R. v. Lam Ching Ko and Another

CACC000476/1995

IN THE COURT OF APPEAL

1995, No. 476
(Criminal)

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Coram: Power, V.-P., Bokhary and Mortimer, JJ.A.

Date of Judgment: 12 July 1996

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J U D G M E N T

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Mortimer, J.A. (giving the judgment of the Court) :

1. We give leave to appeal against conviction to each appellant and treat the application as the appeal.

2. On 16 June 1995 the appellants were convicted after trial before Gall, J. and a jury. The 1st appellant (A1) was convicted of two counts of conspiracy to traffick in dangerous drugs and one count of conspiracy to manufacture dangerous drugs. The 2nd appellant (A2) was convicted of one joint count of conspiracy to traffick with A1.

The facts

3. The evidence against the appellants depended almost entirely upon accomplices who had been given immunity.

4. The principal witness was Mok Lun. He claimed that he had worked for the two appellants packaging and distributing heroin. On 14 September 1992 he said he rented a flat in Shanghai Street on behalf of A1 as a packaging centre. He said that thereafter he met Hon Kai-chuen (Hon), PW4, and So Yiu-ping (So), PW5, who provided him with heroin in brick form which he broke down and packaged in the flat. Thereafter, Mok distributed the heroin in the Mong Kok area on A2's orders. This ended on Mok's arrest for carrying a small quantity of heroin on 29 September 1992. A2 was arrested at the same time but was released before being re-arrested.

5. Counts 2 (as amended) and 3 allege further conspiracies to traffick and to manufacture dangerous drugs with two accomplice witnesses, Hon and So. They gave evidence of frequent drug dealing and manufacturing at the behest of and paid for by A1.

6. As originally drafted, count 2 alleged a conspiracy to traffick with Mok Lun and persons unknown between 1 September 1992 and 8 April 1993. This count did not accord with the evidence although 8 April 1993 was the date of the arrest of Hon and So. The trial lasted from 25 April 1995 until 21 June 1995. On 7 June 1995 after all the accomplices had completed their evidence, the radical amendments to the second count were permitted so as to change the dates from 1 September 1992-8 April 1993 to 1 October 1992-19 May 1994, and the named conspirators from Mok to Hon and So. It was a new count.

7. As Mok was also involved with Hon and So, the question arose whether the conspiracy alleged in the amended count 2 was the same conspiracy as alleged in count 1.

8. Objections were taken to the amendment by Mr Whitehouse who appeared both below and on the appeal for A1 but the amendment was allowed. The reasons are unclear because there had been no unexpected turn in the trial to necessitate the amendment.

General

9. The only question for the Court in this appeal was posed by Mr Andrew Bruce QC for the Crown at the outset of his submissions. Did the appellants get a fair trial according to law?

10. Mr Whitehouse for A1 and Mr Beaumont for A2 submit that for an accumulation of reasons neither appellant had a fair trial overall, and that the verdicts are unsafe and therefore should be quashed.

11. Before turning to the matters raised in argument, it is necessary to recall the nature of the case against the appellants. The prosecution depended entirely upon the evidence of the accomplices. The courts encourage accomplices to give evidence by granting substantial reductions of sentence. An increasing number of criminals, who would otherwise go free, are brought to justice in this way. But, the temptation to those guilty of serious crime to seek a reduction of sentence by giving false evidence must be clearly recognised. Accomplices are highly suspect and dangerous witnesses. Both the Crown and the trial judge must ensure that they are presented "warts and all". Nothing of the witness's past character or previous inconsistent statements must be kept from the defence. Equally, as the cross-examination of the accomplices is often the real defence, it is important to ensure that the jury fully comprehend the cross-examination.

The 1st appellant

12. The main point taken by Mr Whitehouse for A1 is that he was not allowed to conduct the cross-examination of the accomplices in such a way as to get his defence properly across to the jury. He complains:

(1) That in cross-examination on inconsistent statements, the judge did not allow the jury to have copies at the time of the cross-examination so that they could follow the force of it.

(2) That when the judge eventually allowed the statements to go before the jury on 10 May, it was too late because the cross-examination had begun several days before and it was necessary for the jury to have the documents before them at the time when the questions were asked.

(3) That the judge interfered with the flow of his cross-examination by frequent interruptions and,

(4) The judge indicated to the jury that counsel was wasting their time and his by behaving improperly by not obeying the proper rules of evidence and procedure.

