HKSAR v. Poon Ching Ki

CACC 38/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 38 OF 2008

(ON APPEAL FROM DCCC NOS. 31 & 561 OF 2007 (Consolidated))

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Before: Hon Stock JA, McMahon and Reyes JJ in Court

Dates of Hearing: 13 January and 6 March 2009

Date of Judgment: 6 March 2009

Date of Reasons for Judgment: 31 March 2009

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REASONS  FOR  JUDGMENT

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Hon Stock JA:

1.On 6 March 2009, this Court granted the applicant leave to appeal against conviction and, treating the hearing of the application as the appeal, allowed the appeal and set aside the convictions.  We said we would give reasons later.  This we now do.  They are set out in the judgments of Reyes and McMahon JJ which I have had the advantage of reading in draft and with which I agree.

Hon Reyes J:

I.  Introduction

2.On 18 January 2008 Judge Whaley found Poon guilty on 2 charges of conspiring with others to wound with intent to cause grievous bodily harm.  One charge concerned a conspiracy among Poon, Choi, Chong, Liao and Leong to wound Cheng on 29 November 2006.  The other concerned a conspiracy among Poon, Choi, Chong and Leong to wound Yau on 3 December 2006.

3.Before Poon’s trial, Choi pleaded guilty to the charge involving Yau, while Chong and Leong pleaded guilty to both charges.  At Poon’s trial, Choi and Chong gave evidence against Poon.  At the time of their crimes, Choi was about 18 and Chong 16.

4.Judge Whaley sentenced Poon to 3 years on the charge involving Cheng and 4 years on that concerning Yau.  He directed that 2 years of the latter sentence be served concurrently with the former.  This resulted in Poon having to serve a total of 5 years on the 2 charges.

5.Poon (represented by Mr. John Haynes) appealed to this Court against his conviction.  At the outset of the hearing, Poon abandoned an appeal against sentence.

6.This Court gave leave for the appeal against conviction and allowed the same.  These are the reasons for doing so.

II.  Background

7.This section summarises the judge’s findings.

8.From April 2006 Liao periodically harassed staff at the Fung Tat Pharmacy in North Point.  This was because the pharmacy staff refused to sell him drugs without a prescription.  In May 2006 Liao went so far as to assault Cheng (a staff at Fung Tat). For this, Liao was sentenced to 18 months’ probation.

9.In late November 2006 Poon (also a staff at Fung Tat) engaged Choi, Chong and Leong to attack Cheng by bashing him on the head with a bottle.  Poon’s idea was to cause his boss (Mr. Cheung) to believe that Liao was taking revenge on pharmacy staff.  Poon then planned to volunteer his services as a mediator between Mr. Cheung and Liao.  Poon believed that Mr. Cheung would pay him around $10,000 for acting as such go-between.

10.Poon’s arrangement with Choi, Chong and Leong was carried out on the evening of 29 November 2006 while Cheng was walking in North Point.  Cheng suffered multiple cut wounds to the back of his head as a result of the attack.

11.Subsequently, in early December 2006, Poon asked Choi, Chong and Leong to attack a person whom Poon would identify.  This time Poon asked that the attack be carried out not just with a bottle but also with a knife.  Poon would supply the knife.

12.On 3 December 2006 Poon told Choi and Leong to look in the toilet of the place where they were meeting.  There Choi and Leong found a foot long knife.  Poon instructed Choi to tuck the knife into his waist, using a newspaper as a makeshift sheath.  The four then proceeded to Quarry Bay.

13.At Quarry Bay, Poon pointed out and described the target victim who was then with others at a McDonald’s restaurant.  He later told Choi, Chong and Leong that the target had left the McDonald’s restaurant with a friend.  Choi and Chong followed the presumed target.  They attacked him with the knife.

14.But Choi and Chong may have attacked the wrong person.

15.Mr. Cheung had gone to the McDonald’s restaurant in Quarry Bay with (among others) Yau (Mr. Cheung’s friend) and Cheng.  There they had met Liao and had tried to discuss his grievances. The target person was one of this group at McDonald’s.  However, there had been evidence (not mentioned in the Judge’s Reasons) that Poon’s description (identifying a person who had short hair, wore glasses and carried a bag) applied equally to Yau and Liao. 

