HKSAR v. Tang Ka Kit

HCMA000102/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 102 OF 1998

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Coram: The Hon. Madam Justice Beeson in Court

Date of Hearing: 16 December 1998

Date of Judgment: 16 December 1998

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J U D G M E N T

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1. The Appellant was convicted at North Kowloon Magistracy on 12th December 1997 of one count of Possession of Dangerous Drugs for the Purpose of Unlawful Trafficking. The prosecution case was a simple one; shortly after mid-night on 14th October 1997, two police officers, PC 52767 and 53084 stopped Appellant in the street. PC 52767 searched him and found a packet of suspected drugs in his trouser pocket. Subsequent analysis showed that the drugs were a mixture of 13.65 grammes which contained 9.44 grammes of heroin hydrochloride.

2. The Appellant was represented at trial. His evidence was that when he was searched nothing was found on him, but that PC 52767 asked him to provide police with information about drug activities, saying that if he refused he would be framed for possessing drugs. P.W.1 (PC 52767) agreed that later at the police station a Sergeant had asked the Appellant for information and given the Appellant a mobile telephone number for that purpose, but he denied making any request in the street.

3. Immediately prior to the trial, the court prosecutor advised defence counsel that PC 50508, a colleague of P.W.1 and P.W.2 in this case, was said to have framed a man for possessing drugs in another case (DCC 915/97) and that that Defendant was acquitted at trial when the judge stopped the case. P.W.1 was a potential witness in DCC 915/97. P.W.1 was cross-examined on this matter and while admitting he had assisted PC 50508 after the arrest, denied any knowledge of the alleged framing.

4. The Magistrate in his Statement of Findings said that although it might be that a colleague of P.W.1 and P.W.2 had made a false accusation against an innocent man, that did not necessarily mean that their evidence was suspect. He said he had borne the point in mind in assessing the credibility of the two police officers and was satisfied that he could rely on the evidence of each of them.

5. The grounds of appeal were: 1 that there was material non-disclosure by the prosecution to the defence of (a) documents and information relating to and/or arising out of certain previous proceedings DCC 915/97 and (b) documents and information related to, or arising out of other previous or on-going or anticipated proceedings, which would have afforded a real prospect of providing a lead on evidence which went to a possibly relevant issue and/or to possibly raising a new issue not apparent from the prosecution's evidence; and 2, that the conviction was unsafe and unsatisfactory having regard to the conduct of PC52767 (P.W.1) and/or PC53084 (P.W.2), on other occasions both prior to, and subsequent to the date of the offence herein (14th October 1997) and the dates of trial herein (10th, 12th and 13th December 1997).

6. At the outset of the appeal, counsel for the Appellant complained that he was unable to argue grounds 1(b) and 2 because certain information that had been requested from the prosecution had not been supplied in time for the appeal. Accordingly, the first ground only was argued and answered by the Respondent. In the event, I gave my ruling on ground 1(a) only.

7. The Appellant relied on R. v. Keane [1995] 99 Cr. App. R 1 as setting out the principles relating to disclosure. That case discussed how to determine whether and to what extent material the prosecution wishes to withhold may assist the defence. A test is stated (page 6) as follows; First, it is for the prosecution to put before the court only those documents which it regards as material but wishes to withhold. As to what documents are "material", the test suggested by Jowitt J. in R. v. Melvin (Graham)/Melvin v. Dingle (unreported judgment December 20th 1993) was approved. That test was stated as follows:

"I would judge to be material in the realm of disclosure that which can be seen on a sensible appraisal by the prosecution:

(1) to be relevant or possibly relevant to an issue in the case,

(2) to raise or possibly raise a new issue whose existence is not apparent from the evidence the prosecution proposes to use,

(3) to hold out a real (as opposed to fanciful) prospect of providing a lead on evidence which goes to (1) or (2)."

8. It is open to the defence to indicate to the prosecution a defence or issue they propose to raise as to which material in the possession of the prosecution may be of assistance, and if that is done, the prosecution may need to reconsider what should be disclosed.

9. In DCC 951/97, the judge stopped the trial at the end of PC 50508's evidence, when it became apparent that he had not told the truth about the circumstances of the arrest of the Defendant. The task of assessing the truth of the "framing" allegations in that case was made simpler because part of the course of that arrest had been recorded by security cameras operating within the lift. The camera had recorded not only extra journeys which had not been mentioned by the police witnesses, but also appeared to show that Defendant had claimed correctly that the police had planted the drugs found on him. It was after seeing the video-taped material recorded by the security surveillance cameras that the judge stopped the trial.

10. At the time of this Appellant's trial, the prosecutor saw fit to give to defence counsel a newspaper cutting relating to DCC 915/97. No other material was given to the defence although by the date of this trial, the Defendant in DCC 915/97 and his girlfriend had each given two statements to CAPO, relating the course of the arrest and the alleged framing. The main witness at Appellant's trial was P.W.1 who, when cross-examined on his connection with the allegedly offending police officers in DCC 915/97, said he was only peripherally involved. He had attended after the arrest but had not seen or heard anything indicating that Defendant in DCC 915/97 was framed.