13. Where cross-examination takes place on previous inconsistent statements and, in order to follow the cross-examination, it is necessary for the jury to have those statements in front of them, this must be done. The matter is, however, within the judge's discretion. If the challenge is so limited that the full significance is obvious without a copy of the statement, it need not be provided. Here, however, it was undoubtedly necessary for the jury to have at least some of the statements so that they could follow the cross-examination. There were 14 previous inconsistent statements which were the subject of cross-examination of the three accomplices. Eight of these had been made by Mok. None were originally allowed to go before the jury but on 10 May the judge changed his mind and permitted excised copies of some to be handed to them later. The question is, therefore, could the jury properly follow the cross-examination in retrospect from the "scissors and paste" copies?

14. Mr Bruce suggests that the jury must have followed the importance of the cross-examination and that counsel was able to get his point over. Having regard to the importance of the cross-examination in this case, we think this very doubtful. Counsel cannot entirely escape some blame (he did not seek to) for the way in which he approached his cross-examination on the first document but the overall impression we have from the submissions and a reading of the transcript is that counsel was deprived of making his points so that the jury could follow them properly.

15. It is also clear from the transcript that the judge did intervene fairly frequently during the cross-examinations. Mr Whitehouse says it was 142 times. It must be said, however, that on the great majority of occasions those interventions were necessary and helpful. Occasionally, it can be said in retrospect that an intervention did prevent counsel from putting a proper point in the way he would have liked. This was no doubt disturbing for him at the time but was not of any real significance. This alone certainly did not deprive this appellant of a fair trial.

16. Later in the cross-examination the judge became increasingly and understandably concerned about the time the case was occupying and he indicated this to counsel on more than one occasion. When a case lasts longer than expected, judges have a duty to ensure that time is not wasted; but that does not mean expedition at the expense of justice. It is a very difficult balancing exercise. A judge's interventions for the purpose of moving a trial along should be brief and firm. Some of the judge's interventions in the present case resulted in lengthy debates which slowed things down rather than speeded them up. Far from discouraging trial judge's from stopping irrelevancy or unwarranted repetition, we encourage them firmly to stop such things which are not in anybody's legitimate interest.

17. There came a time when Mr Whitehouse was cross-examining the witness So upon a cautioned statement when it does appear that the judge was putting much more pressure upon him than was justified. The flavour of the matter can be gained from the following extract of transcript from 842D to 843K:

"MR WHITEHOUSE: It was a statement made by you of your own free will.

A: Yes.

Q: Now the officer put to you the facts, did he not, you see the first page, at that time you and the male -

COURT: No. I wonder would you go to those parts - this is not an exercise in going through the whole of the statement that he made. I will be very grateful if you can just go to the parts you say are inconsistent with his present evidence.

MR WHITEHOUSE: The whole is inconsistent with his present evidence.

COURT: I don't think the next four lines. I don't think down to the end of the second page is inconsistent because it wasn't written by him. It was written by the officer. So that is nothing to do with him. Now perhaps you could go on, please, Mr Whitehouse. We are under time constraint. You are not permitted to put parts of statements which are not contradictory to the witness. Could you go to the parts -

MR WHITEHOUSE: I don't know if we are under time constraint, my Lord, are we? This is a serious matter.

COURT: This is a serious matter but the Rules of Evidence apply. You are not permitted to use parts of statements which are not relevant or contradictory.

MR WHITEHOUSE: The jury must hear the question before they can understand the answer.

COURT: Go to a question. This is not a question. You are reciting what a policeman wrote down. Could you go, please, to that part of the statement -

MR WHITEHOUSE: And read to this accused and then question him about it.

COURT: Could you please go to the part of the statement which is relevant, Mr Whitehouse?

MR WHITEHOUSE: It is all relevant, my Lord - I mean, 'all relevant', I am not speaking about the preamble.

COURT That is what you are going through, and I said go on to the part of the statement which is relevant, please.

MR WHITEHOUSE: Very well. I must ask him if the facts of the case were put to him.

COURT: Yes. Were the facts of the case put to you?

A. Yes.

Q. You were asked about something you have said.

MR WHITEHOUSE: You see I can't put the third question without the second question.

COURT: By all means put it in context. This is just rambling along, Mr Whitehouse, when it should be far more succinct.

MR WHITEHOUSE: Very well."

