HKSAR v. Morrow Jr Charles Raymond

HCCC 292/2020

[2021] HKCFI 3047

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 292 OF 2020

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Before:  Deputy High Court Judge Bruce SC in Court

Dates of Hearing: 13 and 16 August 2021

Date of Ruling: 16 August 2021

Date of Reason for Ruling: 12 October 2021

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RULING ON CROSS-EXAMINATION

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Background

1.Charles Raymond Morrow, Jr (hereafter “the accused”) faces an indictment alleging trafficking in 3.963 kg of a solid containing 3.372 kg of cocaine.  He pleaded not guilty to that indictment, and a trial is presently underway in connection with that.

The application

2.The prosecution sought permission to cross-examine the accused on previous convictions pursuant to section 54(1)(f)(ii) of the Criminal Procedure Ordinance, Cap 221.  The basis for this application is that:

(1)  the accused, in his testimony, asserted that he was of good character, not involved in drugs and a person with only minor road traffic convictions; and

(2)  the accused has a previous conviction for possession of methamphetamine hydrochloride (although, the prosecution assert it is for manufacturing methamphetamine hydrochloride) attracting a penalty of 81 months’ imprisonment and a substantial number of road traffic convictions which are so serious as to have attracted significant periods in prison.

3.The application came just before the prosecutor proposed to undertake the cross-examination of the accused.

4.The accused resisted the application.

5.On 13 August 2021, I ruled that the prosecution had permission to cross-examine the accused on a previous drug conviction but not the road traffic convictions recorded against the accused.  Set out below are my reasons for this ruling.

The case at trial

Prosecution case

6.The prosecution case is quite simple.  On 1 January 2020, the accused was stopped and searched by officers of the Customs & Excise Service after landing at Hong Kong International Airport following a flight from Paris on Cathay Pacific.  The accused was carrying a small suitcase and a briefcase.  A  Customs & Excise Service officer directed the accused to submit them to x-ray examination.  The examination attracted the suspicion of Customs.  The suitcase and the briefcase were emptied of the personal belongings of the accused.  A further x-ray was undertaken of both suitcase and briefcase.  The accused was asked whether this was his baggage, and he answered yes.  The second x-ray heightened the suspicions of the Customs because the officer thought that the x-rays revealed something anomalous.  Further, the officer undertaking the examination considered that the suitcase and the briefcase were each excessively heavy given they were emptied of the personal belongings of the accused.

7.The officer who examined the suitcase found a concealed compartment.  In that compartment, he then found a wrapped parcel containing a suspicious white substance.  A preliminary test was conducted, which was positive for cocaine.  The accused was arrested and cautioned.  The words of arrest alleged that the accused was suspected of contravening the Dangerous Drugs Ordinance.  In answer to the caution, the accused indicated that he understood.  The officer pointed to the false compartment and its container.  He was then asked by the officer, “Do you know what is it?”  The accused answered, “I don’t know, I thought it is a protection of laptop”.  The accused was asked where he was going to take the baggage to and he said that he was going to take them to the United States.  The officer then asked, “Where did you buy your suitcase?”  The accused answered “I bought it in front of a shopping mall in Brazil.”  The officer asked the accused “How much is it?”  The accused answered “Two hundred reais for two.”  The officer clarified that the reference to ‘two’ was a reference to both the suitcase and the briefcase.

8.A further examination was undertaken of the luggage of the accused - the suitcase and the briefcase - and the cocaine, the subject of the indictment, was found in concealed compartments in both the suitcase and the briefcase.

9.There is other evidence, principally through the exhibits officer and the Admitted Facts, which manifestly established a case to answer.  Perhaps, it is critical to note that there was evidence in the Admitted Facts about the travel of the accused, which was from Minneapolis to Miami to Sao Paulo in Brazil.  The further onward journey was to Belem in Brazil and thence to Cayenne in French Guiana and thence to Paris.  It was also part of the Admitted Facts that the accused took a Cathay Pacific flight from Paris to Hong Kong and landed shortly before his interception.

10.The prosecution case was almost totally unchallenged.

Defence case

11.The accused testified. In the course of his examination-in-chief, he gave evidence as to his background.  The essence of what he told the jury was that he was a construction worker specialising in concreting and had worked from an early age.  He had acquired a degree in environmental science.  He told the Court that he had some minor traffic convictions.  He was a religious person and went to church.  He had nothing to do with drugs.

