The Queen v. Chow Hoi Ping

CACC000322/1989

BETWEEN

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Coram: Hon. Yang, C.J., Power, J.A. & Sears, J.

Date of Hearing: 20 February 1990

Date of Judgment: 20 February 1990

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JUDGMENT

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Power, J.A.:

1. The applicant was charged with possession of a dangerous drug for the purpose of unlawful trafficking therein. The particulars of the offence are that on the 5th of December 1988 inside the rear staircase of No.117-119 Wuhu Street, 1st floor, Hunghom, Kowloon, he had in his possession a dangerous drug, namely 51.83 grammes of a mixture containing 3.47 grammes of salts of esters of morphine for the purpose of unlawful trafficking therein. He pleaded not guilty to that charge and was convicted after trial in the District Court before Judge Roy. He now appeals against that conviction.

2. The facts were of a kind all too familiar to judges in Hong Kong. The applicant was stopped at 11.35p.m. on the 5th of December 1988 near the junction of Wuhu Street and Kun Yam Street by two police officers. He was searched and the dangerous drugs the subject of the charge were found in his trousers pocket.

3. The applicant has placed four grounds of appeal before this court but in the outcome we need deal only with Ground 1(A) which reads:

"That the Learned District Court Judge erred in law by

4. The evidence to which objection is made came from two police officers - Inspector Lam Wai Che, who was the officer-in-charge of the case, and the arresting officer. Inspector Lam said that on the evening in question he went at around 11.40p.m. to the area where the applicant was arrested. His evidence continued as follows:

"I went as P.C.4325 told me, one of our target traffickers had appeared in that area. 4325 took me to a rear staircase at 117-119 Wuhu Street. On arrival I saw 11590 descending the staircase. He told me he had arrested one of our target traffickers named Mo Lo which means 'no brain'."

5. There were two references in this evidence to a target trafficker. In cross-examination he was asked:

6. There was here a further reference to the applicant as a trafficker. Later in the cross-examination he was asked "who is he?" in reference to a person other than the applicant. He answered:

There was here again a reference to the applicant as a trafficker.

7. Later in cross-examination this further exchange occurred:

8. P.C.23476 the arresting officer during his evidence referred to the applicant as "the target".

9. We are at a loss to understand why no objection was made by Defence counsel to the recurring references to the applicant as a trafficker. Indeed the trial judge might well have taken it upon himself to indicate that such evidence was both hearsay and prejudicial and should not be led by the Crown.

10. This court made it clear in R. v. Ko Po-kun (1989) 2 H.K.L.R. 8 that when police witnesses are giving evidence there is no warrant for the use of the term "target". Its use inevitably carries with it the suggestion that the "target" is known from information to be involved in something  illicit. This court said at p.10 of that report:

"If reference has to be made to the reason why a police party is at a certain place all that need be said in the ordinary case, and this was one, is that they were there 'on instructions'."

11. The use of the term "target", if uncorrected, is of course much more objectionable in a jury trial. A judge sitting alone corrects the irregularity by simply saying that he puts the matter from his mind when considering the evidence. Indeed where a judge sitting alone remains silent, there is no more than a passing reference of this nature, an appeal court might well be prepared to proceed upon the assumption that he has not allowed himself to be influenced by such a reference.

12. In the present case the evidence was much more than a passing reference and went well beyond the use of the term "target". The officer-in-charge on six occasions characterized the applicant as "a trafficker".

13. In his Reasons the trial judge makes no mention of this evidence which was clearly both inadmissible and prejudicial. We bear in mind that, inexplicably, no objection was made by Defence counsel to the use of the term "target trafficker".

14. As we have already indicated, the failure of a trial judge sitting without a jury to hold explicitly that he is putting inadmissible or prejudicial evidence from his mind does not necessarily cast doubt upon the propriety of the conviction. Indeed, had the reference in the present case been simply to a "target" we might well had not been prepared to intervene. We are, however, satisfied that in the circumstances that obtained here, the trial judge was, in order to ensure that justice was seen to be done, called upon to state explicitly not only that the evidence was inadmissible but also that he was putting it entirely from his mind when considering the admissible evidence.

15. His failure so to do leaves us uneasy to an extent which drives us to the conclusion that the conviction must be regarded as unsafe and unsatisfactory and we therefore order that it be quashed.

Representation:

Mr. I.G. Cross & Mr. Wai-sun Cheung (Crown Prosecutor) for the Respondent.

Mr. Thomas Iu (Messrs. Anthony Kwan & Co.) for Applicant.