THE QUEEN v. HUNG WAI HUNG

Criminal law -summing up -whether judge's comment on the accused's failure upon arrest to give explanation later put forward at the trial amounted to a misdirection.

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J U D G M E N T

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Fuad, V.-P. (delivering the judgment of the Court)

1. On 20 December 1988, the applicant Hung Wai Hung was convicted after a trial in the High Court (Wong, J. and a jury) of the offence of possessing dangerous drugs for the purpose of unlawful trafficking contrary to s.7 of the Dangerous Drugs Ordinance and sentenced to 7 years' imprisonment. He sought leave to appeal against his conviction. At the conclusion of the hearing we granted the application but dismissed the appeal. We now give our reasons.

2. The facts upon which the prosecution was based were that when a police constable was on surveillance duty near the Hsin Huang Restaurant in Waterloo Road watching from inside of the Spaghetti House nearby, shortly after 10:00 p.m. on 22 July 1988, he saw a blue Honda car being driven along Waterloo Road from North to South. The car passed the Spaghetti House and stopped outside the restaurant. It was not in dispute that the driver of that car was the applicant and that he was its registered owner.

3. The police officer walked up to the car, and as he did so, he saw the applicant pick up a white plastic carrier bag from the front passenger seat of the car and place it on one of the rear seats. The window or the door on the driver's side was wound down; and the door itself turned out to be unlocked. The other three windows were wound up and the three doors locked. The police officer opened the door next to the driver and announced: "I am a policeman, don't move."

4. The applicant looked up and immediately started to drive off. The officer caught hold of the steering wheel and managed to get both his legs into the car. He then got himself on to the front seat as it moved on down the road. After about 20 feet, the officer was able to stop the car. A police van drove in front of the applicant's car and stopped it going any further.

5. The transcript shows that this police officer then spoke to the applicant and said: "We are policemen. I suspect that you have white powder or heroin in your possession. I want to search your person". Nothing was found on the applicant and he made no comment. The white plastic bag was still on the rear seat. There was a black plastic bag in it in which there were two polythene bags containing what was later found to be 908.66 grammes of a mixture containing 42.65 grammes of salts of esters of morphine. The ownership of the car and the presence of the drugs therein was formally admitted by the applicant.

6. When the police officer san what was in the bag he told the applicant that he was under arrest since he suspected that the applicant had dangerous drugs in his possession for the purpose of unlawful trafficking. The applicant was then handcuffed. He said nothing.

7. About  1½hours later another police vehicle came to the scene. The applicant was placed in this vehicle and was duly cautioned by the same police officer. The applicant made no response.

8. In his defence, the applicant told the jury that he had bought the car in June 1988. On the day before he was arrested, he had lent the car to a Mr. Ko King Lun who had damaged one of the bumpers while it was his possession. When Mr. Ko returned the car that evening, he promised the applicant that he would pay for the repairs, and asked the applicant to find a garage to do the work. On the day of his arrest, he had taken the car to a garage run by a Mr. Lui Shui Fung. He had arranged to pick the car up again at 8:00p.m. that evening. He was with Mr. Ko when he took his car away from the garage. The car was then parked outside the garage while he and Mr. Ko went to have a meal at the Shanghai Restaurant nearby.

9. The applicant also testified that while they were in the restaurant a Mr. Hui Wah, who worked as a mechanic in the garage where his car had been repaired, "paged" him saying that he had left a bag of clothes in the car and that he wanted them back. It was arranged that Mr. Hui would come to the Hsin Kuang Restaurant at about 10 p.m. that night to collect his clothes. Then the applicant got there, Mr. Hui was nowhere to be seen. He then noticed the bag under the front passenger seat of his car and put it onto the back seat.

10. He said that his car had an automatic gear. The lever was in the drive position when he stopped outside the restaurant to meet Mr. Hui. When the police officer pulled the car door open his foot came off the brake pedal and the car moved forward. The officer did not reveal that he was policeman and he thought that the man who had opened his car door was a robber or at least someone who might do an unfriendly act towards him. Later when the intruder into his car told him he was a police officer, he brought the car to a halt. He had nothing to do with the bag in which the drugs were found.

