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Dangerous Drugs HC 75/91 LUM Wai-ming Burrell DJ (27.7.92) *S R Bailey, T Iu #D Fung QC, J Chan, S Ma New drugs presumptions/Whether ultra vires The Dangerous Drugs (Amendment) Ordinance No. 2 (No. 52 of 1992) was enacted on 26th June, 1992, and repealed S. 47 of the Dangerous Drugs Ordinance, Cap. 134, and substituted therefor certain new presumptions. Four of those new presumptions were challenged on the basis that they conflicted with the right to be presumed innocent until proved guilty according to law, (Article 14.2 ICCPR), and were accordingly ultra vires Article VII (3) of the Hong Kong Letters Patent. Held : (1) S. 47 (1)(c), which provides that a person who is proved to have had in his physical possession the keys to a motor vehicle containing a dangerous drug, is presumed to have had the drug in his possession, until the contrary is proved, does not admit of a construction consistent with the Bill of Rights and is ultra vires; (2) S. 47 (1)(a), which provides that a person who is proved to have had in his physical possession anything containing or supporting a dangerous drug, shall be presumed, until the contrary is proved, to have had such drug in his possession, admits of a construction which is consistent with the Bill of Rights; (3) S. 47 (1)(b), which provides that a person who is proved to have had in his physical possession the keys of any baggage, brief case, etc. containing dangerous drugs, shall be presumed, until the contrary is proved, to have had such drug in his possession, admits of a construction which is consistent with the Bill of Rights; (4) S. 47 (2), which provides that any person who is proved or presumed to have had a dangerous drug in his possession shall, until the contrary is proved, be presumed to have known the nature of such drug, admits of a construction which is consistent with the Bill of Rights. (Ryan J ruled likewise in R v CHAN Wai-ming, HC 240/91, on 6th August 1992 - Ed.) **************** HC 108/90 LO Chak-man TSOI Sau-ngai Gall J (4.8.92) *M Lunn, G Rhead #A Hoo QC, R Tang Section 25 Drug Trafficking (Recovery of Proceeds) Ordinance/Whether consistent with BORO Held :

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(1) Section 25(4), Cap. 405, does not admit of a construction which is consistent with Article 11(1) BORO because its very existence requires an accused to prove a lack of knowledge or suspicion on the balance of probabilities when a reasonable doubt as to whether he knew or suspected should be enough. It does not matter how the breach is categorized, whether it be called a statutory defence, reverse onus, statutory exception or such other term : AG v LEE Kwong-kut MA 90/91 followed; (2) Although there was a breach of Article 11(1), it was open to the Crown to show that this was justified : R v SIN Yau-ming [1992] HKCLR 127. Although judicial notice can be taken of the proliferating drugs trade and the profits, the Crown led no evidence to show how many dealers only traded to support their addiction. Although trafficking in dangerous drugs required drastic measures, the instant prosecution was only the first since the legislation was introduced in 1989. In the absence of evidence it was not possible to say that the proper proportion of interest had been achieved by this legislation; (3) Since Section 25(1) and Section 25(4) (a) and (b) must be read together, they stand or fall together. Together they do not admit of a construction which is consistent with Section 8, Article 11(1) BORO, and are therefore repealed as from 8th June, 1991. Result - Indictment quashed. ******************* HC 12/92 TRAN Viet-van Jones D J (10.8.92) *S R Bailey, A Wong #J McLanachan Dangerous drugs presumptions/Whether amendment retrospective/Procedural and substantive legislation Held : (1) The new presumptions contained in the Dangerous Drugs (Amendment) (No. 2) Ordinance 1992, came into effect on 26th June, 1992, and, although they only came into force at the trial itself, they operate on facts which pre-existed their enactment. In that context it cannot be said that their effect is solely prospective. Whilst they remain procedural, they look back to the facts on which the accused is charged and seek to inflict upon him a considerable disadvantage which he did not face at the time the acts may have been committed. There is no distinction in principle between the imposition of a retrospective penalty and the introduction of evidential provisions imposing a new and onerous burden of disproof as to pre-existing facts : LAM Chau-on MA 925/91 distinguished; (2) The distinction between procedural and substantive legislation is no longer conclusive as to the materiality or otherwise of retrospectivity. If an enactment seeks to impose a detriment on the individual in its operation on pre-existing facts then, whether or not the enactment is procedural, the legislature should say so expressly. If the legislature does not say so, it is open to the court to limit the effect of the enactment so that it does not comprehend proceedings pending when it came into force. Result - The Crown could not rely on the new S. 47 (2) presumption in relation to facts which occurred prior to its enactment. *************** CA 338/89 POW Po-wo

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Yang CJ, Power JA, Sears J (20.2.90) *I G Cross, W S Cheung #I/P DDUT - presumptions under s. 47(1) and s. 47(3) of Cap. 134 Held : 1. The presumption of possession of dangerous drugs, under s. 47(1) of Cap. 134, must not be confused with that as to knowledge of the nature of drugs under s. 47(3). 2. It is accordingly a misdirection for the trial judge to tell the jury to equate the presumption of possession with that of knowledge. Result - Appeal allowed. Conviction quashed. Retrial ordered. ************** CA 483/89 WONG Wing-yui TSE Kit-yee Silke V-P, Power, Macdougall JJA (9.3.90) *D G Saw #D Law DDUT - Joint possession for own consumption - DD bought by D1 for the purpose of supplying both himself and D2 - Whether possession for the purposes of unlawful trafficking Held : Where joint possession is accepted as being for the personal consumption of those who jointly possess, then those who are in such possession are also in the position of one who "handles" and are not necessarily in possession of the drugs for the purpose of unlawful trafficking. (Dictum of Huggins J in WONG Yin-yu [1972] H.K.L.R. 6, considered) Result - Appeal allowed. Conviction of simple possession substituted. ************ MA 525/89 TO Kwong-chun Barnes J (17.1.90) *D Pang #I/P AG's apppeal by way of case stated - DDUT - Whether taking drugs to China for self-consumption amounts to trafficking - Whether not having crossed the border matters 1. Taking dangerous drugs out of Hong Kong, and into China, even for self-consumption, amounts to trafficking within the meaning of s. 2, Cap. 134.

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2. That the offender is apprehended before he manages to cross the border is irrelevant. (LAU Chi-sing [1987] HKLR 703, followed) Result - Appeal allowed. ************* MA 1137/89 LAU Ngan-ming Duffy J (7.12.89) *P Li #I/P DDUT - 1 gramme of No. 4 heroin - Real possibility of self-consumption Although conversion to No. 3 heroin would significantly increase the amount, consideration should be given, in cases where a very small quantity of No. 4 heroin is involved, to the real possibility that the drugs were for self-consumption and not for conversion and trafficking. Result - Appeal against conviction allowed. ************** CA564/88** CHAN Chi-leung Cons Ag CJ, Power JA, Hopkinson J (23.8.89) *I G Cross #C Grounds Possession of a dangerous drug for unlawful trafficking - Seizure made at defendant's home - Whether absence of trafficking paraphernalia significant in determining guilt The fact that drugs are found in a man's own home, and there is an absence of trafficking paraphernalia, is not of significance in determining a man's guilt or innocence of DDUT. Result - Leave to appeal against conviction refused. ************* CA 114/89 CHAN Chiu-lap Cons Ag CJ, Power, Macdougall JJA (11.8.89) *I G Cross, P Li #H Y Wong

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Possession of a dangerous drug for unlawful trafficking - Rebutting the presumption - Defendant's demeanour (1) There are occasions when it is not possible for a judge to predicate in detail why he disbelieves a defendant seeking to rebut a presumption. This is where, although the defendant's account is apparently credible on paper, the judge has to make his evaluation solely on the demeanour of the defendant. (2) The Court of Appeal will not then interfere. (3) This approach is henceforth to be followed by all appellate courts. (High Court decisions to the contrary are no longer good law) Result - Leave to appeal against conviction of DDUT refused. ************ CA551/89 HUNG Miu-ching AU Yuk-na Cons Ag CJ, Power, Macdougall JJA (16.8.89) *I G Cross #A Macrae Possession of a dangerous drug for unlawful trafficking - Rebutting the presumption - Direct choice between the defendant's evidence and the presumption - Duty of the Crown (1) In a DDUT prosecution, when the tribunal is left with a direct choice between the evidence of the defendant and the presumption, with no accompanying factors or features to aid in coming to a decision, it can do little more than say which of the witnesses it believes. The tribunal is not required, in such circumstances, to explain why the evidence was unbelievable, or what exactly could not be believed. (R. v. R.L. Law [1961] HKLR 13 and LAM Tin-chung [1970] HKLR 205 approved)

(2) The Crown cannot be expected to challenge matters which are inherently within the knowledge of the defendant. Simply to put to him that he is lying would not be of assistance to the judge. Failure to challenge such matters does not bind the judge to accept the evidence as true. (3) The danger of injustice to which the presumptions expose the unsophisticated or inarticulate defendant or the one who, though innocent, is naturally tempted to distance himself from what is subsequently shown to be a criminal situation must be in the mind of every judge or magistrate when considering the credibility of a person likely to be so affected. Result - Leave to appeal against conviction (and sentence) refused. ************** MA 253/88 SZETO Chuk Bewley J (26.5.89) *A A Bruce #D Law i/s DLA

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Dangerous drugs - No. 4 Heroin - Presumption - Rebuttal (1) It is well known that No. 4 heroin, when broken down to the average purity of the No. 3 heroin consumed in Hong Kong, i.e. 6.5%, produces a mixture over 14 times the original quantity. (2) The significance of these figures is that it was absurd to suggest that 5 grammes of No. 4 heroin could be bought on the streets for $500, even at the present depressed price. Result - Appeal against conviction (possession of DD for UT) dismissed. ************* MA 94/89 FUNG Wai-chung Bewley J (9.6.89) *Miss C Fung #R Murray i/s DLA Possession of DD for UT - Plea to simple possession not accepted by Crown - S. 65C of Cap. 221 - Defence of non-possession (1) If a plea is not accepted, a plea of not guilty should be entered and the trial should proceed. The whole matter is then put in issue and the prosecution must take the risk of failing to prove every ingredient of the charge. (2) Where a plea to simple possession of DD is not accepted, the defendant who is charged with DD for UT is entitled to raise any defence that is open to him, including a denial of possession, subject to any admission under s. 65C of Cap. 221. (3) S. 65C is procedural and its purpose is to provide a simplified means of producing evidence before the Court. It must be formally invoked and the Court has a discretion whether or not to permit facts to be admitted. (4) An unaccepted plea is not an admission under s. 65C. (AG v. WONG Pang (1979) HKLR 61, R. v. CHENG Chiu applied)

Result - Appeal against conviction of possession of DD for UT allowed; - Matter remitted for retrial before another Magistrate. ************** CA 435/88 AU Kwok-chai Silke V-P, Kempster, Macdougall JJA (11.4.89) *I G Cross, C Fung #K B Ng Possession of dangerous drugs for the purpose of unlawful trafficking - Possession of apparatus fit or intended for injecting dangerous drugs - Evidence

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(1) When a Defendant pleads guilty to possession of drugs apparatus at a particular place and time, that is a factor which the Court could take into account in deciding whether there is a case to answer on a separate charge of possessing dangerous drugs for trafficking at the same time and place, and to which he pleads not guilty. (2) While documents (rent receipts etc.) found in the premises could not speak to the truth of their contents, when they carry the Defendant's name, photographs and identity card number, they may constitute evidence which, taken in conjunction with the evidence of the plea, justify a finding of a case to answer for the possession of dangerous drugs for trafficking charge. Result - Leave to appeal against conviction refused. ************* MA 1691/88 PUN Hon-ki Duffy J (30.3.89) *T Casewell #D Tolliday-Wright (A) Simple possession of dangerous drugs - S. 8, Cap. 134 - Only traces found - Usability test Where only traces of a dangerous drug are found, the presumptions under ss. 46 and 47 do not arise unless the Crown can show that the drug is present in a usable quantity.

(AG v. WONG Kwai-sum [1980] HKLR 97, followed; but see s. 3(3), Cap. 134 - added 1982 - Ed.)

Result - Appeal against conviction allowed. ************* MA 1792/88 WONG Hing Duffy J (6.4.89) *D Pang #C Grounds i/s DLA Possession of dangerous drugs for the purpose of unlawful trafficking - Total denial at trial - Whether rebuttal evidence can come from the Crown (1) The presumption of trafficking can be rebutted by evidence in the Crown case as well as by evidence in the defence case. (2) Where there is evidence in the Crown case capable of rebutting the presumptions, which the Magistrate has not clearly evaluated, a conviction of DDUT is unsafe. Result - Appeal against conviction for DDUT allowed. Simple possession substituted. *************

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MA 217/89 YUNG Pui-fai Duffy J (11.4.89) *D Pang #M Crawford Possession of dangerous drugs for the purpose of unlawful trafficking - Defendant admitted defence of police fabrication to be a lie mid-trial - Effect on rebuttal (1) The Defendant's subsequent admission of simple possession should not be rejected forthwith. (2) The Magistrate should instead consider if the lie was told to bolster up a defence which the Defendant felt might not be believed. (3) He should also examine the Crown case to see if there were any factors which could rebut the presumption of trafficking. Result - Appeal against conviction allowed. Simple possession substituted. ************ MA1719/88** YU Wan-ying Duffy J (16.3.89) *C Coghlan #Ms Panesar AG's appeal by way of case stated - Dangerous drugs - Police entered premises without legal authority - Seized drugs - Magistrate dismissed case - Drugs improperly obtained A Magistrate had no discretion to exclude such evidence, even though it was illegally obtained. Result - AG's appeal allowed. Case remitted back to the Magistrate with an opinion that he had erred in law. ************** MA 1330/88 HAU Wai-yee Duffy J (17.2.89) *E Chan, #A Li Possession of dangerous drug - Presumptions - S. 47, Cap. 134 Where the Magistrate relies on the presumptions and yet makes no mention in his findings of the different standards of proof which apply or any analysis of the evidence in relation to a possible rebuttal, the appellate Court would be left in serious doubt as to wheter he has properly considered the relevant principles concerning presumptions. Result - Appeal against conviction allowed.

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Privy Council Appeal 10/90 CHAN Ho-kuen, KWOK Kam-tong Lord Keith of Kinkel, Lord Roskill, Lord Brandon of Oakbrook, Lord Ackner, Lord Jauncey of Tullichettle (23.5.90) *A Duckett QC, R Lee #M Thomas QC, J O'Mahony Direction to jury on meaning and effect of dd presumptions/whether proper to enhance penalties on a retrial Held : (1) In relation to the words "until the contrary is proved", in S. 47, Cap. 134, all that the judge need tell the jury was that : (a) It was the obligation of the accused to prove the contrary; (b) Whereas the prosecution had to prove their case beyond reasonable doubt, the accused only had to prove that their explanation as to how they came to be in possession of the drugs was more likely to be true than not; (c) If the jury were so satisfied, then the presumption that they knew the nature of the drugs found in their possession would not apply. (R v Carr Briant [1943] 1 K.B. 607 approved); The trial judge directed the jury, in relation to the presumption : "The let-out is to the effect that if in the light of all the evidence in the case you conclude that more probably than not the particular presumption would be wrong, then that presumption falls away and you would not rely on it in arriving at your verdict. Note : in order for the presumption to fall away it is not sufficient for you to conclude that the presumption is as likely to be wrong as to be right". (2) Although the appellants contended that to refer to a presumption as being "wrong" was itself wrong, confusing and prejudicial, there was no substance in this criticism as the judge was explaining that on the facts of a particular case the inference which the law says arises on the proof of certain facts is capable of being shown by subsequent evidence to be wrong; (R v KWAN Ping-bong [1979] 2 W.L.R. 433 applied); (3) The phrase "let-out" was an imprecise and unsatisfactory expression and should not be used - but it was not, as contended, potentially pejorative and thus potentially prejudicial; (4) To say the "presumption falls away" creates the impression that the presumption is itself evidence. It also fails to give the jury the appropriate assistance as to what is the consequence if the presumption "falls away". But while the phrase lacks precision and clarity, it was not confusing, prejudicial and wrong. (5) There are no particular complications in the conventional directions, and the variations used at trial lacked simplicity and clarity, and should not be repeated; Result - Appeals dismissed. ************** Privy Council Appeal 6/90 Somachai Liang- siriprasert v (1) The Govt of USA (2) The Lai Chi Kok Reception Centre Lord Templeman, Lord Roskill, Lord Guffiths, Lord Goff of Chieveley, Lord Lowry (2.7.90) #M Thomas QC, G McCoy (for the Applicant), *A Jones QC, M Blanchflower (for the Respondents)

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International drug trade - Extradition - Conspiracy : agreement made outside jurisdiction of Hong Kong - S. 4, Cap. 134 : whether intended to have extraterritorial effect - S. 39, Cap. 134 Held : 1. Section 39 of Cap. 134 is not an offence-creating section but a section limiting the penalty for conspiracy. It also provides the special rules of evidence which apply to proof of offences under the Dangerous Drugs Ordinance which also apply to proof of a conspiracy to commit such offences. 3. Crime is now established on an international scale and the common law must face this new reality. A conspiracy entered into in Thailand with the intention of committing the criminal offence of trafficking in drugs in Hong Kong is justiciable in Hong Kong even if no overt act pursuant to the conspiracy has yet occurred in Hong Kong. (AG v YEUNG Sun-shun [1987] HKLR 987, DPP v Doot [1973] A.C. 807, Board of Trade v Owen [1957] A.C. 621 and DPP v Stonehouse [1978] A.C. 55 considered) 5. Section 4(1) of Cap. 134 is limited to activity of an accused within the territory of Hong Kong. The words "whether or not such other person is in Hong Kong" in section 4(1) would be superfluous if the section was intended to have extraterritorial effect; the phrase is used in contrast to "the person trafficking" who is by implication assumed to be in Hong Kong. Result - Appeal in relation to the magistrate's order on crimes 1 and 3 dismissed; appeal in relation to the magistrate's order on crimes 2 and 4 allowed. Appellant ought to remain in custody to await extradition in relation to crimes 1 and 3. ************ CA 601/89 CHAN Tak-kwong (A1) LAM Kwan-fai (A2) Silke V-P, Power, Macdougall JJA (7.9.90) *I G Cross QC, W S Cheung #A Sedgwick QC, P Nguyen (A1) C Grounds (A2) Cut-throat defence/Directions to jury/Dangerous Drugs : Presumption of knowledge where custody or control not in issue Held : 1. Where each defendant gives evidence in a cut-throat defence implicating the co-defendant, the simple customary warning - to examine the evidence of each with care, because each has an interest of his own to serve - will suffice and there will seldom be need for the giving of a full accomplice warning : Knowlden (1983) 77 Cr.App.R. 94, and CHAN Siu-shing [1974] HKLR 493 approved; 2. The presumption as to possession which arises by virtue of S. 47(1) of the Dangerous Drugs Ordinance is a presumption both as to physical control or custody of the drugs and knowledge of their existence : DPP v Brooks [1974] A.C. 862; 3. No complaint could be made of a summing-up which stressed the need for the jury to consider whether the presumption of knowledge had been displaced in circumstances where there was no issue as to custody or control. Result - Appeals dismissed.

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MA 1519/90** TSOI Kai-hong Wong J (7.9.90) *P. Leung #E Robertson DDUT/Rebuttal of presumptions on Crown's Evidence Held : As the prosecution's own evidence contained material which was itself capable of rebutting the drugs presumptions, the magistrate ought to have evaluated it. Result - Appeal allowed. Conviction for DDUT quashed, and a conviction for simple possession substituted. ************** MP No 1113/90 TONG Man Jones J (25.9.90) *M Hartmann, Tong Man #M Thomas QC, S Llewellyn Re : Extradition Act 1989 and an application for Habeas Corpus Extradition/Habeas Corpus/Test for committal/Conspiracy and hearsay evidence/Proof of drugs/Identification of fugitive Held : 3. Although two witnesses who claimed to have handled heroin were not shown to have proper qualifications to express an opinion of substances from mere appearance or packaging, they both gave evidence that they had been involved in the trafficking of drugs for several years and understood the terminology applied to heroin. The magistrate was correct to admit that evidence as the jury is entitled to draw inferences from this evidence as to whether the substance referred to was in fact heroin; Result - Application for Habeas Corpus dismissed, but there would be no committal in respect of two of the original orders to proceed. Order nisi for costs to the Crown. *************** Privy Council (Petitions for Special Leave to appeal) 8.11.90 CHAN Chun-wai : A petition for special leave to appeal from the judgment of the Court of Appeal in Criminal Appeal No. 146/1989. (N.B. : No reasoned judgment was delivered). (Cons V-P., Power JA, Hopkinson J) Result : Leave refused. Issue : Whether the Court, in following LAM Kwok-hung [1989] 2 HKLR 182, was correct in holding that the exception in Section 57(2) of the Dangerous Drugs Ordinance, as to when the

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identify of a police drug informer may be disclosed, replaces the broader common law provision as enunciated in Marks v. Beyfus 25 Q.B.D. 494.

The Board dismissed the petition on the basis that the identity of the informer was already known, that it was clear that the petitioner had indeed been "set up", and it would not have assisted the petitioner even had he been allowed to question the police officer.

************* CA 317/89 (A1) LEE Wai-keung (A2) CHU Ngar-ying Silke V-P, Macdougall JA, Bewley J (28.12.90) *I G Cross QC, W S Cheung #G Plowman (A1) A Hoo QC, A Chow (A2) DDUT/Directing jury on presumptions/formula to be used/whether necessary Held : 1. The opinion of the privy council in CHAN Ho-kuen and another v. R. [1990] 2 HKLR 345 does not stipulate that there is a positive duty on a judge to give to the jury a specific direction that, in deciding whether an accused has rebutted a presumption, they must consider all the evidence in the case, not just the evidence of the accused. However, it would be wrong for him to tell the jury that they should confine their consideration in that regard to the testimony of the accused; 3. Although the Privy Council in CHAN Ho-kuen (supra) stated that all that was necessary was for the judge to tell the jury was that 'whereas the prosecution had to prove their case beyond reasonable doubt, the accused had only to prove that their explanation as to how they came into possession of the drugs was more likely to be true than not', it is apparent, from the endorsement of Carr-Briant [1943] 1 KB 607, that the Board was not prescribing a sacrosanct formula from which departure was impermissible. Less still was it disapproving of the use of the expression 'on the balance of probabilities'. However, the use of the expression 'more likely to be true than not' has the advantage of simplicity, and the practice of using it is to be encouraged; Result : Appeals against convictions for DDUT allowed. Retrial ordered. ************* CA 508/90 (1) LEUNG Siu-kee (2) TSE Kin-lai Silke V-P, Power, Macdougall JJA (22.3.1991) *I G Cross QC, P Li #(1) A Macrae (2) J Poon Dangerous drugs/Directions on presumptions Held :

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The Judge erred in stating in the Reasons for Verdict that, in order to rebut the presumptions of knowledge and possession, the defendants could not rely on the fact that neither of them was found in the possession of the keys to the padlocks on the drawers wherein were the drugs. Although this was probably a careless slip, and the Judge meant to say that the defendants could not rely on that fact to prevent the presumptions arising by virtue of their possession of the keys to the premises, she did not, when considering if the presumptions had been rebutted, refer to the testimony of the defendants concerning the keys to the padlocks securing the two drawers. Had she done so, and had she made it plain that she had come to the conclusion that, notwithstanding the absence of any positive evidence that they had keys to the padlocks of the drawers, the applicants had not rebutted the presumptions as to possession and knowledge, the Court would have treated the inaccurate statement of law as a mere aberration. The Judge's reasoning, however, did not compel that conclusion, so the convictions would be quashed. Result - Applications for leave to appeal against convictions for DDUT allowed. Retrial ordered. ************* MCA 5/91 LO Shing-yuen Barnes J (10.4.91) *G Forlin #G McCoy DDUT/Quantity barely raising presumption/Initial response Held : As the amount of dangerous drugs was only just sufficient to raise the presumption as to trafficking, the magistrate ought to have attached greater weight to the initial response by the appellant when arrested that the drugs were for his own consumption. As he found his evidence at court to be incredible, he may not have done that. Result - Appeal allowed, in part. ************** CA 41/91 CHEUNG Sing-chung Fuad V-P, Clough, Macdougall JJA (16.7.91) *S Bailey #G J X McCoy Judicial notice/Test applicable in rebutting presumption/DD Held : (2) In deciding whether a defendant has rebutted the presumption as to possession of the drugs being for the purposes of unlawful trafficking, the sole test is not whether the content of the explanation given by the offender is inherently credible. Result - Application for leave to appeal against conviction for DDUT, refused.

