, particularly in jury trials, there is a seldom such a thing as an overwhelming case.
35. We think, inasmuch as this is a relevant factor influencing a judge’s discretion at all, the better way to regard it is as expressed by the learned editors of Phipson on Evidence:
“In Britzman, it was ruled that all limitations once placed upon the meaning of ‘imputation’ were now no more than factors informing the judicial discretion as to whether or not to allow cross-examination. It mentioned two additional factors, namely that the judge must be sure that there was no possibility of the allegations being consistent with mistake, misunderstanding or confusion, and that cross-examination would be unnecessary where the other evidence in the case was overwhelming.” (Emphasis supplied)
However, with respect to the Court in Britzman, we do not think this factor should be given any great emphasis at all, for the reasons we have earlier articulated.
36. A case we have found of considerable help in formulating modern principles upon which the discretion should be exercised is the decision of the English Court of Appeal in R v McLeod[42], an authority which was in fact produced by prosecuting counsel to the court in the present application[43], and which was specifically relied upon by Mr Chan, on behalf of the respondent, before us. The Court in McLeod enumerated seven principles which it derived from the authorities[44]:
“1. The primary purpose of the cross-examination as to previous convictions and bad character of the accused is to show that he is not worthy of belief. It is not, and should not be, to show that he has a disposition to commit the type of offence with which he is charged: see Vickers[45], Khan[46] and Barsoum[47]. But the mere fact that the offences are of similar type to that charged or because of their number and type have the incidental effect of suggesting a tendency or disposition to commit the offence charged will not make them improper: Powell[48], Owen[49] and Selvey.
2. It is undesirable that there should be prolonged or extensive cross-examination in relation to previous offences. This is because it will divert the jury from the principal issues in the case, which is the guilt of the accused of the instant offence, and not the details of earlier ones. Unless the earlier ones are admissible as a similar fact evidence, prosecuting counsel should not seek to probe or emphasise similarities between the underlying facts of previous offences and the instant offence.
3. Similarities of defences which have been rejected by juries on previous occasions, for example false alibis or the defence that the incriminating substance has been planted and whether or not the accused pleaded guilty or was disbelieved having given evidence on oath, may be legitimate matter for questions. These matters do not show a disposition to commit the offence in question; but they are clearly relevant to credibility.
4. Underlying facts that show particularly bad character over and above the bare facts of the case are not necessarily to be excluded. But the judge should be careful to balance the gravity of the attack on the prosecution with the degree of prejudice to the defendant which will result from the disclosure of the facts in question. Details of sexual offences against children are likely to be regarded by the jury as particularly prejudicial to an accused and may well be the reason why in Watts (1983) 77 Cr App R 126, [1983] 3 All E R 101, the Court thought the questions impermissible.
5. If objection is to be taken to a particular line of cross‑examination about the underlying facts of a previous offence, it should be taken as soon as it is apparent to defence counsel that it is in danger of going too far. There is little point in taking it subsequently, since it will not normally be a ground for discharging the jury.
6. While it is the duty of the judge to keep cross‑examination within proper bounds, if no objection is taken at the time it will be difficult thereafter to contend that the judge has wrongly exercised his discretion. In any event, this Court will not interfere with the exercise of the judge’s discretion save on well-established principles.
7. In every case where the accused has been cross-examined as to his character and previous offences, the judge must in the summing-up tell the jury that the purpose of the questioning goes only to credit and they should not consider that it shows a propensity to commit the offence they are considering.”
It will be noted that the third guideline in Britzman, or indeed the case itself, was not mentioned in McLeod at all.
37. It is here that we should deal with the question put by prosecuting counsel to the appellant at the conclusion of his cross‑examination on the appellant’s criminal record, namely, that he was, by virtue of his convictions for possession of dangerous drugs, “a man that’s familiar with dangerous drugs”. Although Mr Cheung made no specific complaint in his grounds of appeal against this question, he argued that it exemplified the dangers of propensity evidence from previous similar convictions.
