HKSAR v Cheung Kim Shing
Court of Appeal
Criminal Appeal No. 439 of 2015
Lunn V-P, Macrae and McWalters JJA
8 November 2016

Evidence of uncharged acts – should not be admitted unless jury would have incomplete or incomprehensible account of events without such evidence – if nevertheless admitted, jury should be directed to ignore it – even if otherwise admissible, should be excluded if prejudicial effect outweighed probative value – where such evidence properly received, jury should be directed that they must be sure of occurrence of uncharged acts and could not infer defendant had committed similar offences or had propensity to commit offence

D was convicted after trial of unlawfully trafficking in dangerous drugs, namely 1.45 kg of methamphetamine hydrochloride. Those dangerous drugs were brought from mainland China to Hong Kong by X to whose thighs and waist they were strapped. The prosecution’s case, supported by X’s evidence as a prosecution witness, was that she had unlawfully trafficked in those dangerous drugs by importing them into Hong Kong under D’s control and at his direction, so that he, too, had unlawfully trafficked in them. D gave evidence denying that. In the course of her evidence, X said that she had met D at a mahjong establishment operated by him and that he had supplied dangerous drugs to customers at that establishment. The Judge directed the jury that the fact that D had done that might be relevant to their consideration of whether it was in his interests to traffic in dangerous drugs. D applied for leave to appeal against his conviction.

Held, granting leave to appeal, treating the hearing of the leave application as that of the appeal, quashing the conviction and ordering a retrial, that:

  • Unless the jury would have an incomplete or incomprehensible account of events without evidence of uncharged acts, such evidence should not be admitted. If such evidence had nevertheless been admitted, the jury should be directed to ignore it. Even if evidence of uncharged acts was otherwise admissible, it should be excluded if its prejudicial effect outweighed its probative value. Where such evidence was properly received, the jury should be directed that they had to be sure of the occurrence of the uncharged acts and that they might not infer from them that the defendant had committed similar offences or that he was the sort of person with a propensity to commit the offence.
  • The evidence of uncharged acts in this case had very little, if any, probative value. Such probative value as it might have had was outweighed by its prejudicial effect.
  • X’s evidence was perfectly understandable without any reference to D’s dealings in dangerous drugs at the mahjong establishment.
  • The Judge erred in failing to direct the jury to ignore such dealings.
  • The direction which the Judge did give (saying that the fact that D had supplied dangerous drugs to customers at the mahjong establishment might be relevant to their consideration of whether it was in his interests to traffic in dangerous drugs) was a misdirection. There were non-directions in that the Judge omitted to direct the jury that they had to be sure of the occurrence of the uncharged acts and that they could not infer from the evidence of the uncharged acts that D had committed similar offences or that he was the sort of person with a propensity to commit the offence.
  • It was not appropriate in the circumstances to apply the proviso.
  • But it was appropriate to order a retrial.
Jurisdictions: 

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