Tong Cho-yan v. The Queen

CACC000513/1981

Criminal law - cross-examination of defendant as to character - s.54 of Criminal Procedure Ordinance - allegation of perjury is an attack on character of prosecution witness - defence could have been presented without making such allegation - judge entitled to exercise his discretion to allow cross-examination.

BETWEEN

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Coram: Sir Alan Huggins, V.-P., Li & Silke, JJ.A.

Date of hearing: 22, 23, 26 April and 14 May 1982

Date: 14 May 1982

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JUDGMENT

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Sir Alan Huggins, V.-P. :

1. Section 54 of the Criminal Procedure Ordinance permits an accused person to give evidence in his own defence. It is, however, provided that save in specified circumstances he shall not be cross-examined as to his character. One of those circumstances is where the accused has attacked the character of one or more prosecution witnesses.

2. This Appellant was cross-examined as to his character and the jury were made aware of his various previous convictions, including two relating to dangerous drugs. The charge on which he now stands convicted is one of possession of a large quantity of dangerous drugs for the purpose of unlawful trafficking. The Crown contended (and the judge accepted) that the defence, in cross-examining the prosecution witnesses and in the evidence of the Accused himself, had gone further than merely to make an emphatic denial of the evidence against him and that he imputed bad character to two police officers. The Appellant submitted, and submits again before us, that this conclusion was not justified and that to constitute a sufficient attack on the character of a witness there must be an allegation of misconduct outside his evidence.

3. The basis of the Appellant's case is really R. v. Rouse 1904 1 K.B. 184, where it was held that to suggest to a witness that he was a liar was nothing more than an emphatic denial and did not justify cross-examination of the prisoner as to his character. No reference was made in the judgment to the fact that if a witness were in truth lying he was guilty of the criminal offence of perjury, although in subsequent cases (e. g. Clark (1955) 39 Crim. App. R. 120, 127) the fact that it had been suggested to a witness that he was guilty of conspiracy to pervert the course of justice and of perjury was held to constitute an attack on his character.

4. The present appeal therefore falls within a very narrow compass. Two police witnesses said that they saw the Appellant carrying two bags which were later found to contain the drugs. They said that he approached a motor car and placed the bags on the ground while he fumbled with a key in the lock and that they then accosted him. The Appellant maintains that he never carried the bags, that they were being carried by a friend called Chan, that he himself did not know the contents, that he went ahead of Chan to open the car door, that Chan made off, leaving the bags on the ground some distance from the car and that one of the police officers subsequently brought the bags from the spot where Chan had left them to the vicinity of the car, although not placing them in the car or into the hand of the Appellant so as to create evidence of possession. It is common ground that had the defence imputed the fabrication of evidence of that kind that would have constituted an attack on the character of the witnesses: see Clark (supra), where it was alleged that a confession had been fabricated.

5. The question whether what has been done has been to make an attack upon the witness or merely to put to him the defendant's defence is often a difficult one and each case falls to be determined upon the exact facts, the exact circumstances, the exact language used" : per Lord Parker, C.J., in Levy (1966) 50 Crim. App. R. 238, 241. Counsel for the Defendant in the court below (who was not the counsel who appeared on the appeal) repeatedly asserted that he was not alleging the fabrication of evidence or of conspiracy to give false evidence. The trial judge obviously thought otherwise and was of the opinion that there was a clear implication of a frame-up. He came to that conclusion not merely because the prosecution and defence were in direct conflict upon matters of fact but because he thought the Appellant's case was such that it ruled out any possibility of honest mistake on the part of the police officers and, indeed, that it was being suggested to those officers that they were deliberately lying.It has, perhaps, been this reference to "lying" that has caused some of the difficulties, for it is that which takes us back to R. v. Rouse (supra). However, it is difficult to see how an allegation that a witness is committing the crime of perjury could be anything but an attack (and a very serious attack) upon his character. That decision was a natural result of the belief that once an attack on the character of a witness had been established the statute left the judge with no discretion to exclude cross-examination of the defendant as to his character. This view was rejected in Selvey v. The Director of Public Prosecutions 1970 A.C. 304. At p.355 Lord Pearce cited with approval a passage from the judgment of the court in R. v. Watson (1913) 8 Crim. App. R. 249, 254:

"It has been pointed out that to apply the rule strictly is to put a hardship on a prisoner with a bad character. That may be so, but it does not follow that a judge necessarily allows the prisoner to be cross-examined to character; he has a discretion not to allow it, and the prisoner has that protection. But in order to see if the conviction should be quashed it is not enought that the Court should think it would have exercised its discretion differently. It is necessary to shew that in law the cross-examination of the prisoner was inadmissible. The judge at the trial is in a better position to judge whether the cross-examination should be allowed."