16.Mr. Cheung, Yau, Cheng and Liao eventually left McDonald’s.  Mr. Cheung proceeded with Yau.  Cheng and Liao went off on their own separate ways.  Outside McDonald’s, Choi and Chong attacked Yau.

17.The judge found that Poon had intended for someone working at the pharmacy to be attacked on 3 December so as to inflict more fear in Mr. Cheung.  Although not wholly clear from his Reasons, it seems that the Judge considered that Cheng (mistakenly referred to as “Cheung” in Reasons para. 48) was the likely intended target, even though the description given by Poon did not fit Cheng who had long hair and did not wear glasses.  Poon’s rationale (the judge held) was that the first attack on Cheng had not in Poon’s view sufficiently wounded Cheng.  Poon’s assessment was that, without a further more serious incident, Mr. Cheung would not be prepared to pay Poon a significant sum to act as mediator.

18.After the attack on Yau, Poon told Choi and Chong that the two had attacked the wrong person.  This may have been the case or it may conceivably have been a negotiating ploy to provide an excuse for not paying the $20,000 which Poon had promised to Choi and Chong for carrying out the attack.  This latter possibility (apparently suggested by the prosecution) was not explored by the judge in his Reasons.  In any event, Yau sustained lacerations in the forearm and hand from the mistaken knife attack on him.

III.  Discussion

19.Mr. Haynes essentially relies on 4 grounds of appeal.

A.  1^st Ground of Appeal

20.First, Mr. Haynes submits that Poon could not have been guilty of conspiring to attack Yau on 3 December as stated in the charge.  Since on the judge’s findings Yau was not intended by Poon to be the target, Poon (Mr. Haynes suggests) cannot have agreed for Yau to be attacked.

21.I do not believe that there is substance in this ground of appeal. 

22.The judge found that on 3 December 2006 the arrangement among the conspirators was that Poon would identify the target victim. Poon did so by pointing him out from outside the McDonald’s restaurant and describing him.  There was also evidence from Choi that Poon described the target as having left McDonald’s restaurant with Mr. Cheung.

23.Thus, the conspirators agreed that the person having the specific attributes (such as sporting a particular haircut, wearing glasses, and accompanying Mr. Cheung) which Poon identified should be attacked.  It was in effect a conspiracy to wound a person who had the identified attributes.  Since Yau shared the relevant attributes, the conspiracy can be said to have been directed against Yau.

24.Mr. Haynes suggests that, on the strength of Leong’s vide-recorded interview, the judge ought to have considered that some of the attackers (such as Leong) may have thought Liao to be target.

25.In fact, the judge looked into this possibility but rejected it.  He held that Leong must have “got himself hopelessly confused” in the course of his video interview.  The judge concluded instead that Liao was never the intended target.

26.Let us assume, however, that the judge was wrong in holding that Liao was not the true target.  It is unclear even then how Mr. Haynes’ suggestion that Liao may have been thought to be the target assists Ground 1.  The target (regardless of his name) was identified by description.  The agreement was to attack a person fitting that description.  The attackers went after Yau because he seemingly fitted that description.

B.  2^nd Ground of Appeal

27.Second, Mr. Haynes submits that Choi’s evidence was so riddled with discrepancies as to be unreliable.

28.In actuality, the judge was fully aware of discrepancies in Choi evidence.  The judge said:

“36. Both the 1st and 2nd defendants [respectively, Choi and Chong] gave their evidence generally very well.  They did so straightforwardly and in an entirely matter of fact way.  It is important to note, however, that they are both accomplices who have pleaded guilty to various charges in this case.  I have, therefore, approached their evidence with great caution, bearing in mind that there is always the danger that they could be fabricating or exaggerating their evidence against their co-defendants in order to minimise their own part in the events in question.

37.  They both frankly admitted under cross-examination that by pleading guilty, and also by giving evidence for the prosecution, they expected that they would receive reductions in their sentence.  I have taken careful note of the fact that there is no dispute that the 1st defendant stated in his video-record of interview conducted by the police that the 5th defendant [Poon] had paid him a deposit of $1,500, which he had duly deposited into his bank account.

38.  This contrasted with his evidence to the effect that although they were promised a reward, he had not received any reward from the 5th defendant.  When he was cross-examined on this, the 1st defendant confirmed that he had not, in fact, received any reward from the 5th defendant, that what he had said in his video-recorded interview was incorrect.  He explained that when he had been arrested for the first time he was very scared, and that he had ‘said something wrong’.  This did cause me some concern, and, as I say, I have carefully borne it in mind in evaluating the evidence of the 1st defendant.