12.The main thrust of his evidence was directed to the principal issue in the case: whether the prosecution can prove that the accused knew that there were dangerous drugs in the suitcase and the briefcase that he brought into Hong Kong.  His testimony was that he did not know that and he positively believed that there were documents in the hidden compartments.  In his evidence, he clearly accepted he knew that there were secret compartments in the luggage.  The basis for that position is outlined below.

13.Critically for this application, the accused in giving his background asserted that he was a hard-working, churchgoing member of the community.  He was asked whether he had ever been in trouble with the police.  He said that he had a few minor road traffic matters, but that was all.

14.A broad summary of the case for the accused is that some years ago, he was invited to assist a young woman in the Republic of Côte d’Ivoire to obtain her inheritance.  The inheritance was said to be US$10.5 million.  It was asserted to the accused that if he agreed to become the beneficiary of the estate and guardian of the young woman and invested a sum of money, the inheritance money would be transferred to him, and he would then transfer it to the young woman saving 15% for himself and an additional 5% for himself to reflect expenses and other things.  Initially, he did not wish to invest, and so another “investor” was found.  This person was Barrister Campbell.  The arrangement was that as he was on record as being the beneficiary he needed to sign some papers.  He would get his 5% in any event.  This is the highly simplified version of the arrangement.

15.A further feature of this arrangement was that the accused agreed to have the young woman from the Republic of Côte d’Ivoire stay with him and study medicine or science in the United States.  Indeed, he asserted that he invested money in converting part of his house into an additional room for this woman to stay in.  A feature of the many communications involved in this case is that the young woman kept in touch with the accused.  I think it is fair to say that while nothing direct was said there was more than a hint that a relationship of something more than mere guardian was being contemplated at least by her.

16.He testified that he agreed to travel to Sao Paulo in Brazil to pick up the relevant documents and take them to Europe.  It was asserted to him that these documents would clear up all the procedures to obtain the inheritance and everyone would be happy.

17.Pausing there, it will be immediately appreciated that this almost certainly was a scam.  Indeed, the accused says that he appreciates that now.  His case is that he was sucked in, hook line and sinker.  The testimony of the accused is that an appreciation of the true nature of this proposal seems fully to have dawned on the accused once he was intercepted by the Customs & Excise Service of Hong Kong.  That said, in the multitude of communications, there are repeated expressions of scepticism and having been scammed before.

18.The first trip to Sao Paulo involved meeting a contact (Richard) in a hotel and receiving a bag from him in exchange for the bag that the accused had brought with him from Minneapolis.  There were some exchanges with Richard about what was in the bag.  Indeed, he appears to have examined at least some of the contents and signed those because they were documents purporting to be directed to the release of the inheritance.  He carried the bag through several stops to Paris. The bag was there placed in the hands of someone else.  All the arrangements were said to be done by a person purporting to be a travel agent by the name of Jimmy Roland.  The Customs photographed the screenshots of the mobile phone of the accused following their interception of him and there are evidenced in that a multitude of communications with the person said to be Jimmy Roland.

19.There was a second trip to Sao Paulo, which ended up in the accused taking the bag to Chicago via Miami.  That arose because barrister Campbell and Jimmy Roland asserted that more documents were needed.  The accused went to Sao Paulo.  If the accused is to be accepted, he protested about the fact that the inheritance had not been released after the first batch of “documents” and he was not happy about taking a substituted bag in which he was not allowed to see the documents because they were in secret compartments.  He told the jury that he had been told by Campbell and Roland that these were confidential documents and might have tax and money-laundering implications if they became public. The accused and the bag made it back to Chicago.

20.The third trip is the trip that culminated in the accused coming to Hong Kong.  As it is in the agreed facts and has appeared in the multitude of communications with the man claiming to be Jimmy Roland, the travel agent, the accused went to Sao Paulo in Brazil and thence to Belem, also in Brazil.  He then went to Cayenne in French Guiana and then on to Paris.  From Paris, he took the Cathay Pacific flight to Hong Kong.  The accused’s testimony is that on this third trip, he was carrying the documents which would finally bring the inheritance to a conclusion so that the young woman from the Republic of Côte d’Ivoire could obtain her inheritance, come to the United States, stay with the accused and study medicine.  He was told, as occurred before, that the documents were sealed in secret compartments in the luggage because those documents were confidential, and their exposure could give rise to tax and money-laundering problems.  He said in his testimony that he did not know what was in those secret compartments, but he did know that there were secret compartments.  It is, perhaps, pertinent to refer back to what he said when first arrested by the Customs, which carries with it the obvious implication that he knew a good deal more about what was in the bag because he spoke of the contents being the protection for a laptop.  He also asserted to the officers that he bought these bags, and he did so in a mall in Sao Paulo.  The implication of that might be that he packed the bags himself.  Plainly, that was inconsistent with his testimony and might well be fertile ground for cross-examination.