6. The change of emphasis from a benevolent interpretation of the statute to a strict interpretation of the statute followed by a benevolent exercise of the discretion may not have led to different results in the end but it does necessarily affect the approach of an appellate court, for we should not lightly interfere with an exercise of discretion by a trial judge.

7. Merely to suggest to a witness that he did not see something which he has said he did see is not to accuse him of lying. A witness may not tell the truth because he is mistaken. Thus we find no attack on the character of the witnesses in the following passages relied upon by counsel for the respondent:

"Q. I suggest to you then the other police officers, after the defendant squatted down, walked array to a place about two cars' space away and then he shouted and said he found two bags of white powder.

A. No."

or

''COURT: Mr. Cheng Huan, do I understand that it's your case that your client never did carry these bags?

MR. CHENG: That is correct.

COURT: I see.

MR. CHENG: That the bags were found at a distance about two cars' space.

COURT: Do you understand that what is being put to you is that it is quite untrue that this accused ever was carrying these bags but they were found at some distance back from this car BU 2583?

A. It's not true."

or

Q. Now I suggest to you this, officer, that probably you and P.C. 19408 saw the defendant walking along the pavement of Po Loi Street with another Chinese male.

A. No.

Q. That that Chinese male and not the defendant was carrying the two bags.

A. No.

Q. That you and P.C. 19408 were standing in front of BU 2583 when the defendant approached the Car.

A. No.

Q. That the defendant was not carrying any bags or anything on either of his hands when he approached the car.

A. No, I don't agree.

Q. That P.C. 19408 asked the defendant 'Does the car belong to you?'

A. No.

Q. 'Are you stealing the car?'

A. No.

Q. You are sure that P.C. 19408 never said words to that effect?

A. Right.

or

"Q. And the defendant was searched.

A. Yes.

Q. After the search he was ordered to squat down.

A. No.

Q. I suggest to you that when the defendant squatted down, you went away and came back with the two bags.

A. No.

Q. And the defendant was asked whether these bags belonged to him.

A. No.

Q. Do you know whether any fingerprints were taken of the content of the bags?

A. Yes.

Q. Were the fingerprints of the defendant found in any of the bags inside the two bags?

A. I don't know for sure.''

In relation to a further passage counsel at the trial admitted that he had suggested that the witness had made a recent invention:

"Q. Why did you, officer, suspect the defendant of stealing the car?

A. At first I suspected he was trying to steal something but he was then tampering with the car, so I suspected he was trying to steal the car.

Q. Did you expect him to steal the car, tampering with the car in broad daylight with two uniformed police officers a few feet away from him? Is that what you say, officer?

A. I suspected he was trying to steal something, possibly a car.

Q. Steal something from the car, correct?

A. He was holding two bags.

Q. I'll come to that subsequently. You expected him of stealing something from the car?

A. No.

Q. From where?

A. Probably he was trying to steal that car.

Q. To steal that car in broad daylight in the presence of two uniformed police officers a few feet away from him? Is that what you thought?

A. Yes.

Q. I see. You seriously thought of that, is that right?

A. I was suspecting that he was trying to steal something but I was not sure that he was going to steal a car.

Q. Officer, if you were suspicious of him stealing something, did you expect him to steal it from the Hong Kong and Shanghai Bank, in the air, under the car or where?

A. For that matter, those things contained in the two bags were stolen properties.

Q. Officer, you did not say that you suspected that he had stolen something, you said that you were suspicious that he would steal something, in the future. Do you agree?

A. I don't agree.

Q. So now you are saying that you really suspected at the time that the two bags were stolen articles?

A. The first thing was that I was curious about the colours of the bags; secondly, I suspected what were contained in the two bags were stolen property.

Q. It's the first time, do you agree, you have ever said that in court? You never suggested that in your examination-in-chief, ever, do you agree?

A. Agree.

Q. Something that you thought of at this moment after nine months.

A. No."

We do not regard that as an attack on the character of the witness and we think the judge was overstating the matter at that stage when he said (at page 39 of the record)

"We are dealing now with an allegation that this officer's story is a lie on most fundamental matters".

Again, as a general rule, it would be unfair to regard answers by a defendant in cross-examination as part of the nature and conduct of the defence : Jones [1910] 3 Crim. App. R. 67. We therefore disregard his answer Yes to the question:

"The officer that said he saw you in Po Loi Street - that is 19408 - are you suggesting that he is fabricating his evidence when he said that he saw you on your own in Po Loi Street carrying the two bags?"

Another question and answer are, perhaps, more indicative of the defence's case, since the questioner did not attempt to put words into the Defendant's mouth:

"Q. You heard the police officers say there were no cars parked behind the barrier because the street had not been open to traffic at that time.

A. They were lying."

The question could, however, be regarded as a trap - not necessarily an intentional trap - and we disregard that answer also.

8. That the defence was in truth attacking the character of the prosecution witnesses became more apparent during the examination-in-chief of the Appellant himself. His counsel asked him:

"Q. Could you think of any reason, if you can, why a number of police officers should give false evidence in certain aspects of the case against you?