39.  Looking at the evidence as whole this discrepancy has not caused me to doubt the veracity of the 1st defendant’s account of the events in question.  I note that he had a clear record before his involvement in the events in question.  And having carefully listened to him, and observed him giving evidence, I am satisfied beyond a reasonable doubt that he has told the court the truth as to what occurred.”

29.Thus, if Mr. Haynes’ complaint is simply that the judge should not have convicted Poon because of discrepancies in Choi’s evidence, I would not regard this second ground of appeal as well-founded. 

30.But this Court discerned a real difficulty insofar as the judge noted (and apparently relied on) Choi’s “clear record before his involvement in the events in question” when concluding that the discrepancies did not detract from Choi’s overall credibility.  I will return to this in my discussion of Mr. Haynes’ fourth ground of appeal.

C.  3^rd Ground of Appeal

31.Third, Mr. Haynes criticises the judge for not attaching sufficient weight to evidence that Chong had previously blackmailed Poon.  Chong (Mr. Haynes submits) would have been keen to blame Poon.

32.In fact the judge was fully alive to the blackmail incident and its potential implications.  The judge said:

“40. As far as the 2nd defendant’s evidence is concerned, as I say, the 5th defendant called Mr. Wong Kah-fuk to testify on his behalf.  He testified that he runs a bird’s nest medicine shop at which the 5th defendant worked on a part-time basis from 24 September last year onwards.  He related how on one occasion a young male had come into the shop, spoken to the 5^th defendant and asked him to lend him money. When the 5^th defendant informed him that he didn’t have any money, this young man had said, ‘If that’s the case, I’ll have to frame you and get you into a jam,’  At the 5th defendant’s request, Mr. Wong had then lent him $300, which he gave to the young man.

41.  Mr. Wong testified that later the 5th defendant informed him that this young man’s name was Chong Yeung, which is of course the name of the 2nd defendant.  This evidence was clearly called for the purpose of impugning the reliability of the evidence given by the 2nd defendant against the 5th defendant.  Mr. Wong’s evidence did not however cause me to doubt in any way the veracity of the 2nd defendant’s evidence. Apart from anything else, the young man, if he was indeed the 2nd defendant, got the money from the 5th defendant which he had asked for.  So he had no reason to want to carry out this alleged threat.

42.  I note that the 2nd defendant also had a clear record before his involvement in the events in question and he gave his evidence well.  He was not troubled in cross-examination, and his account coincided in all material respects with the 1^st defendant’s.  And having observed him carefully, while giving his evidence, I am satisfied beyond a reasonable doubt that he has told the court the truth.”

33.Consequently, if all Mr. Haynes is saying is that the judge should not have convicted Poon in light of the blackmail incident, I would not have thought that this third ground of appeal was a sufficient basis to overturn the judge. 

34.However, again there is a significant problem because the judge relied on evidence of Chong’s previous clear record in reaching his conclusions.  I turn to consider this difficulty in detail in connection with Mr. Haynes’ fourth ground of appeal.

D.  4^th Ground of Appeal

35.That fourth ground is a submission that it was inappropriate for the judge to have placed any weight on the “previous good character” of Choi and Chong. 

36.It was unusual to use the good character of a prosecution witness in support of that witness’ credibility.  It was especially inappropriate to do so here (Mr. Haynes suggests) when the witnesses had themselves admitted to serious wrongdoing.  Mr. Haynes stresses that, apart from the evidence of Choi and Chong (both accomplices), there was really nothing else to implicate Poon.  Accordingly, Mr. Haynes submits that the judge seriously went wrong in mentioning (and presumably attaching some weight) to the “clear record” which Choi and Chong had before their admitted wrongdoing.

37.As I have already signalled, this submission has been a cause of much concern to this Court. 

38.The judge referred to Choi and Chong having had no previous convictions prior to their attack on Cheng and Yau.  The judge learned of this because the prosecution elicited such evidence from Choi and Chong in the course of re-examination. The prosecution seemingly did so in response to suggestions in cross-examination that Choi and Chong were prepared to lie in their evidence in order to obtain reductions in their sentences and because of grievances against Poon.  The defence does not seem to have objected to this line of re-examination.