Issue aT trial

21.The issue in the trial is whether the prosecution can prove that the accused knew that what he was carrying into Hong Kong was dangerous drugs.  As I assess the evidence at present, there is a reasonable ground on the prosecution case from which an inference could be drawn by the jury that the accused knew.  The accused says that he is a victim of a scam, and he believed that the people who turned out to be scammers had put documents in secret compartments in the bags that they supplied to him in exchange for the bags that he bought from the United States.

22.No doubt on the state of the evidence as it is at the time of writing, there are plenty of fertile areas for cross-examination of the accused.  I assume that the sum total of this cross-examination will come to the central proposition that the accused could not possibly have believed that the secret compartments contained documents supporting this inheritance.  The essence of the prosecution case in cross-examination is not only was what the accused said was asserted to him by the young woman and Mr Campbell and Mr Roland too good to be true, it could not possibly have been true and the only inference that should be drawn is that the accused must have known there were dangerous drugs in the bag.

THE APPLICATION IN DETAIL

Factual matrix

23.Counsel for the prosecution seeks permission to cross-examine the assertion that the accused is of good character apart from one or two minor traffic convictions based on two items of evidence.  The first item arose from the screenshots originally provided by the prosecution and notified in the ordinary way as additional evidence. This evidence was presented not by the prosecution but by the defence in two defence jury bundles.  This was plainly done with the cooperation of the prosecution in a very fair way.  Further than that, it is necessary to note that by arrangement between the parties a couple of the screenshots and the critical extracts provided to accompany those screenshots were redacted.

24.The first part of what is relevant are the redacted screenshots in the exchanges between the accused and the person said to be Jimmy Roland.  The first is in the notified bundle of additional evidence at page AE 279.  At line 187, the accused sends a WhatsApp message to Jimmy Roland on 4 March 2019 which is during the second trip from Minnepolis to Sao Paulo to pick up the second batch of documents said to be necessary to finalise the inheritance.  The context from the testimony of the accused is that while he was told that he could not see what the documents were in the secret compartments in his luggage, he did feel the secret compartments and they did not feel like documents.  The further pertinent fact to provide context is that it was intended on this second trip that he take the “documents” to Chicago.  At line 187, the accused writes by WhatsApp “I hope to God it’s documents, I’m on a drug watch list in USA from my past, I just thought I should be honest with you before I travel into US.”  More pertinently at line 200 on the same day, the accused is recorded as sending a WhatsApp message to Jimmy Roland as follows: “if it’s documents I’ll be okay, but I travelled in 2003 for someone and they hid 8 pounds of drugs, I was convicted and sent to prison 91 months.  That’s why I need to be honest, because bag feels different.”

25.The entry at line 200 on AE 279 had, by arrangement between the parties, been redacted in the version given to the jury bundle.

26.The next relevant entry, which, viewed by itself somewhat marginal, is to be found at AE 496 in a WhatsApp communication between the accused and Jimmy Roland at line 353.  The entry is dated 28 December 2019 and must have occurred when the accused was in Brazil. In that entry, the accused writes, “It’s hard to know what or where to eat every place looks like ghetto I’m not use to Brazil food, it taste different, like when I was in prison many years ago.”

27.However, that is not the end of the matter.  The Customs & Excise Service have in their possession a message from the Drug Enforcement Administration in the United States which asserts that a person known as Charles Raymond Morrow Jr has an extensive criminal history.  The message appears to be dated 3 January 2020.  It is from a person known as Chi Do, who is a Special Agent with the Drug Enforcement Administration (DEA) in the Hong Kong Special Administrative Region Office.  The essence of the history is as follows:

(1)  1^st Arrest Date: 7 January 1992 for drug offences.  Convicted and sentenced to five (5) year’s probation.

