Cheng Ah-kai v. The Queen
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CACC000097/1982 Criminal law - trial for conspiracy - inaccurate report published of proceedings on first day - judge decided not to discharge jury - there being some slight possibility of Prejudice it would have been more prudent to discharge jury but his exercise of discretion was not necessarily wrong - nevertheless, fact of such impropriety relevant to issue whether verdict was unsatisfactory -- principal witness shown photograph of defendant on several occasions before holding of identification parade -- defence one of deliberate mis-identification and no question of mistaken identification - use made of photograph not explained - evidence inherently suspect, being that of accomplice - verdict unsafe and unsatisfactory.
BETWEEN
__________ Coram: Sir Alan Huggins, V.-P., Yang & Barker, JJ.A. Dates of hearing: 6, 7, 8, 11 and 12 October 1982 (Reasons given on 1 December 1982) ___________ JUDGMENT ___________ Sir Alan Huggins, V.-P. : 1. The Appellant was indicted with eight others but was named in only two counts (the 8th and the 9th), which alleged respectively conspiracy to deal with dangerous drugs and conspiracy to traffick in dangerous drugs. In reality it was one continuing conspiracy, but it was made the subject of two charges because of an amendment to the law relating to dangerous drugs during the period of the alleged illegal transaction. The Appellant was tried in January 1982 and, having been convicted on both counts, applied for leave to appeal against his convictions. Leave was refused by the single judge but the application was renewed before the Full Court. We gave leave and allowed the appeal. We said we would give our reasons later. 2. The first ground of complaint argued before us was that on the second day of the trial there appeared in the South China Morning Post, starting on the front page, an inaccurate report of the first day's proceedings, which report was said to have been highly prejudicial to the Appellant. The judge refused to discharge the jury. There were four ways in which prejudice was said to arise. First, the report was accompanied by a photograph of the Appellant which showed not only his features but also a board bearing his name and age and a Narcotics Bureau number. Secondly, the report described the Appellant as a 'fugitive'. Thirdly, it appeared to associate him with the notorious Ma brothers and others who are widely known to have absconded. Fourthly and connected with the second point, it indicated that the Appellant had been arrested in 1978, a fact which had in truth been mentioned by counsel for the Crown, so that the main thrust of the complaint was not so much against the report as against counsel for the Crown in alluding to what is said to have been an irrelevance. 3. The significance of the photograph was alleged to be that the identity of the Appellant was in issue and that publication of the photograph might influence some of the witnesses. It must be conceded at once that identity was very much in issue in relation to the first prosecution witness, Chan Man-hin, but the damage which might otherwise have resulted was at least reduced by the judge's advice to the jury that his evidence of identification was too unreliable to be accepted. Counsel submits that the damage was not wholly negatived, because the judge did not go far enough: counsel says there should have been a positive direction to ignore Chan's evidence. We think that what the judge said was sufficient. In relation to the second prosecution witness, Leung Chan-yung, identification was not a live issue: he well knew the Appellant and his evidence was attacked not on the basis of mistaken identity but that of deliberate falsification. It was the defence case that the police had, during their investigations, repeatedly 'stuck photographs under his nose' in order to induce him to identity the Appellant falsely. That being so the publication of the photograph in the newspaper could not have had any material effect upon him, even if he saw it. To the jury it would have been merely a photograph of the defendant who was appearing before them. The Narcotics Bureau number below it would not, as might a photograph showing a Criminal Record Office number, suggests that the Applicant had a previous criminal record. 4. The pejorative word 'fugitive' inevitably had connotations of guilt. However, as counsel had told the jury that some of the defendants in the case (and this obviously included the Appellant) had not previously been dealt with because they had absconded, the word was not inaccurate. The substance of the complaint is that counsel had mentioned the matter. No doubt he did so with a view to meeting any criticism which might arise in the minds of the jurors of the delay in bringing the Appellant to trial. No objection was taken at the time and we do not think that any complaint is justified either against counsel or against the reporter in relation to this aspect of the matter. 5. More serious was the apparent association of the Applicant with notorious drug traffickers who were said to have absconded and whose guilt would be widely assumed, for this tended to add weight to the possible inference of guilt from the Appellant's own absconding. The judge was fully alive to the dangers and, particularly having regard to the difficulty of finding a jury who would be unaffected by the publication, exercised his discretion against discharging the jury. We think it would have been more prudent to discharge the jury, but we cannot say that the judge was necessarily wrong. 