39.The issue is essentially the admissibility of (and weight to be given to) evidence of a witness’s good character or reputation where in the course of cross-examination that witness has been accused of lying.

40.Where a witness gives evidence, the jury or (where there is no jury) the judge decides whether to accept such evidence as credible or incredible.  The jury (or judge) is normally supposed to assess credibility by evaluating the totality of what each witness has said about a relevant event and the manner in which such witness has given evidence.

41.Save in exceptional circumstances, the common law does not permit what is sometimes called “oath-helping”, that is, the adducing of evidence merely to show that a witness is a generally truthful person.  As a matter of policy, criminal trials would become unwieldy, if evidence of a witness’ general character, became admissible solely because in cross-examination a witness was accused of lying.

42.One exceptional circumstance is where a witness’ character is itself a direct (as opposed to merely collateral) issue at trial. In such situation, evidence of good character or disposition would be admissible in the same way as evidence on any other substantive disputed issue being tried.

43.This exception may arise where a sexual offence is involved.  For example, as Henry J (quoting Cross on Evidence (6th ed., 1985) p. 295) observed in R v. Funderbunk [1990] 1 WLR 587, when rape or non-consensual sexual intercourse is alleged, the relevant acts having taken place in private and evidence being limited to that of the defendant and his victim, the difference between merely collateral questions going to credit and directly relevant questions going to an issue may be reduced to vanishing point.

44.Recent cases exploring the parameters of this exception to the general rule against oath-helping are: R v. Amado Taylor [2001] EWCA Crim 1898, R v. Tobin [2002] EWCA Crim 190, and R v. Mazhar Ali [2006] EWCA Crim 1976. 

45.But this particular exception is not relevant here and so need not be explored further in this Judgment.  There is no suggestion that the general good characters of Choi and Chong were issues which were so closely connected with the offences charged against Poon.  The good characters of Choi and Chong were merely collateral matters relating to the overall credibility of their evidence. 

46.Another exceptional circumstance is where a witness’ good character has been impugned in cross-examination.

47.Halsbury’s Laws of England (4th ed, 2002), vol. 17(1) states the broad principle thus (at §1033):-

“Re-establishing credit of witness.  General evidence of good character and reputation is admissible subsequent to the cross-examination of a witness where his character or credit has been impugned, but does not become admissible if the cross-examination goes no further than to show that the witnesses contradict each other.  Where, however, it has been suggested in cross-examination that the witness’ evidence is a recent invention, he may be asked, and evidence may be given to prove, when he first made the impugned statement.

This paragraph must be read in the light of the court’s general discretionary power to control the evidence.”

48.A case often cited in support of this exception is R v. Clarke (1817) 2 Starkie 241, 171 ER 633.  There it was suggested in cross-examination that a prosecution witness X had twice been sent to prison for stealing money.  X agreed.  But X then said that she had been rewarded for good conduct while in prison.  The prosecution sought to adduce evidence from a prison superintendent to confirm this. 

49.Upon objection by the defence, Holroyd J ruled the superintendent’s evidence admissible “for the purpose of removing the impeachment of [X’] character upon cross-examination”.  The superintendent’s evidence went “to show that [X was] not so unworthy of credit as she might have been considered to be”.

50.It is this particular exception that is said to apply here.  It is contended that, in accusing Choi and Chong of lying in order to obtain a lesser sentence, the defence put their general good character in issue.  To assess the contention, it is necessary to delineate the ambit of the exception.

51.In R v. Saleam (1989) 41 A Crim R 108 a prosecution witness M was accused in cross-examination of engaging in income tax fraud.  In re-examination, M was asked whether she had any criminal conviction. She replied in the negative.  On a submission that the accused was prejudiced by the latter questions, Lee CJ of the New South Wales Court of Criminal Appeal (Maxwell and Campbell JJ agreeing) stated (at 116-7):

“As to the admissibility of the evidence it is clear that a very strong attack was made upon the credibility of [M].  As His Honour pointed out she was held up as a schizophrenic and inventor of conversations and as a dishonest person, and although the accused had not at the time the question about conversations was asked, made his statement to the jury in which the attack was continued forcefully in what he said, circumstances undoubtedly had arisen in this trial by which it was perfectly proper for the Crown to seek to defend the credit or restore the credit of [M] -- whichever way one looks at it -- in such manner as was open to it.

