Chiu Kwok Ming v. The Queen
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CACC000695/1979 IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction) CRIMINAL APPEAL NO. 695 OF 1979 -----------------
----------------- Coram: Power, J. in Court Date of Judgment: 3 August 1979 ----------------- JUDGMENT ----------------- 1. In this matter the appellant was charged with the offence of trafficking in dangerous drugs. He was convicted on the 6th of July 1979 and sentenced to imprisonment for two years. The prosecution case was that two police officers had kept the accused under observation and had seen him selling dangerous drugs. The cross-examination by the accused of PC16592 was as follows:
As can be seen the Learned Magistrate warned the defendant of the risk he was running if he asked the question "All that you say is false about the money and the buyer and my going to the quilt?". This question in itself would not, in my view, have the effect of depriving the defendant of the protection of Section 54(1)(f) of the Criminal Procedure Ordinance. I am quite satisfied that this question was no more than a denial of the charge in emphatic language such as is referred to by Viscount Dilhorne in R. v. Selvey (1970) A.C. 304 at 339. The Learned Viscount cited several authorities in this regard going back to R. v. Rouse (1904) 1 K.B. 184 in which Darling J. said at 187:
In his Statement of Findings the Learned Magistrate said that:
Later the Learned Magistrate added that the defendant
I find myself unable to agree that it "clearly came out" of the cross-examination by the appellant of the first prosecution witness that he was putting his character in issue. The only question that I can see which, it might be suggested, went beyond an "emphatic denial" of the defence, was the question "The dangerous drug was attributed to me in the police station?". If the meaning of this question was: "You never found any dangerous drugs at the scene at all and it was falsely alleged by another police officer who was conspiring with you that some dangerous drugs which was shown to me for the first time in the police station were mine" then this would be, in my view, an allegation that involved imputations upon the character of the witnesses for the prosecution. However the words do not unequivocally lent themselves to this meaning. The words may well mean simply that the drugs were shown to him in the police station which was in fact what, according to the Drug Disposal Constable, did happen. I find myself unable to be persuaded that the accused by his cross-examination clearly put his character in issue. 2. However, the Learned Magistrate did not rely only upon the cross-examination as he indicated, in his Statement of Findings, that he allowed the defendant's character to be put in issue not only because of the cross-examination but also because he persisted in his defence in alleging that the prosecution case was a fabrication. It is true that his defence was that the police evidence was not true but that of itself, as I have indicated, is not sufficient to deprive him of the protection of Section 54(1)(f). It is also true that when asked in cross-examination whether he had been framed-up and he replied "Yes". However this question and answer could not have played any part in the Learned Magistrate's decision to allow the appellant to be cross-examined upon his record as the exchange occurred after the Learned Magistrate had ruled that he could be so cross-examined. Further this was an answer solicited in cross-examination and, like the evidence in R. v. Grout (1909) C.A.R. p.64, cannot, in my view, be properly regarded as an allegation made in the "conduct of the defence". 3. Lord Chief Justice Hewart said in R. v. Jones 17 C.A.R. 117 "it is often difficult to say on which side of the line a case falls". This is so in the present case. However having given careful consideration to the record of proceedings I am not satisfied that the appellant, by the nature or conduct of his defence, deprived himself of the protection of Section 54(1)(f). I therefore hold that the Learned Magistrate should not have permitted the prosecution to cross-examine him upon his record. 4. This cross-examination was of particular importance as the Learned Magistrate placed considerable weight upon it. He said in his Statement of Findings that:
As I have already indicated this cross-examination should not, in my view, have taken place at all. 5. The actual question put to the defendant about his previous convictions was:
This was the only question, according to the record, put to the appellant in this regard. Just prior to the question being put the Learned Magistrate had asked to see the record of the appellant and the prosecution had produced it to him. It seems clear that the many convictions for dishonesty, which appear to have influenced, to some extent, the mind of the Learned Magistrate, were never put to or a admitted by the appellant. It would seem that the Learned Magistrate must have obtained the information as to these from his perusal of the record of the appellant. Even if it was the situation that the appellant, by his conduct, deprived himself of the protection of Section 54(1)(f) and the Learned Magistrate properly exercised his discretion to allow him to be cross-examined upon his record, this conviction would, in the circumstances, still, in my view, be unsafe in view of the fact that the Learned Magistrate clearly relied in his finding that the appellant was not a credible witness upon matters which were not in evidence before him. 6. Mr Reid, for the Crown, also points out that the first prosecution witness says that he handed the suspected dangerous drugs to Drug Disposal Constable 5730 at 15.25 hours on the 24th of June 1979 and that this is the only mention of a Drug Disposal Constable of that number that appears anywhere in the evidence. The Drug Disposal Constable who gave evidence and he said he received exhibits from PC16592 was Drug Disposal Constable 5563. It seems that this was no more than a mistake by PW1 as to the number of the Drug Disposal Constable and this of itself would not, in my view, be sufficient to warrant the quashing of a conviction. However the matters to which I have formerly referred do, I am satisfied, require that the conviction be quashed. I order that the matter be remitted to another Magistrate for a fresh hearing.
Representation: Appellant in person Reid, Crown Counsel, for Respondent |