11. Mr. Ko King Lun supported the applicant's evidence about borrowing the car and damaging the bumper, and about their going for a meal together. We had left the applicant at the restaurant between 9:40 and 9:45 p.m.. Mr. Lui Shui Fung confirmed the applicant's evidence about the repairs done to the car at his garage. He also said that he had employed a man called Hui Wah on a casual basis as a mechanic. Hui had carried out the repairs. He had telephoned the garage and obtained the applicant's paging machine number from him. A few days later, the applicant had told him that drugs had been found in the car and when he was stopped by the police and had returned to the garage a number of times later, looking for Wui Wah.

12. The sole ground of appeal in the amended form of the Notice is that the judge "erred in law in directing the jury, that they could take into account the Appellant's silence when the allegation of the offence was made to him by the police as being in the circumstances indicative of a consciousness of guilt." This is the passage from the judge's summing up of which complaint is made:

"Now, there is evidence - I think rather the absence of evidence that when the accused was arrested, nothing was mentioned that the drug belonged to HUI Wah or the packet belonged to HUI Wah. Do you think, members of the jury, an innocent person who finds himself in that situation would be very eager to tell the police that, 'Well, this bag doesn't belong to me. It's not mine. It's HUI Wah's. I am delivering it to HUI Wah? It's very simple, isn't it? That's only natural human reaction and natural human response. Its quite true that where a person is arrested by the police, he has a constitutional right not to say anything, but this does not prohibit you from considering who must be considered as natural human a reaction and natural human responses."

13. The first Hong Kong case cited to us by Mr. McCoy was Yeung Kam Chun v. The Queen, Cr. Appeal of 1882 of 1981 (30 June 1982, unreported). This was an appeal from a decision of a District Judge who, in one passage of his Reasons of Verdict in a robbery case, said: "When confronted by Yau" [who was the owner of the taxi the defendant was alleged to have stolen] "he remained silent. This was perhaps understandable because he was at the time surrounded by hostile taxi drivers. However, later when the police arrived there could be no question of intimidation. He was again accused in the presence of the officer and again he remained silent. From all the circumstances" [the defendant was found driving the stolen taxi only minutes after the robbery, his finger tips were covered with tape and a weapon used in the robbery was found in the vehicle] "the only inference could be drawn was that tae defendant had taken part in that robbery ...".

14. About this passage, after referring to a number of English authorities, (it is not apparent who delivered the judgment) the Court said:

"If the trial judge by the use of 'from all the circumstances' immediately succeeding his references to the 'silences' was relying on either of those silences as an indicator of the appellant's acceptance of the accusation he was wrong to do so."

15. Chan Chi Hung v. The Queen Cr. Appeal 515 of 1982 (12 November 1982, unreported) was another appeal from the District Court. In his reasons for Verdict the judge had said: "The reactions of the accused at the time the drugs were found, not only at the scene of the arrest but also at the police station, are significant .... I considered it highly unlikely that a person innocent of the fact that a packet of drugs were being carried in his vehicle would remain silent particularly when a direct question was asked as to the ownership of the packet." Li, J.A., giving the judgment of the Court, referred to Hall v R. [1971] 1 WLR 298 (P.C.), and to Yeung Kam Chun and said:

"One point is clear. As a matter of law, the trial judge is not permitted to make adverse comment on the silence of the accused save in exceptional circumstances. The fact that an accused remained silent should be kept away from the jury's mind. The trial judge should have told the jury that the fact the accused remained silent did not indicate either guilt or innocence.

    Having regard to the evidence and the reasons for verdict, we have come to the conclusion that the trial judge, when considering whether the presumption had been rebutted on the balance of probability, allowed himself to place substantial reliance on the fact that the appellant remained silent. This is precisely what he should not have done whether he was discharging his function as a judge of law directing the jury or discharging the function of the jury as a judge of fact."

16. All the relevant authorities were exhaustively reviewed and discussed by this Court in Cho Chak Bor and Others v. The Queen [1983] HKLR 174 in the judgment of the Court delivered by McMullin, V.-P.. We think that little purpose would be served by discussing them again. In that case, at p.184, McMullin, V.-P. observed:

"     It is perhaps unfortunate that some of the case law has tended to ellide the distinction between two situations which are at least conceptually not difficult to distinguish. Silence in the face of a challenge, or of accusatory questioning, which might be expected to elicit a response can afford positive evidence of guilt but only to the extent that the reaction of the defendant is to be interpreted as accepting in whole or in Part the substance of the accusation. (Rex v. Christie [1914] AC 545, per Lord Atkinson at p.554 in a passage which receives emphatic endorsement by Lawton, L.J. in Chandler. (1976) 63 Cr. App. R. 111). That is to say, the reaction of the defendant may constitute positive evidence against him.

