Evidence of uncharged acts – prejudicial effect – specific directions required
At his trial before a judge and jury in 2012, the Applicant was convicted of one count of conspiracy to traffic in methamphetamine hydrochloride (ice) in August 2008, and sentenced to 27 years imprisonment. At an earlier trial, in 2010, he had been acquitted of a separate but similar count of conspiracy to traffic in ice in 2007 but convicted of the 2008 conspiracy. He had successfully appealed that conviction and a retrial was ordered. This 2012 trial was a retrial of the 2008 conspiracy only. The evidence at the 2012 trial was from a co-conspirator, Chan, giving evidence under immunity. Chan gave evidence on both the 2007 conspiracy (which amounted to uncharged acts in this trial) and the 2008 conspiracy. Chan said that he had met the applicant in 2002. In 2007, Chan agreed to act as a courier for the applicant to bring ice from the Mainland to Hong Kong. On four to five occasions in 2007, the applicant gave directions to Chan regarding where to go in the Mainland and ensured the situation was safe before Chan crossed the border into Hong Kong. Chan stopped acting as a courier in 2007 when he found a job. However in 2008, the applicant asked Chan again to act as a courier of ice and he, the applicant and another co-conspirator (still at large) arranged to bring various consignments of ice into Hong Kong until their arrest in Hong Kong. Evidence was also adduced of the travel and telephone records of Chan, the applicant and the other co-conspirator. In his defence the applicant denied any knowledge of trafficking in ice and said that he and Chan were friends who went to the Mainland for entertainment. The applicant appealed, inter alia, on the basis that:
- The judge failed to assess properly the prejudicial effect of the 2007 evidence;
- The 2007 evidence should not have been led by the prosecution;
- The judge had not directed the jury properly and adequately of the probative value of the 2007 evidence.
Held, allowing the appeal against conviction and ordering a retrial on a fresh indictment
- No application had been made by the prosecution for leave to lead the evidence of Chan concerning the 2007 conspiracy.
- Had such an application been made by the prosecution it would have failed.
- The obvious and seriously prejudicial effect of Chan’s evidence in respect of the 2007 conspiracy outweighed any probative value.
- Having allowed the prosecution to lead evidence of the 2007 conspiracy, it was incumbent on the judge to give the jury a careful direction in respect of the standard of proof and the use that they could and could not make of the evidence. (HKSAR -v -Kwok Hing Tony  3 HKLRD 769)
- The jury had not been directed that they had to be sure of the evidence of the 2007 conspiracy before they could act on this evidence.
- The jury had not been directed that they could not infer, from their acceptance of evidence in relation to the applicant in the 2007 conspiracy, that the applicant was a party to the 2008 conspiracy or that he had a propensity to commit offences of that kind, and a specific direction to that effect was required.
- In the premises, the trial miscarried, was unfair to the appellant.
This article by MCS originally appeared in Hong Kong Lawyer, the Official Journal of the Law Society of Hong Kong: http://www.hk-lawyer.org/content/hksar-v-ngie-hon-miu