18. When Mr Whitehouse had concluded his cross-examination on the statement at 853O to 854C, the judge said:

"COURT: Yes. Perhaps that would be a convenient point.

Just before we rise, Mr Whitehouse, you seemed to take some issue with my comment that we are under some time constraint. Perhaps I could commend to you the words of Lord Justice Lawton in R. v. Turner: 'What we do want to do is invite the attention of both judges and counsel to the need to keep trials as short as is consistent with the proper administration of justice.'

So we are under a constraint to keep trials as short as is consistent with the proper administration of justice which means as short as is consistent with obeying the proper rules of evidence and procedure. So, therefore, to introduce matters and refer to parts of statements which are not within the rules is not consistent with the dictum of Lord Justice Lawton and we are under a time constraint."

19. This last intervention by the judge is of more significance and is the subject of justifiable complaint because it took place in front of the jury and it clearly indicates to the jury that the judge was of the view that Mr Whitehouse was behaving improperly by wasting his and their time by not obeying the rules. In the circumstances this indication was not justified and very prejudicial to the appellant. Serious strictures on counsel's conduct of a case are better made - at least initially - in the absence of the jury. The judge did not seek to mitigate this impression later.

20. The significance of these matters would have been reduced if in the course of his summing-up the judge had dealt with the previous inconsistent statements of the accomplices and the cross-examination in such a way as to ensure that the jury did understand the cross-examination but this was not done in the 2-hour summing-up after the 38-day trial.

21. To these matters are added other complaints which on their own would not be determinative of the appeal but which, counsel submits, are cumulatively important. The first concerns A1's character. Counsel for the Crown (not Mr Bruce who appears before us) opened the case on the extravagant basis that the conspiracy counts were simply samples to cover massive drug dealing - there was, of course, no such general evidence. However, there was evidence to the effect that A1 was an addict, there was testimony from the accomplices that he had been in Stanley Prison and therefore had convictions, and that he had proposed to Mok that he would deal with drugs "again". Additionally, there was evidence in an alibi notice that the appellant had been at one stage in Lai Chi Kok. This evidence from the accomplices appears to have been introduced by deliberate and vindictive flaunting of the rules. The judge indicated at one stage that he would seek to ameliorate the prejudice by giving the jury an appropriate direction in his summing-up. He did not do so but this may be the result of a conscious decision not to remind them of this evidence.

22. The danger in this evidence is not only that it was highly prejudicial to the appellant but may have been taken by the jury as confirming the other evidence of the accomplices. What could be more prejudicial to a person accused of serious drug offences than for the jury to be told that he is an addict, that he has previous offences and that he has previously dealt in drugs? The matter did not rest there because later the jury were erroneously directed by the judge that A2 was of good character. After a question by the jury (to which we later refer) the judge directed them on A2's character in a way which could have seriously reflected upon A1.

23. As a separate point Mr Whitehouse submits that the conviction on count 2 cannot stand because the amendment ought not to have been allowed. He submits that it was prejudicial to his client because Hon and So - the two named conspirators - had completed their evidence. As no good reason for the application to amend was ever advanced, the Crown was indeed fortunate that the judge exercised his discretion in its favour. However, having regard to the conclusion we have reached on the other grounds, it is not necessary to decide this point.

24. There were other matters urged upon us by Mr Whitehouse which relate to both appellants. We will turn to those having considered matters specific to the 2nd appellant.

The 2nd appellant

25. For A2 Mr Beaumont points out that A2's defence at trial also relied heavily upon the cross-examination of Mok. He relies therefore many of the matters advanced by Mr Whitehouse. The defence was that Mok was not worthy of belief and that his evidence involved switching the identity of someone else for A2.

26. He submits also that it was not made clear by the judge in his summing-up that only Mok gave evidence against A2 when he referred to him as "Ah Keung". Two other "Ah Keungs" were mentioned in evidence by other witnesses but neither was A2. After counsel's final addresses this is not a matter of which the jury were unaware. We give it no weight.

27. More importantly, apart from matters relied upon by both appellants concerning the summing-up, he complains about an exchange with the judge before the jury were about to retire. Mr Whitehouse rose and asked if he could address the judge in the absence of the jury, but the judge chose to deal with the matters in their presence. Mr Whitehouse meant to invite the judge to deal with the defendant's right to silence; but the judge, imagining that counsel were about to invite him to deal with character, said this:

"COURT: Members of the jury, I have forgotten to tell you something quite important, and I am sure counsel are just about to tell me about it.

