HKSAR v. Lau Man Chung

HCCC 250/2024

[2026] HKCFI 5082

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 250 OF 2024

________________________

________________________

__________________________________________

REASONS FOR RULING ON
ADMISSIBILITY OF EVIDENCE
(previous convictions and bad character)

__________________________________________

The Application

1.The Defendant in this case is charged with one count of trafficking in dangerous drugs[1] (namely, 850.58 grammes of ketamine and 0.33 grammes of MDMA).  In summary, a parcel containing two pairs of roller skates which concealed the said drugs were sent from Italy to the Defendant’s rented flat in Sham Shui Po as particularised on the Indictment (hereinafter “the Flat”) and the defendant was the named recipient (the consignee) of the parcel.  The Defendant collected the parcel on 27 February 2023 when it was delivered by Customs and Excise (C&E) officers by way of controlled delivery.  The Defendant was arrested and cautioned immediately after he collected the parcel.  The Flat was also searched.

2.The Prosecution made an application to adduce the previous convictions / evidence of bad character of the Defendant (the “Impugned Evidence”) as part of the Prosecution’s case.  The Impugned Evidence can be categorised into three items which include:-

(1)  Two convictions in 1999 in the Magistracy for smoking/injecting a dangerous drug and possession of a dangerous drug – for which the Defendant was fined (“First Item”);

(2)  One conviction in 2014 in the Court of First Instance for trafficking in dangerous drugs – for which the Defendant was sentenced to 7 years and 8 months imprisonment (“Second Item”).  From the information available to the Court, this was the case of HKSAR v Lau Man Chung (HCCC 549/2013) in which the Defendant pleaded guilty to trafficking in 240 grammes of “ICE”;

(3)  One offence of possession of a dangerous drug (0.17 grammes of ICE) – which the Defendant pleaded guilty to in the magistrate’s court and is awaiting sentence in the Court of First Instance pending the result of this trial (“Third Item”).  This possession offence occurred on the same day as the present trafficking offence as the 0.17 grammes of ICE were found in the Flat upon search after the Defendant was arrested for the present trafficking offence.

3.The Prosecution applied for a pre-trial ruling that all three items of the Impugned Evidence are “admissible under section 54(1)(f)(i) of the Criminal Procedure Ordinance and under the similar fact evidence rules”.[2]

4.The Defence objected to any part of the Impugned Evidence being adduced as part of the Prosecution’s case, on grounds that they are inadmissible, being irrelevant, mere propensity evidence, and that their prejudicial effect outweighs their probative value.

5.Having considered both parties’ oral and written submissions, I refused the Prosecution’s application.  I also ruled that whether any of the Impugned Evidence may become admissible under s.54(1)(f)(ii) of the Criminal Procedure Ordinance (Cap. 221) (i.e. in circumstances where a defendant loses his “character shield”) will depend on how the trial proceeds.  I will now give my reasons.

The Legal Principles

6.The relevant legal principles are set out in the Court of Final Appeal case of HKSAR v Zebed Ali (2003) 6 HKCFAR 192.  As the Court explained at §23, the proper approach when determining whether a Defendant’s bad character evidence is admissible involves the following lines of analysis:-

(1)  The matters in issue which the prosecution has to prove to establish guilt, having regard to the charge, must first be identified. For this purpose, the defences open to and any specific defence raised by the accused would be taken into account.  However, in the well-known words of Lord Sumner in R v. Thompson [1918] AC 221 at 232: "The prosecution cannot credit the accused with fancy defences in order to rebut them at the outset with some damning piece of prejudice."  Obviously, if a fact which the prosecution has to prove is accepted by the defence, it would not be in issue.

(2)  The evidence the admissibility of which is in question should be focused on.

(3)  The following questions should then be asked: what is the matter in issue to which the evidence is said to be relevant and why, that is, what is the reason for saying that the evidence is probative of that matter in issue?