A. Because CHAN Shing got away."

In our view that could only mean that the police were fabricating a case against the Appellant because they had not succeeded in arresting the man who was the real possesser of the drugs. Counsel for the Appellant sought to argue the contrary and submitted that the question was posed "in a speculative sense". We cannot believe that the question would have been asked unless counsel was expecting the very answer which was given.

9. When we turn to the submissions in relation to the application to allow cross-examination of the Defendant as to character, we find that counsel for the Crown was clearly under the impression that allegations were being made against the police officers "that they are guilty of a most serious conspiracy to defeat the ends of justice, to fabricate evidence against him, to give unlimited perjured evidence in relation to how dangerous drugs came to be found, and in fact alleging that they saw [the Defendant] carrying those drugs in his hands". The final clause in that passage once again suggests that counsel thought a mere conflict of evidence necessarily involved an allegation of deliberate fabrication of evidence. Nevertheless, that counsel for the Crown had correctly interpreted the defence appears from the observation of counsel for the Defendant when he admitted that "there is obviously rather serious allegation against the police": that was not appropriate language to describe an allegation of honest mistake.

10. One difficulty we have felt has arisen from the decision of the English Court of Appeal in Nelson [1978] 68 Crim. App. R. 12. There the court allowed an appeal against the decision of the recorder in allowing cross-examination as to character where the appellant alleged that a police officer had fabricated his evidence of an oral confession. The officer used his notebook to refresh his memory but the book was not put in evidence. It was held that the attack on the character of the officer was not an attack within the meaning of the comparable English provision because,

"since the appellant's case was 'I just did not commit this offence', the cross-examination of the detective constable was only directed at supporting the appellant's denials of the content of the disputed interview: it was not directed at casting imputations to establish a defence. (Page 17).

Professor J.C. Smith, Q.C. at 1979 Crim. L.R. 387 observes that the decision is not easy to reconcile with the decision in Selvey that the words of the proviso do not admit of qualification in any way" and "seems to be a generous application of [the fourth proposition in that case]. With respect that appears to us to be itself a very generous criticism and it is to be noted that another division of the English Court of Appeal came to a different conclusion in McGee [1979] 70 Crim. App. R. 247 and followed Tanner [1978] 66 Crim. App. R. 56, citing but ignoring Nelson. The court said at page 255 :

"The line may be a narrow one. The trial judge is in the best position to decide it. We are of the opinion that in the present case he was entitled to come to the conclusion which he did.

It is totally unrealistic to suggest that to accuse a police officer of falsely fabricating evidence of an oral confession does not impute unreliability as a witness independently of the evidence given by him" whereas to accuse him of wrongfully inducing a defendant to make a written statement does. Both accusations impute to him a willingness to commit the crime of perjury in order to obtain the conviction of a possibly innocent man, an attitude which would make him unfit to be a police officer. It is equally unrealistic to draw a distinction between a case where the false evidence is alleged to have been given by a single witness and a case where it is alleged to have been given by two or more witnesses who, by implication, must have put their heads together to give a false account.

11. The prosecution had a strong case. The Defendant said that he had given Chan's name and address to the police, whereas the police agreed that they had not been to that address to look for him or to search for further drugs. Even if determined to fix possession upon somebody, the police were unlikely to fabricate such a case against an innocent man until they had at least exhausted the opportunities to find the true offender. Thus the case indicates the dangers both of too ready a decision that it is really necessary to apply to cross-examine as to character and of too ready an assumption that an attack is being made on the character of a witness. Nevertheless we are satisfied that the case fell within the proviso.

12. It is then said that the judge failed to exercise his discretion and, alternatively, that he exercised it wrongly. In his original ruling he said:

"That is really what the whole case depends on - whether the jury would like to believe those two policemen on that matter. I think that cross-examination should be allowed in the circumstances of this case.

That seems to us to show that he did consider whether the prejudicial effect of the evidence outweighed its evidential value. The fact that the word discretion was not used by the judge when he first ruled on the application for leave to cross-examine is not conclusive evidence that there was no exercise of the discretion. Even if it were, the fact remains that the judge reviewed his decision and it is abundantly clear that on the review the issue of discretion was widely canvassed.

13. We should not interfere with the judge's exercise of his discretion unless satisfied that he was in error. It has been submitted that the attack on the character of the witnesses was so much part and parcel of the denial that the Defendant was carrying the bags that the defence case could not be put properly without making the attach. We cannot accept that. This was much more than an emphatic denial and the judge was entitled to take the view that he did.

14. We dismiss the appeal. We would, however, like to express appreciation of the thorough and helpful arguments which were addressed to us.

14th May 1982.

Representation:

K. Ramanathan (D.L.A.) for Appellant.

Cahill for Crown/Respondent.