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CA 360/90 TAM Ip-cheung FAN Siu-kwan Silke V-P, Power, Macdougall JJA (7.8.91) *I G Cross QC, W S Cheung #R Pritchard Dangerous drugs/Prejudicial evidence and comments/Judge's discretion not to discharge jury Held : (1) Prosecuting counsel should not have asked the policeman whether he went to premises as a result of "information received" : R v KO Po-kun [1989] 2 HKLR 8, R v LI Chun-choi [1990] 1 HKLR 665 approved. The prosecutor should have confined himself to asking : "Did you go to these premises on that day and when you got there what did you do?" (2) The prosecutor compounded the error when, in his final speech to the jury, he referred to police having visited the premises after a "tip-off" that there were "goings-on" therein; (3) The judge was confronted with three options : to ignore the matter; to give a direction, or to discharge the jury. As the judge elected to direct the jury to ignore the prosecutor's comments, which direction was not itself the subject of criticism, and as he was the person who had the feel of the case and had heard the evidence and the comments, it could not be said that he erred in exercising his discretion to give a direction; (4) The evidence, and the comments, were not so highly prejudicial as to necessitate the discharge of the jury. A jury must be taken to observe directions given to them by a trial judge and here they were directed to ignore the comments. Result - Applications for leave to appeal against convictions for possession of dangerous drugs for the purpose of unlawful trafficking allowed, but appeals dismissed. ************** HC 289/90 SIN Yau-ming Silke V-P, Kempster, Penlington JJA (30.9.91) *I G Cross QC, P J Dykes, S R Bailey #D Fung QC, J Mok, J Mullick Hong Kong Bill of Rights/Construction and application/Presumptions in S's 46, 47 Cap. 134 Held : (1) A mandatory presumption of fact may be compatible with S. 8 Article 11(1) of the Bill of Rights if it be shown by the Crown, due regard being paid to the enacted conclusion of the legislation, that the fact to be presumed rationally and realistically follows from that proved and also if the presumption is no more than proportional to what is warranted by the nature of the evil against which society requires protection. The onus is on the Crown to justify. It is to be discharged on the balance of probability. The evidence of the Crown needs to be cogent and persuasive. The interests of the individual must be balanced against the interests of society generally but with a bias towards the interests of the individual. Further the aims of the legislature to secure the residents of Hong Kong free from the depredations of the drugs trade must be respected;

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(2) The trafficking presumption in S. 46 (d), Cap. 134, which is triggered by 0.5 of a gramme, fails the test of proportionality. The danger in which the innocent addict, that is innocent of trafficking, is placed is obvious. The amount that triggers is clearly no way in excess of the average consumption the average addict needs daily. Half a gramme is neither rationally nor realistically connected with the fact presumed; (3) The trafficking presumption arising from possession of more than five packets, contained in S. 46(c), Cap. 134, stipulates no minimum weight, and does not allow for purchases by an addict exceeding his daily requirement for reasons of economy or convenience or with a greater than average daily consumption; (4) The presumptions as to possession of drugs, and arising from possession of premises containing drugs, and from possession of keys to such premises, and contained in Sections 47(1)(c) and (d), Cap. 134, fail the tests of rationality and proportionality. They catch, and force to rebuttal, an ordinary inhabitant of an apartment house who has the keys to the front door of premises in one of the cubicles in which drugs are found. They catch the innocent landlord or tenant of premises; (5)(a) The presumption contained in Section 47(3), as to knowledge of the nature of that which is possessed, fails as against Article 11(1) - per Silke V-P; (b) Section 47(3) raises presumption upon presumption and must be incompatible with Article 11(1). However, were it dependent upon sustainable presumptions, as well as proof, it would not stand repealed since knowledge of the nature of a dangerous drug rationally and realistically follows from its possession - per Kempster JA; (c) A rebuttable presumption that a person knows the nature of dangerous drugs which have been proved to be in his physical possession is not unreasonable, even if that proof was based on other lawful rebuttable presumptions - per Penlington JA. Result - The provisions of S. 46(c) and (d)(v) and S. 47(1)(c) and (d) and S. 47(3) are inconsistent with Article 11(1) of the Hong Kong Bill of Rights Ordinance which, in consequence and under the provisions S. 3(2), has repealed them as from 8th June 1991. (See also Practice and Procedure). ************** CA 340/90 WONG Kin-kwok Kempster, Penlington, Macdougall JJA (20.8.91) *J McNamara, #G J X McCoy Inconsistent verdicts/Admissibility of evidence of previous similar criminality Held : (2) The judge did not err in allowing evidence to be admitted from the accomplice that the applicant had helped him on previous occasions in collecting dangerous drugs and therefore knew perfectly well what was in the bags. That evidence was admissible to show that the applicant knew he was going to collect dangerous drugs : AG v SIU Yuk-shing [1989] 2 HKLR 97 approved. Result - Application for leave to appeal against convictions for DDUT, refused. **************

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MA 925/91 LAM Chau-on Duffy J (29.11.91) *P Dykes #J Mullick Drugs presumptions/Date of repeal The question on appeal was whether the repeal of the presumptive sections of Cap. 134, as from 8th June 1991, by Article 11(1) of the Bill of Rights, affected a conviction based on those presumptions after that date - the offence having occurred prior to the enactment of the Bill. Held : (1) Section 3(2) of the Bill provides for the repeal of all pre-existing legislation which does not admit of a construction consistent with the Bill. Pre-existing legislation means legislation in existence before 8th June 1991, when the Bill came into effect. In SIN Yau-ming HC 289/1990, the Court of Appeal held that the Bill repealed the presumptive provisions of Cap. 134 on 8th June 1991. Those provisions are procedural provisions because they have regard to the determination of guilt or to the weight to be attached to or significance to be given to evidence which has been established in trials for offences under Cap. 134. A change made by the legislature to procedural provisions operates to the general advantage of all litigants. All litigation is affected by the procedural change from the moment that change is made and it therefore applies to both present and future litigation : Blyth v Blyth [1966] A.C. 643; (2) Where there are changes in legislation which are purely procedural they must be given effect immediately upon their introduction, whether they amount to an amendment of the legislation or its repeal : Blyth v Blyth (supra); (3) The magistrate could not rely on the presumptions as they had already been repealed. Result - Appeal allowed. Conviction for simple possession substituted for DDUT. ************** CA 105/91 Tunde Olusoji Yang CJ, Silke V-P, Power JA (3.3.92) *A Bruce #J Mullick Rationale of S.47(3) Cap 148 Held : (1) S.47(3) Cap 148 is a confusing subsection in that it might be thought to derogate from the essential ingredient of knowledge required to be inferred from S.47(1); (2) Subsection (3) is in S.47 to overcome a defence that a defendant might raise that he knew he had dangerous drugs but did not know these drugs were heroin thinking them to be cannabis resin or some such. Result - Appeal against convictions for DDUT dismissed. (N.B. : These convictions predate the enactment of the Bill of Rights - Ed).

Dangerous Drugs

126

CA 307/90 WONG Lap-chi NG Chi-wai Yang CJ, Macdougall JA, Barnett J (24.3.92) *A P Duckett QC, W S Cheung #J Mullick DDUT/Admissibility of evidence of previous trafficking Held : As the applicant was charged with possession for the purpose of unlawful trafficking, it was necessary for the prosecution to prove not only that the accused were in possession of the heroin in the flat but that they had it in their possession for the purpose of unlawful trafficking. Accordingly the judge properly admitted evidence of participation in drug trafficking activities which were not the subject of a count in the indictment and had occurred on occasions prior to the date of the offence charged. There could hardly be better evidence of their intention to traffick in the heroin discovered in the flat than that they had actually trafficked in heroin stored there prior to that date. It was also evidence that they were aware of the nature of the substance found in the flat. Result - Applications refused. ***************

Defendant’s Right

127

Defendant’s Right PCA 42/91 Rodolpho de Los Santos Lords Templeman, Bridge, Oliver, Lowry, Slynn (22.7.92) *I G Cross QC, D G Saw #N Sarony QC Trial counsel's errors/Flagrantly incompetent advocacy/Fresh evidence on appeal/Raising new grounds before the Board/Failure to advance defence after arrest Held : (1) A conscious tactical decision not to call a witness because of the danger of doing so, when compared with the importance of the facts to be proved by him, does not leave it open to the defendant, once convicted, to apply to call that witness under section 83 V, Cap. 221; (2) The ability of the Court of Appeal in its discretion to admit fresh evidence which was available at the trial and the failure to call which was due to the flagrant incompetence of the conduct of the defence is fully supported by judicial authority; (3) If defence counsel at trial makes a decision which later appears to have been mistaken or unwise, that has generally speaking never been regarded as a proper ground for an appeal : R v Ensor (1989) 89 Cr.App.R. 139 approved; (4) Section 83 V(1), Cap. 221, confers a power on the Court of Appeal to admit evidence on appeal, the exercise of which must depend on the facts of each case. S. 83 V(2) imposes a conditional duty on the Court to receive evidence which is tendered, if the evidence appears likely to be credible and would have been admissible and if the Court is satisfied that there is a reasonable explanation for the failure to adduce the evidence at the trial. In addition, the duty of the Court to receive evidence if satisfied on certain points is imposed only : "unless [the Court] is satisfied that the evidence, if received, would not afford any ground for allowing the appeal"; (5) It was unfortunate that allegations concerning defence counsel's conduct at trial were not raised for the Court of Appeal to consider. It was nonetheless the duty of the Board to consider that issue; (6) The Court of Appeal, in assessing the applicant's contention that he was in reality working with undercover agents to entrap drug traffickers, was entitled to have regard to the absence of indignant protests by him to police upon arrest. Result - The Board would advise H.M. that the appeal should be dismissed. ************* MA 146/89 CHAN Hang-lee de Basto J (11.7.89) *A Sham #I/P

Defendant’s Right

128

Defendant's failure to protest innocence at first available instance - Adverse comment by magistrate in statement of findings The magistrate erred in drawing an adverse inference from the defendant's failure to protest his innocence at the first available instance without first exploring other possibilities. (NG Yuk-ming [1988] HKLR 134 and CHOI Chak-bor [1983] HKLR 134, considered) Result - Appeal against conviction of theft (shoplifting) allowed. ************* CA 249/88 TSOU Shing-hing Yang CJ, Silke V-P, Penlington JA (9.2.89) *J Saunders #G Plowman, A Chow Silent accused confronted with co-accused who makes statements - Invitation for a reply - Judges' Rules (1) The "confrontation" is permissible but it is wrong to invite the silent accused to respond to what was said. (2) Otherwise, Rule 8 of the Judges' Rules will be breached and it is likely that the discretion will be exercised to exclude the subsequent confession. Result - Application to appeal against conviction refused. *********** MA 1185/88 KU Kam-lung Duffy J (28.2.89) *A Maxwell #D Law i/s DLA Pickpocketing - Victim made report to police in front of Defendant - No evidence of his attitude or response The Magistrate was wrong to find the allegation not contradicted by the Defendant in the absence of any evidence of his attitude or response. The police officer's evidence had no probative value and any reliance on it was misdirected. Result - Appeal against conviction allowed. ************ MA 338/90 MO Wai-hung

Defendant’s Right

129

Duffy J (11.4.90) *I G Cross QC, W S Cheung #S Mason-Parker S. 54(1)(b), Cap. 221 - Prosecutor in final address made 2 references to the failure of D to give evidence - Magistrate acquitted D without consideration of merits - Whether references to D's silence constituted a material irregularity Held : 1. Where there is a breach of s. 54(1)(b) by the prosecutor, this can be put right by the trial judge either in his summing-up to the jury, or in his statement of findings, if he is sitting alone. (Kong, George and others v. R. Cr. App. 397/1984, considered) 2. It is difficult to envisage a case where a magistrate or District Judge could not disregard a prosecutor's remark about the defendant's failure to give evidence. 3. When the prosecutor makes a remark contrary to s. 54, Cap. 221, the magistrate or District Judge must in his statement of findings refer specifically to the comment, state that he disregards it and that it caused no prejudice. Likewise, in a jury trial, depending on the seriousness of the remark, it would be for the trial judge to correct any wrong impression given by counsel for the Crown who offended against the section. 4. The magistrate, accordingly, erred in acquitting the defendant, and he should have determined the issues joined on the merits. Result - AG's appeal allowed. ************ CA 279/90 LAI Chun-fung Silke V-P, Power, Macdougall JJA (23.1.91) *I G Cross QC, W S Cheung #P Cosgrove Identification evidence/Fleeting glimpse/Judge's duties/Defendant's silence Held : 4. As the defendant did not testify, the jury were entitled more readily to draw the conclusions open to them on the evidence. Result - Application for leave to appeal against conviction for seven counts of Wounding with Intent, refused. ************ CA 107/90 CHAN Kung-ling Kempster, Clough, Macdougall JJA (31.7.91) *I G Cross QC, W S Cheung, #C Grounds

Defendant’s Right

130

Defendant's failure to explain himself when apprehended/Cross-examination and judicial comment thereon/Conduct of counsel Held : (1)(a) Clough and Macdougall JJA : It would be an affront to common sense and justice to hold that it is impermissible for the prosecutor to cross examine an accused on his failure to protest to those apprehending him that, far from being the robber himself, there had been a mistake and that he was a police officer pursuing the robber who was escaping : Gilbert (1978) 66 Cr.App.R. 237, Hall (1971) 55 Cr.App.R. 108, Raviraj (1987) 85 Cr.App.R. 93, considered; A distinction must be drawn with that situation and the situation where a suspect is being questioned or is being informed that an accusation has been made against him; The trial judge was equally entitled to ask the jury to consider why the defendant did not tell those apprehending him the circumstances and to consider his subsequent explanation in evidence for not so doing; (b)Kempster JA, dissenting : A suspect has the right at common law to remain silent in circumstances when an allegation is expressly made against him or he is told of such an allegation. The caution is no more than a reminder of that right. The suspect's failure to give the explanation which would be expected of an innocent man cannot be left to the jury as an indication of guilt. No distinction can validly be made between the situation where someone has been accused of the offence and where, as here, the defendant must have appreciated that those apprehending him were already treating him as an offender. His failure to give an account should not have been the subject of cross-examination or of judicial comment. However, in view of other compelling evidence, it was proper to invoke the proviso; MCA 645/91 NG Ho-ming SIN Yun-kun Penlington J.A. (10.10.91) *M Crabtree #A Hoo QC, A Leong Conspiracy to export without a licence/Inferences/Defendant's silence Held : (4) If an accused does not give or call evidence, the Court may more readily draw such an inference against him : LAM Tse-wah [1984] HKLR 54. Result - Appeal dismissed.

Dishonesty

131

Dishonesty CA 490/89 TAM Chung-ming William CHAN Yuk-shu David LO Tai-wai LAM Chung-kiu Chambers WONG Toe-yeung Alex WONG Ngok-chung Yang CJ, Silke V-P, Kempster JA (29.11.89) *I G Cross, P Callaghan, W S Cheung, P Li #H Litton QC, T Iu for TAM, M Lunn for CHAN F Eddis QC, J Matthews/P Wacks for LO Sir O Cheung QC, J C Haynes for LAM A Sakhrani QC, A R Suffiad for T Y Wong F Eddis QC, M ford for N C Wong (A) Dishonesty - Direction A direction, which makes the jury aware they had to be sure that any claim by a defendant not to have known what he was doing was generally regarded as dishonest was false, cannot be impugned. It could not be said that the subjective nature of dishonesty was thereby not explained.

(Ghosh [1982] 1 Q.B. 1053, and Landy [1982] 1 WLR 355, considered)

***************** CA 444/88 Wai Yu-tsang Silke V-P, Penlington, Macdougall JJA (28.6.90) *I S Lloyd #M Wilson QC, E C Mumford QC, B Sceats Conspiracy to defraud/Objectives of conspiracy/Directions to Jury Held : (3) Imprudence cannot be equated with dishonesty. This must be apparent to a jury properly directed in terms of Ghosh [1982] 3 WLR 110; Result - Appeal dismissed. ************ CA 580/89 SZE Sing-ming and 2 others

Dishonesty

132

Power, Macdougall JJA, Wong J (30.5.91) *A Schapel #G McCoy, D Tolliday-Wright Directions on dishonesty/Directions on circumstantial evidence Held : (1) The giving of a direction to the jury as to dishonesty in terms of Ghosh (1982) 75 Cr. App. R. 154, is not necessary in every case involving dishonesty. If there is no issue arising out of the evidence as to whether the defendant might have believed that what he is alleged to have done was in accordance with the ordinary person's idea of dishonesty, it is not necessary and indeed may be confusing to give a Ghosh direction. There is no practice that in all cases involving commercial dishonesty that a Ghosh direction should be given. *****************

District Court

133

District Court CA 357/89 FU Wing-san YUEN Wai-shing Cons V-P, Clough, Power JJA (28.12.89) *I G Cross, P Li #G Grounds for FU W Howard QC, E Pau for YUEN (A) Reasons for verdict - District Judge's duty It is not desirable for a District Judge to give brief Reasons for Verdict at the time of convicting, and expanded reasons later. The District Court Ordinance makes no provision for this. The Reasons should either be given at the time of conviction or later.

(B) Cautioned statements - Reasons for reliance When a District Judge has before him a cautioned statement which is prima facie equivocal as to quilt, he should, if he relied upon it as evidence of quilt, indicate his reasons for so doing.

Result - Leave to appeal against conviction for Robbery refused. *********** CA 356/88 LI Wai-kwong Silke V-P, Hunter, Penlington JJA (10.3.89) *I G Cross, W S Cheung #P Tse District Court - Sentencing powers It is clear that the District Court has power to order a sentence for an offence tried subsequently to run concurrently with an existing sentence which is being served. Result - Leave to appeal against sentence of 6 years for robbery of an apartment house refused. ************ CA 400 523/89** WONG Sau-ming Fuad V-P, Hunter, Power JJA (12.4.89) *G Lugar- Mawson #R

District Court

134

District Court - Sentencing powers (1) S. 82 of the District Court Ordinance, which sets the sentencing limit of the District Court at 7 years imprisonment, is restricted to cases where the sentences are imposed by the same District Judge on the same occasion. (2) Where a Defendant has been convicted and sentenced in any Court, including the District Court, and Buchanan subsequently appears in the District Court in a different case, the second trial judge, whether or not he was the trial judge in the first case, may pass a sentence which is to commence at the expiration of the first sentence. Thus the totality to be served can exceed 7 years.

(YUEN Shek-on [1987] HKLR 736 applied)

Result - Leave to appeal against sentence refused. ************ CA 263/88 CHAN Kam-ming Silke V-P, Power, Penlington JJA (25.1.89) *I G Corss, W S Cheung #L Lok i/s DLA Reasons for verdict - Burden of Proof - Unequivocality Although a District Judge is not obliged, in his Reasons for Verdict, to allude to the burden of proof, when he does so allude, he should express himself in unequivocal terms so as to avoid any loose phraseology which may create an impression of ambiguity. Result - Appeal against conviction of Blackmail dismissed. ************** MA 338/90 MO Wai-hung Duffy J (11.4.90) *I G Cross QC, W S Cheung #S Mason-Parker S. 54(1)(b), Cap. 221 - Prosecutor in final address made 2 references to the failure of D to give evidence - Magistrate acquitted D without consideration of merits - Whether references to D's silence constituted a material irregularity Held : 1. Where there is a breach of s. 54(1)(b) by the prosecutor, this can be put right by the trial judge either in his summing-up to the jury, or in his statement of findings, if he is sitting alone. (Kong, George and others v. R. Cr. App. 397/1984, considered) 2. It is difficult to envisage a case where a magistrate or District Judge could not disregard a prosecutor's remark about the defendant's failure to give evidence.

District Court

135

3. When the prosecutor makes a remark contrary to s. 54, Cap. 221, the magistrate or District Judge must in his statement of findings refer specifically to the comment, state that he disregards it and that it caused no prejudice. 4. The magistrate, accordingly, erred in acquitting the defendant, and he should have determined the issues joined on the merits. Result - AG's appeal allowed. **************** CA 43/89 Cheung Tak-chi Cons V-P, Kempster, Penlington JJA (6.4.90) *I C McWalters #C Grounds S. 80, District Court Ordinance, Cap. 336 - Judge's duty when recording verdict - Identification evidence - Whether dangers inherent can be assumed in Reasons of Verdict Held : 1. By section 80 of Cap. 336, when a judge records his verdict on a criminal charge, he must place on record a short statement of his reasons, either at the time or so soon thereafter as may be-regardless of whether or not an application for leave to appeal intervenes. Further, the Reasons for Verdict should be dated and signed by the judge and the date when placed on the record entered by his clerk. Result - Appeal allowed. Convictions on charges 7 and 8 quashed. *********** CA 625/89** NG Tai-ming Kempster JA, O'Connor, Barnett JJ (20.7.90) *I G Cross QC, W S Cheung #J Hopkin District Judge's duty/Evaluating cautioned statement A District Judge should, in his Reasons for Verdict, particularise that which he rejects, and that which he accepts, when he uses the confession for the purposes of conviction. Result - Application dismissed. ************** CA 179/90 WONG Kin-fai

District Court

136

Cons V-P, Kempster, Penlington JJA (11.10.90) *I G Cross QC, W S Cheung #A C Macrae District Judge's duty/Assessment of credibility of witness Held : A judge must be careful, in his Reasons for Verdict, to recognise that, although a witness has given lengthy and detailed evidence, this does not itself import credibility. Result - Applications for leave to appeal against convictions for living on the earnings of prostitution, and of unlawful sexual intercourse, dismissed. ************** CA 233/90 CHEUNG Hon-wah Yang CJ, Silke V-P, Macdougall JA (21.3.91) *D G Saw #C Grounds Duties of District Judge/Adequacy of Reasons for Verdict In dismissing the applications for leave to appeal against conviction, the Court observed that the Reasons for Verdict of the District Judge, recorded pursuant to Section 80, Cap. 336, should be self-contained in the sense that it should not be necessary for anyone seeking to know what they are to go beyond the formal reasons given by the judge. That which was clear to trial counsel would not, unless adequate reasons were provided, necessarily be clear to subsequent legal advisers. ****************** CA 126/91 HO Sik-yin Silke V-P, Power, Macdougall JJA (8.11.91) *J Abbott #R Pritchard District Court/Proper sentence outside jurisdiction/Guilty plea Held : (1) Some recognition should normally be given for pleas of guilty even where the trial judge considers that the offence properly merits a sentence outside the limits of his jurisdiction; (2) In the District Court, where the highest point for sentence is seven years imprisonment, a discount for a plea of guilty must be made from that jurisdictional limit of seven years, not from the starting point which the judge considers would have been appropriate had the case been heard in the High Court : R v KWOK Chi-kwan [1990] 1 HKLR 293, applied.

District Court

137

Result - Appeal allowed. A sentence of seven years imprisonment for DDUT quashed, and substituted with one of six years. ************ CA 299/91 LAW Siu-keung Silke V-P, Power, Macdougall JJA (10.1.92) *D Saw #D Tang District Judge's duty to check Reasons/Counsel drawing Judge's attention to errors (1) It is the duty of the District Judge to check, before he signs them, that the Reasons for Verdict, placed on file in accordance with S. 80, Cap. 336, are accurate; (2) It would be advisable if an applicant's legal advisors, or indeed the Crown, when they become aware that Reasons for Verdict are difficult to comprehend due to typographical errors and corruptions, ask a trial judge, politely, to check them. **************

Environmental Protection

138

Environmental Protection MA 987/91 Vibro (HK) Limited Sears J (23.1.92) *C Coghlan #J Mullick Environmental protection/Cap. 311/Pollution caused by different machines After the EPD issued a warning notice in respect of a machine on a construction site which was emitting smoke and causing nuisance by air pollution, a later check revealed that another such machine in the same site was still emitting smoke causing a nuisance. A summons was issued for breaching the air pollution regulations. The magistrate ruled there was no case to answer, and held that the notice could only refer to the first machine and could not cover the second one since it was not in operation at the time the notice was served. The AG appealed. Held : (1) The magistrate's ruling appeared to frustrate the legislation seeking to protect the public from air pollution; (2) The object of S. 9 of the Air Pollution Control Ordinance, Cap. 311, under which the Respondent was summonsed, was to enable an officer to visit the site to discover whether there was a chimney or a relevant plant causing air pollution. It made no difference which piece of the machinery was causing the pollution. It would make a mockery of the law if one piece of offending machinery could be replaced by another one; (3) Had the magistrate's approach been correct, it would mean a daily or even an hourly inspection, and that would frustrate the purpose of the legislation. Result - AG's appeal allowed. Case remitted to the magistrate with a direction to continue the hearing. ***************

Evidence

139

Evidence CA 409/90 (1) CHU Chi-yat, (2) SHUM Man-keung, (3) CHOW Ming-fung, (4) LAM Wing-keung, (5) YU Chuen, (6) TSOI Ho Fuad V-P, Penlington, Macdougall JJA (23.11.92) *J Cagney, E Chan #E Toh (A1) J Griffiths QC, P Wacks (A2 A4) A Sedgwick QC, A Pang (A3) J Haynes (A5) Sze Kin (A6) Admissibility of video tapes/Cross-examination of : co-accused; on statement not produced in Crown case; on antecedent statement Held : (1) Although the video tapes contained both sound and visual images, subs. (7) of Section 29A of the Evidence Ordinance does not provide that it is not possible for the Crown to produce a certified transcript of a tape which also contains visual images. The bracketed words in subs. (7) "(not being visual images)" clearly refer to "other data". The transcript can only contain a record of sounds, not an attempt to describe the visual images, but, provided it does so, the transcript comes within the definition of "record". This is the logical interpretation and the clear intention of the legislature; (2) Counsel for a co-accused has an unlimited right to cross-examine an accused person on a statement he has made even if it has not been produced by the Crown : LUI Mei-lin v R [1989] 1 AC 288; (3) The authorities do not support the proposition that if the Crown has not seen fit to produce a statement as part of its case, such a statement cannot be used for the purpose of challenging credit : R v Phillipson (1990) 91 Cr App R 226; (4) Antecedent statements, which are recorded after the investigative process has finished from persons who have been charged with an offence, should never be used in the course of a contested trial : R v CHENG Chung-yat [1970] HKLR 269. Result - Applications for leave to appeal against convictions for conspiracy to traffic in dangerous drugs refused. *************** CA 576/87 LEUNG Chi-yuen (A1) NG Kin-tung (A2) LEUNG Kwok-tung (A3) LAM Fu-cheung (A4) CHAN Kam-sum (A5) Fuad V-P, Penlington JA, Ryan J (29.6.89) *J K Findlay QC, A A Bruce and Miss E Chan #A J Corrigan QC and S Westbrook i/s DLA for A1, A2 and A3;N Sarony and E Laskey for A4 and A5;

Evidence

140

A Sedgwick QC and D Mitchell as Amicus Curiae; H Litton QC, A Hoo and YL Wong for HK Bar Association Prejudicial evidence of other offences - Use of witness statements during adjournments - Allegations put to Crown witnesses - Corroboration - Counsel's failure to submit when invited - Ballistics expert evidence - Direction to jury (1) The trial judge was in a far better position to assess the likelihood of prejudice to the defendant as a result of cross-examination of the witness than the appellate Court, and the trial judge cannot be said to have exercised his discretion wrongly in deciding that a proper direction to the jury was sufficient to remove that prejudice. (2) The Courts should not, even in the case of an accomplice who is in custody, lay down a rule, which in practice they cannot enforce, that it is fatal if a witness refreshes his memory from a non-contemporaneous statement during the course of giving evidence and while not in the witness-box. It is undesirable that the witness should do so, and most certainly if he does so that should be brought to the jury's attention for assessing his evidence. As the jury were aware of the position of this aspect of the witness's evidence, there was no material mis-direction. (3) Any suggestion put to a witness and denied by him is not, and should not be considered in any way, as being evidence. The suggestions were, like other questions, put by defence counsel to a witness in an effort to show that his evidence was not to be relied on. The trial judge in many parts of his summing-up correctly directed that those suggestions should be considered in the light of testing the evidence but not being of positive probative value themselves. (4) Where counsel are invited to make submissions upon law in the lower court but decline, such failure cannot affect the point of law if evidence is legally not admissible. Where however it is a question of degree, as in the case here, when it is argued that one witness's evidence was so inconsistent with the accomplice's that the judge should have directed the jury that it was not capable of being corroborative, counsel's failure to make submission at trial, especially when specifically invited, will prevent the point being raised on appeal. (5) As the point was not taken before the trial judge that he should direct the jury that they should pay no regard to the evidence of the witness (which was so inconsistent with that of the accomplice's that it could not afford legal corroboration of it), the Judge was correct in allowing the evidence to go before the jury as being such as could corroborate the accomplice witness and he did draw the jury's attention to the major discrepancies. (6) Although the evidence given by the ballistics experts, unsupported as it was by photographs or even the production of all the relevant cartridge cases, was admissible, the greatest care was required in the direction to the jury as to the way they should approach that evidence. As defence counsel (who could not put to the Crown's expert witnesses that they were wrong as he did not have material to support that allegation) had clearly put to all those expert witnesses that they might be wrong, the jury should have been directed accordingly. Result - A1, A2, A3 and A5's appeal against convictions of murder (x 1), robbery (x 1), possession of arms at the time of committing the robbery (x 1) and shooting with intent to resist lawful apprehension (x 5) allowed; convictions quashed and sentences set aside. - A4's appeal against convictions of the same counts dismissed. ************* Privy Council Appeal 44/87 AG of HK v. SIU Yuk-shing Lord Bridge of Harwich, Lord Brandon of Oakbrook, Lord Griffiths, Lord Oliver of Aylmerton Lord Goff of Chieveley (25.1.89) *I G Cross, A Sham, #N Sarony i/s DLA

Evidence

141

AG's appeal with special leave - Possession of triad (14K) related articles - Proof of knowledge - Evidence of probative value - Admissibility of previous similar conviction - Cogency 1. The burden lay upon the Crown to establish that the defendant knew that the insignia and writings in his possssion were related to the 14K Triad Society before he could be convicted as charged of possession under s. 20(2) of Cap. 151. 2. Whilst the common law does not regard a propensity to commit crime as probative of the commission of the particular crime with which the defendant is charged, evidence which is, for reasons other than a mere propensity to commit crime, logically probative of the crime charged is not rendered inadmissible merely because it discloses the commission of another offence. 3. As the question of knowledge of the triad significance of the articles remained an issue to which the defence were putting the Crown to proof, the previous conviction for being a member of the 14K was powerful probative evidence that the defendant knew the 14K rituals and the significance of the articles associated with it and it was admissible evidence to prove such knowledge. 4. In a trial by a judge alone, the exercise of excluding the evidence on grounds of prejudice becomes somewhat unreal as the judge must be informed of the evidence in order to rule upon whether or not it is admissible. (Makin v. AG of NSW [1894] A.C. 57 applied) Result - AG's appeal allowed; - Convictions of Being a member of a triad society, Assisting in the management of an unlawful society,

Possession of insignia relating to a triad society and Possession of writing relating to a triad society restored.