The second accused comes before you as a man of good character. He is a man that you must accept as a person who is without blemish. This helps him in two ways. One, all that you have heard about him has to be put in the context of the fact that he is of good character and, secondly that because his is of good character you must accept that he is less likely to commit an offence than otherwise.

COURT: That is the standard direction.

MR MOORFOOT: It is if that factual situation applies.

COURT: I will speak to you later, but as far as I am concerned that is the factual situation.

Yes, anything further?

MR WHITEHOUSE: Yes.

MR MOORFOOT: I am sorry about this, if you are prepared to have the jury out, there is a matter I want to show you.

COURT: I am aware of what you want to say, but that is not a matter for the jury.

MR MOORFOOT: No."

28. As Mr Moorfoot indicated before the jury the judge was in error. This appellant was not of good character.

29. Later, it became clear that this was something which concerned the jury. After they had been out over 4 hours, they sent a note which read:

"May we ask why you say the second accused is of good character and what does it mean?"

After discussion with counsel, the judge directed the jury in this way:

"You ask why did I say the second accused is of good character. I say that because there is nothing before you to show that he is not. That means you must assume that he is of good character. If you assume a person is of good character, you must assume that a person of good character is not the sort of person who normally commits crime, and it means no more or no less than that."

30. The impression left with the jury in relation to each appellant is difficult to assess. From Mr Moorfoot's ill-considered remarks at the outset they may well have known that the judge was in error and that A2 had previous convictions. As we have indicated, the effect upon A1 may also have been serious. They knew that he had previous convictions involved with drugs and at no time had they been told that they were not to take that into account in deciding whether he was guilty of these offences.

31. It would not be unreasonable to think that the jury were left with the impression that both accused in their charge had previous convictions.

Matters relied upon by both appellants

32. Both appellants complain about the judge's summing-up. These complaints can be summarised by saying that, although a brief summary of the law and issues in a summing-up is to be applauded, this summing-up did not do justice to either defence case because it was too general and too little focused in that:

(i) It did not summarise the evidence on each count and against each accused for the assistance of the jury.

(ii) It did not deal sufficiently and specifically with the points made in the cross-examination of the accomplices. In particular it failed to identify those instances in which the defence said that each accomplice was definitely lying because he was shown to be in error.

(iii) Insofar as it indicated that the defence was a police conspiracy, it was wrong. The police malpractice complained of related to the exhibits recovered from the flat at the time of A1's arrest; and

(iv) It never properly directed the jury upon the appellants' right of silence particularly when at 29I-N the judge directed them as follows:

"What is the defence case? When I say defence case, I don't mean that the defence have to prove anything, but what have they put forward for your consideration? Where have they told you to look to show that there are doubts in the Crown case? It is quite clear, although there is no direct evidence of it, that both the accused deny that they had any complicity in these agreements at all."

33. Brief and clear directions of law with a succinct summary of the evidence, the issues and the defence case are always to be aimed at in a good summing-up. This summing-up could have benefited from being more focused upon the evidence on each count, upon the specific criticisms of the accomplice's evidence and upon the nature of the defence and the right of silence. However, it is unlikely that these appeals would have succeeded on these matters alone. As it is, the summing-up does not remedy any of the other matters advanced.

Conclusion

34. If the accomplices were telling the truth, the evidence against the appellants was overwhelming. The appellants chose not to give evidence. The cross-examination of the accomplices was the defence in each case. They had made many previous inconsistent statements the importance of which the jury had to understand. Without copies of the statements the cross-examination could not always be followed and understood. Cross-examination was inevitably lengthy. It was a difficult case for the judge to handle and by no means an easy case to sum-up. Knowledge of the jury of each appellant's bad character in such a case was likely to be particularly prejudicial. Nothing was done to mitigate this prejudice - indeed the judge's directions may have unwittingly made the situation worse.

35. For all the reasons we have endeavoured to set out, we have concluded that neither appellant had the fair trial to which he is entitled. The convictions recorded are unsafe and unsatisfactory. We allow both appeals and quash the convictions.

Representation:

Mr FC Whitehouse (DLA) for 1st appellant

Mr Ben Beaumont (DLA) for 2nd appellant

Mr AA Bruce QC (Crown Prosecutor) for Crown/Respondent