R. v. Yiu Ka-yin
Read the full judgment text of CACC 237/1993 on BabelCite. This Court of Appeal judgment was delivered on 17 November 1993.
1. This is an application for leave to appeal against conviction.
Cites 2 cases
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CACC000237/1993 IN THE COURT OF APPEAL 1993 No. 237 ____________
____________ Coram: Hon. Penlington, J.A., Bewley & Sears, JJ. Date of hearing: 17 November 1993 Date of judgment: 17 November 1993 Date of handing down reasons for judgment: 23 December 1993 _____________________ C O R R I G E N D U M _____________________ Page 14, last 2nd paragraph, 5th line, delete the 6th word 'accord' and substitute for it 'record'. Dated this the 12th day of January 1994.
1993, No.237 (Criminal) IN THE COURT OF APPEAL ____________
____________ Coram: Hon. Penlington, J.A., Bewley and Sears, J.J. in court Date of hearing: 17 November 1993 Date of judgment: 17 November 1993 Date of handing down reasons for judgment: 23 December 1993 ____________________ REASONS FOR JUDGMENT ____________________ Bewley, J.: 1. This is an application for leave to appeal against conviction. 2. The applicant was convicted on 27th April 1993, following trial before Duffy. J. and a jury, on two counts of possession of dangerous drugs for the purpose of unlawful trafficking. He was sentenced to five year's and eight years' imprisonment, concurrent. In the first count the quantity of the mixture was 28.71 grammes and the narcotic content was 12.75 grammes. The drugs were alleged to have been in a paper envelope found in the applicant's pocket after a search. He was intercepted at 2.15 a.m. on 2nd May 1992 on 6th floor of Block 17, Yau Tong Estate by PC1835, who had been keeping watch on 7th floor as a member of a team on a special operation. He had been alerted by PC48247 who was at street level. The applicant was arrested and cautioned and said: "Give me a chance, the white powder is mine". But when the police constable tried to handcuff him the applicant struggled. PC48247 ran up to give assistance and the applicant was subdued. His wife was arrested on the ground floor. 3. Together with the inspector in charge of the party, the police constables took the applicant to the latter's flat in Tsing Lung Tau, where the drugs in count 2 were found. They were contained in five plastic bags. The quantity of the mixture was 116.13 grammes with a narcotic content of 50.82 grammes. 4. According to the police evidence the applicant said he did not want his baby daughter to be disturbed; he would tell them the location of the drugs and he pointed at the dining room cabinet. Here the drugs were found and the applicant was cautioned. He said they were his and had nothing to do with his wife who was present. 5. The applicant was later interviewed at Kwun Tong police station and he wrote cautioned statements in respect of each count which read:- Count 1 -
Count 2 -
6. The applicant alleged that he was made to copy these statements following assaults by the police and the inducement that his wife would be released when he had written the statements. The judge found that both statements were made voluntarily and admitted them in evidence. 7. The applicant gave evidence on the general issue and said he had gone to Yau Tong Estate to lend money to a man whom he was to meet on 7th floor. He was assaulted and arrested by the police constable. The inspector later arrived with the envelope containing the dangerous drugs and said he had been caught red-handed. 8. When they reached the flat his wife asked the police not to disturb the child and said the things were in the cabinet. The applicant claimed he did not know what was in the plastic bags but he was struck by the police constable. He said he was forced to write the statements in the police station. He gave no other explanation for the presence of the drugs in the flat. 9. The judge permitted cross-examination of the applicant about his previous convictions on the grounds that he had asserted that the police had fabricated their evidence that the drugs, the subject of the first count, were on his person. He indicated, when granting the application, that he would probably not have been moved to grant it had it been based solely on the allegations of brutality. 10. The applicant had three previous convictions, including one for possession of dangerous drugs for unlawful trafficking in the Juvenile Court in 1981, when he was not yet 16. He had two convictions in 1984 for possession of an offensive weapon and for robbery. There is only one ground of appeal :-