************* CA 175/89 WONG Kwai-fun and 2 others Silke V-P, Kempster, Hunter JAA (2.3.90) *A P Duckett QC, C K Wong #Paul Loughran for D2 D3 Accomplice evidence in previous trials - Whether cross-examination proper in relation to those previous trials - General principle and exceptions Held : 1. The general rule is as stated by Kempster, JA, in R. v. LEE Shu-fai and another (1987) Cr. App. 608, (unreported), namely, that the opinion of another jury is irrelevant and inadmissible. 2. Accomplices are no exception to this rule. See : R. v. Thorne others [1978] 66 Cr. App. Rep. 6. 3. The small group of cases in England cumulating in R. v. Gary Cooke [1987] 34 Cr. App. 286, and which may be said to have created an exception to this rule, (but which have yet to be considered and accepted in Hong Kong) are very narrow and require two particular features, namely :- (i) A very close connection between the evidence which the witness gave at the previous trial and that given at the current trial; (ii) A clear inference that this evidence, when given at the previous trial, had been disbelieved. Result - Appeal dismissed.

Evidence

142

MA 1511/89 HO Siu-kar Ryan J (20.2.90) *C Coghlan #G Rodway QC, J Kynoch Indecent assault - Magistrate did not make specific reference in statement of findings to having taken the appellant's good character into consideration in assessing credibility - Whether fatal to the conviction Held : It would have been more satisfactory for the magistrate to have referred to this aspect in his findings - but his failure to do so was not fatal to conviction. Result - Appeal dismissed. ********** CA 120/90 HO Yuk-cheun g Yang C J, Kempster J A, Barnett J (19.7.90) *A E Schapel #J Kwong Conspiracy/District Judge's duties/Use of Agreed Facts Held : 1. As the evidence was susceptible of an interpretation that there were two conspiracies rather than one, the Judge should have provided reasons for the conclusion that there was only one. If indeed there were two conspiracies, the charge was bad for duplicity, and the proviso could not be applied; 2. Where facts were agreed between the Crown and two defendants, the Judge was in error in using those facts against a third defendant who was not party to that agreement. Result - Appeal allowed. Re-trial ordered. ************** CA 72/90 Edward Christopher Harris Silke, Fuad VV-P, Kempster JA (19.10.90) *R. Marshall-Andrews Q.C., M. Ozorio, J Wee #A. Scrivener QC G Plowman A Chow

Evidence

143

Abuse of Process/Incitement/Lies and relevance thereof The way in which the trial judge made use of lies was in his assessment of the appellant's credibility. Lies can in conjunction with other evidence tend to support an inference of guilt. They can support it in the sense that they can confirm or tend to support other evidence which of itself is indicative of guilt. Nothing said in R v CHU Hon-yui CA 498/89 was intended to derogate from that principle. Result - 1. Appeal against conviction for incitement to procure an underaged girl for unlawful sexual intercourse dismissed. 2. Attorney General's appeal by way of Case Stated against the trial judge's dismissal of two related charges dismissed. ************ CA 164/90 Nguyen Van Hiep Yang CJ, Fuad V-P, Macdougall JA (20.2.91) *M Daley #M Poll New counsel/Discharge of jury/Judge's discretion/Dying declaration Held : 2. The identification of the defendant by the deceased shortly before his death was admissible as part of the res gestae : Andrews (1987) 84 Cr. App. R. 383. Result - Application for leave to appeal against conviction for murder, refused. ************ MCA 611/89 Carmelo Profilo Sears J (1.3.91) *R Daley #W Haldane Forged passport/Sending exhibit to another jurisdiction for examination Held : As the defence to the charge of possession of a forged passport was that, albeit that the method of binding and the paper contained in the watermarks was substantially different from the control passport, it was nonetheless an authorized passport issued in France, the magistrate erred in law is not grating an adjournment so that the passport could be sent to France for evaluation. It might thereby have been authenticated. Result - Appeal allowed. *************

Evidence

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CA 277/90 YEUNG Lung-fai Yang CJ, Power, Macdougall JJA (26.7.91) *I G Cross QC, D G Saw #G J X McCoy Relevance of good character and of a clear record/Direction on burden of proof Held : (1) While evidence of a clear record is relevant and admissible, it is less cogent than what can be described as the more positive evidence of good character given by witnesses on oath. Evidence of good character is in many cases of such little weight that it gives no real assistance to the jury; (2) The judge erred in positively directing the jury that the evidence of good character was not relevant. It is one thing for a judge not to give a direction that the evidence of good character clearly related to credibility, but another thing for him to tell the jury that the evidence of good character was not relevant. However, had this misdirection stood alone, it would have attracted the application of the proviso : Boyson [1991] Crim.L.R. 274; ************** MA 276/91 LIU Hon-fat LO Wai-yiu Barnes J (4.6.91) *G Forlin #R Buchanan, R Wong Admissions under S. 65C Cap. 221/Limits thereto Held : (1) Although it was an admitted fact under S 65C, Cap. 221, that the tickets which were the subject of the ticket scalping charge were genuine tickets issued by the Far East Hydrofoil Company, the magistrate erred in concluding that this involved an admission that the amount stated thereon as the fare plus tax was the authorised price within the meaning of S 6B, Cap. 228; (2) An admission that a document is a genuine ticket is no more than an admission that it truly possesses all the attributes which together constitute the thing defined as a ticket under S. 6B. A ticket can be a genuine ticket and yet create a false impression regarding the price fixed by or on behalf of the carrier as the price at which it is to be issued to an intending passenger, that is, a false impression as to its authorised price. There was no admission under S. 65C regarding "authorised price". Proof of this was vital to a successful prosecution. Result - Appeal allowed. *************** MCA 232/91 LEUNG Sau-hing

Evidence

145

CHAN Pui-kan Barnes J (13.6.91) *P Leung #D Y Marash Dutiable Commodities Ordinance, Cap. 109/Breach of condition/Accuracy of timepieces presumed Held : Witnesses could prove that drink was being sold at unauthorised times by stating what their watches indicated at the time. The accuracy of their timepieces would have been presumed in the absence of evidence to the contrary : Castle v Cross [1984] 1 W.L.R. 1372. The evidence given was not sufficient to prove the time. Result - Appeal allowed. ************** P.C. Appeal No. 4/91 HUI Chi-ming Lords Bridge, Oliver, Goff, Jauncey Lowry (5.8.91) *A Duckett QC, W S Cheung #M Thomas QC, R Britton Evidence of verdict in previous trial/Joint enterprise/Abuse of process Held : (1) Some exceptional feature is needed before it will be considered relevant (and therefore admissible) to give evidence of what happened in earlier cases arising out of the same transaction; *********************** CA 499/90 CHIU Chi-keung Kempster, Power, Macdougall JJA (1.8.91) *S R Bailey #C Grounds Lies/Use to be made thereof Held : The fact that a judge finds that an applicant has lied is no warrant for the making of an automatic assumption that he must make use of those lies by drawing inferences therefrom when coming to a conclusion of guilt. Result - Appeal against convictions for robbery, refused.

Evidence

146

MA 356/91 Lolly Queen Co. Ltd. Macdougall JA (16.8.91) *P Leung #A Cheung Assertions by person purporting to act for company/Hearsay Held : The circumstances in which a person makes admissions are relevant to the assessment of the question of whether he or she was an authorised agent of the company. Such circumstances can include the fact of an assertion as to status in the company, coupled with the physical circumstances of the conversation in which they were made - for example, the making of admissions by a person on company premises : Edwards v Brookes (Milk) Ltd. [1963] 3 AER 62 applied. Result - Appeal against conviction for applying in the course of trade or business a false trade description, contrary to S. 7, Cap. 362, refused. *************** CA 434/90 YEUNG Kin-chung WONG Shan Yang CJ, Nazareth, Wong JJ (25.9.91) *M Holmes #R Buchanan (A1) (A2) I/P Questioning suspects in custody/Admissibility of cautioned statements/Production of evidentiary material Held : (3) When the defence requested at trial that the police officer be given the record of the interrogation he had conducted, and which the defence counsel had had translated to him by his clerk from Chinese into English, that document should have been produced as an exhibit. The general principle of practice is that all evidentiary matter which was available and relied upon as probative, should be adduced as evidence. Result - Applications for leave to appeal against convictions for conspiracy to defraud, allowed. ************** CA 219/90 LO Wing-chai Yang CJ, Silke V-P, Nazareth J (19.9.91) *A Bruce #A Sedgwick QC M Poon

Evidence

147

Admitted facts under S. 65C Cap. 221/Tendering evidence under S. 65B Held : (1) It is clear, within the context of Section 65C Cap. 221, that if facts are agreed they are to be taken as having been admitted; (2) In the course of drafting agreements pursuant to Section 65C, it is preferable that, if specific exhibits are referred to, they bear specific exhibit numbers. This assists everyone in co-relating the contents of the agreed document with the exhibits produced; (3) The expression "read into the record" is an Americanism which has crept into trials and has no particular meaning. The proper expression, when Section 65B is used to produce witness statements, is "tendered in evidence"; (4) It might be preferable if in future when statements are tendered under Section 65B there were to be a formal question by the trial judge of counsel for the defence as to whether he raised any objections and that appears on the record. Result - Appeal against conviction for murder dismissed. ************** MA 716/91 WONG Kai-man Duffy J (19.11.91) *S Cole #E McGuinniety Magistrate enquiring about prior convictions/Material irregularity Held : It was a material irregularity for the magistrate to ask the prosecutor, during the Crown case, whether the defendant was of good character. There are no circumstances in which it is proper for a Court of its own motion to enquire into the character of a defendant. The situation was not remedied by the decision of the prosecutor not to answer the question posed. Result - Appeal against conviction for indecent assault allowed. Retrial ordered. ************** CA 403/90 MAN Wai-keung Fuad V-P, Power, Nazareth JJA (20.12.91) *I G Cross QC, W S Cheung #G J X McCoy Defining gbh/Self-defence and honesty of belief/Direction as to lies Held

Evidence

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(3) Where the defendant gave a version of events in his cautioned statement which was in material conflict with the version which he gave in evidence, it was not sufficient for the judge simply to direct the jury as to the onus which lay upon the Crown and to leave to their common sense the use which they could make of any lies they considered had been told. A careful direction as to the use to be made of any possible lies was necessary : Broadhurst [1964] A.C. 441. Result - Conviction for murder quashed. Retrial ordered. ************** CA 276/90 WAI Wing-sang NG Wai-keung Yang CJ, Silke V-P, Macdougall JA (23.4.92) *A A Bruce #G J X McCoy A King (1) M Poll (2) Direction on lies/Claim of right where robbery includes murder/Recent possession considered Held : (1) As the Crown had made WAI's lies into such an important issue in the case, and as the judge had also suggested they were of significance, it was essential that the judge should have given a direction in terms of Broadhurst [1964] AC 441. The proviso could not properly be applied; Result - Appeals against convictions for murder and robbery allowed. Retrials ordered. CA 162/91 WONG Ping-tak Cons V-P, Penlington JA, Hooper J (16.4.92) *C Coghlan #R Buchanan Status of lies/Lies forming integral part of defence Held : How far lies told by a defendant may be probative of his guilt, as opposed to merely destroying his credibility, is almost invariably a difficult question, and where, as is often the case, the lies are an integral part of the defence as a whole, it is a question that is usually better not introduced. Result - Application for leave to appeal against conviction for DDUT refused. *************** Petition for special leave FUNG Kam-keung Lords Templeman, Mustill and Slynn (5.5.1992)

Evidence

149

*J Guthrie #M Thomas, QC N Hamblin Child of tender years/Holding enquiry under s. 4, Cap. 8 Held : The Judicial Committee considered that an enquiry should have been held at trial as to whether the child, who was aged 13 years and 7 months, understood the nature of the oath, and the judge should have announced the result of that enquiry. Result - As there was no miscarriage of justice, the Board would advise H M that the petition should be dismissed. (This was a petition seeking special leave to appeal from the judgment of the Court of Appeal in R v FUNG Kam-keung [1991] 1 HKLR 377. The Board took the unusual step of delivering a short reasoned judgment at the time of dismissing the petition - Ed.) *************** MCA 258/92 LAM Wai-yip Mayo J (3.6.93) *J Lee #J Chandler Admissibility of bank records/S. 20 Evidence Ordinance Held : Bank records can be admitted as evidence under Section 20, Cap. 8, both orally or by affidavit. Result - Appeal against convictions for theft dismissed. *****************

Examination of Witness

150

Examination of Witness CA 246/90 P B Beckers Silke V-P, Macdougall JA, Bewley J (11.9.92) *M McMahon #G J X McCoy, M Panesar Agency and conspiracy/Propriety of cross-examination/Relevance of issue estoppel Held : (1) Although it is the principle of agency which forms the foundation on which acts and utterances made by one conspirator in furtherance of a conspiracy are admissible against a co-conspirator, it also operates independently of its application to the law of conspiracy; (2) Although prosecuting counsel should not be inhibited from conducting a searching, vigorous cross-examination, he should always observe due courtesy to a witness. Nothing said by the prosecutor deprived the applicant of a fair trial : Banks [1926] 2 KB 621 considered; (3) There is nothing inherently objectionable in the practice of counsel referring a witness to testimony given by an earlier witness that is contrary to his own evidence. This is a legitimate means of exploring the veracity of the testimony of the witness who is being cross-examined; (4) Although the civil doctrine of issue estoppel is not applicable to criminal proceedings, there is a doctrine which is based on the prohibition of double jeopardy and precludes the Crown from making suggestions inconsistent with a previous verdict of acquittal when its real effect is determined : Humphreys [1977] A C 1. There was no attempt at the retrial to go behind the verdicts of acquittal at the first trial or to violate the principle of double jeopardy. Result - Application for leave to appeal against convictions for conspiracy to accept advantages as agents, refused. ****************** MA 439/92 CHAN Yuk-ying Kaplan J (12.10.92) *W S Cheung #G Alderdice Failure by prosecutor to cross-examine defendant upon central issue Held : Whilst it is not necessary that every single matter in issue between the parties has to be put in cross-examination in great detail, there were dangers inherent in the magistrate concluding that he did not believe the Appellant on a central issue when it had never been put to her that she was not telling the truth. The absence of cross-examination deprived the defence of the opportunity to consider what to do in relation to this fact. It was not fair of the magistrate to decide a crucial point adversely to the Appellant without her even knowing the point was at issue and without giving her the opportunity to comment upon an allegation that she

Examination of Witness

151

was not telling the truth. Nobody should be convicted unless, if they give evidence, they have had an opportunity to deal with the crucial issues which the court has to determine. The prosecution knew what the defence was and took no steps to rebut it or to question the Appellant about it. Result - Appeal against conviction for theft allowed. ************* CA 409/90 (1) CHU Chi-yat, (2) SHUM Man-keung, (3) CHOW Ming-fung, (4) LAM Wing-keung, (5 ) YU Chuen (6) TSOI Ho Fuad V-P, Penlington, Macdougall JJA (23.11.92) *J Cagney, E Chan #E Toh (A1) J Griffiths QC, P Wacks (A2 A4) A Sedgwick QC, A Pang (A3) J Haynes (A5) Sze Kin (A6) Admissibility of video tapes/Cross-examination of : co-accused; on statement not produced in Crown case; on antecedent statement Held : (1) Although the video tapes contained both sound and visual images, subs. (7) of Section 29A of the Evidence Ordinance does not provide that it is not possible for the Crown to produce a certified transcript of a tape which also contains visual images. The bracketed words in subs. (7) "(not being visual images)" clearly refer to "other data". The transcript can only contain a record of sounds, not an attempt to describe the visual images, but, provided it does so, the transcript comes within the definition of "record". This is the logical interpretation and the clear intention of the legislature; (2) Counsel for a co-accused has an unlimited right to cross-examine an accused person on a statement he has made even if it has not been produced by the Crown : LUI Mei-lin v R [1989] 1 AC 288; (3) The authorities do not support the proposition that if the Crown has not seen fit to produce a statement as part of its case, such a statement cannot be used for the purpose of challenging credit : R v Phillipson (1990) 91 Cr App R 226; (4) Antecedent statements, which are recorded after the investigative process has finished from persons who have been charged with an offence, should never be used in the course of a contested trial : R v CHENG Chung-yat [1970] HKLR 269. Result - Applications for leave to appeal against convictions for conspiracy to traffic in dangerous drugs refused. *************** MA 1017/89 LAI Wai-kin Penlington JA (13.10.89) *C Coghlan #B Gunston

Examination of Witness

152

Witness about to testify under immunity - Told by counsel not to deviate from previous statement or lose immunity - Whether proper 1. It was improper of Counsel to so tell the witness.

2. The statement might have been wrong in some very important detail and, as a matter of fundamental principle, a witness must not be told that, having made a statement and received an immunity, he must give evidence according to that statement or lose his immunity.

(B) Witness deviating from previous statement in oral evidence - Whether immunity becomes ineffective If a witness deviates from his statement in oral evidence, his immunity would still be a bar to prosecution if he could show that his oral evidence is nevertheless true.

Result - Appeal against conviction for Soliciting an Advantage allowed. ***************** CA127/89** TONG Heung-yee Power JA, Ryan, Bokhary JJ (4.10.89) *I G Cross, W S Cheung #J Matthews Cross-examination of witnesses on prior statements - Putting the statements before jury Counsel cross-examining a witness on a statement should supply copies to the witness and the jury if, in the circumstances, it would be unfair to the witness not to do so or difficult for the tribunal to follow the cross-examination unless that was done. But it does not follow that it is necessary in each and every case that the statement be supplied to the witness and the jury. ************ CA 210/88 HO Shu-chung Cons V-P, Power, Macdougall JJA (26.9.89) *I G Cross, G Forlin #R Buchanan Cross-examination - Prosecutor's duty It is not necessary for prosecuting counsel specifically to put to a witness that his evidence was concocted or wrong or unaccepted, if it is clear from the nature of the cross-examination that the evidence of the witness was being duly tested.

Result - Leave to appeal against conviction for robbery refused. **************

Examination of Witness

153

CA 469/88 TSE Cheuk-suen Kempster, Penlington JJA, Mayo J (31.8.89) *G Lugar- Mawson #G J X McCoy (A) Judge's discretion to adjourn on application of defence for presence of Crown witness required for cross-examination

1. The considerations which will affect the judge's discretion vary infinitely from case to case.

(Cavanagh, [1972] 1 WLR 676, followed)

2. What is important is that the judge should make due enquiry before coming to a decision.

(B) Putting to defendant allegations based on statement of person not called as witness 1. It is the Crown's duty to put forward in its case all matters which it relies on as probative of the defendant's guilt. (Rice, (1963) 47 Cr. App. R. 79, followed)

2. Where allegations as to credit are made, based on material not in evidence, it is a matter for the judge's discretion as to whether they should be allowed.

(Kane, (1977) 65 Cr. App. R. 270, followed)

3. If the allegations go to guilt, but are nevertheless not admitted by the defendant, no injustice may result.

Result - Leave to appeal against conviction for DDUT refused. *********** CA 576/87 LEUNG Chi-yuen (A1) NG Kin-tung (A2) LEUNG Kwok-tung (A3) LAM Fu-cheung (A4) CHAN Kam-sum (A5) Fuad V-P, Penlington JA, Ryan J (29.6.89) *J K Findlay QC, A A Bruce and Miss E Chan #A J Corrigan QC and S Westbrook i/s DLA for A1, A2 and A3; N Sarony and E Laskey for A4 and A5; A Sedgwick QC and D Mitchell as Amicus Curiae; H Litton QC, A Hoo and YL Wong for HK Bar Association Prejudicial evidence of other offences - Use of witness statements during adjournments - Allegations put to Crown witnesses - Corroboration - Counsel's failure to submit when invited - Ballistics expert evidence - Direction to jury (1) The trial judge was in a far better position to assess the likelihood of prejudice to the defendant as a result of cross-examination of the witness than the appellate Court, and the trial judge cannot be said to have

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154

exercised his discretion wrongly in deciding that a proper direction to the jury was sufficient to remove that prejudice. (2) The Courts should not, even in the case of an accomplice who is in custody, lay down a rule, which in practice they cannot enforce, that it is fatal if a witness refreshes his memory from a non-contemporaneous statement during the course of giving evidence and while not in the witness-box. It is undesirable that the witness should do so, and most certainly if he does so that should be brought to the jury's attention for assessing his evidence. As the jury were aware of the position of this aspect of the witness's evidence, there was no material mis-direction. (3) Any suggestion put to a witness and denied by him is not, and should not be considered in any way, as being evidence. The suggestions were, like other questions, put by defence counsel to a witness in an effort to show that his evidence was not to be relied on. The trial judge in many parts of his summing-up correctly directed that those suggestions should be considered in the light of testing the evidence but not being of positive probative value themselves.

(4) Where counsel are invited to make submissions upon law in the lower court but decline, such failure cannot affect the point of law if evidence is legally not admissible. Where however it is a question of degree, as in the case here, when it is argued that one witness's evidence was so inconsistent with the accomplice's that the judge should have directed the jury that it was not capable of being corroborative, counsel's failure to make submission at trial, especially when specifically invited, will prevent the point being raised on appeal. (5) As the point was not taken before the trial judge that he should direct the jury that they should pay no regard to the evidence of the witness (which was so inconsistent with that of the accomplice's that it could not afford legal corroboration of it), the Judge was correct in allowing the evidence to go before the jury as being such as could corroborate the accomplice witness and he did draw the jury's attention to the major discrepancies. (6) Although the evidence given by the ballistics experts, unsupported as it was by photographs or even the production of all the relevant cartridge cases, was admissible, the greatest care was required in the direction to the jury as to the way they should approach that evidence. As defence counsel (who could not put to the Crown's expert witnesses that they were wrong as he did not have material to support that allegation) had clearly put to all those expert witnesses that they might be wrong, the jury should have been directed accordingly. Result - A1, A2, A3 and A5's appeal against convictions of murder (x 1), robbery (x 1), possession of arms at the time of committing the robbery (x 1) and shooting with intent to resist lawful apprehension (x 5) allowed; convictions quashed and sentences set aside. - A4's appeal against convictions of the same counts dismissed. ************** CA 415/88 WONG Sai-wai Fuad V-P, Hunter, Macdougall JJA (17.4.89) *J L Cagney #S Westbrook Cross-examination of an accused - Voire dire - Discretion to exclude cross-examination - Fairness (1) The principles that inadmissible documents could not be made admissible by putting them to an accused in cross-examination; that it is impermissible to cross-examine an accused on any matter that could or should have been adduced as part of the Crown case and that all the prosecution evidence considered probative of guilt has to be adduced as part of the Crown case, (R. v. Treacy (1944) 30 Cr. App. R. 93, R. v. Rice (1963) 47 Cr. App. R. 79 etc.) do not apply to cross-examination of an accused in a voire dire as to the admissibility of his confession, or to prior inconsistent statements other than those the subject of the voire dire.

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(2) If however the accused had been induced to believe that the "other" statements would not be used, the Court would have a discretion to exclude cross-examination on them, for reasons of fairness. Result -Application to appeal against conviction of murder (x 2) refused. *********** CA 485/88 LEE Ting-keung Silke V-P, Power Penlington JJA (30.5.89) *A A Bruce #R Buchanan Rehabilitation of Offenders Ordinance, Cap. 297 - Whether convictions spent - Defendant's character - Application for cross-examination (4) Further, Crown Counsel was entitled to make application to cross-examine the applicant, who had made an allegation of theft against the Crown witness, on his character. Result -Application for leave to appeal against convictions of AOABH and wounding with intent refused. ********* CA 597/88 TONG Chiu-chuen Fuad V-P, Hunter JA, Mortimer J (25.5.89) *G J Lugar-Mawson #A Macrae Defendant's character - Cross-examination - Judge's discretion (1) Where a defendant had not attacked the character of the prosecution witnesses, it would be illegal and improper for the Crown to ask him questions imputing his character. (2) Where the illegal and improper question was asked, it would be a matter for the judge's discretion whether he discharged the jury or gave the direction as requested by the Defence Counsel. (3) Given the nature of the prosecution evidence which rested upon the questioned identification of the Defendant, the judge might have considered that to dwell on the question could have caused the jury to speculate as to why it had been asked and thus caused them to infer bad character from its asking. (4) The trial judge's discretion in not directing the jury on the question could not in the circumstances be said to be wrongly exercised and should not be lightly interfered with. (R. v. Coughlan Young (1976) 63 Cr. App. R. 33 confirmed)

Result - Application for leave to appeal against conviction (robbery) refused. ************

Examination of Witness

156

MA 207/89 MAK Yiu-ming O'Connor J (18.4.89) *D Pang #D Percy (A) Cautioned statement - Not produced as part of Crown case - Prosecutor cross-examined on content to show inconsistency - Touched on matter which was in fact an implied admission. Despite counsel's motive, such cross-examination has the effect of not only discrediting the Defendant but putting before the Court direct evidence of guilt. This is improper as anything which goes to the general issue should be proved in the Crown case.

(B) Defendant's credit - Indivisibility Where the Defendant faces two charges and has denied them in evidence, the fact that he is shown, through improper cross-examination, to have previously admitted to one of the charges, must also affect his credibility in relation to the other charge. His credibility is not divisible to that extent. When the conviction on the first charge is quashed, the conviction on the second must, therefore, also be quashed.

Result - Appeal against convictions for failing to stop when required to do so by a police officer and reckless driving allowed. ************ CA 175/89 WONG Kwai-fun and 2 others SilkeV-P, Kempster, Hunter JAA (2.3.90) *A P Duckett QC, C K Wong #Paul Loughran for D2 D3 Accomplice evidence in previous trials - Whether cross-examination proper in relation to those previous trials - General principle and exceptions Held : 1. The general rule is as stated by Kempster, JA, in R. v. LEE Shu-fai and another (1987) Cr. App. 608, (unreported), namely, that the opinion of another jury is irrelevant and inadmissible. 2. Accomplices are no exception to this rule. See : R. v. Thorne others [1978] 66 Cr. App. Rep. 6. 3. The small group of cases in England cumulating in R. v. Gary Cooke [1987] 34 Cr. App. 286, and which may be said to have created an exception to this rule, (but which have yet to be considered and accepted in Hong Kong) are very narrow and require two particular features, namely :- (i) A very close connection between the evidence which the witness gave at the previous trial and that given at the current trial; (ii)A clear inference that this evidence, when given at the previous trial, had been disbelieved. Result - Appeal dismissed.

