May it please Your Lordships, in this matter, I appear on behalf of the Attorney General of Hong Kong together with Miss Alison Padfield. My learned friends, Mr Gerard McCoy and Mr Dominic D’Souza, appear on behalf of the respondent. My Lords, this petition arises out of the majority judgment of the Court of Appeal of Hong Kong, which held that the learned trial judge had wrongly exercised his discretion not to disallow certain cross-examination of the accused, after he had lost his shield within the terms of s 54(1)(f) of the Criminal Procedure Ordinance (Cap 221), which has its mirror image in s 1(f) of the Criminal Evidence Act of England 1898. There was of course a dissenting judgment from Penlington JA who held that in effect that, following the judgment of Your Lordships’ House in Selvey v DPP [1970] AC 304 , the trial judge was best placed to have the feel of the case and that the appellate court should only interfere in exceptional circumstances, either if there has been error in principle or if there is no material on which the trial judge could properly have exercised his decision. My Lords, clearly there was admissible material and that wasn’t an issue below, so the only question really below, was whether the trial judge had erred in principle.

The majority gave a number of reasons which we have set out on p 6 of our petition for holding that the trial judge had erred. And, it is our respectful submission that those reasons really compromised the operation of the subsection and, already as a result of the decision of the majority, some prosecutors in Hong Kong are approaching the use of s 54(1)(f) with the greatest of reluctance. There is a feeling already abroad that it is perhaps best left alone, because it could well lead to a conviction being overturned on appeal because it falls foul of one or more of the reasons given by the majority in the Court of Appeal. It is our submission that before holding that a trial judge has erred in principle, the appellate court must first decide that no reasonable judge could have reached the conclusion that he did, and that the admission of the evidence would necessarily occasion unfairness.My Lords, of course, the authorities do show that, once the shield is lost, the jury is entitled to be told of the previous[1994] 1 HKC 1 at 3convictions, subject only to the overriding discretion to exclude them if the interests of a fair trial so require and this was demonstrated by the warning which Viscount Dilhorne, in Your Lordships’ House, said was desirable in the case of Selvey. And our submission is that the clear legislative intention is that where imputations are cast, the tribunal should be able to assess the likelihood of the allegations being true by reference to the fact whether the allegations come from a reliable or non-reliable source.

Lord Woolf:

Would it be fair to say the way you put your case is that Selvey is rightly decided and, if the Court of Appeal had applied Selvey, you wouldn’t have had to come here?

Mr Cross QC:

In large measure, but there are also aspects of the case which are not touched upon by Selvey.

Lord Woolf:

Speaking for myself, what I saw as the difficulty here was that there was no point of principle. It was perhaps an unfortunate decision by the Court of Appeal but it really should be regarded as an aberrant decision and really one which would not be worth coming here because of the impact.

Mr Cross QC:

My Lords, the matters which we say weren’t canvassed in Selvey were these. My Lords, the court attached significance to the fact that the convictions, the original convictions, the 1981 convictions, occurred when the defendant was only aged 15 and that they were of a similar nature and, it is our submission that unless convictions are spent and unless they are trivial convictions, then a judge ought normally to allow them to be placed before a jury. These were not spent convictions even though they occurred when the defendant was aged 15.

Lord Woolf:

Yes, but it must be a matter which a judge would be entitled to take into account in his discretion in deciding what justice requires.

Mr Cross QC:

My Lord, yes. But the judge obviously in this case decided that, despite the age and despite the similarity of the previous convictions, this was an appropriate case to exercise his discretion not to disallow.

Lord Woolf:

Yes, that’s how he exercised his discretion.

Mr Cross QC:

Yes. The other matter which was not touched upon in Selvey relates to the important issue of whether, in exercising the discretion on one count to lift the shield, the judge is required to have regard to the fact that there are one or more counts on the indictment. My learned friends and I have searched extensively for authority on this, there is very little authority either in this country or in England. There is one case, a 1963 case called R v Curbishley default [1963] Crim LR 778, which my learned friend Mr McCoy has located, which was concerned with a multi-count indictment. And we say that normally, a jury would be entitled to know of the previous convictions of the defendant once his shield is lost on one count, albeit that there is another count on the indictment, and this, perhaps, is the essence of the judgment of the Court of Appeal, saying that[1994] 1 HKC 1 at 4in effect, the jury should not have been told and the shield should not have been lost because there was another count. We say on that that a defendant cannot expect to cast his imputations in relation to one count with impunity and then turn around and say ‘the shield should not be lost because I am also facing another count to which the allegations do not relate’.

Lord Keith of Kinkel:

This is one of the factors to be taken into account.

Mr Cross QC:

It certainly is a factor to be taken into account, but it’s been erected by the majority in the Court of Appeal into a hard and fast rule and that will place the Court of Appeal in considerable difficulty.

Lord Woolf:

Did the majority of the Court of Appeal go so far as to say that that was a hard and fast rule? Weren’t they really saying it was their view that, this was a relevant consideration and the judge hadn’t taken it into account?

Mr Cross QC:

Well, yes.

Lord Woolf:

It must be a relevant consideration that there are other counts surely?

Mr Cross QC:

Well, of course our position is that it may be relevant, but this was the case whether the learned judge was fully aware of the other counts.

Lord Woolf:

That turns on the facts of the particular case rather than any point of principle.