(4)  If in answer to those questions, it is concluded that the evidence is relevant to a matter in issue for reasons other than to show mere propensity on the part of the accused to commit the crime in question, that is, it is not mere propensity evidence, then the test in DPP v. P[3] has to be applied in deciding as a matter of law whether it is admissible: whether its probative force in support of an allegation against the accused is sufficiently great to make it just to admit it, notwithstanding that it is prejudicial to the accused. It is only where the test is satisfied that the evidence would be ruled admissible as a matter of law.  If it is not satisfied, the evidence would be ruled inadmissible.  But if in answer to the above questions, it is concluded that it is mere propensity evidence, then it would be inadmissible on the basis of the exclusionary rule.

7.The Court of Final Appeal in Zabed Ali left open the question “If the evidence is ruled admissible as a matter of law, whether the judge still has a residual discretion to exclude the evidence on the ground that its prejudicial effect would outweigh its probative value is a much debated question.” (§25).  For the reasons set out below, I ruled the Impugned Evidence to be inadmissible on the basis of the exclusionary rule against “mere propensity evidence”.  Therefore it was unnecessary to engage the question whether as a matter of residual discretion, the Impugned Evidence should still be excluded on the ground that its prejudicial effect would outweigh its probative value.

8.In R v Tsang Wai Ki & Anor [1996] 3 HKC 111, the Court of Appeal quashed a defendant’s convictions for drug trafficking and possession of dangerous drugs and ordered a retrial, on the basis that highly prejudicial evidence of the defendant’s drug addiction was adduced by the Prosecution as part of its case.  The Court of Appeal held that evidence adduced which tends to show the commission of other crimes was not inadmissible if it was relevant to an issue before the jury, for example, if it bore upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused.  However, in that case, the introduction of evidence relating to heroin addiction could not be justified. Although such evidence might have become relevant and admissible in cross-examination, or in rebuttal, if the applicants had availed themselves of their right to give evidence, which may then have given rise to a proper foundation for an application at that stage to introduce the evidence.  But the admission of such evidence as part of the Prosecution case was a material irregularity as it only went to “propensity”.

Submissions of the parties

9.The Prosecution, represented by Mr. Raffell, argued that the Impugned Evidence is relevant to a “fact in issue” in the case – namely, whether the Defendant had knowledge of the dangerous drugs inside the parcel that was addressed and delivered to him.  He submits that the Impugned Evidence supports the Prosecution case that the Defendant “must have known” the contents of the parcel and is not evidence of mere propensity.

10.Mr. So, for the Defence, argued that the Impugned Evidence was clearly “mere propensity evidence” and should not be admitted under the principles explained in Zabed Ali.  He further submitted that s.54(1)(f) CPO is not engaged at this stage as the Defendant has not even testified, thus the Impugned Evidence cannot be admitted against him via that route.

Analysis

11.The main issue in the application is whether (and if so, how) the Impugned Evidence is relevant to the Defendant’s knowledge of the contents of the parcel – this is the specific “matter in issue” identified by the Prosecution in support of its application.

12.On this point, Mr. Raffell submitted in his written skeleton at §10 that:

“The innocent explanation/defence [the Defendant] advances is that he collected the parcel unaware of the contents. Here, the 2014 trafficking conviction [i.e. the Second Item] directly rebuts it.  A men who has personally been convicted of drug trafficking cannot credibly claim that he collected a commercial drug consignment of 850.85g of ketamine (street value: HK$454,178) addressed to him at his own home bearing his own name and phone number, without knowingly anticipating its arrival.” (italics added)

13.Contrary to Mr. Raffell’s submission, the above argument in fact demonstrates that the Impugned Evidence is being used as “propensity evidence”.  This was also made clear in the following paragraph of Mr. Raffell’s submissions:-

“11.…it is clear from this previous conviction that the Defendant may know, from direct personal experience of trafficking: the nature and appearance of dangerous drugs; or how they are packaged and concealed for transportation; or the commercial value they command.  The previous conviction can thus be the direct proof of the very knowledge the defendant denies (instead of only as proof of propensity). In short, this evidence that the Defendant must have known that the Parcel contained the dangerous drugs.” (italics added).

14.In effect, the Prosecution is suggesting that because the Defendant is a convicted drug trafficker (and has other drug related convictions), therefore he “must have known” the parcel’s contents were dangerous drugs.  With respect, this is an attempt to use the Impugned Evidence as evidence of mere propensity.  Properly analysed, the Impugned Evidence lacks the necessary probative or logical link to the matter in issue as identified by the Prosecution, namely, the Defendant’s knowledge of the contents of the parcel.

