Case Document

CACC000138/1988

IN THE COURT OF APPEAL	1988, No. 138
	(Criminal)

BETWEEN

	THE QUEEN	Respondent

	and

	TSANG SIT KEUNG	Applicant
	______________

Coram: Hon. Cons, Ag. C.J., Silke, V.-P. & Hunter, J.A.

Date of hearing: 12th August, 1988.

Date of delivery of judgment: 17th August, 1988.

______________

J U D G M E N T

______________

Cons, Ag. C.J. delivered the judgment of the Court:

1. Agreed facts in the court below were that on the 30th October last year the police made a search at the 5th floor of 109 Sai Yee Street Mongkok. Forcing open a cubicle, which had been secured by a padlock, they found in a wardrobe a holdall containing 4.3 kilogrammes of raw opium. Next to the holdall was a pair of scales. On the scales was a fingerprint, subsequently found to be that of Tsang Sit Keung, the Applicant in these proceedings. On a bed in the cubicle was a large quantity of clear Plastic bags.

2. While the police were still on the premises the applicant arrived. He was found to have on his person two keys to the iron grille securing, the premises as a whole and one further key that fitted the padlock to the cubicle in question. He was arrested and charged with possession of dangerous drugs for the purpose of unlawful trafficking, contrary to Section 7(1) of the Dangerous Drugs Ordinance Cap. 134..

3. At the trial in the District Court before Sharwood D.J. the onus was thus on the Applicant to rebut the presumptions contained in the Ordinance. He gave evidence, basically to the effect that the cubicle had been rented by his girl friend who had given him the keys in order to make their meetings more convenient; that he had handled the scales when he had helped her move in shortly before; that the opium was not his, nor did he know that it was there at all.

4. The judge did not believe his story, which on a perusal of the whole of his evidence, is not surprising.

5. The application for leave to appeal does not question the conclusion of the Judge as such. The amended grounds of appeal rely instead on what are said to be irregularities in the trial -

"1. There was a material irregularity in the course of the trial as Counsel for the Crown crossexamined the Applicant on his previous (disclosed) convictions, without the leave of the trial Judge and contrary to Section 54(1)(f) of the Criminal Procedure Ordinance, Cap. 221.

2. There was a further material irregularity in the course of the trial as the learned trial Judge excessively questioned the Applicant with questions that were unfair in their number and nature.

6. The first ground raises two questions for consideration. First, is leave of the Court required before questions as to previous convictions may be asked at all second were the questions in fact asked admissible in the particular circumstances.

Leave

7. Section 54(1)(f) is too well known to need repetition It is sufficient to say that within it there is no express requirement for leave. That is not so in all other similar jurisdictions. The state of Victoria, for example, requires with regard to the equivalent of paragraph (ii) that "the permission of the judge (to be applied for in the absence of the jury) must first be obtained"⁽¹⁾. The failure to ask for leave proved. fatal in Matusevich⁽²⁾ and Sarek⁽³⁾ In the former there is an interesting discussion on the interpretation of the section, but neither there nor in any other authority to which we have been referred is there any suggestion of any implied requirement of leave.

8. We accept that it is common practice, particularly where the trial is by jury, for prosecuting counsel to intimate beforehand to the judge that he is intending, to exercise the rights given by the subsection. It is a prudent practice, because the judge has a discretion to exclude such questions even though the circumstances are otherwise appropriate. That discretion is well established. We need refer only to R. v. Selvey⁽⁴⁾ where Viscount Dilhorne having referred to many earlier authorities, remarked -

" In the light of what was said in all these cases by judges of great eminence, one is tempted to say, as Lord Hewart said in Dunkley [1927] 1 K.B. 323 that it is far too late in the day even to consider the argument that a Judge has no such discretion. Let it suffice for me to say that in my opinion the existence of such a discretion is now clearly established."

9. The discretion in this instance is no more than a particular example of the general discretion vested in courts to exclude any question the probative value of which would be immeasurably outweighed by the probable prejudice. We would emphasize that it is only a discretion to exclude evidence It is not to be elevated to a condition precedent for its admission.

10. We note that the current edition of Archbold⁽⁵⁾ contains a paragraph headed "Leave of the Judge" which implies that leave is necessary at least in cases which are not clear. But Mr McCoy, who appears for the Applicant, very frankly assures us that the authorities therein referred to do not support the implication:

Admissibility

11. The questions to which objection is taken opened the cross-examination of the Applicant below -

"Q. You have convictions for blackmail and assault occasioning actual bodily harm?

A. Yes.

Q. Carrying on business as a money lender and lending money at excessive rate of interest?

A. Yes.

However that was not the first mention of his record. Earlier on, in the examination-in-chief, we find -

"Q. How long in Hong Kong?