Mr Cross QC:

My Lord, yes. There is surely a point of principle there in the sense that if it had been a multi-count indictment, then the situation might well have been different and we wouldn’t be before Your Lordships today. If it had been a multi-count indictment, then perhaps it would be appropriate not to lose the shield if the allegations related only to one of the counts but not to the other counts, particularly if the other counts were far more serious, but here, the learned judge was fully aware of the fact that the imputations related to the first count and he exercised his discretion accordingly. So, that is the second matter which we say was not covered in Selvey. The third matter is that an additional fetter has been placed upon the operation of the subsection in consequence of that which was said by Sears J in his judgment as part of the majority. He made reference to the strength of the case and the complexity or simplicity of the issues. And so, clearly, the lower courts in Hong Kong from now on will need to know whether in fact, when deciding whether to lift the shield or to allow the shield to be lifted and the cross-examination to continue, they should be looking to whether the Crown had a strong case and they should be looking to whether the issues are simple or complex. And that is a new fetter upon the operation of the sub-section which didn’t hitherto exist. And we say that it must be wrong and that the wording of the sub-section should be given its plain meaning. So we do, with respect, say that that part of the judgment of Sears J as well does set a precedent which will not bode well for the future interpretation of the section by the lower courts in Hong Kong.

[1994] 1 HKC 1 at 5Lord Browne-Wilkinson:

Could you help me with the Court of Appeal’s point (vi)? Your summary of the majority’s reasons for interfering with the judge’s discretion — ‘the allegation of planting was part and parcel of the defence’ — does this mean that in all drug cases and indeed in other cases where the accused is found in possession of the object in question and raises a planting, then his record is inevitably kept out?

Mr Cross QC:

My Lord, it doesn’t mean that this was one of the issues which was considered by Your Lordships’ House in Selvey.

If it is part and parcel of the defence, it is not open to the defence to turn round and say ‘because it is part and parcel of the defence, our shield should not be lost’. But, there was some suggestion to the contrary in the judgment of Bewley J at the bottom of pp 321–322 and, in so far as the learned judge did seem to be suggesting the opposite, it was quite clear that as My Lord, Lord Woolf says that it is in conflict with Selvey. My Lords, the final matter is perhaps, in our respectful submission, not so significant as the others but in the majority judgment of Bewley J, at pp 321–322, there is, with respect, a large element of conjecture in the way in which he goes about the matter. My Lords, he says on p 321D, in relation to the trial judge, ‘The judge does not appear to have distinguished between the two counts … Here the judge does not seem to have considered allowing the Crown to cross-examine only about the robbery convictions’. And then in relation to the matters which My Lord, Lord Browne-Wilkinson just raised at p 322A:

The allegation of planting was part and parcel of the defence. If the drugs were not planted by the police, they must have been in the possession of the applicant. That is not to say that an allegation of attempting to pervert the course of justice may be made with impunity. Clearly, on the authority of Selvey, that is not so, but it is something which a judge should take into account when weighing the issues. It is not apparent that that was done in this case.

Selveymakes it clear that for the purpose of cross-examination in these circumstances is to diminish the credit of the man who is making the imputations but simply because it is part of the defence is no reason for not allowing the shield to be lifted.

Lord Browne-Wilkinson:

No reason, not even a factor to be taken into account?

Mr Cross QC:

Well, it’s a factor, My Lord, Your Lordships’ House did make it quite clear that there is ultimately a residual discretion in the courts. And, the final matter on this point, if I may, was in the final paragraph, where at p 322F, the learned judge noted that ‘although Mr Nguyen raised most of these matters in opposing the application, I am unable to say, looking at the transcript, that the judge gave them proper consideration when making his ruling and I was therefore not satisfied that he exercised his discretion on a proper basis’. So, My Lords, in relation to those four matters the learned judge did not actually say that the trial judge[1994] 1 HKC 1 at 6erred in principle, he is just saying in effect that it seems as though he may not have taken these matters into account. And so, in consequence of that as well, it will now be unclear to Hong Kong judges and magistrates as to whether, when they make a decision under s 51(1)(f), they are required henceforth to give detailed reasons canvassing all these matters; because if they do not, then of course they will be exposed to the approach which is being adopted by Bewley J. And certainly as things stand, there is no rule of law or of practice or procedure that a trial judge or a magistrate does have to give reasons but it would seem, that in light of the approach of Bewley J and if this matter is now completely unclear, that henceforth, they will have to give detailed reasons as to why they exercise their discretion in a particular way. My Lords, those are our submissions, unless there is any other matter on which I can assist Your Lordships.

Lord Browne-Wilkinson:

I’m sorry to keep on on this point, but Sears J seems to have taken the view that there was no allegation of a plant on the defendant. Now that must be clear one way or the other.

Mr Cross QC:

I found that, with respect, very difficult to understand indeed.

Your Lordships will see that Mr Nguyen, who was counsel for the respondent at the trial, in an exchange with the trial judge, accepted that it amounted to a plant.

Lord Browne-Wilkinson:

That’s what I thought.

Mr Cross QC:

My Lord, yes.

Lord Browne-Wilkinson:

That’s a manifest misdirection.

Mr Cross QC:

That’s clearly wrong as well, My Lord, yes. My Lords, with the greatest respect, we do say that the two judgments of the majority taken together do have the potential of causing the courts of Hong Kong to be diverted into the wrong course and already, as I say, some prosecutors are approaching the question with the greatest reluctance because they fear that there will be appeals arising in consequence. My Lords, I am much obliged.

Lord Keith of Kinkel:

Thank you, Mr Cross. Their Lordships need not trouble you, Mr McCoy, and will humbly advise Her Majesty that this petition ought to be dismissed.

[The petitioner was ordered to pay the respondent’s costs.]