In Halsbury’s Laws of England (4th ed., 1976), par 287 the proposition is asserted ‘Where a witness’ credit has been impugned it is open to the Crown to call general evidence as to his good character.’  A number of cases are cited, but I refer only to Clarke (181) 2 Stark 241 which plainly establishes the proposition which the text in Halsbury asserts.  It was, thus, in my view open to the Crown in re-examination to lead from the witness any evidence which would answer that attack.  In this State absence of criminal conviction has traditionally been regarded as being some evidence of good character, general good character, and although that kind of evidence is used in most instances by an accused person in his defence as being relevant to the proposition that a person of good character is not likely to, or less likely to commit crime than a person with convictions: Lawrence [1984] 3 NSWLR 674; Stalder [1981] 2 NSWLR 9; 3 A Crim 87.  It is plainly in my view evidence of general good character and it was, thus, in those circumstances admissible here.  I would, however, make clear that in my view its evidentiary value in the circumstances of the present case was not great and no doubt the jury would recognise that but I cannot see any objection could have been raised to its admissibility unless the circumstances were such that it was likely to prejudice the appellant.  In that instance His Honour, of course, would have a discretion to exclude it....”

52.In contrast, in R v. Hamilton The Times Law Reports 25 July 1998 (Buxton LJ, Mitchell J and Judge Hodson), the English Court of Appeal excluded evidence of a prosecution witness’ good character. 

53.There it was suggested in cross-examination that a witness B was lying to cover up the fact that he had found himself at the scene of an alleged crime because he was buying cocaine.  The judge allowed the prosecution to draw from B in re-examination that he had no criminal convictions. 

54.Buxton LJ distinguished between evidence to counter a suggestion that B had a general reputation for untruthfulness and evidence to rebut particular allegations of misconduct.  The former type of evidence was admissible while the latter type was not.

55.In the latter case of evidence to rebut particular allegations of misconduct, Buxton LJ pointed out that such evidence would either go towards the credibility of the witness’ evidence in relation to the matter being tried or towards some disputed issue in the case.  He examined each of these 2 possible scenarios. 

56.Buxton LJ reasoned: If the matter was one relating to the credibility of the witness’ specific evidence (scenario A), then the witness’ response to the allegation of misconduct was the final word.  If the matter was one relating to a disputed issue (scenario B), it was for the jury to decide whether or not to accept the witness’ version, depending on the jury’s assessment of the witness’ evidence.  On close analysis by Buxton LJ, in neither scenario A nor B was there any actual challenge to a witness’ general character rendering admissible rebuttal evidence to establish a witness’ general propensity to tell the truth.

57.With the possible exception of the allegation about cocaine, Buxton LJ thought that the attack on B “was no more than the robust pursuit of a legitimate defence case”.  If evidence of a witness’ good character was admissible in such situation, then the same type of evidence could be led in any case where the defence challenged a witness’ version of events.  That (Buxton LJ thought) could not be right as it would negate the rule against oath-helping.

58.Buxton LJ concluded that evidence of B’s lack of previous convictions should not therefore have been admitted by the trial judge.  There was no substantive challenge relating to B’s general character, as opposed simply to the credibility of B’s account of what had actually happened. 

59.The Court of Appeal noted that the defence in Hamilton consisted almost entirely of an attack on the veracity of the oral evidence (including B’s evidence) of what had happened at the scene of the crime.  In that circumstance, the Court of Appeal considered that the conviction was unsafe.  The judge should have refused to admit (and should have placed no weight on) B’s evidence of an absence of prior conviction.

60.Mr. Haynes suggests that there is a conflict between Hamilton and Saleam and that the later case in effect “overrules” the earlier.  But I see no clash.

61.In Saleam there was a collateral attack on M’s character.  The allegation of tax fraud had nothing to do with the offence (theft) of which the defendants was charged.  The matter of tax fraud was raised to discredit M as a generally dishonest witness. In those circumstances, it was open to the judge to admit evidence about M’s lack of previous conviction to rebut the attack on her general character.

62.In Hamilton, on the other hand, in large part, the attack was directed at B’s version of what actually happened.  The question was: Did B see what he said he saw or (whatever B’s general character might have been) was he just making things up to cover up the fact that at the time of the alleged crime he was himself in a compromising position? There was no general challenge to B’s general character. Re-examination as to B’s previous convictions was mere oath-helping.

63.Is the situation here closer to Saleam or Hamilton?