A. 8-9 years.

Q. Ever been convicted of offences relating to dangerous drugs?

A. No.

Q. Ever been sent to prison?

A. No.

Q. But in 1985, twice convicted of criminal offences?

A. Yes.

Q. And fined on each occasion?

A. Yes."

Jones v D.P.P.⁽⁶⁾ is accepted authority that questions must be considered in the light of what the jury - or of course the judge - have already heard⁽⁷⁾ -

"If the jury already knew that the accused had been charged with an offence, a question inferring that he had been charged would add nothing and it would be absurd. to prohibit it. If the obvious purpose of this proviso is to protect the accused from possible prejudice, as I think it is, then 'show' must mean reveal because it is only a revelation of something new which could cause such prejudice."

12. That approach was applied by the Court of Criminal Appeal in Victoria to reject questions which disclosed that the defendant had in fact been convicted on more occasions than he had disclosed in his evidence in chief: Sarek⁽³⁾. Similarly, in Couper⁽⁸⁾ the defendant acknowledged in chief that he had a criminal history, and volunteered to give full particulars thereof if asked. Not surprisingly he, was so asked by prosecuting counsel and full details were elicited. The Court of Criminal Appeal of New South Wales held this to be a direct contravention of the statute.

13. In the present instance the questions in cross-examination did reveal more than was disclosed in chief. They showed not only the exact nature of the offences admitted, but also that the applicant had been convicted of four rather than of two offences. Mr Bruce for the Crown, contends that nevertheless they were still within the principle of Jones⁽⁶⁾ because the protection given by the statute is limited to the fact of a conviction itself. He suggests that this is apparent from several comments in the speeches of their Lordships.

14. In our view a more useful approach to the question of admissibility in the present circumstances is to be found in cases such as R. v. winfield⁽9) and R. v Samuel⁽¹⁰⁾. In Winfield⁽⁹⁾ a defendant charged with indecent assault' upon a woman called a witness to establish his good character with regard to women generally Questions as to his previous convictions for dishonesty were upheld by the court, Humphreys J. putting it, with respect, very neatly as "there is no such thing, known to our procedure as putting half a prisoner's character in issue". In Samuel⁽¹⁰⁾ a defendant charged with larceny by finding gave evidence of his own accord that on two earlier occasions he had handed to the police lost property found by him. To the suggestion that the evidence was limited to that aspect alone, Goddard L.C.J. said (at page 11) -

"The short answer to that is that if a prisoner puts his character in issue, he puts his whole character in issue, not such parts as may be convenient to him leaving out the inconvenient parts."

15. Adopting that approach in the present instance we have no doubt whatsoever that Counsel for the Crown was fully justified in asking the questions that he did.

Intervention by the Judge

16. The Applicant was the only witness below. His evidence in chief occupies approximately 2 pages of the judge's record. Cross-examination by prosecuting counsel is less than 21/2 pages, While the judge's subsequent questions take just over that number. Mr. McCoy has analysed the actual number of questions by way of percentages and puts them respectively as 36%, 26% and 38%.

17. In The Queen v. Lau Hing On⁽¹¹⁾ this court observed that unfortunately complaints of this nature were not unique and went on to quote from the earlier decision of The Queen v. Tam Chi Pang & Others⁽¹²⁾ where the then Chief Justice, having already set out well known passages from English authorities, said -

"evertheless we administer an adversarial and not an inquisitorial system. Until the law is changed, as we hope it will not be, we must seek to preserve it. One of its most important rules is that the judge must continue to preserve an appearance of neutrality throughout a trial. Whatever he may think, he must not seek to impose his views on the jury, during the course of a trial, by interventions of a volume or nature which put pressure on a jury to find as the judge has shown he wishes them to do.

It would, of course, be naive to expect that every convicted defendant would acknowledge that his trial had been fair. But the judge must strive to so conduct himself during a trial that a neutral observer would be left in no doubt that the trial was conducted fairly before a judge who stood above the conflict and retained his air of impartiality throughout."

To that we added -

" Those remarks must apply even more strongly to trial by a single judge for should the judge assume the robe of an advocate, as Lord Denning put it, not only is the appearance of neutrality lost, but the judge being, a judge of fact as well as law, there is a very real possibility that his judgment will be influenced by his conduct and the defendant genuinely deprived of a fair and impartial trial."

18. We have anxiously considered the nature and extent of the judge's intervention here. In the end we are satisfied that looking at the whole of the Applicant's evidence the judge was doing no more than to explore for his own satisfaction the obvious doubts raised by that evidence and which prosecuting counsel had so lightly touched upon. We do not think that in the circumstances he was "genuinely deprived of a fair and impartial trial".

19. For these reasons, we refuse the application for leave to appeal.