    Failure to disclose the defence before trial is a different matter. The reason for seeking to adduce such evidence could only be that it might tend to negative the truth of the story which is eventually produced in evidence. Its tendency would be to weaken the defence rather than to add to the strength of the prosecution case. The issue then would be credibility. On the cases, however, this form of attack on credibility is not permissible."

He then went on to say, at p.185:

"     The right to comment critically, either upon silence in the strict sense or else upon silence in the sense of failure to disclose a defence, despite a timely opportunity for doing so, is, one would think, a right apt for the advancement of justice without any appreciable danger to Woolmington's 'golden thread'.

    This is an area littered with nice distinctions and forensic misgivings; unsuitable terrain for reclamation by judicial decision as the court in Gilbert(1978) 66 Cr. App.R. 237 recognized. Moreover, this very ground has to a limited extent already been admirably tidied by the legislation relating to alibi evidence which was introduced in England in 1967 and in Hong Kong in 1971.

    How much may a judge safely say's The court in Gilbert would go no further than saying 'In our view it may not be a misdirection to say simply this defence was first put forward at this trial'. To some minds this might seem to differ from what the trial judge said to the jury in the present case only by its economy of emphasis. And even that comment, though neutral in form, might be scanned for adverse overtones within the of context a given case."

McMullin, V.-P. then said this, at p.185:

" We can therefore do no better than repeat the advice given by Humphreys, J., delivering the judgment of the Court of Appeal in Tune (1944) 29 Cr. App. R., at p.165:

'It is probably better, where a person has been charged with a criminal offence after having been cautioned and has either made no answer at all, or has made some observation which in itself is not in the nature of an explanation of the charge, that the presiding judge should say nothing about it beyond telling the jury exactly what was said or not said on that ocasion, because many observations of different sorts by learned judges have from time to time been made the subject of appeal to this court. If nothing said by way of comment by the presiding judge, no point can be raised.'

    We would add that this advice is applicable also in cases there silence - or a non explanatory statement - occurs before charge or caution."

   Cho Chak Bor was followed by this Court, again presided over by McMullin, V.-P., in The Queen v. Lau Sou Wah, Cr. Appeal 1174 of 1982 (23 June 1983, unreported). The defendant had been intercepted by the police on his way to a flat in which drugs were found. He had the keys of the flat with him. At pp.23-24 of the transcript of the judgment, there are the following passages:

"The whole point of the Judge's comment was still substantially this: that the defendant had failed to disclose the true nature of his defence at a point when common sense would suggest that it should have been disclosed. The rule in Gilbert still applies and the comment, attractive as it may be to mere common sense, should not have been made. The interests of a fair trial would have been better secured if the Judge, instead of offering a somewhat elaborate analysis of this part of the evidence, and in a manner so tellingly against the case of the applicant, had simply reminded the jury that even on the applicant's own story, the name of  Ng Fei had never been mentioned by him to the police. Had he dealt with the matter in that way he would probably have gone on to remind them that the applicant's wife had given evidence in which she alleged that she had given the name NG Fei to inspector Yiu with the purpose of having the former arrested. And have would have reminded them that she had corroborsted her husband's evidence to the effect that Inspector Yiu had actually mentioned that name to the applicant. These matters were undoubtedly put forward in some sense to explain the fact that the defendant had not mentioned the name of NG Fei at the outset. Lame as this story may have sounded in the ears of the jury, it was nevertheless desirable that in commenting upon that silence (silence in the sense of failing to mention the name NG Fei) the Judge should also have drawn these attempted explanations to their attention.

