HKSAR v Castaneda Ortiz Jairo
Court of Appeal
Criminal Appeal No. 398 of 2015
Lunn V-P, Macrae and McWalters JJA
2 December 2016

Witness – law enforcement officer witness – rule that judge must not suggest to jury that law enforcement officers more unlikely than other witnesses to fabricate evidence

D was convicted of unlawfully trafficking in dangerous drugs consisting of 0.65 kg of cocaine. Those drugs were found in a suitcase upon examination by Customs officers at the airport. The prosecution’s case, based on the evidence of two Customs officers, was that it was D’s suitcase. D neither gave nor called evidence. His case, put to the Customs officers by his counsel in cross-examination, was that they had mixed up D’s suitcase with the suitcase in which the dangerous drugs were found. Defence counsel suggested that the Customs officers were mistaken. He did not suggest that either of them was lying. But when summing-up, the Judge suggested that it was implicit in the defence’s case that the Customs officers were lying. And he in effect suggested that the defence’s allegation was not credible because it was an allegation of criminal conduct on the part of law enforcement officers who enforce the law rather than break it. D applied for leave to appeal against conviction.

Held, granting the application, treating the hearing as the appeal and allowing the appeal by quashing the conviction and ordering a retrial, that:

  • Since the Judge took the view that an allegation that the Customs officers were lying was implicit in the defence’s case even though defence counsel had explicitly disavowed any such allegation, he should have clarified with defence counsel the true nature of the defence before summing up to the jury.
  • In fact, the Judge was incorrect in his assumption that the defence’s case was that the Customs officers were lying. As a result, the Judge inaccurately portrayed the defence’s case when summing up to the jury.
  • That inaccuracy was exacerbated by the suggestion in the summing-up that persons whose duty was to enforce the law would not deliberately breach it by misconducting themselves in the way in which the Judge incorrectly assumed the defence’s case implied. This suggestion was in breach of the rule laid down in HKSAR v Leung Ka Yin and approved by the Court of Final Appeal in Lee Fuk Hing v HKSAR (2004) 7 HKCFAR 600 at p. 611B that a judge must not suggest to the jury that law enforcement officers as a category or otherwise were more unlikely than other witnesses to fabricate evidence.
  • Coming at the end of the summing-up, that suggestion would not have been neutralised by the Judge’s direction, at the beginning of the summing-up, that the evidence of law enforcement officers was no more worthy of belief than that of any other witness.
  • The defence argued that there was a discrepancy in the prosecution’s evidence which made it inappropriate to order a retrial. But it would be open to the jury at a retrial to resolve the discrepancy and be satisfied to the requisite standard of D’s guilt.

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