(2)  2^nd Arrest Date: 8 May 1992 for carrying weapons without permit and driving while under the influence of alcohol or controlled substances.  Sentenced to 90 day in jail, and one (1) year of probation.

(3)  3^rd Arrest Date: 16 July 1992 for driving while the influence.  Sentenced to 30 day in jail, and two (2) year’s probation.

(4)  4^th Arrest Date: 23 April 2003 for manufacturing mathamphetamine.  Convicted, sentenced to 81 months of prision.  MORROW was released earlier than 81 months (DEA investigation).

(5)  5^th Arrest Date: 14 March 2008 for driving under the influence.  Driving on the wrong way of traffic recklessly.  Sentence to one (1) year of prison and six (6) year’s probation.

(6)  6^th Arrest Date: 5 August 2009 for not stopping after being involved in a motor vehicle accident.  Sentence to 90 days in jail.

(7)  7^th Arrest Date: 9 May 2010 for driving violation.  Sentenced to 90 day in jail.

(8)  8^th Arrest Date: 17 May 2017 for driving while impaired.  Sentenced to 90 day jail and two (2) year’s probation.

The message which is by way of email asserts that this is not an official record. Given the manner of expression, perhaps this is for the better.

28.Entry number 4 is the critical one.  That needs to be qualified because the record above speaks of arrests rather than convictions.  Luckily, as it turns out, the Judicial Clerk assisting me was able to turn up a judgment of the State of Minnesota v Charles Raymond Morrow Jr.  This is a judgment of the Minnesota Court of Appeal (Wright, Peterson & Stoneburner JJ).  It affirms a conviction for what is characterised as a “first-degree controlled-substance crime”.  A careful reading of the judgement would suggest that Mr Morrow was initially charged with manufacturing methamphetamine because he was found very near a truck to which he had the keys in which was found a mobile methamphetamine manufacturing laboratory.  The charge appears to have been downgraded to possession of methamphetamine.  The judgement of the Court of Appeal given by Stoneburner J affirmed that conviction.  It would appear that the truck in question was found in a field in McLeod County in Minnesota.  Apparently, the truck had been in some sort of an accident which explained how it came to be found in a ploughed field.  Mr Morrow was found near the truck. The keys to the truck were found in the pants pocket of Mr Morrow.  The police found a lockbox in the back of the truck, which appears to have contained a traffic citation in the name of Mr Morrow.  The citation was evidence connecting Mr Morrow with the truck.  He denied any connection with the keys to the lockboxes.  Those heys happened to be found in the police car near to where the accused was seated after he had been arrested.  At page 6 of the judgement, Stoneburner J observed: “there are no facts in the record that support any rational theory other than [the] appellant’s guilt.”

29.The judgement of the Court of Appeal of the State of Minnesota provides a clue to what item 1 in the record from the DEA was about.  It is to be recalled that this was a conviction for “drug offences”.  There is a reference at page 8 of the judgement of the Court of Appeal to “his 1992 conviction for possession of marijuana”. Prophetically, one of the grounds of appeal of Mr Morrow was that the trial Judge had permitted evidence of his possession of marijuana in 1992 to be admitted in evidence because the Judge failed to consider the relevant factors which might have permitted admission.  A fair reading of the judgement would seem to suggest that the criteria for the reception into evidence of a previous conviction are remarkably similar to those in section 54(1)(f) of the Criminal Procedure Ordinance.  Indeed, Stoneburner J quoted from the directions of the trial Judge to the jury.  That seems to cover all the elements of the direction that this Court will be required to give.

30.It would be inappropriate for the prosecutor to put the contents of the judgment to the accused as part of his cross-examination.  I have examined the judgment in some detail.  It is plain from a fair reading of the judgement that the charge was originally manufacturing but was downgraded to possession by the time the matter got to trial.

31.The email from the DEA officer to the Customs & Excise Service was sent on 3 January 2020.  That is a day or so after the interception of the accused at the airport.  It had not been disclosed to the representatives of the accused.  Presumably, the defence team had obtained instructions about the background of the accused. Basic to the taking of such instructions, it would be information about the previous convictions of the accused.  Counsel for the accused properly told me that he accepted that he knew about the drugs conviction.  He told the Court that he had recently become aware of the judgement of the Court of Appeal of the State of Minnesota.  Before the receipt of the DEA email, he was unaware of the earlier drugs conviction in 1992 or the convictions for what appear to be serious road traffic offences.  The road traffic convictions, in one way or another, involved his client being sentenced to imprisonment.  That carries with it the clear implication that they were inconsistent with his client’s assertion that he had been convicted of minor traffic offences.  Counsel suggested that had he known about the DEA e-mail, it may have caused him to conduct his defence in a different way.  With respect to him, it is difficult to see how the defence might have conducted their case in a way that would have been substantially different.  In the specific circumstances of the case, the practical need for the accused to testify was close to overwhelming.

