Shen Da Cheng v. R.

CACC000348/1993

IN THE COURT OF APPEAL

1993, No. 348
(Criminal)

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Coram: Hon. Yang, CJ, Macdougall, V-P and Mortimer, JA

Date of hearing: 24 May 1994

Date of judgment: 24 May 1994

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J U D G M E N T

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Hon. Yang, CJ

1. Shen Da Cheng was convicted after trial before Deputy Judge Yeung and a jury of two counts of possessing of a dangerous drug for the purpose of unlawful trafficking. A number of grounds are advanced in counsel's Re-amended Perfected Grounds of Appeals Against Conviction. The Crown does not contest Ground 1A of the Appeal which reads:

"The learned trial judge, in his directions to the jury, made certain observations, which were to the effect that police officers, by reason of their office and the onerous nature of their duties, were less likely to lie than other members of the public or the accused. Further, the effect of the said observations was to convey to the jury the impression that police officers were to be regarded as a special category of persons, as distinct from other members of the public and the accused, when giving evidence from the witness box."

2. The summing up was delivered on 21 June 1993, where the learned trial judge said:

" Some people get very excited when it comes to police brutality, when it comes to improper conduct on the part of the police, and some people can be very emotional about such matters. I ask you not to be, and please do not be affected by what you might have seen on televisions or in any movies as they may not be real.

You may think that police are not always the most popular people around until perhaps their assistance is required. You may feel that there had been incidents of misconduct by police here in Hong Kong as elsewhere in any civilized world, but you may also feel that most police do a difficult and thankless task involving long hours and heavy responsibility. And being a disciplinary force, they have strict rules and regulation to follow. These are also matters that you have to bear in mind in your deliberation."

3. In another case, namely, R. v. Wong Kim Wah (Crim. App. No. 258 of 1993) which was decided by the Court of Appeal on the 14th of December 1993, subsequent to the summing up in the present case, similar words were used by the judge in his summing up to the jury. It was held by the Court of Appeal that the words uttered were wrong. The Crown fairly conceded that the conviction cannot be supported because of the suggestion in the passage complained of that police officers are less likely than other members of the public to tell lies. In the circumstances it will not be necessary for us to consider the other Grounds of Appeal.

4. The application for leave to appeal against conviction is allowed and the hearing of the application is treated as hearing of the appeal. The appeal against conviction is therefore allowed. It is a common ground that this is a suitable case for a new trial to be ordered. Accordingly we order a new trial.

Representation:

Mr. John Mullick (D.L.A.) for Applicant

Mr. S.R. Bailey (Senior Assistant Crown Prosecutor) for Crown/Respondent