HKSAR v. KWOK PAK HO

HCMA 1162/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 1162 OF 1998

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J U D G M E N T

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1. This is an appeal against the conviction of the appellant in the Western Magistracy of an offence of forgery contrary to section 71 of the Crimes Ordinance (Cap. 200).

2. Putting it very shortly the allegation against the appellant in the Court below was that he purchased a motor vehicle and, at the time of doing so, he agreed with the Vendor that he would have processed by the Transport Department an application already signed by the Vendor for transfer of ownership of the vehicle. A subsequent check with the Transport Department by the Vendor revealed that the appellant had not done what he had undertaken to do and that the vehicle licence had been renewed upon application for a period of 4 months still in the name of the Vendor. That application bore a signature purporting to be that of the Vendor but which was not, in fact, his signature.

3. The grounds of appeal argued before me this morning were as follows:-

1. The learned Magistrate erred in law in allowing the appellant's utilisation of his "right to remain silent" in the determination of his guilt.

2. The learned Magistrate erred in fact when determining the involvement of the appellant to consider
(a) that he had not been identified by PW2 and
(b) PW1's evidence that the appellant was unaware of his address and

3. For the same reasons and/or otherwise the appellant's conviction was unsafe and unsatisfactory.

4. Before going further I would just interject here to say that the appellant was a man of good character, but this fact was not made known to the learned Magistrate who quite obviously then was not in a position to give himself a 'character direction' which in a case such as this might have been of considerable importance. In the event this matter has no bearing upon this appeal which I determined on the grounds before me.

5. During the course of the trial, evidence was given that when he was arrested, and following caution, the appellant declined to say anything. During the trial itself the appellant elected not to give evidence. In the course of the appellant's Solicitor's closing address, the learned Magistrate intervened in this fashion - and I copy from the transcript as follows:-

Court: Your client, of course, has the right to remain silent. But he also had the opportunity to - then he must have been aware that suspicion would fall upon him.

[Solicitor]: Sir, yes.

Court: He had the opportunity to explain his involvement in the matter and chose not to say anything at a perfect opportunity.

[Solicitor]: Sir, yes, but he does have the right to remain silent whilst under investigation at the police station, and indeed whilst in respect of a case before this honourable court. Sir, no comment can be made with regards, or no inference can be drawn with regards, to him not giving a statement to the police, nor be made with regards to him not giving evidence in court .....

The Solicitor then continued with his closing address.

6. In his ex-témpore reasons for verdict the learned Magistrate said this -

"This defendant has elected to remain silent, as his right.

His failure to deny the allegation of forgery against him is a proper matter for the jury's consideration ....."

The learned Magistrate then proceeded to convict the appellant.

7. Before going any further I should say that it seems plain to me that when the learned Magistrate referred to the appellant's election to remain silent he was referring to the fact that he chose not to give evidence. When he referred to the appellant's failure to deny the allegation of forgery he was referring to silence following caution. I think that must be right because of course the appellant had denied the allegation at his trial by virtue of his plea of not guilty.

8. Assuming that I am right about that, then the learned Magistrate fell into error when he said that such failure to deny the offence was a proper matter for the jury's consideration as if such consideration might be 'at large'. That failure to deny, or putting it more correctly, that exercise of the appellant's right of silence, could not be held against him and, in my view, given that the learned Magistrate had referred to this matter in the terms that he used (i.e. that a jury could make of it what it wanted) he was obliged to correct himself.

9. The learned Magistrate might have sought to do so in his Statement of Findings but he did not. In my view in that statement he compounded the error by saying this:-

"While noting the defendant's right to remain silent, without prejudice, I also observed that when faced with an allegation of forgery under caution he had not taken that opportunity to deny (the) same."

10. That sentence quite clearly, in my judgment, indicates that the appellant's exercise of his right of silence at the time of his arrest was a factor used by the learned Magistrate in convicting him.

11. In his argument before me Mr. McGowan has referred to the judgment of de Basto J. in The Queen v. Chan Hang-lee (Magistracy Appeal No. 146 of 1989). In that case the Magistrate said this in convicting the appellant:-

"I would have thought and expected that the immediate reaction of a person wrongly accused of stealing would have protested his innocence. This he did not do."

de Basto J. in his judgment, having referred to the case of The Queen v. Ng Yuk-ming [1988] HKLR 134, concluded that the learned Magistrate had adopted the wrong approach.

12. In his response to Mr. McGowan's arguments in the present case Mr. Lee for the Respondent has sought to say that NG Yuk-ming's case is authority for the proposition that there is no absolute ban on a tribunal's comment on a defendant's exercise of his right of silence.

13. With respect, I would not disagree with that proposition for a moment, but it is of little assistance to me when the point at issue is the words used by the tribunal, and a comparison between what the learned Magistrate in the present case in fact said, and what the trial judge in fact said in Cho Chak-bor's case does nothing, in my view, to weaker Mr. McGowan's argument.

14. Mr. Lee has also sought to say, if I have understood him correctly, that the learned Magistrate's references to the fact of the appellant's exercise of his right of silence were mere surplussage and that they had nothing at all to contribute to his conviction of the appellant. Given the words employed by the learned Magistrate I cannot, with respect, accept that submission. The words used quite clearly in my view show the contrary. They certainly did so to the appellant's Solicitor and I would be, at the very least, surprised if they did otherwise to the appellant himself or to any observer at the trial.

15. In conclusion I am quite satisfied that in this case, as in Chan Hang-lee's case, the learned Magistrate adopted a wrong approach reaching his verdict. This appeal is allowed, the conviction quashed and the sentence set aside.

16. Having heard a submission from Mr. Lee that this case should be sent back for trial 'de novo' I declined to do so, and having heard an application from Mr. McGowan that the appellant should have his costs both in respect of the trial and the appeal, I refused that application upon the footing that by his conduct the appellant had led the police to believe that the case against him was stronger than in fact it was.