Examination of Witness

157

CA 405/88 TAM Chung-shing(A 1) WONG Kai-wai (A2) LO Tai-wai (A3) Yang CJ, Silke V-P, Power JA (17.11.90) *G Lugar-Mawson #A Sanguinetti (A1) G J X McCoy (A2) F Eddis QC T IU (A3) Cross-examination on previous conviction which is under appeal/Direction to jury on conspiracy particulars/Lies Held : (1) Where prosecuting counsel applies to cross-examine a defendant upon a previous conviction, but which is the subject of appeal, the trial judge should either refuse the application, or adjourn the trial until such time as the appeal has been determined; Result : Appeals allowed. ********** CA 133/90 HUI Chuen-kit Silke V-P, Power, Macdougall JJA (29.5.91) *D G Saw #A Wong Cross-examination/Curtailment thereof by Judge Held : Questions as to credit being asked in cross-examination can only be disallowed if the question, given the nature of the witness's evidence, would not affect credit, or if the cross-examination as to credit is unnecessarily prolonged, repetitious or merely provocative. If the question does not fall into one of those categories then the cross-examiner is entitled to ask it. Result - Appeals against convictions for DDUT allowed. ************* CA 107/90 CHAN Kung-ling Kempster, Clough, Macdougall JJA (31.7.91) *I G Cross QC, W S Cheung #C Grounds

Examination of Witness

158

Defendant's failure to explain himself when apprehended/Cross-examination and judicial comment thereon/Conduct of counsel Held : (1)(a) Clough and Macdougall JJA : It would be an affront to common sense and justice to hold that it is impermissible for the prosecutor to cross examine an accused on his failure to protest to those apprehending him that, far from being the robber himself, there had been a mistake and that he was a police officer pursuing the robber who was escaping : Gilbert (1978) 66 Cr.App.R. 237, Hall (1971) 55 Cr.App.R. 108, Raviraj (1987) 85 Cr.App.R. 93, considered; A distinction must be drawn with that situation and the situation where a suspect is being questioned or is being informed that an accusation has been made against him; The trial judge was equally entitled to ask the jury to consider why the defendant did not tell those apprehending him the circumstances and to consider his subsequent explanation in evidence for not so doing; (2) The way in which defence counsel conducts his examination in chief is a matter which he must decide in the light of the evidence that has been given, his feel of the case and his assessment of his lay client. Asking questions in chief is often a matter of very fine judgment, and counsel had every justification for avoiding potentially dangerous ground. It is only in the case of flagrantly incompetent advocacy that an appeal will succeed on the ground that counsel has made a decision or pursued a course in the conduct of the trial which later appears to have been mistaken or unwise even if the decision or course was contrary to the accused's wishes : HO Shu-chung [1990] 1 HKLR 180. Result - Application for leave to appeal against conviction for robbery allowed, but appeal dismissed. ************

Expert Evidence

159

Expert Evidence CA 2/92 LEI Kam-ping Yang CJ, Power, Macdougall JJA (17.7.92) *A A Bruce #I/P Judge evaluating expert's status The Court rejected the applicant's home-made grounds of appeal. Crown Counsel suggested that there might be an arguable ground of appeal in that the judge failed to state that he had accepted as an expert the Chief Inspector, who gave evidence of addiction levels, trends, values and other matters pertaining to the abuse of prohibited drugs. Held : This was not capable of giving rise to a successful ground of appeal since, by acting on the information given to him by the Chief Inspector and by referring to his qualifications, the judge had accepted him as an expert witness. It would be quite unrealistic to think otherwise. Result - Application for leave to appeal against a conviction for DDUT refused. ********* MA 1373/89 NGAI Man Hooper J (14.2.90) *C Coghlan #G Hampton Expert giving evidence - Need to furnish scientific criteria for testing the conclusions An expert must, whilst giving evidence, put before the court details of his methodology and the formulae which he used to reach his conclusions so that the accuracy of his conclusions may be tested. Failing that, his conclusions amount to a bare assertion. (CHAN Kam-tak another [1988] 2 HKLR 11, and TAM Wing-hung [1988] 2 HKLR 44, followed) Result - Appeal against conviction for Reckless Driving Causing Death allowed. Retrial ordered. ***************** CA 576/87 LEUNG Chi-yuen (A1), NG Kin-tung (A2), LEUNG Kwok-tung (A3), LAM Fu-cheung (A4), CHAN Kam-sum (A5),

Expert Evidence

160

Fuad V-P, Penlington JA, Ryan J (29.6.89) *J K Findlay QC, A A Bruce and Miss E Chan #A J Corrigan QC and S Westbrook i/s DLA for A1, A2 and A3; N Sarony and E Laskey for A4 and A5;A Sedgwick QC and D Mitchell as Amicus Curiae; H Litton QC, A Hoo and YL Wong for HK Bar Association Prejudicial evidence of other offences - Use of witness statements during adjournments - Allegations put to Crown witnesses - Corroboration - Counsel's failure to submit when invited - Ballistics expert evidence - Direction to jury (1) The trial judge was in a far better position to assess the likelihood of prejudice to the defendant as a result of cross-examination of the witness than the appellate Court, and the trial judge cannot be said to have exercised his discretion wrongly in deciding that a proper direction to the jury was sufficient to remove that prejudice. (2) The Courts should not, even in the case of an accomplice who is in custody, lay down a rule, which in practice they cannot enforce, that it is fatal if a witness refreshes his memory from a non-contemporaneous statement during the course of giving evidence and while not in the witness-box. It is undesirable that the witness should do so, and most certainly if he does so that should be brought to the jury's attention for assessing his evidence. As the jury were aware of the position of this aspect of the witness's evidence, there was no material mis-direction. (3) Any suggestion put to a witness and denied by him is not, and should not be considered in any way, as being evidence. The suggestions were, like other questions, put by defence counsel to a witness in an effort to show that his evidence was not to be relied on. The trial judge in many parts of his summing-up correctly directed that those suggestions should be considered in the light of testing the evidence but not being of positive probative value themselves.

(4) Where counsel are invited to make submissions upon law in the lower court but decline, such failure cannot affect the point of law if evidence is legally not admissible. Where however it is a question of degree, as in the case here, when it is argued that one witness's evidence was so inconsistent with the accomplice's that the judge should have directed the jury that it was not capable of being corroborative, counsel's failure to make submission at trial, especially when specifically invited, will prevent the point being raised on appeal. (5) As the point was not taken before the trial judge that he should direct the jury that they should pay no regard to the evidence of the witness (which was so inconsistent with that of the accomplice's that it could not afford legal corroboration of it), the Judge was correct in allowing the evidence to go before the jury as being such as could corroborate the accomplice witness and he did draw the jury's attention to the major discrepancies. (6) Although the evidence given by the ballistics experts, unsupported as it was by photographs or even the production of all the relevant cartridge cases, was admissible, the greatest care was required in the direction to the jury as to the way they should approach that evidence. As defence counsel (who could not put to the Crown's expert witnesses that they were wrong as he did not have material to support that allegation) had clearly put to all those expert witnesses that they might be wrong, the jury should have been directed accordingly. Result - A1, A2, A3 and A5's appeal against convictions of murder (x 1), robbery (x 1), possession of arms at the time of committing the robbery (x 1) and shooting with intent to resist lawful apprehension (x 5) allowed; convictions quashed and sentences set aside. - A4's appeal against convictions of the same counts dismissed. ************** CA 517/89 CHOI Lee-hing , CHAN Hung-tai Kempster, Hunter, Macdougall JJA (21.6.90) *J L Abbott, #A Suffiad (CHOI), CHAN - I/P

Expert Evidence

161

Expert evidence/Qualifications of Witness Held : Although it was submitted that the Narcotics Officer, before giving his testimony, ought to have provided sufficient evidence explaining his qualifications to give evidence at all, it was clear from the evidence he actually gave that he had substantial experience in the Narcotics Bureau which enabled him to give the evidence he did. Result - Application dismissed. ***************** MA 499/91 Manfield Building Contractors Ltd. Duffy J (24.10.91) *T Jenkyn-Jones #D Tang Expert Witness/Required status Held : It was at the least undesirable that the officer in charge of the investigation into the fatal accident should also be called as an expert witness. It cannot be said that such a witness could prima facie be seen to be impartial and independent in relation to the case. Result - Appeal against conviction for failing to provide a safe working platform, contrary to the Construction Sites (Safety) Regulations, Cap. 59, allowed. ************** CA 585/88 CHAN Man-shing Silke V-P, Penlington, Macdougall JJA (21.12.89) *D Kilgour #J Hagon i/s DLA (B) Scientific Evidence 1. Where scientific evidence is introduced, the jury should be furnished with as much assistance as possible in assessing the reliability of that evidence (e.g. photographs, taken through a microscope), or that evidence would merely be an unsubstantiated opinion of the expert. 2. Where the defence does not intend to challenge the scientific evidence as to its inherent accuracy, but only on the basis that it is irrelevant, the Crown should be so notified at the pre-trial review - thus avoiding the need to lead such evidence. (CHAN Kam-tak CA 204/87 and LEUNG Chi-yuen CA 576/87, considered)

Result - Leave to appeal against conviction for Robbery refused.

Extradition

162

Extradition MP No 1113/90 Tong Man Jones J (25.9.90) *M Hartmann #M Thomas QC, S Llewellyn Re : Extradition Act 1989 and an application for Habeas Corpus Extradition/Habeas Corpus/Test for committal/Conspiracy and hearsay evidence/Proof of drugs/Identification of fugitive Held : 1.The magistrate quite correctly stated that a prima facie case had to be established before issuing a warrant for committal : Schtracts v Government of Israel [1964] AC 556; 4. Photographs, upon which the magistrate relied to identify the applicant as the alleged offender, were properly so used as they were sworn to by two witnesses, which documents had been duly authenticated by the US magistrate in accordance with the 1989 Act. Result - Application for Habeas Corpus dismissed, but there would be no committal in respect of two of the original orders to proceed. Order nisi for costs to the Crown. ************* Privy Council CHEUNG Ying-lun v Govt of Australia and Lai Chi Kok Reception Centre Lords Bridge of Harwich, Templeman, Ackner (4.10.90) *M Blanch-flower #G J X McCoy Extradition/Test for committal/prima facie test affirmed Held : Although section 7(4) of the schedule to the fugitive offenders (Hong Kong) Order 1967 impliedly refers to the provisions of section 85 (2) of the Magistrates Ordinance, which states that a magistrate shall commit a person for trial if the "evidence is sufficient to put the accused upon his trial for an indictable offence, or, if the evidence given raises a strong or probable presumption of the guilt of the accused", and whilst it is puzzling to find a section which prescribes two standards in the alternative, a lower and then a higher, the lower is sufficient to justify the committal to custody pending the extradition of the accused : R v Governor of Brixton Prison, exp.Armah [1968] AC 192. Result - As the magistrate did not err in committing as he was satisfied that the prima facie test was made out, the Board would advise H.M. that the petition for special leave to appeal from the judgment of the Court of Appeal in CA 74/90 should be dismissed. (Editor's note : The Board observed that it was "exceptional" to deliver a reasoned judgment in disposing of a petition for leave to appeal, but felt it here to be desirable as the law required clarification.)

Extradition

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MP 3967/90 MP 4041/90 MP 4042/90 MP 4043/90 LAM Yu-shing and 3 others Kaplan J (9.2.91) *M Hartmann, M IP #E Chan QC, CY Li (A1), M Poll (A2, A3, A4) Dangerous drugs/Habeas corpus/Practice and procedure Held : 1. Where, in extradition proceedings, there is evidence from the defence which is as good as that of the prosecution, this merely shows that there is an issue for the jury to try and it does not prevent the prosecution from claiming that they have made out a prima facie case. The situation may be different if the defence are able to discredit the prosecution evidence to the point where nobody would believe the evidence at all : Ex Parte Godber 285/1974 applied; 2. The magistrate's function is to consider the alleged conduct of the fugitive and not the form of the crimes specified in the Governor's Order. 'Trafficking' is widely defined in the DDO, and it includes any number of different acts and further particularity is not required; 3. The effect of the principle of speciality is that a fugitive may not be tried or committed for offences which occurred prior to surrender other than those for which he was returned; 4. The Governor's Order to proceed is not to be treated as if it were a domestic indictment, and it is not correct to seek to introduce a requirement that the foreign charges should in some way be mirrored in the Governor's Order to proceed. Result - Applications for habeas corpus, arising from warrants of committal pending extradition to the USA for drugs offences, refused. *************

Falling Object

164

Falling Object MCA 659/92 AG v Kwan Lee Co. Ltd. Wong J (17.9.92) *D G Saw #B Chung Object falling from height/Liability of contractor/Matters to be proved Held : (1) Section 4B(2), Cap. 228, is designed to cover the situation where it is not possible to ascertain who drops or causes the object to fall. The offence against the contractor is one of strict liability regardless of whether the object is dropped by someone or not; (2) All that the Crown had to prove was that something fell, that there was danger or injury to some person or persons, and that the defendant was the principal contractor. This the Crown had done. Result - AG's appeal allowed. Case remitted to magistrate with a direction to convict. **************

False Documents/Instruments

165

False Documents/Instruments CA 600/88 LAM Fong, James Kempster, Hunter, Power JJA (17.3.89) *A McMahon #P Cosgrove Possession of forged document - S. 76(3), Cap. 200 - Photostat of genuine document - Altered for producing other false photocopies - Whether intended to be used as genuine within the meaning of s. 69(1) If the photostat is altered with a view to misrepresenting the content of the genuine document, it is a false document intended to be used as genuine within the meaning of s. 69(1), and is therefore a forgery. That only its photocopies are meant to be used in the actual process of misrepresentation does not bring it outside the subsection. Result - Leave to appeal against conviction refused. ************

False Imprisonment

166

False Imprisonment CA 356/89 CHEUNG Chi-man KWOK Kin-kwong LAM Ming-fung Silke CJ (Ag), Kempster JA, Bewley J (7.2.90) *I G Cross, E Chan #S Westbrook False imprisonment On a charge of false imprisonment, where the defence is that the alleged victim agreed throughout to accompany his alleged captors, but the victim claimed that he eventually withdrew his consent to accompany them, the issues of whether or not a man can acquiesce in his deprivation of liberty, and of whether a man can resile from an earlier agreement to accompany those alleged captors, are matters which need to be canvassed at trial. Result - Appeal against conviction allowed. Retrial ordered. ***********

Flight

167

Flight CA 556/91 LAM Yau-tim Yang CJ, Kempster, Power JJA (12.11.92) *I McWalters #J Chandler Defendant leaving Hong Kong/Relevance/Inferences to be drawn Held : (1) Although the defendant was arrested at Lo Wu, since the evidence was not such as to establish that he knew he was being accused of any crime the jury should have been told to disregard that evidence. It was not open to them to use it to draw an inference of guilt : R v CHAN Kwok-keung and Another [1990] 1 HKLR 359 applied; (2) Although the defendant in his cautioned statement admitted to having had sexual intercourse with the complainant, this was not evidence capable of corroborating the allegation of rape. The admission was as consistent with innocence as with guilt, and the jury should not have been told that it was open to them to use it to draw an inference of guilt. Result - Appeal against convictions for rape allowed. ******************

Forfeiture

168

Forfeiture MA 414/92 CHEUNG Tai-yau YEUNG Wa-sing Wong J (3.9.92) *J Lee #E Mumford QC, A Luk Forfeiture and criminal law doctrines/Extent of S. 27 Cap. 60 Held : (1) Doctrines such as issue estoppel in criminal cases and autrefois acquit have no relevance to forfeiture proceedings which are not criminal in nature and where the standard of proof is the civil standard of balance of probabilities : Humphreys (1976) 63 Cr.App.R. 95 considered; (2) S. 27 of the Import and Export Ordinance is wide enough and clearly intended to authorise forfeiture not only in situations where no one has been charged but also where a person has been acquitted. Result - Appeal against forfeiture order dismissed. *******************

Gambling

169

Gambling MA 1534/89 CHEUNG Sau-ying and others Wong J (31.1.90) *J McMaster #R Yu AG's appeal by way of case stated - Gambling establishment - Whether can be lawful gambling in a gambling establishment Held : 1. Any gambling in a gambling establishment is unlawful. (FONG Chi-keung others [1988] H.K.L.R. 126; KWONG Yiu-hung others [1988] H.K.L.R. 304 applied) 2. Section 3(2) of Cap. 148 can be used to prove that the premises were not a gambling establishment or to rebut the presumption that the premises were a gambling establishment. If it is proved or rebutted, it is then and only that the gambling becomes lawful and the premises cease to be a gambling establishment. 3. For as long as the premises remain a gambling establishment, there can never be lawful gambling in that establishment. Result - AG's appeal allowed. Case remitted to the magistrate with a direction that he deal with it according to law. *************** MA 663/89 WONG Yu-fung Hooper J (4.8.89) *M Arthur #J Nicholas Gambling authorization - S. 23, Gambling Ordinance (1) It is essential that a gambling authorization be framed in sufficiently clear terms, so that anyone to whom it is shown will know that it refers to the premises in question, and not some other premises. (2) In default, no entry to premises can be said to be in pursuance of the authorization and the ensuing presumption will not arise. Result - Appeal against convictions related to gambling establishments allowed. ***********

Gambling

170

MA 1278/88 KWOK Mei-sheung and 33 others Yang CJ, Fuad V-P Penlington JA (18.4.89) *E C Harris #G J X McCoy Gambling authorization - S. 23, Cap. 148 - Rank of issuing officer not stated - Whether valid under s. 23(1) which requires superintendent or above to issue (Question of law referred to Court of Appeal by Bewley J.) Since the Authorization contains a reference to the power conferred upon the issuing officer by s. 23(1) - the subsection which requires him to be an officer of at least superintendent rank - the presumption of regularity, viz. a person who behaves as if he holds a public office is rebuttably presumed to hold that office, is activated. Result - Authorization valid. Remitted back to Bewley J. ************** MA 1518/89 WONG Wai-yip and others Ryan J (9.3.90) *J Reading #G Hampton Gambling establishment - Whether knowledge an essential ingredient of charges under s. 5 and s. 6 of Gambling Ordinance, Cap. 148 Held : 1. There is no provision in the Gambling Ordinance whereby a person found managing premises presumed to be a gambling establishment under s. 19(1), or persons presumed to be gambling in a gambling establishment under s. 19(2), are also presumed to have known the premises were a gambling establishment. 2. Knowledge is an essential ingredient of charges laid under s. 5 and s. 6 and the burden of proving this element remains on the Crown. (FONG Chi-keung [1988] 1 HKLR 126; R. v. WOO Chik-wah others, MA 432/88l and R. v. WU Wing-fu, MA 518/89 considered) Result - Appeal dismissed. ************* MA 1548/89 King Capital Club, Choy So Ching and others Cons Ag CJ, Macdougall JA, Jones J (22.8.90) *J Reading #A Macrae

Gambling

171

Section 6, Gambling Ordinance/Strict Liability Offence Certain questions of law were referred to the Court of Appeal by Duffy J, pursuant to S. 118(d), Cap. 227. Held : 1. Section 6, Cap. 148, creates an offence of strict liability. The prosecution is not required to prove that the defendant knew that the premises were a gambling establishment; 2. The magistrate was correct when he said the presumptions, (under S. 19), are prima facie proof of the offence without the necessity of mens rea being independently proved; 3. The presumption under S. 19(2) - that a person found in a gambling establishment is presumed to have been gambling therein - is not capable of being rebutted by evidence of lack of knowledge of the nature of the establishment or the nature of the gambling. Result - Appeals remitted to Duffy J to continue the hearing. *********** MA 238/91 TAM Ming-chu Bewley J (22.5.91) *J Lee #C Grounds Gambling Ordinance/Forfeiture of vessel/"Other property" defined Held : 1. A boat is "other property" within the meaning of section 26, Gambling Ordinance, Cap. 148, and, as such, is liable to forfeiture if used in connexion with unlawful gambling; 2. If the main purpose of the vessel at the time is for gambling, it is being used in connexion with gambling. If it is an ocean liner moored in the harbour, it is to discharge and pick up passengers and cargo, the gambling is quite incidental to that purpose and is done without the knowledge of those in control of the ship; 3. The vessel was being used solely for the purpose of taking bets and was moored in a location so as to avoid the attentions of police. The magistrate was right to order forfeiture. Result - Appeal dismissed.

Homicide

172

Homicide CA 363/81 YEUNG Mok-yeh KWAN Wing-kei Cons V-P, Kempster, Macdougall JJA (14.8.92) *A A Bruce #G J X McCoy, A King Murder verdicts/Requirement of unanimity Held : (1) A direction by the judge to the jury that they must be unanimous in finding an accused not guilty of murder before they can consider the question of manslaughter is incorrect and contrary to S. 24 (4) Cap. 3. When the count is one of murder, it is only when a jury returns a verdict of guilty of murder or not guilty of murder that the verdict must be a unanimous one. The requirement of unanimity ceases to apply when neither of these verdicts is the verdict of the jury; (2) It is therefore not only unnecessary for the jury to be unanimous in returning a verdict of guilty of manslaughter, but is also unnecessary for them unanimously to find the accused not guilty of murder before they turn to a consideration of the question of manslaughter. Result - Appeals dismissed. ****************** CA 246/91 TSUI Kwok-fu Silke V-P, Power, Macdougall JJA (8.9.92) *I G Cross QC, W S Cheung #C Grounds Direction on inadmissible evidence/Leaving alternative counts/Sequence of directions/Directing on 'reasonably' and 'rationally' Held : (1) Although the inadvertent introduction into evidence at trial of photographs relating to another offence which had occurred at the same scene as the crime with which the jury was concerned amounted to a material irregularity, the judge properly directed the jury that they were of no relevance, and the jury told him that they had not been influenced by them; (2) If a defence emerges, even though it may not be relied upon by counsel for the defence, it is the duty of the judge to draw it to the attention of the jury : Mancini v DPP [1992] AC 1; (3) In the context of this trial, and the evidence given at it, and given the wounds and the method of their causing, the judge did not err in not taking it upon himself to leave manslaughter to the jury. There can be circumstances in which it would be harmful to confuse the jury by advising them of the possibility of a verdict which could make no sense : Fairbanks (1986) 83 Cr.App.R. 251;

Homicide

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(4) There is no requirement that, when a judge gives a direction on inferences, he should then immediately follow it with the necessary direction on the burden of proof; (5) Although it was submitted that a judge should make clear to the jury that the word "reasonably" means "rationally", and that the jury may have thought that an inference could be drawn even though another unreasonable (i.e. unlikely, still possible but nevertheless rational) inference existed, juries must be given credit for some degree of common sense. For the judge to go into a physiological discussion with the jury as to the meaning of "reasonable" has generally been disapproved - this usually in the context of explanation of what is a reasonable doubt. To enter into a dissertation on the difference, if there is one, between "reasonably" and "rationally" is more likely to confuse a jury than anything else, and it is not incumbent on a judge to do so. Result - Appeal against conviction for murder dismissed. ************* CA 513/88 WONG Tak-sing Silke V-P, Ryan, Bewley JJ (9.11.89) *M Hartmann #F Wong Murder - Foreseeability - Correct test The jury should be directed that they are not entitled to infer the necessary intention to murder unless they feel sure that death or serious bodily injury was a virtual certainty of the Defendant's action, and he appreciated as much. The phrase "probable consequence" constituted a misdirection. (Nedrick [1986] 3 All ER 1, 4 applied) Result - Murder conviction quashed. Manslaughter substituted. (See Section D for sentence) ************** CA 66/88 NG So-ching Fuad V-P, Hunter, Macdougall JJA (4.4.89) *C Coghlan #H Litton QC, A Hoosen i/s DLA Murder - Defence limited to provocation - Mental condition never made an issue - Application on appeal to adduce evidence obtained subsequent to trial - Suggested availability of diminished responsibility - Exercise of discretion under s. 83V (1), Cap. 221 by the Court of Appeal (1) The Court must be slow to admit further evidence in a case of this kind where the defence at the trial has deliberately chosen not to raise the mental state of the Defendant before the jury.

(Melville (1975) 62 Cr. App. R. 100 followed)

Homicide

174

(2) Where the further evidence is in the form of a report and the Court is of the view that it is not such as to persuade the Court to accede to the application, it is not acceptable to have the author of the report examined in Court so that he could expand on or modify the report, as his evidence would inevitably be based on his report. Result - Leave to appeal against conviction refused. ************* CA 474/88** HO Chin-chiu Silke V-P, Power, Penlington JJA (31.3.89) *I G Cross #S Westbrook i/s DLA Murder - Direction to jury - To consider scenario with no supporting medical evidence When a judge, by way of comment, asks the jury to consider a scenario in respect of which there is no supporting medical evidence, no objection can be taken on that ground if the effect of the comment is simply to invite the jury to deploy their common sense in assessing the evidence - and he makes clear that it is up to them to find the facts from the evidence. Result - Appeal against conviction dismissed. *********** CA 596/89** KWOK Wai-keung Yang CJ, Fuad V-P, Barnes J (24.7.90) *I G Cross QC, W S Cheung #A Hoosen Murder/Judge's comment/Directions on doubts/Correlating directions on law to evidence Held : (1) Although the trial judge, during the prosecutor's final address, erroneously observed that it was "murder or nothing", this did not constitute a material irregularity as the issue of manslaughter by virtue of provocation was placed squarely before the jury in the summing-up; (3) In a simple case, where there was no room for confusion, it was not necessary for the judge, in directing the jury on the law relating to provocation, to correlate that direction to the evidence capable of constituting provocation. Result - Application dismissed. **************

Homicide

175

CA 16/89 CHOI Hok-man Power JA, Barnett, Saied JJ (17.7.90) *A E Schapel #G J X McCoy Murder/Hostile Witness/S. 12, Evidence Ordinance/Self-defence Held : 5. When directing a jury as to self-defence, a judge should indicate to them that they must bear in mind the position of the defendant as a person under attack and ask themselves whether, on a common sense appreciation, his actions were reasonable. Result - Appeal allowed. Re-trial ordered. ************** CA 456/89 LEUNG Yuet-man Cons Ag CJ, Clough JA, Barnes J (27.9.90) *J L Abbott #G J X McCoy Murder/Provocation/Self-defence/Lies Held : 1. Matters which could amount to provocation are not excluded merely because they emanate from someone other than the victim : R v Davis [1975] Q.B. 691. The judge therefore erred in law in limiting the consideration of the jury to the conduct of the deceased. But, in the particular circumstances, that was all there was; 2. Where self-defence arises, it is no longer necessary for a defendant to show that he reasonably believes himself to be in danger. It is sufficient to show that he honestly believes that to be so : Beckford [1988] A.C. 130, followed; 3. Although the use of force by a defendant has to be objectively reasonable, the state of mind of the defendant at the time is not to be excluded from consideration : Shannon 71 Cr.App.R. 192; CHOI Hok-man CA 16/89; and Palmer [1971] AC 814 considered and followed; Result - Application for leave to appeal against conviction for murder refused. *********** CA 607/89 LAI Hung-wai Cons V-P, Clough, Penlington JJA (9.10.90) *I G Cross QC, W S Cheung

Homicide

176

#D MacKenzie Ross Murder/Drunkenness/Provocation, the reasonable man and age/Hostile witness Held : 1. No criticism could validly be made of a direction that, before convicting of murder, the jury had to be satisfied that the defendant intended to kill or cause grievous bodily harm, and that, despite the drinks, they could not convict unless they were sure he had formed such an intent; 2. The judge, when dealing with provocation and the reasonable man, referred to "an ordinary person of the same sex and age" as the defendant. This was a proper direction in terms of Camplin (1978) 67 Cr.App.R. 14, and there was no need for the judge specifically to remind the jury when directing that the defendant was aged only 16 years; Result - Application for leave to appeal against a conviction for murder refused. **************** CA 262/90 SZETO Kwok-hei (A1), HO Kong-sang (A2) Yang CJ, Fuad V-P, Macdougall JA (1.3.91) *I G Cross QC, A Sham #G Plowman (A1) R Buchanan (A2) Murder during robbery/Joint enterprise/Secondary party Held : 1. If party A to a joint enterprise of robbery contemplates that, if necessary, party B will use a knife to inflict serious bodily harm to the intended victim, it is irrelevant that in fact party B uses some other weapon or means to cause injury to the victim from which he dies. Provided that party A contemplates that such harm might be inflicted, he is guilty of murder if party B uses such violence on the victim that causes his death : Hyde [1990] 3 WLR 1115 considered; 2. The judge erred when he suggested that all participants in a bank robbery would, without more, be automatically criminally responsible for the shooting by one of their number of a cashier who tries to prevent them from taking the bank's money. However, when viewed in context, the direction would not produce misunderstanding. Result - Applications for leave to appeal against convictions for murder allowed - but proviso applied and appeals dismissed. ************** CA 270/89 KWAN Chi-hung Yang CJ, Silke V-P, Power JA (24.5.91) *A A Bruce #G J X McCoy Murder/Drafting indictment/Kevin Brown direction/Witness under sentence of death

Homicide

177

Held : 2. Section 5, Cap. 212, contemplates such matters as advocating the murder of a class or the writing of a letter advocating, soliciting or encouraging the murder of an individual. It is not intended to relate to physical attempts to kill or to a killing itself. It was not incumbent on the judge to leave this as an alternative offence to murder; 3. There was no duty on the judge to direct the jury that they must be unanimous on the factual basis of their verdict in relation to the offence of murder by being unanimous either as to the applicant being a counsellor or procurer or as to his being an aider or abetter. The issue was whether the applicant had, and in what manner, intentionally caused death or grievous bodily harm. It mattered not, on the generality of the evidence, what route the jury took to find that he did : Kevin Brown (1984) 79 Cr. App. R. 115, and Thatcher [1988] LRC (Crim.) p. 86, considered; ************** CA 277/90 YEUNG Lung-fai Yang CJ, Power, Macdougall JJA (26.7.91) *I G Cross QC, D G Saw #G J X McCoy Relevance of good character and of a clear record/Direction on burden of proof Held : (3) A direction as to the onus of proof, which suggested that it was for the defence to persuade the jury that the cause of death was not ligature strangulation, amounted to a serious misdirection. Result - Appeal against conviction for murder allowed. Retrial ordered. ************** CA 158/90 (1) VU Van-thang (2) BUI Minh-duc Fuad V-P, Clough, Macdougall JJA (17.7.91) *A Bruce #(1) P Nguyen (2) N Sarony Murder/Provocation not raised at trial/Whether judge should have left issue/S. 4, Cap. 339 Held : The alleged acts of provocation by the victim were far too remote from the fatal acts of the defendant to justify a direction by the judge that there was sufficient material to require them to consider whether there might reasonably be a defence of provocation : Phillips [1969] 2 AC 130 (P.C.), Camplin [1978] AC 705 (H.L.), Duffy [1949] 1 AER 932, considered and applied. Result - Applications for leave to appeal against convictions for murder, refused.