32.Counsel for the accused accepted, again very properly, that the reference in the WhatsApp communications to Jimmy Roland, especially the communication at line 200 of AE 279 was put on notice of a previous drugs conviction. The terms of the entry at line 200 speak about a different crime “I travelled in 2003 for someone and they hid 8 pounds of drugs”.  The length of the sentence is 91 months for the event described in line 200 as opposed to the methamphetamine in the pickup truck being 81 months.

33.Counsel for the accused submitted that there is a danger of undue prejudice if the jury were to learn of this material.

Principles to be applied

34.Section 54(1)(f) prohibits cross-examination of an accused on any basis which suggests he has previously been convicted or charged with an offence.  The provision is:

(1)  Every person charged with an offence, whether charged solely or jointly with any other person, shall be a competent witness for the defence at every stage of the proceedings:

(f) a person charged and called as a witness in pursuance of this section shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged or is of bad character, unless -

(i) [not relevant]; or

(ii) he has personally or by his advocate asked questions of the witnesses for the prosecution with a view to establish his own good character, or has given evidence of his good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution; or

(iii) [not relevant].

The concern in this case arises because the accused is said to have “given evidence of his good character”.

35.The accused cannot assert just the good part of his character.  Equally, he cannot be selective about his previous convictions.  In the present case, the accused characterised his previous convictions as simply some minor road traffic matters.  In Stirland v DPP [1944] AC 315 Lord Simon, LC observed:[1]

“An accused who ‘puts his character in issue’ must be regarded as putting the whole of his past record in issue. He cannot assert his good conduct in certain respects without exposing himself to inquiry about the rest of his record so far as this tends to disprove a claim for good character.”

In R v Winfield (1940) 27 Cr App R 139, the 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 for the Court of Criminal Appeal held “there is no such thing known to our procedure as putting half a prisoner’s character in issue”.  In R v Samuel (1956) 40 Cr App R 8, 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, Lord Goddard, CJ said:[2]

“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.”

Winfield and Samuel were followed in R v Tsang Sit Keung [1989] 1 HKLR 156, 159.

36.The Judge conducting the trial has a discretion as to whether or not to permit such cross-examination in the event that one of the events described in the exception to the prohibition in section 54(1)(f) in (ii) has occurred.[3]  Here the character of the accused has been placed in issue.  That was deliberately done. On no account could it be said to have emerged by some side wind.  The prosecution say, with some force, that if left alone the jury would walk into the jury room with a substantially false impression of the character of the accused.

37.It is one this to say the Judge has a discretion.  What is critical is to identify the principles which inform this discretion.

38.In HKSAR v Lau Ka Shing [2020] 3 HKLRD 110, CACC 292/2018, [2020] HKCA 396. Zervos JA, giving the judgment of the Court of Appeal summarised the principles which inform the exercise of that discretion as follows:[4]

“(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… 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… (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 ER 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.”

39.The principles articulated in Lau Ka Shing (above) closely reflect summary of the law on this topic set out in the English Court of Appeal decision in R v McLeod [1995] 1 Cr App R 591.[5]

40.The Court was not in a position to warn the accused that he might lose his shield.  The Court was unaware of the DEA memo at the time that the accused testified that he had no convictions except for minor road traffic convictions.  It was similarly unaware that the assertion of an absence of connection with drugs might also be open to question.

