The Queen v. Lok Kin Piu

CACC000112/1986

IN THE COURT OF APPEAL

BETWEEN

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Coram: Hon. Li, V-P., Hon. Silke, J.A., Hon. Power, J.

Date of hearing: 8th August 1986

Date of delivery of judgment: 8th August 1986

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JUDGMENT

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Power, J.

1. The applicant was convicted of one count of robbery. The evidence against him came from a statement which he made to the Police, which was, after voir dire proceedings, held to be voluntary and was admitted in evidence before the Jury.

2. In the trial proper the Crown were allowed, because of attacks upon the character of police witnesses which included suggestions of falsifying documents and other improprieties including assault and conspiracy, to cross-examine the applicant as to a previous conviction which he said in his evidence was possession of an offensive weapon. This statement by him although not questioned at the trial was, in fact, not correct. We have been informed that his previous conviction was a more serious offence - possession of arms without a licence.

3. The evidence as to the previous conviction had, of course, probative. value as to the general issue. Its only weight went to credit.

4. Mr Hatton, for the applicant, says that the evidence was highly prejudicial, particularly because the issues in the trial had to be resolved upon the basis of credit. That this was so is clear from what was said by the trial judge in his summing up. He said:

"To get at the truth, you have to consider credit. By credit, I mean the question of who believe. The defendant says he was either beaten or kicked in one way or another by the three police officers, if you believe the officers and do not believe the defendant, then that to some extent, is an end to the matter, because there won't have been any violence, though it is the beginning of an end. But if the defendant from his evidence, raises a doubt with you that he might have been assaulted in that way, then you should reject the statement."

He placed the matter before the Jury, quite properly, as one where there was a head to head issue of credit.

5. Mr Hatton says, given this, that it is of particular importance to ensure that no prejudicial evidence was left to the Jury. He stresses that when a judge comes to exercise a discretion in matters such as this, the basic consideration must be whether the admission of the evidence will prejudice the likelihood of a fair trial. Mr Hatton says that the matters put to the police officers were an essential part of the defendant's case. He says they had to be put if the defence was to be placed squarely before the Jury. Mr Hatton refers to the summing up where the trial judge dealt with the evidence as to a previous conviction. The trial judge said:

"You will see the idea of letting in character evidence is to go to credibility, only credibility, not guilt. It does not go to guilt and you must understand that, but so that you can balance the credibility of the police against a defendant, you should know if he has been proved before to have been dishonest. Now what do the crown turn up with. When they proved a previous conviction, it was for possessing an offensive weapon, that offence, you can take it from me, does not imply any dishonesty. It does not mean that the Crown had shown him to be proved, for instance a thief or something, which does require dishonesty on the previous occasion. So to that extent, it is a "damp squib" and you should, and I direct you not to regard the fact of his previous conviction as having any bearing whatsoever upon his credibility in the witness box when he took the stand."

6. It is the submission of Mr Hatton that this direction was in the overall circumstances wholly inadequate. He submits that if the Jury was not to be assisted by the evidence, then it should never have been let in at all. He submits that this was not a matter of discretion, as there is no discretion in a judge to allow matter which is both irrelevant and prejudicial. He says, given that the matter had, as the trial judge said, no bearing upon the defendant's credibility, the discretion was wrongly exercised.

7. Mr McCoy who appeared for the Crown submitted that it was clearly established law that it was desirable that a warning be given which was done in this case - though perhaps not in the form of "judicial caution" as was given here. He said that cross-examination should only be allowed where there was no possibility of mistake as to nature of the implications and in this case, clearly, there was no mistake as to the nature of the implications.

8. He submitted that in the light of the decision in the R. v. Powell ⁽¹⁾ the direction to the Jury was unduly favourable to the accused and was in fact wrong in law.

9. In Powell's case, the Court made the following observations :-

"A defendant with previous convictions for similar offences may indeed have a very great incentive to make false allegations against prosecution witnesses for fear of greater punishment on conviction. It does, however, require careful direction from the judge to the effect that the previous convictions should not be taken as indications that the accused has committed the offence. In short, if there is a deliberate attack being made upon the conduct of a prosecution witness calculated to discredit him wholly, if there is a real issue about the conduct of an important witness which the Jury will have to settle in order to reach their verdict, the judge is entitled to let the Jury know the previous convictions of a man who is making the attack. The fact that the defendant's convictions are not for offences of dishonesty, the fact that they. are for offences bearing a close resemblance to the offences charged, are matters for the judge to take into consideration when exercising his discretion but they certainly do not oblige the judge to disallow the proposed cross-examination."

10. The only gloss we would add is that, in our view, it should not be taken to refer only to similar offences. The observations apply to all previous offences. If the circumstances overall warrant the exercise of a discretion, then it can be exercised with regard to all other previous offences.

11. If the matter had no weight, which was the view of the trial judge, then it should not, we are satisfied, have been admitted. This was, however, not a correct view. The evidence did go to credit. Weight could have been placed upon it by the Jury. We are quite satisfied that it would have been a proper exercise of discretion to have allowed it in evidence.

12. There was, in the circumstances, no irregularity except as to a misdirection in favour of the applicant which we must accept was acted upon by the Jury. This being so, the application must be dismissed.

(1)    [1986] 82 Cr. App. 165

Representation:

Mr McCoy (Crown Prosecutor) for the Respondent

Mr A.J. Hatton (D.L.A.) for the Applicant (on conviction)

Applicant in person (on sentence)