Homicide

178

P.C. Appeal No. 4/91 HUI Chi-ming Lords Bridge, Oliver, Goff, Jauncey, Lowry (5.8.91) *A Duckett QC, W S Cheung #M Thomas QC, R Britton Evidence of verdict in previous trial/Joint enterprise/Abuse of process Held : (3) Albeit that the principal had been convicted of manslaughter, and the Crown was prepared to accept a plea of manslaughter from the appellant, it was not an abuse of process, in the absence of any bad faith by the Crown, to prosecute the appellant for murder : Humphreys [1977] AC 1, and Connelly [1964] AC 1254, considered. Whilst it was a "serious anomaly" that the accessory should have been convicted of murder, and the principal of manslaughter, it was inevitable that different juries in different trials would occasionally produce verdicts which appear to be inconsistent with one another : Andrews Weatherfoil Ltd. (1972) 56 Cr.App.R. 31. Result - The Board would advise HM that the appeal should be dismissed. ************ CA 1449/83 PANG Bing-yee Silke V-P, Power, Macdougall JJA (13.9.91) *A Bruce #M Lee QC, Y L Wong Provocation/Not relied on by defence/Judge's duty to put Held : Notwithstanding that the defence expressly disclaimed any reliance on provocation, if there was evidence which admitted of provocation the trial judge is under a duty to leave it to the jury, however slight it might appear to the judge : Camplin [1978] AC 705. Result - Conviction for murder quashed and substituted with a verdict of manslaughter. PC 30/1991 LAI Chi-hong Lords Bridge of Harwich, Templeman, Ackner, Goff of Chieveley, Browne-Wilkinson (13.2.92) *I G Cross QC, A Luk, #Martin Thomas QC, M Poll Murder and S. 17 wounding/Triad revenge attack/Whether alternatives of manslaughter and S. 19 wounding arose Held : (1) Where the appellant assisted one triad society in its search for another, and where there was evidence before the jury that it was in the contemplation of the appellant that there might be an attack on the rival group

Homicide

179

which would result in the causing of grievous bodily harm, it was not fairly open to the jury on the evidence before them to bring in alternative verdicts of manslaughter and unlawful wounding; (2) As the appellant must have foreseen that the infliction of serious bodily harm was a possible incident of the common unlawful enterprise, and yet still participated in it, and as the jury by their verdicts must have accepted that the appellant was a triad society member who was not acting as a conciliator, the trial judge was correct in not leaving the alternative verdicts of manslaughter and unlawful wounding to the jury. Result - The Board would advise HM that the appeal against convictions for murder and wounding with intent should be dismissed. ************** CA 228/91 LEUNG Ka-fai Silke V-P, Kempster, Macdougall JJA (26.2.92) *A Duckett QC, T Casewell, #G J X McCoy Form of Directions to jury/Directions on provocation/ Direction on self-defence Held : (3) As the Privy Council in Edwards v R [1973] AC 648, did not specifically address itself to the terms of section 3 of the Homicide Act, (section 4 of the Homicide Ordinance), trial judges when directing juries on provocation would be advised to do so in terms of R v Johnson (1989) 89 Cr App R 148; (4) The judge's directions on self-defence were such as could only have led the jurors to believe that the test of what the defendant honestly believed the circumstances to be was an objective one. All that was required was a simple direction that the test is that a person may use such force as is reasonable in the circumstances as he honestly believes them to be in the defence of himself or another : Beckford v R (1987) 85 Cr App R 379. Result - Appeal against conviction for murder allowed. Retrial ordered. ********** CA 276/90 WAI Wing-sang, NG Wai-keung Yang CJ, Silke V-P, Macdougall JA (23.4.92) *A A Bruce, #G J McCoy A King (1) M Poll (2) Direction on lies/Claim of right where robbery includes murder/Recent possession considered Held : (2) Although a raised claim of right may well be a defence to a charge of theft or robbery it cannot be an answer to a charge of murder or to any offence of which theft is not an element; Result - Appeals against convictions for murder and robbery allowed. Retrials ordered.

Identification

180

Identification CA 172/92 LAM Ka-ming Yang CJ, Power JA, Barnett J (3.11.92) *S R Bailey #Wong Po-wing Identification/Judge relying on own perceptions/Reliability thereof Held : The judge was not entitled to rely on her own observations of the applicant's features, not disclosed to the applicant at trial, to bolster her acceptance of the victim's description of the robber. There was nothing to indicate whether or not those perceptions accorded with those of the victim and played a part in the identification of the applicant. In any event, over a year had elapsed between the robbery and the trial. Result - Appeal against conviction allowed. *************** CA 585/88 CHAN Man-shing Silke V-P, Penlington, Macdougall JJA (21.12.89) *D Kilgour #J Hagon i/s DLA Inconclusive identification - Whether admissible - Whether probative

(The Applicant, though not positively identified as one of the culprits in a robbery, was said to be of similar appearance by the victim.) 1. Identification evidence of this quality, while not inadmissible, would not in itself be sufficient to found a conviction.

2. It is, however, not evidence which the jury should completely ignore.

(CHAN Kam-tak CA 204/87 and LEUNG Chi-yuen CA 576/87, considered)

Result - Leave to appeal against conviction for Robbery refused. ************ CA 149/89 CHEUNG Ping-kwong Silke V-P, Kempster, Power JJA (5.1.89)

Identification

181

*A Bruce #M Ko i/s DLA Warning on identification evidence - District Judge It is not necessary for a District Judge to give himself an explicit warning in the terms of "Turnbull". He should, however, indicate in his Statement of Findings that he has been mindful of the considerations to which "Turnbull" makes reference. Result - Appeal against conviction for GBH allowed. AOABH substituted. *************** MA 966/89 LAI Wai-chiu Penlington JA (13.10.89) *C Coghlan #B Gunston Flight - Matter for consideration by magistrate 1. If a person flees when approached by police officers who have just been informed, by the victim, of the commission of a crime which allegedly involves that person, that is a matter which the Magistrate can take in account in relation to the issue of identity. 2. If the person ran for a reason not connected to the crime, it is for him to explain to the Magistrate so that the evidence of flight may be disregarded. Result - Appeal against conviction of Robbery dismissed. ************* CA127/89** TONG Heung-yee Power JA, Ryan Bokhary JJ (4.10.89) *I G Cross, W S Cheung #J Matthews (A) Identification by confrontation If a suspect refuses to participate in an identification parade it is legitimate for the police to arrange a confrontation for the purpose of seeing whether the potential witness would identify the suspect thereat. The resulting fact that an identification was made at a confrontation rather than at a parade does not of itself make a conviction unsafe or unsatisfactory provided that the trial judge's directions to the jury included a direction on the limitations of a confrontation as opposed to a parade.

************* CA 77/89 LE Hong-phong

Identification

182

Silke V-P, Kempster, Penlington JJA (26.6.89) *G J Lugar-Mawson #J Kynoch i/s DLA Wounding with intent - Identification in issue only - Witness's credibility - Disclosure Where there was unquestionably an assault and the only question was whether the witness's identification of the applicant was reliable, the failure to disclose the witness's appearance before the Magistrate in a different case and the binding over (which was not for offences in which his credit was in issue) was not a material irregularity - the District Judge's decision to accept him as an honest and reliable witness would not have been affected by the disclosure. Result - Application for leave to appeal against conviction of wounding with intent granted; but appeal dismissed. ************** CA 379/88** LEE Ho-wai Silke V-P, Penlington, Power JJA (14.4.89) *I G Cross, C Fung #H Litton QC, C Grounds Identification - Brief glimpse by police (1) The fact that a police officer is on surveillance is of considerable significance in deciding whether his brief glimpse of a suspect is reliable. (2) He is trained, calm and composed and not, for example, in the position of a robbery victim who may be in a state of some trauma. (Turnbull [1977] QB 224 distinguished) Result - Appeal against conviction for DDUT dismissed. ************** MA 1151/88 KWAN Cho-kit Yang CJ (18.1.89) *A Maxwell #K M Chong Dock identification - Accused known to witness - Warning - Alternative verdict - Theft of part of articles particularized (1) It is important for the court to warn itself of the danger of relying on an identification for the first time in the dock if the accused is a stranger or not well known to the witness. (2) Where the accused is known to the witness, such caution seems quite unnecessary.

Identification

183

(LUK Man-lung MA 528/87 and YICK Tin-wai MA 918/86 distinguished; YIP Yuk-wang MA 1180/86 not followed)

Result - Appeal against convictions of assault occasioning actual bodily harm and theft dismissed. ************** CA 43/89 Cheung Tak-chi Cons V-P, Kempster, Penlington JJA (6.4.90) *I C McWalters #C Grounds S. 80, District Court Ordinance, Cap. 336 - Judge's duty when recording verdict - Identification evidence - Whether dangers inherent can be assumed in Reasons of Verdict Held : 2. While accepting that knowledge of the burden and standard of proof required in a criminal case can be assumed when considering the Reasons of a professionally qualified judge, the dangers inherent in identification evidence do not fall into the same category. Result - Appeal allowed. Convictions on charges 7 and 8 quashed. **************** CA 433/89 SO Chi-wai Cons Ag CJ, Penlington JA, Jones J (13.8.90) *A P Duckett QC, R. Lee #F Wong Evidence/Voice identification Held : 1. There was no merit to the submission that, in the absence of evidence as to the circumstances in which the witnesses made their identification of the voice of the defendant, their evidence should not have been admitted; 2. The Judge did not err by inviting the jury to compare for themselves the defendant's voice with that recorded in the tape. The position is analogous to that where pictures taken by spy cameras are shown to juries in bank robbery cases. The Judge warned the jury of the dangers attached to this approach, and he reminded them that if they did adopt it they had to be sure that it was the defendant who was speaking on the tape. Result - Application for leave to appeal against convictions for robbery, blackmail, and indecent assault dismissed. ************

Identification

184

CA 467/89 CHEUNG Kwok-kuen Cons Ag CJ, Silke V-P, Macdougall JA (11.9.90) *A A Bruce #Sze Kin Identification evidence/Criteria applicable/Judge's directions to jury Held : 1. The quality of an identification does not hinge solely on the length of time available to a witness to see the person whom he identifies. If the lighting conditions are good and the identifiers and the person identified are in close proximity to each other, a brief view of the face of the person identified may be quite sufficient to ensure a reliable identification. The greater the number of identifiers usually the more reliable is the identification. If the identification is not that of a stranger but of a person with whom the victim is familiar, it is plainly of greater reliability. A fortiori where more than one witness is in that category. It is possible, however, for there to be a mistaken recognition even of a friend or relative, or for there to be faulty identifications by a number of witnesses. There is no inflexible overall rule to be applied in every case; 2. The judge must decide on the circumstances before him whether it would be proper to leave the issue of identification to the jury. Juries are not to be treated as being incapable of applying common sense and good judgment to such an issue. Provided that there is an identification of reasonable quality and the jury are properly directed as to the particular dangers that exist in acting on that identification, there is no reason why they cannot safely and competently assess whether it is of sufficient reliability to justify a conviction; 3. Whilst the judge was justified in refusing to withdraw the case from the jury, it was then incumbent on him to highlight to the jury anything that could reasonably be said to weaken that evidence. This he failed to do in relation to a crucial witness to identity. Result - Applications for leave to appeal against convictions for three counts of wounding with intent allowed. Convictions quashed. ******************* MP No 1113/90 Tong Man Jones J (25.9.90) *M Hartmann, Tong Man #M Thomas QC, S Llewellyn Re : Extradition Act 1989 and an application for Habeas Corpus Extradition/Habeas Corpus/Test for committal/Conspiracy and hearsay evidence/Proof of drugs/Identification of fugitive Held : 4. Photographs, upon which the magistrate relied to identify the applicant as the alleged offender, were properly so used as they were sworn to by two witnesses, which documents had been duly authenticated by the US magistrate in accordance with the 1989 Act. Result - Application for Habeas Corpus dismissed, but there would be no committal in respect of two of the original orders to proceed. Order nisi for costs to the Crown.

Identification

185

Privy Council (Petitions for Special Leave to appeal) 8.11.90 LEE Ho-wai : A petition for special leave to appeal from the judgment of the Court of Appeal in Criminal Appeal 379/1988. (Silke V-P, Power and Penlington JJA) Result : Leave refused. Issue : The correctness of holding that a police officer on surveillance is in a better position to make an accurate identification than is an ordinary member of the public. ************** CA 127/90 (A1) PHAM Van-hai (A2) BUI Thanh-ai Cons V-P, Kempster, Clough JJA (2.1.91) *E Chan #E McGuinniety District Judge evaluating identification evidence/Duties Held : Although a District Judge can be assumed to know the burden and standard of proof required in a criminal case, the dangers inherent in identification evidence do not fall into the same category. He should indicate that he is mindful of the considerations to which Turnbull, [1977] QB 224, makes reference. (CHEUNG Tak-chi, Cr.App. 43/89, and CHEUNG Ping-kwong Cr.App. 149/89, considered). Result - Appeal of A1 against conviction for Riot dismissed. Appeal of A2 against conviction for Riot allowed. ************** CA 279/90 LAI Chun-fung Silke V-P, Power, Macdougall JJA (23.1.91) *I G Cross QC, W S Cheung #P Cosgrove Identification evidence/Fleeting glimpse/Judge's duties/Defendant's silence Held : 1. Although the identification evidence consisted of fleeting glimpses by two policemen of an attacker, allegedly the defendant, and who was shot at the scene, since this was coupled with evidence that the defendant was hospitalised shortly afterwards with gunshot wounds, the inference to be drawn was such that the judge was correct in holding there was a case to answer : Reid v R [1989] P.C. 3 WLR 771, distinguished; 2. Provided that the judge repeatedly stressed to the jury the dangers of convicting on identification evidence, it was not necessary for him to itemise each and every item of evidence favourable to the defence; Result - Application for leave to appeal against conviction for seven counts of Wounding with Intent, refused.

Identification

186

CA 544/89 CHAN Wan-hung Yang CJ, Fuad V-P, Macdougall JA (21.2.91) *M Daley #C Draycott Counsel advising defendant at close of Crown case/Dock identification Held : 2. Although the judge permitted a dock identification, without warning himself of the dangers of relying on such evidence, this was not fatal, albeit that a warning would have been desirable. Result - Applications for leave to appeal against convictions for s. 17 Woundings dismissed. **************** CA 619/88 LI Siu-ming Silke V-P, Power, Macdougall JJA (13.3.91) *A A Bruce #Hemmings Identification/General similarity Held : In inviting the jury to conclude that the applicant was the robber, prosecuting counsel did not err in asking them to take into consideration, with all the other evidence, the general appearance of the robber. He was entitled to do so. Result - Application for Leave to appeal against conviction for robbery refused. ***************** CA 623/88 (1) CHEUNG Hay-din (2) CHEUNG Hing-sheen (3) CHEUNG Chiu-din Silke V-P, Power, Macdougall JJA (30.5.91) *D G Saw #(1) (3) A Sanguinett i J Haynes (2) C Draycott Voice identification/Jurisdiction where intimidation uttered in Hong Kong and received abroad/Powers of search Held :

Identification

187

1. Although it is preferable for a trial judge to give himself a Turnbull warning in relation to voice identification evidence, this is a counsel of perfection where there is ample other evidence upon which the court can rely, and where the witness is familiar with the voice or where the voice is a very distinctive one; Result - Applications for leave to appeal against convictions for criminal intimidation, assault, resisting police and disorderly conduct, refused. ************* CA 512/90 (1) WONG Wing-yip (2) LO Kwok-wu Silke V-P, Power, Macdougall JJA (15.11.91) *H Macleod #(1) J McLanachan (2) I/P Identification/Turnbull warning Held : A direction in terms of Turnbull [1977] 1 QB 224, is only required where the case against the defendant rests wholly or substantially on the correctness of the identification. A situation of hot pursuit and apprehension must be distinguished from a fleeting glimpse situation. Result - Applications for leave to appeal against convictions for robbery and burglary dismissed. ***************

Immigration

188

Immigration MCA 174/92 Shun Shing Construction Co. Ltd. Silke V-P, Penlington, Macdougall JJ (11.9.92) *H Macleod #P Graham S. 38A Cap. 115/Construction sites/"all practicable steps to prevent" unlawful entrants on the site : meaning Held : (1) The phrase "all practicable steps", (to prevent unauthorised persons being on the construction site), means that the steps must be feasible steps. This does not imply that which is capable of being achieved regardless of expense, but means steps which are capable of being carried out within known means or resources : the court was not concerned with "reasonably practicable" but whether the steps taken were "possible and practicable". The duty is not an absolute one, but it is higher than all reasonable steps or measures. The emphasis of the section is on prevention and it is that at which a construction company must aim. Absolute prevention is not required; (2) The provision of a single security guard on duty by himself on a construction site is not sufficient to enable the company to say that it had taken "all practicable steps". Result - Appeal dismissed. ***************** CA271/88** LI How-ying Cons Ag CJ, Power JA, Bokhary J (22.8.89) *I G Cross #M Ko Assisting an unauthorised entrant to remain in Hong Kong - S. 37DA, Cap. 115 - Status of the unauthorised entrant (1) The negative averment section, s. 94A, Cap. 221, is of no relevance in proving that a person alleged to be an unauthorised entrant, under s. 37, Cap. 115, does in fact have that status. (2) The presumption in s. 37K, Cap. 115, applies in any proceedings under Part II, and it is not a condition precedent for the Crown first to establish primary facts. (3) By virtue of s. 37DA(2), Cap. 115, it is not necessary for the Crown to prove the defendant knew the status of the illegal immigrants. Result - Leave to appeal against conviction refused. ***************

Immigration

189

MA 1753/88 AG v YIP Man-cheong Penlington JA, Jones, Mortimer JJ (29.6.89) *G J Lugar-Mawson, C K Wong #R Mayne i/s DLA Employing a person not lawfully employable - Strict liability S. 17I of the Immigration Ordinance, Cap. 115 creates an offence of strict liability. (Gammon (HK) Ltd others v. AG of HK (1984) 2 ALL ER 503; Brend v. Wood (1946) 175 LT 306; Sweet v. Parsley [1970] AC 132 and LIM Chin-aik v. R. [1963] AC 160 considered) Result - AG's appeal allowed; No order of retrial sought. *************** CA 190/88 LAU Tung-sing Fuad V-P, Hunter, Power JJA (6.12.88) *J F Findlay QC, G J Lugar-Mawson #G J X McCoy i/s DLA Arranging the passage of an unauthorized entrant to HK S. 37D(1)(a) of Cap. 115 - Offence committed out of HK - S. 37J of Cap. 115 - Jurisdiction - Legislative competence 1. If the legislature is, given its delegated legislative power, making a law with regard to matters that are properly its business, then the law is intra vires. 2. S. 37J, which imposes liability upon a person who, having arranged the passage of unauthorized entrants into Hong Kong, then comes to Hong Kong is sufficiently connected with the peace, order and good government of Hong Kong to make it intra vires the legislative power. 3. S. 37J is not "extra-territorial" in the sense in which that term is used in s. 2(b) of the Hong Kong (Legislative Powers) Order 1986 nor in any sense that makes it an ultra vires exercise of power by the Hong Kong legislature. Result - The Appellant failed on his first 3 grounds of appeal; - Matter adjourned for arguments upon the remaining 2 grounds. ************* MA 1409/89 NG Kit-yee Wong J (16.3.90) *E Chan #P K Lee

Immigration

190

Making false statements to Immigration/S. 42(1)(b) Cap. 115/whether false in a material particular The appellant was convicted of two charges of making a false statement in a document furnished to immigration. S. 42(5) states "false" means false in a material particular. On appeal it was contended that, although the place of birth provided was false, the place of birth was not a material particular and there was no evidence to show it was such. Held : The place of birth is an important consideration of a person's citizenship and nationality. It does not require any evidence to prove what is a matter of common knowledge and common sense. The Director of Immigration has a duty to obtain accurate information and maintain proper records of each and every person who enters and leaves Hong Kong. The place of birth a traveller is required to provide in the arrival and the departure card is a material particular within S. 42 (1)(b). Result : Appeal dismissed. ***************** MA 1123/90 FUNG Chi-wood Bewley J (7.1.91) *C Coghlan, G Forlin #M Lee QC, SC Poon Collecting money - permit necessary/Proof of identity must be produced on demand/Obstruction/Duplicity Held : 2. Under S. 17C(3), Cap. 115, a person must produce his proof of identity on demand. If he does not have it with him, he should be given a reasonable opportunity to produce it. If he has it on his person, he has no excuse for not producing it. 4. Conduct which involved preventing a police officer from examining identity cards constituted obstruction, as it made it more difficult for the police to discharge their duties. Result - Appeal against convictions for failing to produce proof of identity, obstruction, and illegal money collecting, dismissed. ************** MA 1768/90 HO Chun-wai Saied J (25.4.91) *P Chapman #A Sedgwick QC, F Wong Employing illegal immigrant/Presumption in S. 17 Cap. 115/Linking certificate to employee Held :

Immigration

191

(1) Although the Director of Immigration certified that a named person was not lawfully employable, there was no admissible evidence identifying the woman illegally employed with the female mentioned in the certificate; (2) Although Section 17 I(4) Cap. 115 makes the Director's certificate admissible in evidence without further proof, the evidentiary presumption therein relates not to the identity of the employee in respect of whom the offence is alleged to have been committed. That presumption is to the effect that the employee named in the certificate was on the date of the alleged offence not lawfully employable. It only arises where the Crown has proved that the employee was in fact none other than the person named in the Director's certificate : Rogers (1910) 10 Cr.App.R. 276 considered. ************* MA 700/91 AG v LAM Sik-cheung Duffy J (22.10.91) *M Crabtree #J Poon Employer's duty/Reasonable grounds for suspicion required/S. 17I (1A) Cap 115 Held : For the purposes of S. 17 I(1A), Cap. 115, which provides a defence for the employer of the illegal immigrant if he has taken all practicable steps to ascertain the employee's status, an employer is not under an obligation to take all practicable steps to ensure that the employee was not an illegal immigrant if he had no reasonable grounds for suspecting that he was such. Result - Appeal dismissed. ************** MA 482/91 WONG Ching-hung Duffy J (27.9.91) *S Bailey #A Macrae Legislative amendments/Procedural changes/Effective date Held : (2) The magistrate erred in holding that the defence contained in S. 17 I, Cap. 115, as to the taking of all practicable steps by the employer, and which was enacted in November, 1990, did not apply in proceedings after that date to an offence allegedly committed before that date. Result - Appeal against conviction for employing a person not lawfully employable, allowed. *************

Immigration

192

MA 649/91 WONG Chee-hung Duffy J (26.9.91) *S Bailey #J Pow Employing person not lawfully employable/Relevance of continuous employment Held : Section 17 I(1), Cap. 115, imposes on an employer a continuing responsibility to ensure that those employed are employable. As the appellant was responsible for hiring and firing in the company, he was the person guilty of having employed someone who was unemployable on the date of the charge - albeit that the employee's employment was continuous employment, in the sense that another company had earlier employed him, and that there had been no fresh employment by the appellant when his company assumed responsibility for the enterprise. Result - Appeal dismissed. ***********

Inference

193

Inference CA 474/ 91 (1) LUN Trung-hung (2 ) PHAM Van-diep Silke V-P, Power, Macdougall JJA (21.8.92) *G E Forlin #(1) A Macrae (2) C K Wong Conspiracy to rob/Drawing inferences Held : Although it was submitted that, while the evidence pointed to the existence of a conspiracy to commit some crime, it did not establish which, since the defendants were carrying knives, wire and adhesive tape the inference to be drawn was that the conspirators must have had in contemplation that persons would, if necessary, be subdued. The conspiracy must have gone beyond one the object of which was simply to steal or to burgle. It was therefore properly held to be a conspiracy to rob. Result - Applications for leave to appeal against conviction dismissed. **************

