FACC No. 1 of 1997
- Headnote -
Criminal law and practice - "Good character" direction according to Vye  Cr.App.R. 134 as confirmed by Aziz  AC 41 - Whether the invariable rule of practice (subject to qualification when the application of the rule might be "an insult to common sense") established by the English courts in Vye and Aziz should be adopted as the governing rule for the Hong Kong SAR: Whether the trial judge erred in law in failing to give a "propensity" direction to the jury.
Held (CFA, by a majority, Bokhary PJ dissenting): The fundamental rule is that a summing-up must be fair and balanced: The modern tendency is to limit the range of compulsory standard directions: There is no need to impose the Vye and Aziz regime on trial judges in Hong Kong: The trial judge's summing-up was fair and balanced: There was nothing useful that could have been said concerning the appellant's propensity for the crimes charged.
Court of Appeal's decision to dismiss the appellant's appeal affirmed, albeit on a different ground.
FACC No. 1 of 1997
IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
FINAL APPEAL NO. 1 OF 1997 (CRIMINAL)
(ON APPLICATION FOR LEAVE TO APPEAL
FROM CACC No. 360 OF 1996)
||TANG SIU MAN
||HONG KONG SPECIAL ADMINISTRATIVE REGION
Appeal Committee: Chief Justice Li, Mr Justice Litton, PJ, Mr Justice Ching, PJ, Mr Justice Bokhary, PJ and Sir Daryl Dawson NPJ
Date of Hearing : 2 March 1998
Date of Handing Down : 11 March 1998
J U D G M E N T
Chief Justice Li:
1. I have read the judgment of Mr Justice Litton PJ and agree with it. For the reasons which he gives, I would dismiss the appeal. The approach adopted in that judgment gives a wider discretion to the trial judge in directing the jury when compared to the rather rigid regime in
Vye and Aziz. Trial judges would no doubt exercise that discretion with common sense to ensure that the direction is fair and balanced which is of course fundamental for a fair trial. In my view, the approach adopted, when properly understood and applied, is not, in any way, less protective of an accused person when compared to the approach in
Vye and Aziz.
Mr Justice Litton PJ:
2. This appeal concerns the question whether a trial judge is required, as an invariable rule of practice, to give directions to the jury with regard to the "good character" of a defendant in certain circumstances and, if so, the nature of those directions.
3. The appellant was, on 23 May 1996, convicted after trial before Saied J and a jury of one count of manufacturing a dangerous drug (heroin hydrochloride) and one count of trafficking in dangerous drugs (heroin hydrochloride and diazepam). The convictions were on majority verdicts of 5-2. He was sentenced to 28 years' and 24 years' imprisonment for the respective counts, to be served concurrently. He applied to the Court of Appeal for leave to appeal. On 8 July 1996 the Court of Appeal (Power V-P, Mayo JA and Wong J) refused his application for leave to appeal against conviction. They reduced the sentence on the manufacturing count to 25 years.
4. The offences occurred on 15 July 1995 when the appellant was nearly 23 years old. He had left school after Form 3. He was, in July 1995, working as a driver for a towing company. He also had casual work at a cooked-food stall. He was married and his wife worked as a sales-girl. He had one previous conviction: for assault occasioning actual bodily harm for which he was put on probation. This happened when the appellant was 20.
5. The circumstances giving rise to the convictions are these: In the afternoon of 15 July 1995 the police had mounted a surveillance operation in relation to a flat on the 19/F of Chuen Fai Centre, Kong Pui Street, Shatin. They saw a man approach the flat, take out keys, open the iron grill and then the wooden door. The police intercepted the man and brought him into the flat. The flat was found to contain, packaged in different ways, a total of 2.218 kilogrammes of a mixture containing 1.039 kilogrammes of heroin hydrochloride, 9,718 tablets and 2 fragments of diazepam. The heroin was packaged in quantities of different purity. There was found at the same time a great deal of equipment commonly associated with the manufacture of heroin and substances used for mixing or adulterating heroin. The man whom the police first intercepted became the first defendant at the trial. A palm-print and finger-print matching those of the first defendant were found on an electric balance. He subsequently pleaded guilty to trafficking in dangerous drugs and took no part in the trial.