38. We do not agree. First, these convictions were for simple possession of a dangerous drug, not trafficking in a dangerous drug, with which he had been charged. And even had they been convictions for trafficking in a dangerous drug, it would not have been improper to put them to the appellant in cross-examination under the first principle in McLeod: see, for example, the recent decision of this Court in HKSAR v Choi Lai Chu, Connie[50], where that had happened. Secondly, the appellant’s familiarity with dangerous drugs was obvious from the fact that he had been convicted several times of possessing drugs and variously fined, sent to a Drug Addiction Treatment Centre and imprisoned. It did not mean that he was familiar with drug trafficking; and that was not the import of prosecuting counsel’s question. Thirdly, no objection was made by defence counsel to the question, nor was any specific judicial intervention sought to deal with the alleged ramifications of the question and answer either during the appellant’s evidence or prior to the summing-up. Finally, the fact that the appellant was familiar with drugs went to his character and credibility, and was “not relevant at all to the likelihood of him having committed the offence”, as the Judge was at pains to make clear in his directions to the jury[51]. We consider that we must proceed on the basis that the jury would have been faithful to the judicial directions they were given: see Montgomery v HM Advocate[52]; HKSAR v Chau Yui Ming[53].
39. The appellant in the case before us had made serious imputations against the integrity of PW4 and PW5 entitling the prosecution to apply to cross-examine the appellant on his previous convictions. The Judge was extensively addressed by the parties on the exercise of his discretion, by reference to relevant authority, which he decided to exercise in favour of the prosecution. In due course, he gave an appropriately worded warning to the jury in emphatic terms as to how they should and should not use the evidence of the appellant’s character.
40. It is not appropriate for this Court to interfere with the proper exercise of discretion by a trial judge unless he has erred in principle in some way, or there was no material upon which he could properly have arrived at his decision: see Selvey[54], applying R v Cook[55]. We do not think that there is any basis for doing so in this case and there is no merit in this complaint. The fact that the previous judge had decided to exercise her discretion in favour of the defence did not mean that the Judge in the present trial had to exercise his discretion in the same way. It was certainly a factor which defence counsel could impress on the Judge, as indeed he did[56], but it could not bind the Judge, as defence counsel himself properly recognised. Moreover, having looked at the transcript of the application before the previous judge, it became clear that prosecuting counsel had not formulated his position properly or precisely on that occasion, nor did he refer the first judge, as he did the Judge in the present case, to the authority of McLeod.
41. Accordingly, the application for leave to appeal against conviction is refused and the appeal dismissed. We turn now to the appeal against sentence on which leave has already been given.
Appeal against sentence
42. Having accepted that the appellant and D2 “were both mules, the lowest rank in the chain of command”[57], the Judge said this[58]:
“I am not increasing your sentences to take account of the fact that you both have criminal records, and although I have no idea where this large quantity of “Ice” was to finally be traded on, there is evidence that it was to be exported out of Hong Kong, and I stress evidence.” (Emphasis supplied)
Since the starting point for sentence, when viewed strictly arithmetically in accordance with the relevant guidelines in respect of 2,932 kilogrammes of narcotic should have been 24.85 years’ imprisonment, leave was granted by the Single Judge on the basis that it was reasonably arguable that the Judge, when he used the italicised words in the above sentencing remarks, may have unfairly enhanced the starting point to 25 years’ imprisonment for the international element. With respect, it was an odd thing for the Judge to have said, particularly when it is conceded by the respondent that there was no such evidence at all; certainly none that would have justified enhancing the starting point.
43. However, as Mr Chan points out, the Judge did say in terms that he was “not increasing” the appellant’s sentence for this reason. Moreover, it was within the Judge’s sentencing discretion to pass the sentence he did, in accordance with the appropriate sentencing guidelines.
44. We agree with the respondent. We are not disposed to tinker with a sentence which was very slightly above what it should have been when viewed strictly arithmetically, and we are even less inclined to tinker with a sentence following the renewal of an application for leave to appeal against conviction, when the appellant has already received a considered written judgment from a Single Judge refusing leave on his grounds of appeal, coupled with a warning as to loss of time should the Court of Appeal find that there was no justification for renewing the application. The appellant has been represented by the same counsel both at the leave stage and before us. As we have already stated, we found no merit in the renewal of his application for leave to appeal against conviction.