Intent

194

Intent MA 436/89 LI Wai-lun Wong J (23.11.89) *S Wong #J Spruce Doli incapax - Evidence to rebut the presumption 1. To rebut the presumption of doli incapax, the Crown must prove that there is strong and cogent evidence that the child understood what he did was seriously wrong. 2. The demeanour of the child, as demonstrated by the answers he gave to the police when intercepted and in cross-examination, is evidence capable of rebutting the presumption. 3. In order to succeed on appeal, the Appellant must show that there was no evidence on which the presumption could be rebutted. (J.M. v Runeckles (1984) 79 Crim. App. Rep. 255 considered; CHAN Chi-wah [1967] HKLR 241 followed) Result - Appeal against conviction of a 13 year-old for Loitering and Possession of an Offensive Weapon dismissed. ***********

Joinder/Severance

195

Joinder/Severance CA 243/90 YEUNG Man-hung Yang CJ, Jones, Wong JJ (31.7.92) *I G Cross QC, W S Cheung #R Murray Directions on incriminating evidence of co-accused/Objecting to joinder on appeal Held : (1) Although the applicant's three co-defendants at trial all claimed that they had only committed the robbery due to duress from the applicant, it was sufficient for the judge to warn the jury to be careful when considering their evidence as they may have interests of their own to serve. It was not necessary for the judge further to warn the jury of the dangers of acting on the uncorroborated evidence of the other accused : Prater (1960) 44 Cr.App.R. 83, Knowlden (1983) 77 Cr.App.R. 94, CHAN Siu-hung (1976) HKLR 357, and CHAN Tat-kwong [1991] 1 HKLR 205 considered; (2) As no application for severance was made at trial, it was too late to complain on appeal as to misjoinder of counts. Result - Application for leave to appeal against convictions for robbery and possession of arms and ammunition, refused. **********

Joint Enterprise

196

Joint Enterprise CA46/89** PHAM Quoc-viet NGUYEN Trong-thinkHO Hong-man NGUYEN Dinh-jao HO Ngoc-sanh Cons Ag CJ, Power, Macdougall JJA (17.8.89) *I G Cross, C Fung #G Plowman for Applicants 2 to 5 Joint enterprise - Judge's assessment of culpability When the Crown case is based on the evidence of defendants acting jointly, the judge can do little more than describe their culpability in corresponding terms. A minute examination of the role of each defendant is not called for. Result - Leave for Applicants 2 to 5 to appeal against convictions of wounding and AOABH refused. ************** P.C. Appeal No. 4/91 HUI Chi-ming Lords Bridge, Oliver, Goff, Jauncey Lowry (5.8.91) *A Duckett QC, W S Cheung #M Thomas QC, R Britton Evidence of verdict in previous trial/Joint enterprise/Abuse of process Held : (2) If B realises (without agreeing to such conduct being used) that A may kill or intentionally inflict serious injury, but nevertheless continues to participate with A in the venture, that will amount to a sufficient mental element for B to be guilty of murder if A, with the requisite intent, kills in the course of the venture. B in those circumstances has lent himself to the enterprise and by so doing has given assistance and encouragement to A in carrying out an enterprise which B realises may involve murder : CHAN Wing-siu [1985] AC 168, explained; Wakely [1990] Crim.L.R. 119, overruled. *************

Judge/Discretion

197

Judge/Discretion CA 425/91 LAM Chun-chuen Silke V-P, Macdougall JA, Bokhary J (25.6.92) *C Coghlan #G Plowman Non-disclosure of alibi witnesses/Judge forming provisional view of Crown witness Held : (1) As the applicant gave his formal notice of alibi within time, the judge erred in attaching significance to the fact that he had not disclosed the identity of his alibi to the police at an early stage : R v Lewis (1973) 57 Cr.App.R. 860 followed; (2) Although a judge sitting alone is in a quite different position to a judge presiding over a jury trial, it was unwise for the judge to give interim expressions of opinion of witnesses. There is always a danger that, if this occurs before he has heard the evidence of the defence and he fails to mention that such was merely a provisional view, he will convey to the defendant the impression that he has prejudged the case : Prasad v Comptroller of Customs (1962) S J 628. Result - Appeal against conviction for criminal damage allowed. ************** CA 419/92 SIT Chu-nam and others Litton JA, Mortimer, Sears JJ (18.11.92) *I G Cross QC, W S Cheung #J Mullick Duties of District Judge/When specific elements of offence must be considered Held : (1) Although the District Judge is not required to set out the whole of his evaluation in his Reasons for Verdict, where the matrix of facts is open to one of two conclusions, then the judge must address his mind and be seen to address his mind to the specific ingredients of the offence if the conviction for the more serious crime of wounding with intent is to be sustained; (2) It was at least open to the court, as there was a sudden flare-up of violence and objects were picked up at random to be used as weapons, to find that the applicants did not have the specific intent necessary to ground the convictions under S. 17, Cap. 212 : R v TSANG Kin-ming Cr App 214/92 distinguished. Result - Appeals allowed. Convictions for wounding with intent quashed, and convictions for unlawful wounding substituted. ***************

Judge/Discretion

198

CA 137/89 LO Kwok-hung Yang CJ, Silke V-P, Bewley J (19.10.89) *I G Cross, W S Cheung #R Buchanan Whether judge should discharge himself - Test to be applied (The defendant, before the trial began, asked, through counsel, that the judge discharge himself - since he felt the judge considered him to be a liar over some previous delays in the trial starting due, apparently, to the defendant's failure to obtain legal representation. The judge declined, observing that it was the court's duty to proceed with the trial now that he was legally represented and he would not countenance "delaying tactics".) 1. The test to be applied is whether that which had occurred would have engendered in the mind of the hypothetical reasonable and fairminded spectator, the same feelings of suspicion as those of the applicant that a fair trial was not possible. (AG v. NG Hok-ming, MA 1360/88, Barnsley Licensing Justices [1960] 2 QB 167, Metropolitan Properties v. Lannon [1969] 1 QB 577 Liverpool JJ, ex. p. Topping [1983] 1 WLR 119, considered) 2. The court has a duty to conduct its list so that all trials are determined as quickly as the dictates of justice required. Result - Leave to appeal against conviction for Robbery and TCWA refused. ************ MA 1690/88 Tsutsumi Motonobu, NGAI Hing-loon, Japan Materials Suppliers Limited (Part I) Duffy J (28.2.89) *I McWalters #C Grounds Possession of infringing copies of artistic works in which copyright subsisted - S. 5(1), Copyright Ordinance, Cap. 39 - Allowing prosecution to re-open case - Exercise of judicial discretion (1) This is a matter entirely of discretion which should be exercised within the circumstances of each case to ensure that no injustice is done - to either side. (2) To confine this judicial discretion within prescribed limits, by using words such as "technical", "formal" and "noncontentious" in relation to matters omitted, be they matters of substance or otherwise, is invidious. Result - Appeal against convictions dismissed. ************* MA 1360/88 NG Hok-ming Wong J (2.2.89)

Judge/Discretion

199

*I G Cross #I/P AG's appeal by way of case stated - Judge/Magistrate discharging himself from hearing a case - Stopping a trial - Prejudging a case - Careless driving (1) It is a matter of discretion whether a judge or magistrate should discharge himself from hearing a case - that discretion must be exercised judically and with the greatest caution. (2) It is too wide a proposition to say that a judge or magistrate can never stop a trial before he has heard evidence or before he has heard all the evidence. (3) A magistrate or judge may stop a case if, after hearing the Crown's opening, he is satisfied that no offence is disclosed. (4) In a jury trial, a judge may, if appropriate, stop a case after hearing part but not all the evidence if he is satisfied that the evidence adduced does not support the charge and further evidence will not improve the Crown's case. Such instances will be extremely rare. (5) Courts cannot be expected to have to hear cases which are completely unmeritorious. (6) The practice of a court prejudging a case is not only undesirable but also highly dangerous, and is to be discouraged and avoided at all courts. Result - AG's appeal dismissed. ************** CA 72/90 Edward Christopher Harris Silke, Fuad VV-P, Kempster JA (19.10.90) *R. Marshall-Andrews Q.C., M. Ozorio, J Wee #A. Scrivener QC, G Plowman, A Chow Abuse of Process/Incitement/Lies and relevance thereof/Application to stay proceedings on the basis : 1. That the proceedings amounted to an abuse of the process of the Court 2. That the large volume of pre-trial publicity caused such prejudice that the appellant might not receive a fair trial (or be perceived to receive a fair trial) Facts : The appellant was convicted after trial of a single count of incitement. The preliminary issue was that the prosecution amounted to an abuse of process. Issue was two fold : 1. The propriety of an Attorney General who, having made a considered decision not to prosecute, subsequently rescinding that decision and directing a prosecution. 2. That the prosecution having been brought before the Court is its continuation an abuse of the Court's process against which the Court should give relief. Held : Silke V-P

Judge/Discretion

200

A. Prejudice "In a trial by judge alone a trial judge is and must be taken to be capable of removing from his mind any matters prejudicial or erroneous in fact which may arise from such publicity and to concentrate his mind upon the evidence given in Court." B. Abuse of Process "A decision not to prosecute is a solemn one and not to be lightly undertaken............. The decision to prosecute or not to prosecute is that of the Attorney General alone.........Once taken a decision should be final lest public confidence in the office of the Attorney General be eroded. It is not suggested that there can never be an occasion when a decision so solemnly taken can never be resiled from......The vital question in this appeal is what, if any, protection the Court should offer to the person being prosecuted in such circumstances". The Court's Power Judicial review does not ordinarily lie in relation to a decision of the Attorney General's. In KEUNG Siu-wah [1990] 2 HKLR 238, Fuad V-P stated that : "it was a constitutional imperative that the Courts do not attempt to interfere with the Attorney General's discretion to prosecute, but once the charge or indictment comes before a Court for hearing, it can consider whether the prosecution should be allowed to continue if grounds amounting to an abuse of process are raised". Those dicta apply whether the proceedings are civil or criminal. There must always be a residual discretion to prevent anything which savors of abuse of process : Connelly v DPP [1964] AC 1254. "A Court is entitled to safeguard its process from abuse. But it is a grave and serious matter to refuse jurisdiction.....It is unnecessary for the appellant in order to succeed to prove prejudice......In the case where immunities are given and the Crown resiles from its promise then the protection of the Court may well be given.....It matters not when an issue of abuse of process is argued on appeal whether or not there has been a conviction....The failure of an Attorney General to honour his decision can erode public confidence in the office but that is not for the Courts to consider....There must be within the Court's a fundamental right to ensure that justice is administered both fairly and properly. There was nothing unlawful in the change of mind of the Attorney General"....... Fuad V-P The authorities cited "demonstrate that insofar as the criminal process is concerned, the parameters of the power of a Court to stay a prosecution otherwise properly brought before it are still unsettled." The basis upon which a Court may consider intervening is not simply that of fairness to an accused, although this may be an important consideration. The focus is on the misuse of the court process by those responsible for its enforcement. It is only where to countenance the continuation of the prosecution would be contrary to the recognised purposes of the administration of criminal justice that a Court would ever be justified in intervening : Moeavo v Department of Labour [1980] 1 NZLR 464 considered. Kempster JA "It has yet to be determined in this jurisdiction whether an Attorney General, exercising the prerogative by which the Crown controls the criminal process, reneges on a bargain or a promise of immunity to an accomplice who fulfills the conditions to which the promise is subject occasions a breach of process of the Court. A fortiori when he made and then departs from a unilateral statement of intent in relation to a prosecution. It is common ground that the Attorney General's decision whether or not to prosecute cannot be the subject of Judicial Review...... The weight of authority in England and the Commonwealth generally demonstrates that the Courts may exercise a discretionary power to stay if the conduct of the prosecution amounts to an abuse in that it results in an unfair trial, oppression or prejudice to a defendant in the conduct of his case or if it involves the breach by the Crown of an agreement not to prosecute"..... Result - 1. Appeal against conviction for incitement to procure an underaged girl for unlawful sexual intercourse dismissed. 2. Attorney General's appeal by way of Case Stated against the trial judge's dismissal of two related charges dismissed. ***********

Judge/Discretion

201

Privy Council A petition for special leave was considered by the Judicial Committee of the Privy Council on 13th December, 1990.

E.C. Harris : A petition for special leave to appeal from the judgment of the Court of Appeal in Criminal Appeal 72 of 1990. (Silke Fuad VV-P, Kempster J.A.)

Result : Leave refused.

Issue : Abuse of process. The propriety of an Attorney General who, having made a considered decision not to prosecute, subsequently rescinds that decision and directs a prosecution. Whether the prosecution amounts to an abuse of the Court's process against which the Court should give relief.

The Board, which comprised Lords Bridge of Harwich, Ackner, and Jauncey of Tullichettle, observed that, on the facts, this was not a suitable case in which to grant leave so as to consider the issue of abuse of process.

The petitioner was represented by A. Scrivener Q.C., and the Crown by R. Marshall-Andrews Q.C.

***************** CA 164/90 Nguyen Van Hiep Yang CJ, Fuad V-P, Macdougall JA (20.2.91) *M Daley, #M Poll New counsel/Discharge of jury/Judge's discretion/Dying declaration Held : 1. Whether or not a jury should be discharged, and a fresh trial ordered, is a matter for the discretion of the trial judge, which will not lightly be interfered with on appeal; Result - Application for leave to appeal against conviction for murder, refused. *********** CA 332/90 CHING Shing-yum Silke V-P, Power, Penlington JJA (13.8.91) *S Bailey, #D Marash Judge admitting documentary evidence during final address/Absence of foundation Held : Judges cannot, in the course of a final address by either the Crown or the defence, call for and enter into evidence documentary matters in respect of which no evidence has been given as to their contents in either examination-in-chief or cross-examination of a witness. Result - Appeals against certain Wounding convictions, allowed.

Judge/Discretion

202

CA 205/91 LIU Kwok-kwong Yang CJ, Silke V-P, Power JA (23.10.91) *I McWalters #D Law Judge's discretion/Whether discount required for custody incurred in pursuit of habeas corpus Held : The trial judge did not err when, in determining sentence, she declined to grant a discount for the period spent in custody in New Zealand between the conclusion of the extradition hearing and the hearing and determination of the subsequent writ of habeas corpus. This was a matter for the exercise of the discretion of the trial judge, and that exercise would only be upset if she was plainly wrong or had failed to take account of relevant matters. Result - Application for leave to appeal against concurrent sentences of four years, imposed for six charges of procuring the execution of a valuable security, and one of conspiracy to defraud, dismissed. *************

Judge - Summing Up

203

Judge - Summing Up CA 246/91 TSUI Kwok-fu Silke V-P, Power, Macdougall JJA (8.9.92) *I G Cross QC, W S Cheung #C Grounds Direction on inadmissible evidence/Leaving alternative counts/Sequence of directions/Directing on 'reasonably' and 'rationally' Held : (1) Although the inadvertent introduction into evidence at trial of photographs relating to another offence which had occurred at the same scene as the crime with which the jury was concerned amounted to a material irregularity, the judge properly directed the jury that they were of no relevance, and the jury told him that they had not been influenced by them; (2) If a defence emerges, even though it may not be relied upon by counsel for the defence, it is the duty of the judge to draw it to the attention of the jury : Mancini v DPP [1992] AC 1; (3) In the context of this trial, and the evidence given at it, and given the wounds and the method of their causing, the judge did not err in not taking it upon himself to leave manslaughter to the jury. There can be circumstances in which it would be harmful to confuse the jury by advising them of the possibility of a verdict which could make no sense : Fairbanks (1986) 83 Cr.App.R. 251; (4) There is no requirement that, when a judge gives a direction on inferences, he should then immediately follow it with the necessary direction on the burden of proof; (5) Although it was submitted that a judge should make clear to the jury that the word "reasonably" means "rationally", and that the jury may have thought that an inference could be drawn even though another unreasonable (i.e. unlikely, still possible but nevertheless rational) inference existed, juries must be given credit for some degree of common sense. For the judge to go into a physiological discussion with the jury as to the meaning of "reasonable" has generally been disapproved - this usually in the context of explanation of what is a reasonable doubt. To enter into a dissertation on the difference, if there is one, between "reasonably" and "rationally" is more likely to confuse a jury than anything else, and it is not incumbent on a judge to do so. Result - Appeal against conviction for murder dismissed. *************

Jury/Direction

204

Jury/Direction CA 329/91 CHAN Wai-keung Yang CJ, Power JA, Barnett J (13.10.92) *I G Cross QC, W S Cheung #A Sedgwick QC, M Poon Murder/Discharge of jury/Propriety of deferring sentence Held : (1) Although the prosecutor asked a question of the defendant which suggested that he had said certain things to the police upon arrest, when that said by him had already been excluded from evidence after a voire dire proceeding, that question, to which defence counsel immediately objected, was not so prejudicial as to oblige the judge to discharge the jury. The judge's direction that there was no evidence of any statements having been made by the defendant adequately addressed the situation which arose; (2) Although the authorities permit a judge to defer sentence so as to enable a defendant to give evidence for the Crown against a confederate in a related trial, and do not deal with the situation where sentence is deferred so that evidence can be given in an entirely unrelated case, there is no logical or realistic reason why the two sets of circumstances should be treated any differently. There was accordingly no duty on the judge to tell the jury that such deferment, in respect of the main Crown witness, was not a proper practice, and to remind them how this might affect his reliability and credibility. Result - Application for leave to appeal against conviction for murder dismissed. *************** CA 167/89 CHAU Chun-wai Silke CJ (Ag), Kempster JA, Bewley J (8.2.90) *I G Cross, W S Cheung #G Plowman Judge directing jury 1. A Judge, when directing a jury, is clearly entitled to express his opinion on the facts of the case, provided that he leaves the issues of fact to the jury to determine. He should not direct the jury, or use language which leads them to think he is directing them, that they must accept the facts in the way which he indicates. But he may express a view that the facts ought to be dealt with in a particular way, or ought not to be accepted at all. He is entitled to tell the jury that the defendant's version is a remarkable one, or that it differs from accounts which he has given on other occasions.

(O'Donnell, 12 Cr. App. R. 219, 221, approved)

2. A direction that suggestions by counsel are not evidence, unless the witness accepts them, and otherwise should be ignored, should be tailored to have regard to the fact that, as a result of questions, albeit denied, the credibility of a witness may be thought to be shaken.

Jury/Direction

205

Result - Leave to appeal against convictions for Attempted Murder and Possession of Arms with Intent to Endanger Life refused. *********** CA322/89** CHOW Hoi-ping Yang CJ, Power JA, Sears J (20.2.90) *I G Cross, W S Cheung #T Iu Reference of "target" person - Whether fatal (The defendant was repeatedly referred to as the "target trafficker" or "the target" by Crown witnesses in a District Court trial. Defence counsel made no objection.) 1. The use of the word "target" was to be avoided, as it suggests the suspect is believed to be involved in something illicit. All that need be said is that police were acting on information. (KO Po-lun [1982] 2 HKLR 8, applied) 2. Whilst the use of the word "target" is much more dangerous in a jury trial, all that a District Judge needs to indicate is that he has put it out of his mind in his Reasons for Verdict. Even if he does not so direct himself, a passing reference in evidence may not be fatal - but if repeated such references occur, the District Judge is required to note that he has put such from his mind when considering the evidence. Result - Appeal against conviction for DDUT allowed. Retrial ordered. *********** CA556/88** LEE Kin-wai FOOK Kam-fai TSANG Hing-fuk Silke CJ (Ag), Kempster JA, Hooper J (16.1.90) *I G Cross, D Pang #I/P Unauthorised contact between clerk of court and jury - Whether to discharge jury 1. Where the clerk of court had an unauthorised communication with the jury after it had retired, and the judge thereafter held an enquiry as to whether that communication was material, and satisfied himself that it was not, there had not been a material irregularity. 2. No counsel applied for the discharge of the jury. The judge correctly exercised his discretion not to do so and there was no miscarriage of justice. (Sawyer 71 Cr. App. R. 283, applied) Result - Leave to appeal against convictions for Rape refused.

Jury/Direction

206

CA 10/89 LAI Kwok-chun Yang CJ, Silke V-P, Bewley J (8.11.89) *I G Cross, W S Cheung #E Lasky (A) Inferences - Judge's direction It is a correct direction for a Judge to state that if, from proved facts, two or more reasonable inferences are open, one (or more) of which is (or are) as consistent with innocence as guilt, then the Crown has failed to establish the guilt of the Defendant beyond reasonable doubt.

(B) Inference upon inference A Court can properly draw an inference from an inference - so if a Defendant's presence is proved by inference, a further inference, that he intended to rob, could properly be drawn.

(C) Inference - Where defendant is silent An inference of guilt from several unexplained inculpatory pieces of evidence, taken cumulatively, can more readily be drawn if a Defendant does not give evidence.

Result - Leave to appeal against conviction for Robbery refused. ************** CA 92/89 LAW Shing-huen Yang CJ, Silke V-P, Bewley J (29.11.89) *I G Cross, W S Cheung #A Sedgwick Q.C., K Ramanathan (A) Previous conduct General background evidence, which indicated an Accused's relevant behaviour prior to the alleged offence, may be prejudicial, in that it tied him to a previous, if unsuccessful, attempt to teach the deceased, whom he was accused of murdering, a lesson. But any evidence which tends to implicate a Defendant in a crime is of its very nature prejudicial. The evidence was admissible as it was relevant and part of the general proofs of the Crown.

(B) Putting defence before jury by judge As a matter of principle, a trial Judge is obliged to put to a jury whatever defence emerges, either from the prosecution's case and through cross-examination, or from the evidence of a Defendant himself, or from both combined, however weak it may be (Dinnick (1910) 3 Crim. App. Rep. 77). Further, if that is not done the conviction is in danger of being quashed. (Mills (1936) 25 Cr. App. R. 138).

(C) Summings-up Summings-up are framed in the light of the way in which the case has been run , and this includes the manner in which Counsel have addressed the Court. They must be viewed as a whole, and it is not the Judge's duty to take the jury in detail through every possible contradiction or weakness in the evidence given. (CHENG Pak-chung CA 61/1979). There is no such thing as the perfect summing-up.

Jury/Direction

207

(D) Accomplice warning The simple provision of knives by one man to another, without accompanying evidence that the supplier suspected that they would be used for the purpose for which they in fact were, did not render him participes criminis in the crime charged. He lacked the requisite degree of knowledge of the essential matters which would constitute the offence in fact committed. There was therefore no need for a full accomplice warning to be given. (Bainbridge [1960] 1 Q.B. 129; Maxwell [1978] 1 W.L.R. 1363 considered).

Result -Appeal against conviction for Murder dismissed. ************* CA 32/89 HUNG Wai-hung Fuad V-P, Hunter, Power JJA (19.9.89) *J Abbott #G J X McCoy Failure to protest innocence upon arrest - Judge's comment Where a judge, when summing up to the jury, observes that, while an arrested person has a right not to say anything, that does not prohibit the jury from considering why, if he is innocent, he did not protest his innocence upon arrest, the judge will have crossed the fine dividing line between what is, and what is not, fair comment. Result - Application for leave to appeal against conviction for DDUT granted. Appeal itself dismissed on application of the proviso. ************** CA 75/89 WONG Kwok-keung Cons V-P, Power, Macdougall JJA (8.9.89) *I G Cross, C Fung #G J X McCoy Judge's summing-up The Court of Appeal is not concerned to see whether the judge attained perfection in his summing-up. It is concerned to see that the summing-up gave adequate and fair assistance to the jury.

(HUI Chi-ming, CA 231/88, applied)

Result - Leave to appeal against conviction for 6 counts of robbery, attempted rape and indecent assault refused. (See next section for appeal on sentence) **************

Jury/Direction

208

CA33/89** MAU Man-yiu Cons Ag CJ, Power, Macdougall JJA (15.8.89) *I G Cross, W S Cheung #G Alderdice Judge's direction where there are a number of like charges If a judge gives the jury a correct direction in law on one charge, it is not necessary for him to repeat that direction in relation to other like charges. The jury can be taken to appreciate that the law is the same on similar offences without such a specific direction.