6. It has been strongly urged upon us by Mr. Lucas that, once we have concluded that the newspaper article is not of itself sufficient ground for allowing the appeal, it ceases to have any relevance to the appeal and cannot be regarded as a factor in deciding whether the verdicts were unsafe and unsatisfactory. We completely reject that contention. The test which this court should apply when considering whether a verdict is unsafe or unsatisfactory has been stated in many cases and we need refer only to Cooper (1968) 53 Cr. App. R. 82. There the court expressly indicated that the summing-up was entirely fair and that the judge had said everything possible to alert the jury to the difficulties of the case. Although it was, therefore, a case in which the court would be very reluctant indeed to intervene, the appeal was allowed because the court had a lurking doubt which made it wonder whether an injustice had been done and it was not content to let the matter stand as it was. Lord Justice Widgery said at p. 86:
We decline to exclude from our consideration any matter which may affect in any way whatever the weight which a jury may have given to the evidence upon which a verdict is based. We cannot agree that this approach is illogical, for, in ruling that the newspaper article was not sufficient ground in itself for allowing the appeal, we are not saying that it cannot have had any effect at all upon the minds of the jury. In a case like the present where the whole of the evidence is inherently suspect anything which impinges upon the trial and which ought not to have occurred takes on a significance which it might not otherwise have had. 7. The main question we have to decide is whether the evidence as a whole was such that the verdict was safe. Mr. Lucas relies on Reg. v Turnbull 1977 Q.B. 224 as showing that a verdict must be perverse before the appellate court will interfere. That is not what the statute says, although it was the law before s.83 of the Criminal Procedure Ordinance was enacted. We accept that Yu Yuk-kwong v Reg. 1979 H.K.L.R. 585 is distinguishable from the present case in that there was there additional evidence before the Court of Appeal, but that distinction does not mean that the court's approach here must be totally different: we have to consider the evidence as a jury would and ask ourselves not whether the jury could reasonably have come to the conclusion it did reach but whether the evidence was such that we think there was a real possibility that its conclusion was wrong. In so considering the case the court must bear in mind that, whilst the jury's verdict is not sacrosanct, the jury did have the benefit of seeing and hearing the witnesses. Accordingly the court should not allow the appeal simply because one or more members of the court might have returned a different verdict: it must conclude that it would certainly have returned a different verdict because the verdict in fact returned would have been unsafe. Since the decision of the appellate court may depend upon 'the general feel of the case' after a consideration of all the evidence, it may not be possible, and will not serve any useful purpose, for the court to attempt to state the source of its disquiet. The source may well be something which the jury has considered. 8. In the present case it is submitted that, quite apart from the generally unsatisfactory nature of the evidence - given, as it was, by uncorroborated accomplices- the jury did not consider the case with the benefit of a proper direction from the judge on the crucial matter of identification: it is said that the direction fell short of what was required and in fact involved a positive misdirection. As to the alleged misdirection the relevant evidence is not entirely clear. This much is certain, the police showed Leung Chau-yung at least one photograph of the Appellant before an identification parade was held. The difficulty is to know exactly when the witness saw the photograph, but it was on several occasions. The witness had been interviewed by the police early in 1977 and from then until the trial he was under the protection of the police in a safe house. The Appellant was arrested on 25th August and an identification parade was held on 8th September. The judge directed the jury that the witness saw the photograph 'about one week' before the identification parade, but there was no such evidence given at the trial and he obtained this from the depositions. The evidence of the witness at the trial was that he saw it 'on more than one occasion' and that he had seen one in August 1977, 'only a few weeks before the identification parade'. 9. As we have already seen, the contention on behalf of the Crown is that identification in the ordinary sense was not in issue in the case and that in the event there was no question of a possible mistaken identification but only of deliberate mis-identification. We accept that that was correct but we think it is none the less possible that the showing of photographs to Leung on a number of occasions in circumstances which are unknown to us increases the possibility that he may have been guilty of a deliberate mis-identification. 10. The point was made that another jury acquitted the 7th Defendant (Pui Sai-hung) although Leung had given exactly similar evidence against him. Therefore, it was submitted, Leung was not a credible witness and his evidence could not be safely relied upon as founding a conviction of this Appellant. We have not seen a transcript of the evidence at the other trial and, in any event, we are concerned with the evidence given at the trial of this Appellant. We cannot say that the point was wholly without substance and we bear it in mind in viewing the case as a whole, but we de not attach any great weight to it. 11. We were taken at length through the evidence. For all that it did in some ways indicate an apparent interlocking of events and that the Appellant had made a statement which was untrue, we came to the conclusion that we had a real doubt whether the evidence of the prosecution witnesses could safely be relied upon. The jury may have been right but, having regard to the nature of the evidence and to the other matters to which we have referred as being relevant to our decision, we decided that the appeal must be allowed. Representation: Hazan, Q.C. & Mullick (W.S. Lo & Co.) for Appellant. Lucas, Q.C. & Whitehouse for Crown/Respondent. |