45. The appeal against sentence is accordingly dismissed.
| (Andrew Macrae) | (Kevin Zervos) | (Albert Wong) |
| Vice President | Justice of Appeal | Judge of the Court
of First Instance |
Mr David Chan SADPP, of the Department of Justice, for the Respondent
Mr Jeremy Cheung, instructed by Littlewoods, assigned by the Director of Legal Aid, for the Appellant
[1] Admitted Facts: Appeal Bundle (“AB”), p 10, para 4.
[2] AB, p 294I-J.
[3] English Translation of PW5’s notebook: AB, p 65.
[4] English Translation of PW5’s notebook: AB, p 67.
[5] Transcript of VRI: AB, p 119, Counter 51-52.
[6] Transcript of VRI: AB, p 122, Counter 71-72.
[7] Transcript of VRI: AB, p 125, Counter 102-105.
[8] Transcript of VRI: AB, p 127, Counter 118-127.
[9] Transcript of VRI: AB, p 129, Counter 143-147.
[10] D’Almada Remedios J.
[11] AB, pp 216-220.
[12] AB, p 212D-E.
[13] AB, p 211O-P.
[14] AB, p 212T-U.
[15] AB, p 213A-B.
[16] R v McLeod [1995] 1 Cr App R 591.
[17] AB, p 215F-H.
[18] AB, p 213J-K.
[19] AB, p 213M-N.
[20] AB, pp 330O-331G. The appellant was only cross-examined on two theft convictions and three possession of dangerous drugs convictions. In fact, he had five convictions for dishonesty, four convictions for possession of dangerous drugs, one for assault occasioning actual bodily harm and one for assisting in the management of an unlicensed massage establishment.
[21] AB, p 331G-H.
[22] AB, p 29F-N.
[23] Stirland v DPP [1944] AC 315, at 327.
[24] R v Westfall (1912) 7 Cr App R 176.
[25] R v Britzman [1983] 1 WLR 350, at 355G.
[26] Phipson on Evidence (19th Ed), paras 20-30.
[27] AB, p 278T-U.
[28] AB, p 275Q-T.
[29] AB, p 29D-E.
[30] R v Westfall, at 178-179.
[31] Ibid., at 179.
[32] The report of the appellant’s counsel in the argument on appeal merely records him as saying that the constable “knocked him down”: ibid., at 177.
[33] R v Hudson (1912) 7 Cr App R 256, at 262.
[34] Namely, R v Bridgewater (1905) 1 KB 131 and R v Preston [1909] 1 KB 568.
[35] R v Selvey [1970] AC 304.
[36] Ibid., Viscount Dilhorne at 335H, 339D and 341F; Lord Hodson at 344E and H, 345B and 346C; Lord Guest at 350B; Lord Pearce at 355C and 360D.
[37] R vHudson,at 262.
[38] R v Selvey, at 345B.
[39] Ibid., at 337F; 339D.
[40] Ibid., at 350H.
[41] Ibid., at 356F.
[42] R v McLeod [1995] 1 Cr App R 591.
[43] AB, p 214A-B.
[44] McLeod, at 604F-605E.
[45] R v Vickers [1972] Crim L R 101.
[46] R v Khan (Unrep.) CA, 9 August 1990.
[47] R v Barsoum (Unrep.) CA, 12 October 1993.
[48] R v Powell (1986) 82 Cr App R 165.
[49] R v Owen (1986) 83 Cr App R 100.
[50] HKSAR v Choi Lai Chu, Connie [2019] 3 HKLRD 227, at para 36.
[51] See para 22 above.
[52] Montgomery v HM Advocate [2003] 1 AC 641, per Lord Hope of Craighead at 674B-F.
[53] HKSAR v Chau Yui Ming [2018] 5 HKLRD 7, per Macrae VP at paras 23-27.
[54] Selvey, at 342C.
[55] R v Cook (1959) 43 Cr App R 138, at 147.
[56] AB, pp 211T-212C.
[57] AB, p 166Q.
[58] AB, p 167M-O.