11. We invited Mr Cheng Huan to address us first on behalf of the applicant on Ground 1(c). Having heard Mr Cross, for the Crown, in reply, we granted the application, treated it as the hearing of the appeal, allowed the appeal and quashed the convictions. We ordered a retrial. We said we would give reasons in writing which we now do. 12. Counsel for the applicant had no quarrel with the judge's direction to the jury as to how they should approach the applicant's previous convictions. He submitted however that the prejudice created by the drug conviction must have been so great that it could not be cured by a direction. Its impact moreover would have been disproportionate to its effect on the applicant's credibility. 13. The leading case ofSelvey v. D.P.P. [1970] AC 304 stated the following principles:
14. Mr Cross took us through the authorities commencing with R. v. Mui Yuen [1979] HKLR 8, in which Addison J. said at p.14:
15. In R. v. Britzman [1983] 1 WLR 350 Lawton L.J. said at p.353:
16. In R. v. Powell [1986] 82 CAR 165 the Lord Chief Justice approved the analysis of Ackner L.J. In R. v. Burke at p.161 of the same report:
17. Mr Cross cited the dictum of Neill L.J. in R. v. Owen [1986] 83 CAR 100 at p.105:
18. Finally the Crown relied on a passage in the judgment of Silke V.-P. in R. v. Tam Chung Shing [1991] 1 HKLR 458 at p.469:
19. Mr Cheng Huan accepted the principles in these authorities. He accepted that the judge had a discretion but he submitted that the discretion was wrongly exercised because the judge erred by not indicating that he bore in mind the importance of ensuring that the trial was fair and, in particular, the impact of an old drug conviction on the mind of a Hong Kong jury engaged in trying a similar charge. The critical nature of the exercise is described in a passage from the judgment of the majority of the High Court of Australia in Phillips v. R. [1962] ALR 479 at 488:
20. It was necessary therefore to look at how the judge approached the problem. 21. When counsel for the Crown had made his application to cross- examine the defendant on his record it was opposed by Mr Nguyen for the defence. The following exchange then took place:
22. The judge does not appear to have distinguished the two counts. The applicant's record had no relevance to count 2, the more serious charge, in respect of which the applicant did not allege that the drugs had been planted yet the effect of the ruling was that his shield was taken away in respect of this count also. This was an important consideration in deciding whether to grant the application. 23. It was open to the judge to have limited cross-examination to the robbery convictions. That would have put the jury on notice that they were dealing with a man who had been guilty of dishonesty in the past and one whose word was not to be trusted. Mr Cross at one point in the argument appeared to be suggesting that such a course was not available to the judge and that it was all or nothing. He cited D.P.P. v. Stirland [1944] AC 315. That case however is authority for the proposition per Lord Simon at p.326-327:
24. Earlier at p.324 the Lord Chancellor said:
25. Where a judge permits cross-examination as to character, following imputations on the character of the prosecution witnesses, he is not bound to permit the prosecutor to reveal all the defendant's previous convictions; it depends on the circumstances of the case. Here the judge does not seem to have considered allowing the Crown to cross-examine only about the robbery convictions. 26. The allegation of planting was part and parcel of the defence. If the drugs were not planted by the police, they must have been in the possession of the applicant. That is not to say that an allegation of attempting to pervert the course of justice may be made with impunity. Clearly, on the authority of Selvey that is not so, but it is something a judge should take into account when weighing the issues. It is not apparent that that was done in this case. 27. Mr Cross relies on a dictum of Pickford, J. in R. v. Watson [1913] 8 CAR 249 at p.254-255 cited by Viscount Dilhorne in Selvey:
28. However Lord Dilhorne follows this and concludes his speech with a citation from the judgment of Devlin, J. in R. v. Cook [1959] 2 Q.B. 340 at p.348:
29. It was the overriding duty of the judge to ensure a fair trial. The drug conviction, given the applicant's age at that time, would have had but slight effect on his credibility, whereas its prejudicial effect was enormous. Although Mr Nguyen raised most of these matters in opposing the application, I am unable to say, looking at the transcript, that the judge gave them proper consideration when making his ruling and I was therefore not satisfied that he exercised his discretion on a proper basis. The convictions were unsafe and unsatisfactory and for these reasons I was in favour of granting the application and allowing the appeal.