64.In my view, the cross-examination of Choi and Chong was purely a “robust pursuit of a legitimate defence”.  In suggesting that they were lying in naming Poon as the mastermind behind the attacks, Choi and Chong were simply being challenged on their specific version of events.  The defence were not putting into question their general character.  Nor was their general character directly relevant to an issue in the present case.

65.For this reason, I do not think that evidence of an absence of prior convictions should have been admitted in re-examination. 

66.Accordingly, the judge should not have placed any reliance on such evidence.  It is true that the judge does not actually state how much weight he placed on that evidence.  But one must assume that he placed some weight.  Otherwise there would have been no point in “noting” the matter.

67.I add that, in any event, given Choi and Chong’s youth at the time of giving evidence, the judge should not have found any probative value in their “previous lack of conviction”.  The reality is that, by their own admission, Choi and Chong had here committed serious crimes when only in their late or mid-teens.  It would have been wholly artificial in light of those admissions to attach any weight to the fact that, when even younger, they had no prior convictions.

68.On that basis, Poon’s conviction cannot be regarded as sound.  If the judge ignored the evidence of a prior lack of conviction, it is unclear how he would have assessed the credibility of Choi and Chong.  As Mr. Haynes points out, insofar as Poon’s involvement in conspiracy was concerned, there was only the evidence of Choi and Chong.  The judge’s assessment of their credibility was crucial to Poon’s conviction for conspiracy.

69.Not having itself heard Choi and Chong give evidence, this Court is unable to assess their credibility.  It is not in a position to find that Poon’s involvement in the conspiracies charged is the inevitable conclusion to be drawn from the evidence given by Choi and Chong.  This is consequently not an appropriate case to apply the proviso.  I cannot agree with the suggestion of Mr. Kevin Zervos SC (appearing for the prosecution) that the irregularity was immaterial.

70.For the avoidance of doubt, I should make it clear that, when referring to some exceptions to the rule against oath-helping, I should not be taken to have exhaustively listed all possible exceptions to the rule.

IV.  Conclusion

71.For the foregoing reasons, Poon’s conviction was unsafe.  This Court consequently quashed the same and ordered a re-trial.

Hon McMahon J:

72.I have read the judgment of Reyes J in draft and agree with its conclusions.  However I would like to add to what has been said that it has long been accepted that no party to a criminal trial is entitled to call evidence of a witness’s good character simply to support the credibility of that witness.  There is one recognised and anomalous exception to this principle and that is that a defendant’s good character may always be placed before a court if the defence so wishes: see R v Rowton (1865) Le. & Ca. 520.  So far as other witnesses are concerned, evidence of their good character so as to bolster their credibility is mere oath-helping and such evidence, for that purpose, is inadmissible: see R v Robinson (1994) 3 All E.R. 346.

73.But there are two circumstances where evidence of a witness’s good character is admissible.  Firstly, where it becomes relevant not just to credibility but to some factual issue in the case, then evidence of the witness’s good character may be allowed.  The majority of cases in which such evidence has been admitted have involved allegations of sexual offences, and the evidence has been admitted on the basis that it is relevant to the issue of consent: see, for example, R v Amado-Taylor (2001) EWCA Crim. 1898; R v Tobin (2003) Crim. L. R. 408.

74.Those cases simply reflect the realities of trials of sexual offences.  A victim’s previous moral or social standards may be relevant as to whether she indulged in the sort of behaviour that is alleged by the defendant and so be admissible even though it carries with it express or implied assertions of good character.  However the principle is not restricted to sexual offences.  It applies generally to trials of criminal matters.  In Amado-Taylor Keene LJ said (at paragraphs 21 and 22):

“But the general principle is that evidence which is relevant to an issue in the trial is admissible unless, of course, excluded by reason of one of the normal exclusionary rules of evidence.  Cases may arise where evidence of the victim’s disposition or character may well be relevant to an issue in the case.  One of the more obvious instances would be where the defence of self-defence is raised on a charge of personal violence.  For example, on a murder charge, it appears to be accepted that the accused may adduce evidence to establish that the victim was of a violent disposition if self-defence is being run as a defence.  We note that in Phipson on Evidence, 15^th Ed, the following passage is to be found:

‘If the accused’s defence to a charge of some crime of violence is that he was defending himself against an attack launched by the complainant, it is apparent that the non-violent character of the latter is no less relevant as a matter of logic than that of the former’: paragraph 19-02.