15.When asked how the Impugned Evidence was logically relevant or linked to the matter in issue (knowledge), the Prosecution had no clear answer, but simply suggested that “coincidence” or “mistake” would not occur in this Defendant’s case, and with these previous convictions he must have known the contents of the parcel.  However, that answer does not provide the proper basis for admitting the “Impugned Evidence”, the necessary logical or probative link between the Impugned Evidence and the Defendant’s knowledge of the drugs was still absent.

16.Taking each item of the Impugned Evidence in turn.

17.The First Item of Impugned Evidence relates to convictions that occurred in 1999 for smoking/injecting a dangerous drug and possession of dangerous drugs.  They are quite dated and not connected to drug trafficking at all.

18.For the Second Item, from the reasons for sentence given by Line J, the facts and circumstances of that case appeared to be quite different from the present case.  That case concerned trafficking in 240 g of “ICE” and the Defendant was caught “carrying” the drugs.  The defendant admitted his role in the trafficking to the police and the starting point of 11 ½ years imprisonment was reduced to 7 years and 8 months after his guilty plea.  There is nothing to suggest any similarity in the commission that offence with the present offence.  The type of drugs was different and the manner in which the alleged trafficking occurred was also different.  The only matter “in common” is that they both concern the drug trafficking offence.  In the circumstances, I do not agree with the Prosecution that this amounts to “similar fact evidence” as a route to admissibility.  Indeed, it is of note that the Prosecution did not provide the Court with the relevant reasons for sentence by Line J when suggesting this item could be admitted as “similar fact evidence”.

19.The Third Item has locational proximity with the present offence, as the drugs subject to that possession charge were found in the Flat after the Defendant’s arrest for the present trafficking offence.  However, the type of drugs and its quantity are very different from the present trafficking charge.  Again, there is no clear “similarity” between the two offences.  Furthermore, the fact that the Defendant was in possession of a small amount of ICE in the Flat does not support the Prosecution’s contention that therefore he “must have known” the contents of the parcel were dangerous drugs. 

20.Applying Zabel Ali, I do not find the Impugned Evidence to be relevant to the Defendant’s knowledge of the contents of the parcel as suggested by the Prosecution.  The Impugned Evidence, if admitted as part of the Prosecution’s case, is mere propensity evidence (showing propensity on the part of the Defendant to commit the crime in question).  It is therefore inadmissible on that basis.

21.Furthermore, the probative force (in any) of the Impugned Evidence in support of the allegation against the Defendant is not sufficiently great to make it just to admit it as explained in Zabel Ali para.23(4).

s.54(1)(f) of the Criminal Procedure Ordinance

22.In relation to the Prosecution’s application to adduce the Impugned Evidence using s.54(1)(f)(i) CPO.  The matter can be dealt with briefly.  The section is not yet engaged at this stage, because s.54(1)(f) provides:-

“54.— (1) Every person charged with an offence, and the wife or husband as the case may be of the person so charged, shall be a competent witness for the defence at every stage of the proceedings, whether the person so charged is charged solely or jointly with any other person:

Provided as follows—

…

(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) the proof that he has committed or been convicted of such other offence is admissible evidence to show that he is guilty of the offence wherewith he is then charged; 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

(iii) he has given evidence against any other person charged in the same proceedings;

…” (emphasis added).

23.This subsection is only engaged when “a person charged and called as a witness” is being questioned in cross-examination.  We have not reached that stage of the proceedings, therefore this subsection is not yet appliable.  However, this ruling does not preclude the applicability of s.54(1)(f)(ii) CPO (i.e. the Defendant losing his “character shield”) if and when that occasion arises provided that the relevant legal requirements are met, which will depend on how the trial proceeds.

24.For the reasons stated above, I rejected the Prosecution’s application to admit the Impugned Evidence as part of the Prosecution’s case.

Mr Andrew Raffell, Counsel-on-fiat, for the Prosecution

Mr Alan So, Counsel instructed by Messrs Cheung & Liu, assigned by DLA, for the Defendant

[1] contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (“DDO”).

[2] Para.1 of Prosecution’s written submissions.

[3] [1991] 2 AC 447