Result - Leave to appeal against conviction refused. *************** CA 576/87 LEUNG Chi-yuen (A1) NG Kin-tung (A2) LEUNG Kwok-tung (A3) LAM Fu-cheung (A4) CHAN Kam-sum (A5) Fuad V-P, Penlington JA, Ryan J (29.6.89) *J K Findlay QC, A A Bruce and Miss E Chan #A J Corrigan QC and S Westbrook i/s DLA for A1, A2 and A3; N Sarony and E Laskey for A4 and A5; A Sedgwick QC and D Mitchell as Amicus Curiae; H Litton QC, A Hoo and YL Wong for HK Bar Association Prejudicial evidence of other offences - Use of witness statements during adjournments - Allegations put to Crown witnesses - Corroboration - Counsel's failure to submit when invited - Ballistics expert evidence - Direction to jury (1) The trial judge was in a far better position to assess the likelihood of prejudice to the defendant as a result of cross-examination of the witness than the appellate Court, and the trial judge cannot be said to have exercised his discretion wrongly in deciding that a proper direction to the jury was sufficient to remove that prejudice. (2) The Courts should not, even in the case of an accomplice who is in custody, lay down a rule, which in practice they cannot enforce, that it is fatal if a witness refreshes his memory from a non-contemporaneous statement during the course of giving evidence and while not in the witness-box. It is undesirable that the witness should do so, and most certainly if he does so that should be brought to the jury's attention for assessing his evidence. As the jury were aware of the position of this aspect of the witness's evidence, there was no material mis-direction. (3) Any suggestion put to a witness and denied by him is not, and should not be considered in any way, as being evidence. The suggestions were, like other questions, put by defence counsel to a witness in an effort to show that his evidence was not to be relied on. The trial judge in many parts of his summing-up correctly directed that those suggestions should be considered in the light of testing the evidence but not being of positive probative value themselves. (4) Where counsel are invited to make submissions upon law in the lower court but decline, such failure cannot affect the point of law if evidence is legally not admissible. Where however it is a question of degree, as in the case here, when it is argued that one witness's evidence was so inconsistent with the accomplice's that

Jury/Direction

209

the judge should have directed the jury that it was not capable of being corroborative, counsel's failure to make submission at trial, especially when specifically invited, will prevent the point being raised on appeal. (5) As the point was not taken before the trial judge that he should direct the jury that they should pay no regard to the evidence of the witness (which was so inconsistent with that of the accomplice's that it could not afford legal corroboration of it), the Judge was correct in allowing the evidence to go before the jury as being such as could corroborate the accomplice witness and he did draw the jury's attention to the major discrepancies. (6) Although the evidence given by the ballistics experts, unsupported as it was by photographs or even the production of all the relevant cartridge cases, was admissible, the greatest care was required in the direction to the jury as to the way they should approach that evidence. As defence counsel (who could not put to the Crown's expert witnesses that they were wrong as he did not have material to support that allegation) had clearly put to all those expert witnesses that they might be wrong, the jury should have been directed accordingly. Result - A1, A2, A3 and A5's appeal against convictions of murder (x 1), robbery (x 1), possession of arms at the time of committing the robbery (x 1) and shooting with intent to resist lawful apprehension (x 5) allowed; convictions quashed and sentences set aside. -A4's appeal against convictions of the same counts dismissed. ************* CA 151/88 TANG Wai-ming (A1) TAM Biu (A2) TSUI Sherman (A3) Silke V-P, Power, Penlington JJA (3.7.89) *A A Bruce #AJJ Sanguinetti, R Mayne for A1 and A2; G J X McCoy for A3 Prejudicial evidence - Remedial steps - Direction to jury It is always difficult for a judge, when a piece of prejudicial evidence suddenly appears, as to what course he should take. By immediate intervenion, the matter may be highlighted. However, provided that jury is properly directed, then it must be accepted that the jury will act accordingly. Result - Applications for leave to appeal against conviction of manslaughter by A1, A2 and A3 refused. ************* CA 243/88 YIP Wai-kwong Silke V-P, Penlington, Macdougall JJA (22.6.89) *A A Bruce #G J X McCoy Wholly exculpatory statement produced by Crown as "a tissue of lies" - Direction to jury - Non-direction

Jury/Direction

210

Given that the applicant's exculpatory cautioned statement (which had been made after his voluntary surrender to the police) was produced by the Crown, used before the jury, and that they were told the Crown desired them to consider it "a tissue of lies", the trial judge erred in law in not giving a Broadhurst direction; although it is not necessary in every case for a trial judge to give such a direction. (Broadhurst v. The Queen [1964] AC 441 and The Queen v. KEUNG Sin-chi CA 965/83 considered) Result - Application for appeal against conviction of uttering forged documents granted; appeal allowed. *************** CA 243/87 LO Chi-keung Kempster, Hunter JJA, O'Connor J (1.3.89) *C Coghlan #N Sarony i/s DLA (B) Serious allegations of misconduct against police officers or other witnesses - Defendant silent - Comment by judge to jury Where such allegations are made, and the Defendant does not give evidence to support them, strong comment by the judge to the jury is permissible. Result - Leave to appeal against conviction for murder refused. ************* CA 474/88** HO Chin-chiu Silke V-P, Power, Penlington JJA (31.3.89) *I G Cross #S Westbrook i/s DLA Murder - Direction to jury - To consider scenario with no supporting medical evidence When a judge, by way of comment, asks the jury to consider a scenario in respect of which there is no supporting medical evidence, no objection can be taken on that ground if the effect of the comment is simply to invite the jury to deploy their common sense in assessing the evidence - and he makes clear that it is up to them to find the facts from the evidence. Result - Appeal against conviction dismissed. ************ CA 231/88 HU Chi-ming Cons V-P, Kempster, Clough JJA (30.12.88)

Jury/Direction

211

*A P Duckett QC, J M Gerber #F Eddis QC, D Percy i/s DLA Murder - Another jury's verdict - Lies by defendant - Summing up 1. The fact that another jury on a separate occasion and for some reasons may have come to a different conclusion is not a relevant matter for the jury's consideration - the trial judge did not err in preventing counsel from adducing evidence that the principal offender had been found guilty of manslaughter. 2. A summing-up will sometimes include a direction as to what value, if any, is to be attributed to the fact of a defendant's telling or having told lies, and a jury will often be reminded that there may be reasons other than guilt for a defendant's telling lies. Where, however, the truthfulness of the defendant's evidence was inextricably bound up with the question of his intent, a direction in such terms would not have helped the jury. 3. The appellate Court is not concerned to see whether perfection in a summing up was attained, but whether the judge gave the jury adequate and fair assistance that was appropriate to the particular questions that the particular jury had to decide. (Quick and Paddison (1973) 53 Cr. App. R. 722 distinguished) Result - Appeal against conviction dismissed. ************* MA 1218/88 LAI Kwok-cheung Wong J (16.1.89) *S Wong, Miss P Lee #J Fenton Handling stolen goods - Defendant's knowledge or belief - Comment on Defendant's failure to give evidence - Breach of S. 54(1) of Cap. 221 2. The mandatory provision of s. 54(1) of Cap. 221 applies in all criminal proceedings (s. 58) and the prosecution is forbidden to comment or invite the Magistrate/Judge to comment on the Defendant's failure to give evidence albeit the Court may, on its own initiative, in some cases do so. (YU Yuk-kwong [1979] HKLR 585 followed) Result - Appeal against conviction allowed. ************* MA 338/90 MO Wai-hung Duffy J (11.4.90) *I G Cross QC, W S Cheung #S Mason-Parker S. 54(1)(b), Cap. 221 - Prosecutor in final address made 2 references to the failure of D to give evidence - Magistrate acquitted D without consideration of merits - Whether references to D's silence constituted a material irregularity

Jury/Direction

212

Held : 1. Where there is a breach of s. 54(1)(b) by the prosecutor, this can be put right by the trial judge either in his summing-up to the jury, or in his statement of findings, if he is sitting alone. (Kong, George and others v. R. Cr. App. 397/1984, considered) 3. When the prosecutor makes a remark contrary to s. 54, Cap. 221, the magistrate or District Judge must in his statement of findings refer specifically to the comment, state that he disregards it and that it caused no prejudice. Likewise, in a jury trial, depending on the seriousness of the remark, it would be for the trial judge to correct any wrong impression given by counsel for the Crown who offended against the section. Result - AG's appeal allowed. ************ CA 469/89 CHAN Ying-choi and 4 others Silke V-P, Power, Macdougall JJA (6.4.90) *A A Bruce #D Tang for A3, others I/P Judge directing jury/Confessions/Several accused Held : (1) It is not incumbent on the judge when dealing with the case of each accused to repeat to the jury his earlier general direction that it was for them to decide whether the confessions were true, that in so doing they should consider all the circumstances in which the statements were made, and that if they were not sure for whatever reasons that a confession was true they must disregard it. (2) When a judge tells a jury that, provided they are satisfied that the contents of a confession are true, they may act on it, even though they think that the accused's allegations as to the circumstances under which it was taken by the police are or might be true, he would normally go on to tell them that would constitute a good reason why they should doubt that the confession was true. Result - Appeals dismissed. ************* CA 601/89 CHAN Tak-kwong (A1) LAM Kwan-fai (A2) Silke V-P, Power, Macdougall JJA (7.9.90) *I G Cross QC, W S Cheung #A Sedgwick QC, P Nguyen (A1) C Grounds (A2) Cut-throat defence/Directions to jury/Dangerous Drugs : Presumption of knowledge where custody or control not in issue Held :

Jury/Direction

213

1. Where each defendant gives evidence in a cut-throat defence implicating the co-defendant, the simple customary warning - to examine the evidence of each with care, because each has an interest of his own to serve - will suffice and there will seldom be need for the giving of a full accomplice warning : Knowlden (1983) 77 Cr.App.R. 94, and CHAN Siu-shing [1974] HKLR 493 approved; 3. No complaint could be made of a summing-up which stressed the need for the jury to consider whether the presumption of knowledge had been displaced in circumstances where there was no issue as to custody or control. Result - Appeals dismissed. ************** CA 405/88 TAM Chung-shing(A 1) WONG Kai-wai (A2) LO Tai-wai (A3) Yang CJ, Silke V-P, Power JA (17.11.90) *G Lugar- Mawson #A Sanguinetti (A1) G J X McCoy (A2) F Eddis QC T IU (A3) Cross-examination on previous conviction which is under appeal/Direction to jury on conspiracy particulars/Lies Held : (3) It was not open to the jury to find that lies by themselves would be evidence going to prove guilt : R. v. Harris Cr. App. 70/90. Result : Appeals allowed. ************** CA 567/89 WAN Kwong-yau Yang CJ, Silke V-P, Penlington JA (20.12.90) *D G Saw #J Haynes Judge directing jury/Circumstantial evidence/Discrepancies/Accomplice warning Held : (1) In a straightforward case, the judge is not obliged to remind the jury of the details of all the circumstantial evidence favourable to the accused; (2) In a simple case, the jury need not be reminded of all the discrepancies in the evidence of the Crown witnesses;

Jury/Direction

214

(3) Speculation by the defence that a Crown witness might be an accomplice is not a sufficient basis for obliging the judge to give an accomplice warning. There must be evidence of that. Result - Application for leave to appeal against conviction of possession of a dangerous drug for the purpose of unlawful trafficking, refused. *************** CA 317/89 (A1) LEE Wai-keung (A2) CHU Ngar-ying Silke V-P, Macdougall JA, Bewley J (28.12.90) *I G Cross, QC, W S Cheung #G Plowman (A1) A Hoo, QC, A Chow (A2) DDUT/Directing jury on presumptions/formula to be used/whether necessary Held : 2. It cannot be said that a judge must always give an explanation to the jury that a balance of probabilities means more likely than not or more probable than not : Swaysland TLR 15.4.1987 considered; LAW Chi-keung others CAs 90 and 290 of 1983, and LAM Ming-kwong CA 104 of 1984, approved; 4. Where a judge decides to explain the meaning of proof on the balance of probabilities he must do so clearly and accurately. To tell the jury that the expression meant proof by means of credible evidence through a witness, and that nothing could be proved unless that witness was believed, was misleading. It may have led the jury to think that the standard of proof cast on the applicants was higher than that of proof on the balance of probabilities. Result : Appeals against convictions for DDUT allowed. Retrial ordered. ************** CA 279/90 LAI Chun-fung Silke V-P, Power, Macdougall JJA (23.1.91) *I G Cross QC, W S Cheung #P Cosgrove Identification evidence/Fleeting glimpse/Judge's duties/Defendant's silence Held : 2. Provided that the judge repeatedly stressed to the jury the dangers of convicting on identification evidence, it was not necessary for him to itemise each and every item of evidence favourable to the defence; 3. A judge is not required to canvas every possible scenario with a jury, or to treat them as if they were devoid of common sense; Result - Application for leave to appeal against conviction for seven counts of Wounding with Intent, refused.

Jury/Direction

215

CA 164/90 Nguyen Van Hiep Yang CJ, Fuad V-P, Macdougall JA (20.2.91) *M Daley #M Poll New counsel/Discharge of jury/Judge's discretion/Dying declaration Held : 1. Whether or not a jury should be discharged, and a fresh trial ordered, is a matter for the discretion of the trial judge, which will not lightly be interfered with on appeal; Result - Application for leave to appeal against conviction for murder, refused. ************** CA 519/90 LI Fook-shiu Fuad V-P, Clough, Penlington JJA (18.4.91) *M Kalisher QC, A Schapel #A Scrivener QC, J Mok "Reward" in S. 2, Cap. 201/Inferences/Direction on standard of proof Held : (2) The contention which was rejected by the House of Lords in McGreevy [1973] 1 WLR 276 (HL) was that the jury should have been warned in terms that they must not convict unless they could exclude every reasonable explanation of the facts proved other than the guilt of the accused; (3) Such phrases as : "Remember that a reasonable doubt is one for which you could give reasons if asked", are best avoided : Stafford 53 Cr.App.R. 1. Result - Applications for leave to appeal against two convictions contrary to S. 9(1)(a), Cap. 201, dismissed. ************* CA 580/89 SZE Sing-ming 2 others Power, Macdougall JJA, Wong J (30.5.91) *A Schapel #G McCoy, D Tolliday- Wright Directions on dishonesty/Directions on circumstantial evidence Held :

Jury/Direction

216

(2) McGreevy [1973] 1 WLR 276 makes it plain that it is sufficient where the Crown is relying on circumstantial evidence for the jury simply to be directed that they have to be satisfied beyond reasonable doubt, and that it is unnecessary to give any direction as to the drawing of inferences. Result - Applications for leave to appeal against convictions, contrary to Cap. 210, refused. ************ CA 360/90 TAM Ip-cheung FAN Siu-kwan Silke V-P, Power, Macdougall JJA (7.8.91) *I G Cross QC, W S Cheung #R Pritchard Dangerous drugs/Prejudicial evidence and comments/Judge's discretion not to discharge jury Held : (3) The judge was confronted with three options : to ignore the matter; to give a direction, or to discharge the jury. As the judge elected to direct the jury to ignore the prosecutor's comments, which direction was not itself the subject of criticism, and as he was the person who had the feel of the case and had heard the evidence and the comments, it could not be said that he erred in exercising his discretion to give a direction; Result - Applications for leave to appeal against convictions for possession of dangerous drugs for the purpose of unlawful trafficking allowed, but appeals dismissed. ************* CA 404/90 MOK Wing-hung Silke V-P, Power, Penlington JJA (4.9.91) *A Bruce #G J X McCoy Credibility of Crown witnesses/Parameters of acceptable comment Held : (2) It was not desirable for the judge to tell the jury to evaluate the officers evidence in the light of the consideration that, if they were lying, they had conspired together to pervert the course of public justice, and thereby risked their careers and future. Such a direction was not remedied by simply concluding : "It is a matter entirely for you" : Culbertson 54 Cr.App.R. 310, approved. (3) The comments of the judge, coupled with those of the prosecutor, may have inhibited the jury from giving the appellant's evidence the impartial view to which he was entitled. Result - Appeal against conviction for trafficking in dangerous drugs allowed, and retrial ordered. ************

Jury/Direction

217

CA 20/91 Tony WONG Chun-loong and another Silke V-P, Kempster, Power JJA (5.9.91) *J Pethes, S H Chiam #J Griffiths QC, W Chan Conspiracy to defraud/Elements to be proved/Putting defence case Held : (3) A judge is not required to remind the jury of every piece of evidence which is capable of an interpretation favourable to the defence : CHENG Pak-chong Cr.App. 61/1979. Result - Appeals against conviction for conspiracy to defraud, allowed in part. ************* CA 403/90 MAN Wai-keung Fuad V-P, Power, Nazareth JJA (20.12.91) *I G Cross QC, W S Cheung #G J X McCoy Defining gbh/Self-defence and honesty of belief/Direction as to lies Held (3) Where the defendant gave a version of events in his cautioned statement which was in material conflict with the version which he gave in evidence, it was not sufficient for the judge simply to direct the jury as to the onus which lay upon the Crown and to leave to their common sense the use which they could make of any lies they considered had been told. A careful direction as to the use to be made of any possible lies was necessary : Broadhurst [1964] A.C. 441. Result - Conviction for murder quashed. Retrial ordered. ************* CA 403/90 MAN Wai-keung Fuad V-P, Power, Nazareth (20.12.91) *Cross QC #G J X McCoy Judges providing juries with written summaries of directions/Practice to be sparingly used The practice of judges handing to juries written summaries of their directions on the law in an endeavour to assist them should be sparingly used. Whilst it is for the trial judge in each case to make his own determination, brief summaries can sometimes mislead rather than assist.

Jury/Direction

218

CA 228/91 LEUNG Ka-fai Silke V-P, Kempster, Macdougall JJA (26.2.92) *A Duckett QC T Casewell #G J X McCoy Form of Directions to jury/Directions on provocation/ Direction on self-defence Held : (1) A direction in law should be clear and unambiguous and should conform as closely as possible with what has been approved as correct by the relevant appellate court; (2) Once a judge has given a clear and correct direction it is not necessary for him to repeat it either in the same words or, in substance, by using different words, unless the jury ask for further guidance; ************** CA 490/89 TAM Chung-ming William CHAN Yuk-shu David LO Tai-wai LAM Chung-kiu Chambers WONG Toe-yeung Alex WONG Ngok-chung Yang CJ, Silke V-P, Kempster JA (29.11.89) *I G Cross, P Callaghan, W S Cheung, P Li #H Litton QC, T Iu for TAM, M Lunn for CHAN F Eddis QC J Matthews/ P Wacks for LO Sir O Cheung QC, JC Haynes for LAM A Sakhrani QC, AR Suffiad for TY Wong F Eddis QC, M ford for NC Wong (A) Dishonesty - Direction A direction, which makes the jury aware they had to be sure that any claim by a defendant not to have known what he was doing was generally regarded as dishonest was false, cannot be impugned. It could not be said that the subjective nature of dishonesty was thereby not explained.

(Ghosh [1982] 1 Q.B. 1053, and Landy [1982] 1 WLR 355, considered)

(B) Inattentive jurors 1. The Court accepted, in the absence of contrary submissions, and on the authorities, that jurors were compellable as witnesses. They were accordingly summoned to attend for examination, pursuant to s. 83(v), Cap. 221, to give evidence as to their attentiveness, or otherwise, at trial. Three counsel from the trial also gave related evidence.

2. To allow the appeal on the basis that the proceedings were vitiated by a material irregularity, by reason of one or more of the jurors having slept during parts of the trial, it was not enough to show occasional inattention or that a juror had closed his eyes from time to time - it would be necessary to show that by reason of somnolence he may well have incapacitated himself from hearing significant evidence or from assessing the

Jury/Direction

219

demeanour of witnesses for periods so appreciable as to render him incompetent to give a true verdict according to the evidence and to his oath. This was the situation concerning one juror only.

3. The trial judge erred in not holding an inquiry or discharging the juror - after he himself had observed the juror's somnolence when this was brought to his attention by counsel. In stating that the juror was "not a liability or danger to the rest of the jury", the judge was under a misapprehension as to the possible effect on the jury's collective deliberation of a member who was not fully apprised of the evidence called by the defendants. The failure to examine or discharge the juror constituted a material irregularity which rendered the verdicts unsafe and unsatisfactory in that there was a real danger that one or more defendants may have been prejudiced. (Bliss (1987) 84 Cr. App. R. 1, considered)

4. The verdict is that of all the jury. Therefore, a finding that one of the jurors was incompetent to participate in the deliberations rendered the verdicts of all the jurors unsafe and unsatisfactory.

Result - Appeals against convictions for Conspiracy to Defraud allowed. ************* CA 75/89 WONG Kwok-keung Cons V-P, Power, Macdougall JJA (8.9.89) *I G Cross, C Fung #G J X McCoy (B) Discharging a jury - Judge's discretion The Court of Appeal will not lightly interfere with the exercise of a judge's discretion not to discharge a jury.

Result - Leave to appeal against conviction for 6 counts of robbery, attempted rape and indecent assault refused. (See next section for appeal on sentence) ************* CA 444/88 Wai Yu-tsang Silke V-P,Penlington, Macdougall JJA (28.6.90) *I S Lloyd #M Wilson QC, E C Mumford QC, B Sceats Conspiracy to defraud/Objectives of conspiracy/Directions to Jury Held : (1) Summings-up must necessarily be based not only on the evidence produced at trial but on the manner in which the trial is run, both by the Crown and the defence; (2) It is not necessary for a judge, particularly in a complicated trial, repeatedly to give the jury directions of which they had already been advised; Result - Appeal dismissed.

Jury/Direction

220

CA 294/89 KWOK Chi-wo Silke V-P, Power, Macdougall JJA (29.6.90) *J R Reading #F Eddis QC, L Yip Murder/Inferences/Direction on confessions/Admissions made after video reconstruction Held : (1) In the absence of special circumstances, and providing that a proper direction is given on the burden and standard of proof, no specific direction is required as to the drawing of inferences. (R v PANG Shun-yee [1988] 2 HKLR 146 applied); Result - Application dismissed. ************** CA 16/90** CHAN Chi-keung Kempster JA, O'Connor, Barnett JJ (20.7.90) *I G Cross QC, W S Cheung #G Alderdice Police Surveillance/Reference to 'Target' Held : After police had referred to the accused as the "target", the judge twice repeated the phrase to the jury. This was a material irregularity. That evidence, which was prejudicial and hearsay, should not have been given. Once given, the judge should have directed the jury not to attach significance to it, and that no adverse inference should be drawn from the fact of police surveillance. Police should confine themselves to explaining their presence in terms of their "instructions". (R v YIP Chi-keung [1988] 13 HKLR 229, 237, considered; R v KO Po-chun [1989] 2 HKLR 8, followed). Result - Appeal allowed. Retrial ordered. ************* CA 596/89** KWOK Wai-keung Yang CJ, Fuad V-P, Barnes J (24.7.90) *I G Cross QC, W S Cheung #A Hoosen Murder/Judge's comment/Directions on doubts/Correlating directions on law to evidence

Jury/Direction

221

Held : (2) A jury would not have been misled by a direction that the phrase "benefit of the doubt" really involved, not the giving of a benefit to the accused, but the exercise of a duty to acquit unless sure of guilt; Result - Application dismissed. *************** CA 31/90 LAM Kong-shan Cons Ag CJ, Macdougall JA, Jones J (7.8.90) *C Coghlan #A Sedgwick QC, L Ng Practice and procedure/Jury asking questions Held : 1. It is settled law that a judge may allow a jury to raise points during the course of a trial : R v Lillyman [1896] 2 Q.B. 167; 2. It is undesirable that the jury should put questions directly to a witness, although the latitude which they may be allowed and the manner in which the questions raised should be dealt with, e.g. whether they should first be put in writing, can be safely left to the trial judge in the particular circumstances of the individual case; 3. It is not desirable that juries should at the outset be directed as to an entitlement to ask questions, and the judge should not issue specific invitations during the course of the trial. The task of a jury is to listen impartially to the evidence adduced, and then to give their verdicts accordingly. Encouragement by the judge to act of their own accord is likely to lead the jury to enter themselves into the adversarial process, and this may detract from their impartiality. Juries can be relied upon, without specific direction, to bring to the notice of the judge any matters which puzzle them or require clarification. Further than that they do not need to go; 4. The questions asked by the jury evinced no more than a genuine desire for information, and did not indicate any abandonment of impartiality. Result -Application dismissed. ************** CA 503/89 CHEUNG Hon-kwong (A1) (Sentence only) WANG Your-kwong( A2) CHIU Shat (A3) Cons Ag CJ, Clough JA, Barnes J (14.8.90) *A P Duckett QC, Ida Cheung #M Poll (A1), L Remedios (A2), Cheng Huan QC J Tse (A3) Possessing arms and unlawful shooting/Crown's re-examination/Procedure/Judge putting defence case/"Mixed" cautioned statements Held :

Jury/Direction

222

2. The Judge did not sufficiently remind the jury of the defence case on certain essential matters and, had he done so, the jury might have taken a different view on them; Result - A2's appeal allowed. Re-trial ordered. (For A1's appeal against sentence, see Section D). A3's application dismissed. ************** CA 41/91 CHEUNG Sing-chung Fuad V-P, Clough, Macdougall JJA (16.7.91) *S Bailey #G J X McCoy Judicial notice/Test applicable in rebutting presumption/DD Held : (1) A judge may rely on his own local knowledge within reasonable and proper limits; *************

Labour

223

Labour MA 1454/90 Hong Kee Construction Company Wong J (19.12.90) *G Forlin #B Chain Construction Sites (Safety) Regulations/Principal Contractor/Strict Liability Held : A "contractor" includes, for the purposes of Regulation 2(2), Cap. 59, both the principal contractor and a sub-contractor, but, where there is more than one contractor undertaking construction work at the site, only the principal contractor would be liable for the acts or omissions. (John LOK/Wimpey [1986] HKLR 325, approved). Result - Appeal against convictions for failing to protect workmen in excavation, and failing to provide a barrier to protect an excavation, dismissed. ************

Licensing

224

Licensing MA 1475/89 CHAN Foo Silke V-P, Power, Macdougall JJA (10.5.90) *J R Reading #N Pirie Miscellaneous Licences Ordinance, Cap. 114 'Special' Conditions are ultra vires Held : A "special" condition in a licence that persons under 16 years of age were not permitted in Adult Amusement Games Centres, which had been approved by the Governor in Council in July, 1984, was ultra vires, as it was not made by regulation, as required by Section 3 of the Miscellaneous Licences Ordinance. Result - AG's appeal dismissed. The magistrate had been correct to dismiss two charges against an amusement games centre licensee for allowing two under age boys into his premises. ************ MA 790/91 LI Lai-kuen HUI Wing-wah Duffy J (29.11.91) *P Hood #A Sanguinetti, S Yu Miscellaneous licences/Conditions must be promulgated by Governor Held : A provision in a licence issued pursuant to the Miscellaneous Licences Ordinance, Cap. 114, limiting the number of machines to be operated in the amusement games centre, was clearly a condition of the licence. As such, it required to be promulgated by the Governor in Council in Regulations under Section 3, Cap. 114. As this had not happened, it was ultra vires, and a conviction for breach of the conviction could not stand : AG v CHAN Foo [1990] 2 HKLR 428 considered. Result -Appeal allowed. *************

Lies

225

Lies CA 433/90 (1) P D WONG (2) YU Mo-ling Silke V-P, Power, Macdougall JJA (27.8.92) *I G Cross QC, W S Cheung, G Forlin #(1) A Sedgwick QC, K Ramanathan (2) J Mullick Crown's duty on appeal/Direction on lies/Fresh evidence and retrial Held : (1) If prosecution counsel considers an appeal should succeed, he should inform the Court and give his reasons. If the Court disagrees with him, counsel is entitled to adhere to his view and is not obliged to conduct the appeal in a way which conflicts with his own judgment. At the same time it remains his duty to assist the Court if so requested : McILkenny others [1991] 93 Cr.App.R. 287; (2) It was erroneous to direct the jury that lies by themselves could be evidence going to proof of guilt. Lies can in conjunction with other evidence tend to support an inference of guilt : Harris [1991] 1 HKLR 389, TAM Chung-shing [1991] 1 HKLR 458 followed; (3) The jury should have been told that, if they concluded that a particular applicant had lied, such lie or lies might be explicable on the basis that, at the time he or she told them, he or she did so in an attempt to protect the other. Otherwise the jury might have erroneously concluded that such lies were necessarily relevant to an involvement in the killing by the teller of the lies; (4) It was not in the interests of justice for the Court to consider fresh oral evidence, which one defendant sought to give on behalf of the other, in determining whether to order a retrial. Any such course would have involved the court in also hearing the other evidence given at trial to which the Crown would have wished to draw the Court's attention. Result - Appeals against convictions for murder allowed. Retrials ordered. Per cur : Counsel should not have suggested that, if the Court refused to hear the additional evidence on the issue of retrial, such refusal might well be the subject of an application to the Privy Council. **************

Loitering

226

Loitering MA 1254/89 IP Kam-tin Wong J (31.1.90) *C Coghlan #D Tang Loitering - In a public place or in the common parts of any building - S. 160(3) (4), Cap. 200 - Construction/test (The respondent was charged with 4 counts of loitering in the common parts of a building, namely, a corridor outside the recital hall in the Hong Kong Academy for Performing Arts and a female changing room in the same. Having found the two places restricted to public access, the magistrate ruled no case to answer and dismissed the charges.) 1. Loitering under s. 160(3), Cap. 200, could be committed either "in a public place or in the common parts of a building". The word "or" is clearly a disjunctive. 2. The magistrate erred in applying the test for "public place" where the charges were framed under the "common parts of a building". 3. The proper test for the latter is whether the places concerned are common parts of a building which the occupiers and their licensees or invitees use and have access to. Result - AG's appeal allowed. Matter remitted to magistrate to proceed with the trial. ************* MA 766/90* LO Lai-yi Macdougall JA (15.11.90) *P Lavac #T Kwok Loitering in a public place causing obstruction/Facts not supporting charge/Magistrate's duty to unrepresented defendant The appellant, pleaded guilty to loitering in a public place, so as to obstruct the same. She admitted the Crown's brief facts. On appeal, it was contended that the brief facts did not support the charge. Held : (1) Whilst the onus of establishing lawful authority or excuse is on a defendant, and it is not necessary for the brief facts to negative such, the facts disclosed no obstruction. (3) The magistrate should have advised the defendant to amend her plea to one of not guilty. Result - Appeal allowed. Conviction quashed.