We agree with that proposition.  Since the defence in such a case can in any event call evidence of good character of the accused, as is recognised by the very existence of section 1(f)(ii) of the Criminal Evidence Act 1898, it would seem anomalous if the complainant were not able to seek to establish his non-violent disposition.”

75.In R v Mazhar Ali (2006) EWCA Crim. 1976, a murder case, the Court of Appeal, in accepting the general principle that the good character of a prosecution witness is inadmissible as evidence, said:

“We accept that as a matter of general principle and historic doctrine, whereas the good character of a defendant is relevant and admissible, the good character of a prosecution witness is not – a position described as ‘anomalous’ as long ago as 1865, in the case of Rowton.  That doctrine was more recently referred to by Buxton LJ in the case of R v Errol Hamilton (unreported, 26^th June 1998, No 97/6511/W2).  Nevertheless there are cases in which the good character of a prosecution witness may become relevant and admissible, not least because it may go to an issue in the case.” (Emphasis added)

76.The court concluded that in the circumstances of the particular case evidence of aspects of the prosecution witness’s good character were relevant to an issue and had properly been admitted.

77.Secondly, as a separate principle, it is also clear that if the defence launches an attack upon a prosecution witness so as to raise imputations as to the witness’s general character or reputation for truthfulness then the prosecution may adduce evidence of the witness’s general good character: see R v Clarke (1817) 2 Stark. 241; R v Saleam (1989) 41 A. Crim. R. 108; Halsbury’s Laws of England, 4^th Ed. Vol. 17(1) para. 1033.  That has historically not been regarded as mere oath-helping.  A witness’s lack of prior convictions is relevant to that issue.

78.In the present case there was no attack on the general reputation of either of the two prosecution witnesses Choi or Chong.  A defence attack on the credibility of a prosecution witness comprising assertions that the witness is lying or has motives for lying based on self interest, as in the present case, even if the logical extension of the line of attack is that the witness has perjured himself or has set out to pervert the course of justice will not, in the normal course of events, be sufficient to raise the issue of the witness’s general character and so justify the admission of evidence of his good character.  Otherwise virtually every case of a defendant vigorously attacking the credibility of a prosecution witness would result in such evidence being rendered admissible: see R v Hamilton The Times Law Reports 25 July 1998.

79.Accordingly the only basis upon which evidence of the two prosecution witnesses’ previous good character could have been led in this case was because it was relevant to an issue at trial other than credibility.  However, it is difficult to see as to what issue other than credibility that evidence was relevant.  Choi and Chong had simply been accused of lying in cross-examination.  Their motives were said to have been to lessen their own sentences.  In those circumstances there would appear to have been no issue separate to their credibility which made their good character relevant, and so the evidence was inadmissible.

80.It should be borne in mind that evidence adduced of good character, being relevant to an issue at trial, would normally be recognisably issue specific.  So for example in Amado-Taylor evidence was given of the complainant’s religious background and her refusal to indulge in an intimate relationship with her boyfriend at the time of the defendant’s rape of her.  In Tobin evidence of the complainant’s mother was admitted to the effect that her 16 year old daughter was quiet, polite and had had a trouble free childhood to rebut allegations that she had indulged in bizarre sexual conduct with a much older stranger.  Whatever the weight of that evidence, it was thought relevant to the particular issue in the case.  Again in R V G(R) (2003) Crim. L. R. 43 the defence put forward was that the deceased victim had attacked the defendant with a knife and evidence was allowed by the judge at trial to the effect that the deceased was a quiet and gentle man who had not been seen to carry a knife, although the appeal was allowed on the basis that, in the circumstances of the case, the evidence was more prejudicial than probative.  In the present case however, proof that neither of the two challenged prosecution witnesses had previous convictions was not issue specific but went to their general reputation only.  Their general reputation had not been raised as an issue and the evidence could only in the circumstances have been called to bolster their credibility.  For the reasons which have been given it was inadmissible for that purpose.

Mr. Kevin P. Zervos, SC, DDPP (on 6.3.2009) and Ms Anna Y.K.Lai, SPP of the Department of Justice, for the Respondent

Mr. John Haynes, instructed by Messrs Eric Yu & Co. assigned by the Legal Aid Department, for the Applicant (re. Conviction)

Applicant in person – present (re. Sentence)