41.Counsel for the accused’s complaint about notice implies an obligation on the prosecution to disclose the DEA memorandum.  In R v Brown [1998] AC 367, the House of Lords was faced with a complaint that the prosecution had failed to disclose previous convictions of potential defence witnesses.  Lord Hope held that there was no such obligation.  He held:[6]

“The common law rules which I have described are designed to ensure the disclosure of material in the hands of the prosecutor which may assist the defence case. But, once that duty has been satisfied, the investigation and preparation of the defence case is a matter for the defence. That includes the tracing, interviewing and assessment of possible defence witnesses. And material which may assist the defence case can be distinguished from material which may undermine it or may expose its weaknesses. The adversarial system under which trials in this country are conducted applies to the examination of witnesses in support of the defence case in the same way as it does to the examination of the witnesses for the Crown. No witness enters the witness box with a certificate which guarantees his credibility. Every witness can expect to be cross-examined upon the veracity or reliability of his evidence. Cross-examination which is directed only to credibility may lose much of its force if the line is disclosed in advance. This weakens the opportunity for the assessment of credibility by the jury or, in a summary case, by the justices. To insist on such disclosure would, sooner or later, undermine the process of trial itself. It would protect from challenge those who were disposed to give false evidence in support of a defence which had been fabricated. That would be to tip the scales too far. Justice would not have been done.”

Brown does not deal with the obligation of the prosecution to disclose to the accused the prior convictions of the accused.  The logic which underlies Lord Hope’s speech supports the proposition that there is no such obligation.  However, in the specific circumstances of this case, even if there is such an obligation, the failure to meet this obligation in this case does not place a fair trial in jeopardy.

Application of principles

42.In my opinion, the factual basis for a consideration of permission to grant cross-examination as to the previous convictions of the accused has been established.  Clearly, the accused has given evidence of his good character.  Most jurors would view “a few minor traffic offences” as something which does not detract from an otherwise good character.  If it is true that he has been guilty of, amongst other things, possessing methamphetamine such as to attract a penalty of well over 6 years’ imprisonment, then the picture of the character of the accused portrayed by him in his testimony could be viewed by the jury as false and misleading.  At least as far as the conviction for possession of methamphetamine is concerned, as I understand that it is accepted by those representing the accused that there was such a conviction.

43.The testimony of the accused as to his background paints him in a comparatively favourable light.  It would be open to the jury to conclude that his credibility was diminished by not telling the jury the truth.

44.As to the other alleged convictions, there is nothing to support them other than the memo of a representative of the Drug Enforcement Administration of the United States to establish them.  The Hong Kong Customs & Excise Service has had every opportunity over the last 18 months to attempt to formalise proof of these matters.  Only if those matters were properly improved, could they be relied on to impeach the credibility of the accused.  If they are denied then we are left in the position of assertion on the part of the prosecution and denial on the part of the accused.  The realities are that the accused is at a disadvantage in relation to that because the prosecution may have a natural authority which might give the assertion by the prosecutor an unfair advantage. That could be cured by direction, but I think there is a better way of dealing with it than curing it by direction.  That better way is not to permit cross-examination on the topic of the road traffic offences.

45.If I thought that there was any proper basis for proving those offences other than the less-than-articulate memorandum of the officer of the Drug Enforcement Administration,  I would be sorely tempted to permit cross-examination on the road traffic offences.  That is because if it could be proved satisfactorily that the offences are as asserted in the memorandum, they are in stark contrast to the assertion on the part of the accused that he had only been convicted of minor traffic offences.

46.There is another reason I would not have permitted cross-examination on the road traffic offences in any event.  They are on a different topic and, in many respects, on a different plane to the drug conviction.  There is a risk of unfairness to the accused, and the risk is not one that I consider appropriate to take.

47.That leaves the earlier 1992 conviction for “drugs”.  That is almost 30 years ago and of such an indeterminate nature that I do not consider that it would be fair to permit cross-examination on that topic.

48.In my opinion, it is fair that the previous character of the accused so far as the methamphetamine conviction is concerned be revealed to the jury.  I do not consider that it would be likely to produce an unfair trial for the jury to be aware of that conviction.  It will be required of the Court to direct the jury as to the limits to the use that may be made of this information.  The essence of that direction is that the information may only be used in the assessment of the credibility of the accused and cannot be used by the jury to consider that the accused has a propensity to commit drug offences.  It is not appropriate and present to formulate the precise direction because I consider that the formulation should await events including how the cross-examination on this topic proceeds.

Order

49.The order of the Court is that the prosecution is permitted to cross-examine the accused on the conviction for possession of methamphetamine, which attracted a sentence of 81 months’ imprisonment.  The permission of the Court is not extended to any of the other convictions referred to in the DEA memorandum.

Mr CHUI, Steve, Counsel on fiat of Department of Justice for HKSAR

Mr DAVIES, Oliver Howell, instructed by Jal N Karbhari & Co, assigned by Director of Legal Aid for the accused