11. It was, however, apparent from the CAPO statements, that PC 52767 was more than peripherally involved if that Defendant's evidence was believed and, if that information was acted on, PC 52767 was likely to face investigation for disciplinary charges at least, if not criminal charges of perverting the course of justice. P.W.1 appeared on the videotapes as being present with the Defendant and PC 50508 at the time and place of the alleged planting of the drugs. PC 52767 in the instant case (at Transcript p40E) referred to himself as being PC 50508's "partner" - that was contrary to PC 50508's referring throughout DCC 915/97 to PC 48705 as his partner.

12. Appellant's counsel submitted that the material that was not disclosed to the defence and which should have been, was the trial transcript of DCC 915/97; the video-tapes that had been used at trial to establish that the arrest not taken place in the manner stated and the reasons for verdict or ruling given by the Judge in DCC 915 of 1997 when he stopped the trial.

13. The most recent case on the question of disclosure was R. v. Guney [1998] 2 Cr. App. R 242, which held:

"that whether specifically sought or not the defence was entitled to be given information in the Crown's possession, which had any relevance, or possible relevance, or realistically might lead to evidence which might undermine the prosecution's case against the defendant or provide support for his case. However, a justified claim that material in the possession of the prosecution was relevant was to be distinguished from a forensically manufactured opportunity for a general trawl through the prosecution papers with the risk that the burden imposed on the prosecution would defeat the interests of justice by causing a discontinuance of a case, which should otherwise have proceeded. Thus, the defence were entitled to be informed of any convictions and disciplinary findings against any police officers in the case, including transcripts of any decisions of the Court of Appeal (Criminal Division), in which convictions had been quashed on the express basis of misconduct or lack of veracity of identified police officers and also cases stopped by the trial judge or discontinued on the same basis, but not of every occasion on which any police officer gave evidence in any court in the country. This principle extended to anyone, not only police officers, against whom evidence of discreditable behaviour had resulted in findings of professional misconduct. In Guney, as none of the material which the defence sought to have disclosed involved a criminal conviction or disciplinary offence, it was considered that the safety of the conviction was not undermined."

14. The prosecution relies on Guney in particular, to argue that the Defence is not entitled to undertake a fishing expedition, or as it is put a "forensically manufactured opportunity for a general trawl through the prosecution papers."

15. That was not the situation here. At a time very close to this Appellant's trial it was obvious to the Prosecution, or should have been, that not only was the main witness in this case (P.W.1 - PC 52767) implicated in DCC 915/97, at least for the purposes of investigation, but that in statements given to CAPO on the 2nd and 5th December, a week before this trial, he had been implicated as officer "C", who was accused of taking a much more active role in the arrest of the Defendant in DCC 915/97 than he admitted at this Appellant's trial and that he had been implicated as being present directly during the alleged planting of drug.

16. The prosecution, if not in a position to disclose the CAPO statements or other material at that stage, should have advised the court of the possible difficulty and considered applying to adjourn the trial until the matter was resolved. Clearly the prosecution felt they were obliged to disclose something; it is unfortunate the Court Prosecutor relied solely on a newspaper cutting for the purposes of disclosing to the defence what was potentially very important and damaging matter.

17. I have no doubt that the Magistrate, if advised of the difficulty, would have been likely to grant an adjournment until the matter could be resolved fairly to all parties concerned. As it was PC 52767 gave evidence which was impugned to a certain extent by defence counsel, but defence counsel was hampered in cross-examining further about PC 52767's involvement because he did not know the possible extent of it. It is not for this court to predict what course defence counsel could or would have taken if the material suggested had been disclosed. However, it is possible that the Magistrate's view of PC 52767's credibility could have been affected by his response to cross-examination by a counsel armed with the knowledge of the CAPO statements, the video-tapes used at the trial, the trial transcript, or, indeed, the Judge's ruling.

18. This was particularly so because the SDS teams in Appellant's case and in DCC 915/97 team were of the same composition (albeit the members played different roles); the cases were for similar types of offence and involved similar allegations made by the person arrested. The Magistrate may have been satisfied as to the credibility of PC 52727 in any event. However, he too was precluded from considering the matter fully because the prosecution failed to disclose material that was relevant, or possibly relevant, to an issue in the case or which may have raised a new issue, or which held out a real prospect of providing a lead on evidence which went to such new or relevant issue.

19. It is difficult to fault the Magistrate for deciding this case as he did. The impugning matter was before him in part, he dealt with the allegations as they existed at that time and reached a proper conclusion on the evidence that was available. He may not have reached the same conclusion if the defence had taken a more informed course. The known overlap with DCC 915/97 should have been revealed to the defence and, if necessary, the Magistrate could have been asked to adjourn the case until any investigation was finished and proper consideration had been given to the question of whether this case could safely proceed.

20. For these reasons, I find that the ground of the material non-disclosure in 1(a) of the grounds of appeal has been established. I allow this appeal on that point alone. I have not considered and do not intend to consider the other 2 grounds of appeal which have not been argued before me.

21. The conviction is quashed.

Representation:

D. Ozorio, S.G.C., for DPP.

Paul Loughran, D.L.A., for Appellant.