Sears J. 30. \ The principles on which this Court acts when reviewing a Judge's exercise of discretion are both well known and well established. This is not, however, a civil matter when the Court is only concerned with the outcome of a private 'lis' and will only interfere when it is clear that the Judge has failed to consider correct legal principles, or is plainly wrong. This Court in its criminal jurisdiction, should always have a more fundamental matter in mind, namely the right of any defendant to have, and be seen to have, a fair trial. 31. The allegation by this applicant was that he had been severely beaten by the police and his cautioned statement had been fabricated. However, in answer to his counsel he was asked -
32. The Judge when an application to cross-examine was made said "Mr. Nguyen, the allegation quite clearly and unequivocally is that the police planted these drugs ....". I do not share the Judge's initial reaction that this was a clear allegation of planting - it was as consistent with the applicant stating that the Inspector was holding the envelope as evidence that the drugs were in his possession. I note that Counsel when pressed by the Judge accepted that the Defendant was alleging the planting of the envelope. I have read and re-read the evidence of the applicant and I, with respect, disagree with the Judge's strong view that this evidence unequivocally triggered an application under S.54(1)(f). 33. There were serious and continuous allegations of police brutality which would have justified such an application. The Judge, however, did not consider that such allegations would have influenced his discretion to permit cross-examination. As these did not, I fail to understand how the equivocal evidence of the applicant caused the Judge to take such a firm view of the applicant's conduct. Comments such as "If it were true that these police officers did that, then they would go to prison for a long time", demonstrate, in my judgment, that the Judge had made up his mind from an early moment that this applicant would be cross-examined. 34. I agree with Penlington J.A. that the two counts were linked but in law they still had to be separately considered. The Judge paid no regard to this; nor did he consider, or show that he had considered, the dramatic effect of letting in a drug conviction in a drugs trial. Hong Kong is different from England and Hong Kong juries are sophisticated and knowledgeable about drug matters. This applicant was not yet 15 at the time of his conviction and I fail to understand how such a conviction could in the Judge's own words allow the jury "to know what sort of man he is that is saying that the police are planting drugs upon him". What the disclosure of such a conviction does is to permit the jury to know not that he is a man of bad character, but that he is involved with drugs. This situation is a complete negation of the right to a fair trial. 35. I have considered all the authorities, fully set out in Bewley J.'s judgment, but at the end of the day the overriding duty of a judge exercising a criminal discretion is to balance the effect of permitting cross-examination on previous convictions with the right to a fair trial. 36. I differ from Penlington J.A., with respect, that the evidence of the applicant as to planting automatically removed his protection. In my judgment, the Judge erred in principle in permitting cross-examination, and his discretion was seriously flawed in that -
37. I have come to a clear conclusion, on the facts of this case, that this applicant was prevented from having a fair trial. The evidence against him was strong and a Hong Kong jury was well able to judge the credibility of the witnesses. The cross-examination was wholly unnecessary and vitiated what was a simple trial with simple issues. However, the principle of a fair trial is far more important than the particular case. 38. I agree with Bewley J. that this application should be granted and the appeal allowed.