6. Some 40 minutes later, at 5.55pm, the appellant arrived at the flat. The prosecution case was this: The police heard the key turn in the lock, so they opened the door, and when the appellant walked into the flat and saw the police he said: "Ah Sir, I've been caught red-handed. I have nothing to say." The appellant was searched and a bunch of keys was seized. The police asked the appellant if he lived there, to which he answered that he lived there occasionally. He admitted that the flat was rented by him. The appellant was then asked if the drugs belonged to him: He made no reply but hung his head. When he was asked if he had heard the question he still hung his head and said nothing.
7. The appellant was taken outside the flat to avoid contamination with the exhibits, was formally arrested and when asked (after having been cautioned) if he had anything to say, he replied: "Ah Sir, I have nothing to say now". The earlier statement was not post-recorded nor put to the appellant. Inside the flat the police found a tenancy agreement in the appellant's name. The flat was bare of furniture except for a few items, and had no cooking utensils or anything associated with daily living.
8. The appellant's case was this: His home was at his mother's flat at Sau Mau Ping Estate but because his mother did not get on with his wife he had rented the flat at Shatin, paying $6,200 a month. The tenancy agreement was signed in March 1995 with a down-payment of $21,700 which included the deposit, payment of rent in advance and agency commission. He then moved into the flat with his wife. But a month later, because his mother's health had declined, they moved back to Sau Mau Ping and took back all the furniture, except for a stereo-set. He had then sub-let the flat to an old friend, the first defendant, at a rent of $4,000 a month. The arrangement was oral. He kept one set of keys, and so did his wife. The reason why he went to the flat in the late afternoon of 15 July was to collect rent from the first defendant and to get back the stereo-set. He claimed that when he got to the flat he had rung the door-bell but, getting no response, had then let himself in with his spare keys. He denied saying to the police: "Ah Sir, I've been caught red-handed. I have nothing to say." Instead, what he said was: "The white powder has nothing to do with me. I have sub-let the premises to him".
9. The issue for the jury was straight-forward. It turned on credibility. The prosecution evidence was fairly strong against the appellant, but if his story raised a reasonable doubt in the minds of the jury then he was entitled to be acquitted on both counts. No criticism has been made of the summing-up - except on one point which became the sole issue in the Court of Appeal and is now the point of law for our determination. The judge's summing-up was, on any view of the matter, full and balanced in every other respect. For instance, in relation to the oral admission - which, if true, was a cogent piece of evidence against the appellant - the judge said:
"You must clearly understand that when you are dealing with this issue, that evidence of oral admissions ought always be received with great caution, more so when no contemporaneous record is made at the time."
Point of law
10. This appeal comes to us on a point of law certified by the Court of Appeal under section 32(2) of the Hong Kong Court of Appeal Ordinance in these terms:
"Whether the trial judge having decided to direct the jury to treat the [defendant] as a man of good character in spite of a previous conviction, is then obliged to give a direction on both credibility and propensity?"
The Vye principles
11. "Credibility" and "propensity" are shorthand terms used to identify the entitlement of a defendant in a criminal trial to favourable directions by the judge with reference to his character in certain circumstances, as established by the English Court of Appeal in
R. v. Vye  97 Cr.App.R. 134 and affirmed by the House of Lords in
R. v. Aziz  1 AC 41. Those circumstances arise where the defendant is a person of "good character". The expression "good character" is, however, not self-explanatory. According to Aziz it could cover three situations: (i) where the defendant is of positive good character: that is where the defendant has adduced evidence to establish his (or her) own standing and reputation; (ii) the case of a defendant with no previous convictions; (this stands as a bare fact on its own, usually elicited by cross-examination of police witnesses); this might also include the situation where - as in the present case - the defendant has previously offended but is treated by the judge as a person of good character because the previous convictions are deemed irrelevant; and (iii) where the defendant has no previous convictions, but in the course of the trial itself it is shown that he has acted discreditably or dishonestly, but the judge nevertheless decides to treat him (or her) as a person of "good character": The...