Magistrates

227

Magistrates MCA 411/92 LEE Wai-ming Leonard J (26.8.92) *A P Lucas #L Cruden Magistrate's minutes/Omission of relevant evidence from typed transcript/Magistrate's duty when certifying transcript A certified typewritten transcript of a magistrate's minute of all evidence relevant to the issues he had to decide in relation to an appellant should be produced for the purposes of an appeal. Whilst the magistrate's notes are available for consideration by the court hearing an appeal, (S. 118(1)(a) Cap. 227), they are often difficult if not impossible to read. Unnecessary trouble and expense will be caused if it becomes necessary to adjourn an appeal because a certified transcript is incomplete. Magistrates when certifying transcripts should be careful to ensure that all relevant evidence is transcribed. Practice Note Court of Appeal Criminal Appeals Coram : Silke V-P., Penlington, Macdougall JJA Silke V-P, with the concurrence of the Chief Justice, gave the following directions at the sitting of the court on the 4th day of September, 1992 : In represented cases delays and adjournments are being occasioned by the very late filing of perfected grounds of appeal. This results in the clogging of an already overcrowded list. The hearing of applications by other appellants are, consequentially, delayed. The following will, it is hoped, assist in expediting appellate hearings. 1. In future there will be no listing direction given until perfected grounds of appeal have been filed and an estimate, after consultation by counsel with the Attorney General's Chambers, of the time the applications are likely to take has been given. 2. Where applicants are separately represented it is the duty of the respective solicitors and counsel to jointly agree, in consultation with the Attorney General's Chambers, a time estimate for the consideration of the listing officer. 3. Further, where necessary and to avoid undue delay, applications for leave to appeal - be they in respect of conviction or sentence or both - may be listed for directions before the single Justice of Appeal on a Monday morning at 10.30 in Chambers. 4. Counsel are reminded that, to be of any assistance to the court, skeleton arguments should be lodged at least 4 clear days before the hearing date. **************

Magistrates

228

MA 738/92 YIU Kwan-chuen Leonard J (23.10.92) *W S Cheung #J Cheung Magistrate directing on good character/Reasons for disbelieving defendant/Relevance of late complaint Held : (1) Although it is the duty of a judge when summing-up to a jury to direct as to the significance of good character, there is no such duty cast upon a magistrate. Unless there is reason to think otherwise, it will be assumed that the magistrate appreciates the relevance of good character : HO Siu-kar MA 1511/89 followed; (2) There is no duty upon the magistrate when he announces verdict to tell the defendant in open court his reasons for disbelieving him; (3) Although the magistrate apparently considered that the lateness of the appellant's complaint to CAPO and the ICAC somehow bore upon his credibility, and although it would have been better had the magistrate not attached significance to the timing, this factor was not such as to cast doubt on the correctness of the verdict. Result - Appeal dismissed. *************** MA 746/92 SHIU Kam-fung Duffy J (26.11.92) *H Macleod #D Marash Magistrate not entering conviction/Power to bind over/S. 19 Cap. 227 The magistrate, having convicted the Respondent of a gambling offence, discharged her absolutely under S. 36 Cap. 227. On review, he ordered that no conviction be entered and bound the Respondent over under the Justice of the Peace Act 1361. The AG appealed under S. 105 Cap. 227. Held : As the defendant had been convicted after the laying of an information under S. 19 of the Magistrates Ordinance, the magistrate was obliged to record a conviction. As the Respondent did not come before the court on a complaint, the magistrate had no jurisdiction to make a binding over order under the 1361 Act. Accordingly the magistrate erred in law in reversing the conviction and ordering that no conviction be entered. Result - AG's appeal allowed. **************** MA 747/92 CHAN Kwok-wah

Magistrates

229

Sears J (5.11.92) *A Wong #I/P Newton hearing/Whether proper Held : A magistrate is only entitled to hold a 'Newton inquiry' for the purpose of determining the factual basis for the sentence. Such an inquiry was not appropriate for the determination of whether the illegal immigrant fell within the Attorney General's prosecution guidelines. (R v Newton 4 Cr App R (s) 388). ************** MA 604/92 LAM Kwok-ying Leonard J (22.10.92) *W S Cheung #K B Egan Magistrate placing onus on defendant Held : The magistrate's remark that he "could not accept her evidence as credible even on a balance of probability" suggested that he may have treated the defendant as being required to meet some standard of proof amounting at least to proof on a balance of probabilities. She was under no obligation to prove anything. Result - Appeal against conviction for theft allowed. *************** MA 755/92 M L SANTAGO and 3 Others Leonard J (29.10.92) *M Ip #N Adams Magistrate forming premature assessment of honesty of witness Held : As there was a suggestion in the magistrate's statement of findings that he had made up his mind prematurely as to the honesty of the prosecution witness, it could not be said with certainty that the defendant had received a fair trial : R v WONG Man-yuen Cr App 301/85 applied. Result - Appeals against convictions for theft allowed. ***************

Magistrates

230

MCA 309/92 IP Pak-ling CHEUNG Wai-wing Sears J (27.11.92) *L Cross #P Dinan Magistrate's role/Persuading prosecutor to alter case/Duty to try the issues raised Held : (1) Even if, which is to be doubted, a court has power to force the prosecution to present the case in a different way, when that occurred the court should have adjourned the case to give the defence an opportunity to take further instructions. It may be that a further proof of evidence would need to be taken, or the defendants would wish to give evidence. It may have been that all the witnesses would have been re-called and re-examined. Counsel was deprived of the opportunity of discussing the matter with his clients, explaining to them what was happening, and considering what he should do; (2) If a judge directing a jury has a case presented in one way, it is quite wrong of him to direct the jury on a different basis. Although the magistrate said that he was bound to apply the law as he perceived it to be, his role was to decide the issues raised before him. He should not assume the mantle of prosecutor, nor give the impression that his function is to achieve a conviction. Result - Appeals against convictions for theft allowed. ************** MA 1258/88 TONG Yuen Fuad V-P, Hunter, Power JJA (13.4.89) *I G Cross, W S Cheung #A King i/s DLA Possession of imitation firearm - S. 20, Firearms and Ammunition Ordinance, Cap. 238 - Sentencing powers of Magistrate under s. 20(2), Cap. 238 - Sentencisng powers of Magistrate generally (Certain questions of sentencing procedure were referred by Duffy J. to the Court of Appeal for determination pursuant to s. 118(1)(d), Cap. 227) (1) A person convicted of this offence is liable to 7 years imprisonment in the Magistracy, notwithstanding that it is summary, if he has been convicted of a scheduled offence or any offence in cap. 238 within the previous 10 years - S. 20 (2), Cap. 238. (2) There is no maximum sentencing term imposed on a Magistrate, in the Magistrates Ordinance, Cap. 227, for summary offences. The penalty for a summary offence is to be found in the Ordinance creating the offence. The maximum sentence for an indictable offence tried summarily is, however, 2 years by virtue of s. 92, Cap. 227. (3) S. 20(2), Cap. 238, supercedes s. 57, Cap. 227 on the matter of the Magistrate's sentencing jurisdiction. (4) A permanent Magistrate has power to pass a sentence exceeding 2 years for a single offence triable summarily in certain circumstances. (5) The statement of offence should specify the subsection under which the offence is punishable.

Magistrates

231

(6) A mathematical approach to sentencing is to be avoided in computing sentence under s. 20(2), Cap. 238. Result - Matter remitted to Duffy J. who allowed the appeal against sentence of 21 months to effect the Appellant's immediate release. ************ MA 1443/88 Tai Hing (Engineers Builders) Limited Wong J (22.2.89) *D Pang #R Yuen Power to amend charges by Magistrates - S. 27, Cap. 227 S. 27 is mandatory, subject to no injustice being caused to a Defendant and compliance with the procedure under subsection (3). Result - Appeal against conviction dismissed. ************* MA 1691/88 PUN Hon-ki Duffy J (30.3.89) *T Casewell #D Tolliday-Wright (A) Simple possession of dangerous drugs - S. 8, Cap. 134 - Only traces found - Usability test Where only traces of a dangerous drug are found, the presumptions under ss. 46 and 47 do not arise unless the Crown can show that the drug is present in a usable quantity.

(AG v. WONG Kwai-sum [1980] HKLR 97, followed; but see s. 3(3), Cap. 134 - added 1982 - Ed.)

Result - Appeal against conviction allowed. (B) Magistrate invited Crown to re-open case and advised on kind of evidence required to prove case - Inexperienced lay prosecutor - Whether Defendant deprived of fair trial Judges of fact should be slow to intervene in any case on behalf of either side, so as not to jeopardise the atmosphere of fairness. However, occasions can arise, as where the prosecutor or the defence lawyer is inexperienced, when the Court can intervene to prevent an injustice arising from an oversight.

*************

Magistrates

232

MA 1523/88 LAM Shing Duffy J (14.2.89) *C Harris #J Mathews i/s DLA S. 19 wounding - Defendant in person - Magistrate accepted guilty plea despite mitigation of provocation and self-defence - Force deemed too excessive to be able to substantiate defence The Magistrate was not entitled to make that finding without further investigation into what was raised in mitigation. The plea of guilty was therefore not an unequivocal plea. Result - Guilty plea allowed to be withdrawn. - Appeal against conviction out of time allowed. *********** MA 11/89 CHENG Hung-wai Duffy J (9.3.89) *A Maxwell #M Ko Inconsistencies in prosecution evidence - Failure to enumerate and consider individually by Magistrate Where the case against the Defendant is overwhelming and it can be seen from the Magistrate's findings that he knew what the issues were and had considered them, such short-cutting may not be fatal to the conviction. Result - Appeal against conviction dismissed. ************** MA 119/89 CHAN Chun-kin, CHU Ngan-yu Hooper J (22.2.89) *A Bruce #A Macrae Statement of findings - Content It is desirable and would be helpful to the appellate Court if the Magistrate would set out what his primary findings were and what inferences he drew from them. Result - Appeal against conviction allowed. **************

Magistrates

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MA 156/89 CHAN Sui-kan CHAN Pui-lan Duffy J (9.3.89) *A Bruce #Cheng Huan QC, B Chung Reasons for verdict - Content in general - Reasons for rejecting defence evidence (1) Salient points of the case should be highlighted and the evidence evaluated. It should also be shown how significant inconsistencies are resolved. (LAM Kam-wing another CA 607/79 followed)

(2) However there is no magic formula to follow. (3) Where the evidence of a defence witness is rejected, it is desirable that comprehensive reasons are given. But scanty reasons may not be fatal if the prosecution evidence is overwhelming and has been thoroughly examined. Result - Appeal against conviction dismissed. ***************** MA 1216/88 TSE Yuk-ming, KAU Siu-wan Wong J (13.1.89) *A A Bruce #G J X McCoy Power of a magistrate to order the supply of documentary exhibits to defence - S. 32(1), Cap. 221 - False accounting (1) By virtue of ss. 32(1) of Cap. 221 and 2, a magistrate has a general discretion to order the Crown to supply copies of documentary exhibits to the defence. (2) In a trial of an offence of a commercial nature in which documents form an important part, a magistrate should exercise the discretion to so order. Result - Appeal against conviction and sentence allowed; -Convictions and sentences set aside; new trial ordered. **************** MA 1166/88 WONG Chi-fai and another Hooper J (21.11.88) *I G Cross #J Ong

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AG's appeal by way of Case Stated - Magistrate indicating his preliminary view - Threat of costs against the Crown - Mistrial 1. Justice must be done to the Crown as well as the defence. 2. It is improper for a Magistrate to indicate his view of the Crown case before that case has fully been presented. 3. It was wholly improper for a Magistrate to threaten the Crown with costs if it insists on proceeding with the trial after the Magistrate had indicated his preliminary view. Result - AG's appeal allowed; - Magistrate's orders of no case and costs against the Crown set aside; - No retrial ordered. *************** MA 516/87 (C.A.) Fai Ma Trading Co. Ltd. v. L.S. LAI (Informant) Silke V-P, Kempster, Penlington JJA (29.12.88) *E C Harris #A Sedgwick QC R Appeal pursuant to S. 118(1)(d) of Cap. 227 - Defective informations - "Cure" by verdict - Powers of judge to amend the informations and to apply a proviso on appeal 1. Defects in informations are not cured by the Magistrates' verdict. 2. A Judge cannot amend defective informations pursuant to s. 119(1)(d) of Cap. 227. 3. A Judge cannot apply a proviso if he considers that, though there is a defect in the information, no miscarriage of justice has occurred. Result - Matter remitted to O'Connor J. who directed the questions to be argued before the Court of Appeal (See The Queen v. Fai Ma Trading Co., Ltd. MA 516/87) ************ MA 338/90 MO Wai-hung Duffy J (11.4.90) *I G Cross QC, W S Cheung #S Mason-Parker S. 54(1)(b), Cap. 221 - Prosecutor in final address made 2 references to the failure of D to give evidence - Magistrate acquitted D without consideration of merits - Whether references to D's silence constituted a material irregularity Held :

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1. Where there is a breach of s. 54(1)(b) by the prosecutor, this can be put right by the trial judge either in his summing-up to the jury, or in his statement of findings, if he is sitting alone. (Kong, George and others v. R. Cr. App. 397/1984, considered) 2. It is difficult to envisage a case where a magistrate or District Judge could not disregard a prosecutor's remark about the defendant's failure to give evidence. 3. When the prosecutor makes a remark contrary to s. 54, Cap. 221, the magistrate or District Judge must in his statement of findings refer specifically to the comment, state that he disregards it and that it caused no prejudice. 4. The magistrate, accordingly, erred in acquitting the defendant, and he should have determined the issues joined on the merits. Result - AG's appeal allowed. ************* MA 1512/89 LAM Hau-hing and 6 others Ryan J (7.2.90) *A Sham #Cheng Huan QC Sentence - Affray - Counsel seeking indication as to sentence before plea - Magistrate did not make a record of discussion in Chambers Held : 1.There is the need to exercise great care in discussions in chambers as to likely sentences. 2. It was wrong for the magistrate to give a defendant before plea expectations which are not fulfilled after guilty plea entered. 3. Magistrate should keep an accurate record of such pre-trial discussion. Result - Appeal allowed. ************ MA 96/90 Yeung Wai-hung Fuad V-P, Hunter, Macdougall JJA (16.5.90) *I G Cross QC, W S Cheung #N L Miu Criminal law and procedure - application for case stated - power of magistrate to state case - meaning of "determination" in S. 105 of the Magistrates Ordinance - whether appeal by case stated available in the circumstances

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The defendant pleaded guilty to common assault. The magistrate, having heard the evidence against the co-accused, who pleaded not guilty, stated the charge should be one of A.O.A.B.H. He set aside the plea, and ordered a new trial - and invited the Crown to substitute the more serious charge. The defendant appealed by way of case stated, contending, inter alia, that the magistrate had no power to vacate the plea, and was, by virtue of S. 19, Cap. 227, obliged to proceed to sentence. Ryan J, pursuant to S. 118, Cap. 227, referred the questions raised to the Court of Appeal for resolution. The Crown as a preliminary matter, submitted that the Court had no jurisdiction to entertain the appeal pursuant to S. 105, Cap, 227 - since the section stipulates that the prerequiste of a case stated is that there be a "hearing and determination". "Determination" meant "final determination" of the issues joined, and, as there had been no such determination, the magistrate was not competent to state a case. Held : (1) In terms of S. 105, Cap. 227, the appellant had no right to apply for a case to be stated, the magistrate had no power to state it, and the Court of Appeal had no jurisdiction to entertain it, (Atkinson v USA Government [1971] AC 197, Streames v Copping [1986] 1 QB 920, R v Appleby (1974) 10 NBR (2d.) 162, Newton v Walker [1975] HKLR 317, AG v CHAN Wah-chuen [1988] 2 HKLR 559, considered and applied); (2) A 'conviction' can only properly be said to have been reached once there has been a finding of guilt and a valid sentence; R v Cole [1965] 2 Q.B. 389, WONG Cho-kui v R [1965] HKLR 575, S v Recorder of Manchester [1971] AC 507, considered and applied); (3) YUEN Chun-shing v R [1976] HKLR 767, which held that it was "technically feasible to pursue an appeal against conviction before sentence is passed", was decided per incuriam, and it did not follow that an appeal against conviction lay before there had been a final disposal of the case. (4) Upon the true construction of S. 105, Cap. 227, the magistrate had no jurisdiction to state a case until there has been a final disposal of the case. Result - Appeal dismissed. ************** MA 631/90** NG Chow-shing Sears J (16.5.90) *S Wong, #D Mackenzie-Ross Withdrawal of guilty plea/Alleged inducement - magistrate's duty Having pleaded guilty, and received 12 months imprisonment for AAII, the appellant instructed counsel to seek to reverse the plea on review. The reason advanced was that police had told him the offence was not serious and that a guilty plea would attract a fine. The magistrate adjourned so that the appellant could file an affirmation. Having studied the affirmation, the magistrate enquired whether the appellant wished to add anything to it. Thereafter he refused the application to reverse plea. On appeal : Held : (1) The issue was whether there was a full inquiry into the allegation of inducement - this involved enquiring whether police made the alleged statement. (2) The magistrate could not properly have convicted the appellant on the "brief facts" - they were simply too brief for trial purposes. Result : Appeal allowed. New trial ordered.

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MP 1541/90 YEUNG Wai-hung Liu J (23.7.90) *W Marshall QC, R Drake #N L Miu Criminal Law and procedure/Magistrate vacating pleas/Judicial Review The applicant pleaded guilty to common assault. The magistrate, having heard the evidence against the co-accused, who pleaded not guilty, stated the charge should be one of A.O.A.B.H. He set aside the plea, and ordered a new trial - and invited the Crown to substitute the more serious charge. The applicant applied, pursuant to S. 128, Cap. 227, for an order of mandamus to direct the magistrate to restore to the record the plea tendered. It was contended that there was no power to vacate the plea. Held : A magistrate has power to defer acceptance of the plea. He can ponder over a plea of guilty. He has a duty to vet it. Subject to that, in the absence of any need for amendment or substitution of a new charge, a guilty plea admitting the essential elements of the charge must be accepted. The magistrate legitimately withheld the acceptance of the applicant's pleas, and he had power so to defer and so to amend until sentence. He thus acted within his jurisdiction, and the applicant's motion was wholly unfounded. Result - Motion dismissed with an order for costs in favour of the Crown. ************* MA 766/90* LO Lai-yi Macdougall JA (15.11.90) *P Lavac #T Kwok Loitering in a public place causing obstruction/Facts not supporting charge/Magistrate's duty to unrepresented defendant The appellant, pleaded guilty to loitering in a public place, so as to obstruct the same. She admitted the Crown's brief facts. On appeal, it was contended that the brief facts did not support the charge. Held : (1) Whilst the onus of establishing lawful authority or excuse is on a defendant, and it is not necessary for the brief facts to negative such, the facts disclosed no obstruction. (2) There was no indication in the magistrate's record that the charge had been explained to the unrepresented defendant. In the absence of any such indication, the (court was not prepared to assume this. (3) The magistrate should have advised the defendant to amend her plea to one of not guilty. Result - Appeal allowed. Conviction quashed. **************

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MA 1223/90 CHOW Wing-sun SUEN Tak-sing Hooper J (7.11.90) *M Holmes #Cheng Huan QC, B Cheung Magistrate's findings/Assessment of evidence/Good character Held : 1. The magistrate's findings should illustrate the salient points in the case, demonstrate that the evidence has been evaluated, and indicate how significant inconsistencies and conflicts have been resolved : R. v. CHONG Kam-sau MA 359/85 approved; 2. A witness' credibility should be weighed in the light of his evidence and the evidence as a whole, and not simply dismissed out of hand : R. v. LAM Chun-choi Cr. App. 172/89 applied; 3. The magistrate should give clear reasons for rejecting the evidence of the defendant; 4. A failure to take into account the good character of the appellants would not by itself be sufficient to vitiate the conviction. Result : Appeals against convictions for conspiracy to defraud allowed. ************* MA 1482/90 WONG Shing-fai Hooper J (20.12.90) *W L Kwok #P Wacks Magistrates' Duties/Reasons for convicting/Indecent assault The magistrate, when he gave judgment, provided short reasons for convicting. These did not indicate his awareness of the dangers inherent in identification evidence, or the danger of convicting on the uncorroborated evidence of the complainant. Later, once the appeal notice was received, the magistrate gave a full statement of findings, pursuant to s. 114, Cap. 227, which addressed these matters. Held : Even if the magistrate did give himself the required warnings at the time of verdict, as he later contended, this was not made apparent to the parties. Justice could not be said to have been seen to be done. (Hui Lap Keung and others [1989] 1 HKLR 261, considered). Result - Appeal allowed. Retrial ordered. *************

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MA 1745/90 CHONG Sai-chun Hooper J (22.1.91) *J Reading #J Matthews Magistrate/Jurisdiction/S. 17, Cap. 212 Held : 1. An offence of wounding with intent, contrary to S. 17, Cap. 212, is not an indictable offence under S. 92, Cap. 227. This is apparent from Part I of the Second Schedule; 2. As no application to transfer to the District Court was made under S. 88, Cap. 27, the magistrate should have conducted committal proceedings with a view to High Court trial; 3. The magistrate had no jurisdiction to hear and determine the charge. Result - Appeal allowed. *********** MCA 40/91 CHAN Chun-kit Fuad V-P (27.2.91) *G L Mawson #Sze Kin Extent of Magistrate's duty to assist an unrepresented defendant Held : 1. The extent to which it is proper for a magistrate to help an unrepresented defendant is not easy to formulate, and it is necessary to start with the proposition that it is a matter for his discretion as to how he conducts a trial in the overall interests of justice. However, the duty of the magistrate does not extend to taking over and conducting the defendant's case for him. This is what occurred here. 2. The danger inherent in too close an involvement in the defendant's case is that the magistrate descended into the arena to such an extent that his role as a judge became blurred if not obscured by the role he adopted as an advocate. (The magistrate was doubtless doing his best to be true to his judicial oath). Result - Appeal against conviction for S. 19 Wounding allowed. ************* MA 1534/90 LAU Hon-kai Ryan J (5.2.91) *E Chan

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#J Tse Magistrate's duty/Unrepresented defendant/Full record essential Held : Where a defendant is unrepresented it is important that the magistrate fully explains to a defendant his rights and that the magistrate records the detail of what has been explained in the transcript. Result - Appeal against conviction for careless driving allowed. Retrial ordered. ************ MA 151/91 HO Tak-mui Hooper J (20.8.91) *J Wong #W Allan Refusal of adjournment to obtain legal representation/Considerations Held : The question of whether to grant an adjournment to enable a defendant to obtain legal representation is within the discretion of the magistrate. The length of the adjournment and the availability of witnesses are relevant considerations. The overriding consideration is whether justice has been done to the unrepresented defendant : Robinson v R [1985] WLR 84, YU Lap-wai [1987] HKLR 46. Result -Appeal against conviction for theft dismissed. ************* MA 646/91 WAI Sing-fat Duffy J (19.11.91) *S Cole #D Marash Magistrates giving reasons for verdict/Desirability thereof It is desirable that magistrates, when they give verdict, should try to deliver, as briefly as possible, the reasons therefor. ************* MA 716/91 WONG Kai-man Duffy J (19.11.91)

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*S Cole #E McGuinniety Magistrate enquiring about prior convictions/Material irregularity Held : It was a material irregularity for the magistrate to ask the prosecutor, during the Crown case, whether the defendant was of good character. There are no circumstances in which it is proper for a Court of its own motion to enquire into the character of a defendant. The situation was not remedied by the decision of the prosecutor not to answer the question posed. Result - Appeal against conviction for indecent assault allowed. Retrial ordered. ************* MA 625/91 TAM Chun-kiu Duffy J (19.11.91) *A Sham #I/P Convictions not disclosed/Need for accomplice warning Held : As the magistrate was not made aware of the previous convictions of the Crown witness, and as the magistrate in his statement of findings did not warn himself that that witness was an accomplice and that he should accordingly look for corroboration of his testimony, the conviction for trafficking in a dangerous drug was unsafe. Result - Appeal allowed. Retrial ordered. *********** MCA 607/91 WONG Leung-hing Leonard J (3.1.92) *C Coghlan #Q Au Yeung Magistrate explaining facts and law to unrepresented defendant who pleads not guilty Held : (1) Where a magistrate thinks that an unrepresented defendant has pleaded not guilty only because he is mistaken as to the law, there is nothing wrong with explaining the law to him, and explaining the facts which the prosecution need to prove in order to obtain a conviction, and then asking the defendant whether he wished to maintain his plea of not guilty;

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(2) As the defendant denied the truth of the charge, the document entitled 'Brief Facts of the Case", which was not the complaint or information, should not have been put to him. The case should have been conducted pursuant to Section 19, Cap. 227. Result - Appeal against conviction for landing unlawfully in Hong Kong allowed. **************** MCA 1114/91 HO Pui-wing Leonard J (24.2.92) *P Leung #I/P Binding over orders/Procedures to be followed Held : (1) Before agreeing to bind over the defendant, the magistrate should : (a) have asked the prosecutor whether he wished to offer no evidence - which offer should be placed in the record; (b) if no evidence had been offered, acquit the defendant; (c) have caused the alleged facts to be read out in open court and interpreted to the appellant, who should then have been asked whether he admitted them; (d) once the appellant had admitted the facts, have then announced the terms of the proposed order, explained the consequences of refusal to enter into a recognisance and explained the consequences of a breach of any recognisance entered into; (e) give the appellant the opportunity to make representations on the merits of the order and its terms; (f) have announced and incorporated the order into her record and, if convenient, the facts which gave her jurisdiction to make it; (g) specify in the order the term of imprisonment as a consequence of disobedience to that order, i.e. of failure or refusal to enter into the recognisance. (2) Although magistrates in Hong Kong have power at common law and under the Justices of the Peace Act 1360 to order a person to keep the peace or to be of good behaviour, it is a wide discretionary power to be exercised with great caution and not capriciously and, as it is capable of being abused, to be jealously watched over by the courts : R v The Justices of the Queen's County (1882) 10 L.R. Ir. 294; (3) There is no bar to binding over an acquitted person. If, contrary to expectation, the appellant had declined to admit the facts, the magistrate could have heard evidence and decided the facts for herself. An order may be made whether or not the defendant consents to it; (4) In a case where a person may have mental problems and the damage is trivial, police can consider whether a criminal charge is merited or whether he should simply be brought before the magistrate to show cause why he should not be ordered to enter into a recognisance to be of good behaviour (or to keep the peace); (5) As there was no record that the prosecution formally offered no evidence, the position was that there was a charge of criminal damage to which the appellant had pleaded not guilty and which had not been dealt with. It could not be left in limbo.

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Result - Appeal allowed. Order of discharge on a good behaviour bond set aside. Case remitted for trial by another magistrate. *********** MA 1173/91 LAM Yat-suen Kempster JA (28.1.92) *P Hood #I/P Consent prerequisite for bind over Held : Where an accused declines to give his consent to that course, there is no power to bind him over : Veater v G ors [1989] 1 WLR 567. Result - Appeal allowed. *********** MP's No's 720, 721, 3601 of 1990 (1) CHIU Tat-cheong and (2) CHIU Te-ken Kaplan J (22.4.91) *M Lee QC, J Pethes #(1) D Chang QC, J Mok (2)D Keane QC, P Loughran, G J X McCoy Constitutional law/Appointment of magistrate/Delegation of powers Held : 1. The Governor's power to appoint public officers (including magistrates) under Article XIV of the Letters Patent is sub-delegable; 2. The power under Section 5, Cap. 227, to appoint magistrates is sub-delegable; 3. It was not clear on the evidence that the basis for the purported delegation had been clearly considered by anyone, and powers delegated by the Sovereign to the Governor cannot properly be dealt with in a casual manner; 4. There is a de facto judge doctrine which comes into play once the Court is functus officio. Result - Habeas Corpus granted. The magistrate was not validly appointed and could not accordingly assume jurisdiction.