Penlington J.A. 39. I am indebted to Bewley J. for setting out the relevant evidence in this matter and the authorities to which we have been referred by counsel in their able arguments. 40. We are asked here to interfere with a decision in which a trial judge has exercised his discretion and that can only be done if the judge did not apply the right principles or was plainly wrong. It is suggested that he did not consider the possibility of allowing only part of the applicant's accord being put to him and the allegation of planting was in respect of only one charge, the less serious one. 41. The evidence here was an attack on the character of the police officers concerned, both as to the allegations of assault and as to planting heroin on the applicant and the decision of the judge to allow cross-examination of the applicant as to his previous convictions was within his discretion. I have no doubt that the allegations went well beyond an "emphatic denial" of the offences. 42. It is argued that the allegation of planting the drugs was only in relation to the first count involving only a small quantity 12.75 grammes of narcotic, but in my opinion the two counts were inextricably linked. If the jury convicted the applicant on the first count and was thereby satisfied that he was carrying heroin on his person for trafficking, a conviction in respect of the much larger quantity found in his flat was inevitable. His defence to the second count was simply that he had no knowledge of the much larger quantity of drugs found in a flat shared by his wife and himself. No jury could possibly have accepted that if satisfied that shortly before the flat was searched the applicant was found carrying heroin in the street. 43. A decision to have allowed cross-examination of the applicant as to his convictions for possession of an offensive weapon and for robbery on the basis of either the allegations of brutality or of planting the heroin could not have been challenged. The sole issue here is whether the judge was plainly wrong in exercising his discretion to allow the previous conviction for drug trafficking to also be put. If the jury were aware that the applicant was a man convicted of robbery and illegal possession of arms, was the probative value as to his credibility of allowing the jury to know of the previous drug conviction so small that it must have far outweighed by its undoubtedly prejudicial effect, even with the very clear and correct warning that was given, to the extent that the exercise of the judge's discretion was so unsound we should interfere. That only part of the applicant's record could be put to him was not suggested to the judge. If it had been it may have found favour with him but I do not consider that his failure to consider that option makes his decision wrong in principle. I have no doubt that a judge can allow part only of a criminal record to be put to an accused person who attacks the character of prosecution witnesses, though there is no clear authority for that and I have never heard of it being done in Hong Kong. 44. There is ample authority that a record for a conviction for a similar offence to the one for which an accused is being tried can be put to him, even though this must have a prejudicial effect, provided of course that a proper direction is given. Burke and Selvey make that clear, and are also in my view strong authority that the allegations of planting made here were not simply part of a defence which was being put forward vigorously and so did not put the applicant at risk as to his record being put to him. In Selvey Viscount Dilhorne exhaustively reviewed the early authorities such as R v Wright (1910) 5 Cr. App. R. 131 and R v Westfall (1912) 7 Cr. App. R. 176 which he found to be irreconcilable. He refers then to subsequent decisions such as R v Hudson (1912) 2 K.B. 464 which held that an imputation on the character of prosecution witnesses did put character in issue, even if necessary for developing a defence. Viscount Dilbourne held, at 339, that on the authorities, particularly of Hudson, cross-examination of an accused as to character was permissible even "when the casting of such imputations was necessary to enable the accused to establish his defence". 45. I have no doubt that, despite references in leading authorities to a jury being "entitled" to know the character of a person attacking the character of prosecution witnesses such æ Britzman and Powell, there is a discretion in the trial judge to not allow cross-examination as to character if he considers it would be unfair and so prejudicial that no direction could overcome that prejudice. As Viscount Dilhorne said in Selvey at 341-342, apart from the rule in rape cases that an allegation of consent does not allow cross-examination as to character, the discretion "depends on the circumstances of each case and the overriding duty of the judge to ensure that a trial is fair". He went on however to say that, while a warning is desirable, it is not essential and to cite with approval dicta of Pickford J in Watson 8 Cr. App. R. 249 and Devlin J. in Cook (1959) 2 Q.B. 340 that to upset the exercise of the judge's discretion it is necessary to show that the cross-examination of the accused was inadmissible; that he has erred in principle or had no material on which he could properly have reached his decision. In Selvey Lord Pearce at 355 referred to a passage from Hudson at 254-255. "But in order to see if the conviction should be quashed it is not enough that the court to think it would have exercised its discretion differently. It is necessary to show that in law the cross-examination of the prisoner was inadmissible. The judge at the trial is in a better position to judge whether the cross-examination should be allowed". Lord Pearce went on said "that case has never been criticised or disapproved. With one exception that is the pattern of present practice." (The exception is in cases of rape.) 46. Here if it had been suggested to the judge that he should restrict cross-examination of the applicant to the convictions for robbery and possession of an offensive weapon but exclude that for drug trafficking which occurred 12 years previously when he was only 15, he may have agreed to do so. We do not know. I am however satisfied that on the authorities, particularly of Selvey, the evidence was admissible and the judge did have a discretion to allow the cross-examination. I do not consider he can be said to have erred in principle or to have been seen not to have considered those principles in reaching his decision so as to deprive the applicant of a fair trial. 47. I would have granted the application for leave to appeal but dismissed the appeal.
Representation: Mr. Cheng Huan Q.C. & Mr. G.J.X. McCoy (J. Fang & Co.) for Applicant Mr. I. Grenville Cross, Q.C. & Mr. W.S. Cheung, S.C.C. for Crown |
Cases cited in this judgment