    In Cho Chak bor this court, while pointing out the restricted nature of the Judge's right to comment upon silence, either in the strict sense, or else in the extended sense of failure to reveal the essential defence nevertheless affirmed the Judge's right - and indeed his duty - to draw to the jury's attention any significant discrepancy between anything said by the accused after arrest - whether before or after caution (Hall v, Regina [1971] 1 E.R. 322) - and his evidence in court. Even then it is preferable that the jury should simply be reminded of the discrepancy and advised to make what they can of it. If the matter is plain, advocacy by the Judge is almost certainly unnecessary, and if it is not plain, then advocacy may be unfairly tendentious.

    Similar considerations apply, if anything, with greater force where the Judge is drawing the jury's attention to the failure of the accused a) to say anything at all by way of innocent explanation or b) to disclose an obvious and vital part of his defence when apprehended. Whichever is the case - and whether it before or after caution-anything said by the Judge which amounts to an invitation to disbelieve the accused's defence goes too far.

    While the present state of the law may not he satisfactory, it would do little to improve it if we were to hold that a Judge-who is not entitled to invite an adverse inference from total silence in the face of an accusation or charge - is nevertheless entitled to do so where the accused has given an explanation which withholds an important portion of his defence. The whole point of such comments is to alert the jury to a suspicious circumstance bearing upon the truth of the accused's story, yet the former situation must yield, if anything, a more lively impression of suspicious discomposure than does the latter. In either case the significance of the event is best left to the good sense of the jury without judicial gloss."

17. In The Queen v. Lau Kam Wah Cr. Appeal 595 of 1986 (19 February 1987, unreported) Cho Char Bor and some of the English authorities were referred to. That was a robbery case tried in the District Court. The judge's Reasons for Verdict included the following: "Even up to the time of PW4 (P.C.7711) appearing, there was no evidence that he told P.W.4 that he had been assaulted or explained that a mistake of arrest had been made." Giving the judgment of the Court, Penlington J. (as he then was) said, at pp.3-4 of the transcript:

" This is an area of law which, despite the cited decisons and other dicta of the courts in England, is by no means without difficulty. A person, on arrest, is entitled, whether or not he has been cautioned, to remain silent (there is dicta per Lord Diplock in R. v. Hall that the caution is only reminding him of his constitutional right to remain silent) and, if he does exercise that right, that should not be the subject of adverse comment.

    Here the trial judge, we feel, has simply stated the fact that there was no explanation given by the accused at the time of his arrest. We do not accept Mr. Alderdice's submission that it was a substantial reason for his decision. We also feel that, bearing in mind the circumstances of the pursuit and arrest, all he was saying was that at some stage the applicant must have realised he was being chased not by assailants but by policemen and would have been expected to have stopped and told them of the attack on him. He did not do so."

18. We were also referred to the New Zealand case of R. v. Coombs [1983] NZLR 748 where Cooke, J. (as he then was) made the following observations at pp.751-752:

" As New Zealand case law stands, there are three relevant principles. first, in general a suspect has a right to silence under interrogation by police or other law enforcement officers, whether before or after caution. This is elementary. Secondly, while a Judge may properly comment upon the fact that an explanation has been given for the first time at the trial, such observations have to be made with care and fairness to the accused in all the circumstances of the case: R. v. Ryan [1973] 2 NZLR 611, 615. Thirdly, while occasionally the accused's silence when confronted with an allegation may amount to evidence of acceptance of it by him, this is exceptional - and especially so when the allegation has been made by or in the presence of a police officer or other investigating authority: R. v. Duffy [1979] 2 NZLR 432.

    The Privy Council and English authorities which have influenced the evolution of those principles in New Zealand need not be cited again here, but it is noteworthy that the dividing line between what is fair comment and what is not has been recognised to be a fine one: see 11 Halsbury's Laws of England (4th ed) para 299; Archbold's Pleading Evidence and Practice in Criminal cases (41st ed, 1982) 4-430. In some cases, both in England and in New Zealand, it has been said that there is a clear distinction between drawing an inference of guilt from silence and taking prior silence into account as diminishing the weight of any explanation given by the accused for the first time in evidence at the trial. In R. v. Gilbert (1977) 66 Cr App R 237, 244, Viscount Dilhorne, delivering the judgment of a Court of Appeal of which Lord Scar man was also a member, saw no clear dividing line, as in each situation the jury are being invited to draw an inference adverse to the accused on account of his exercise of the right to silence. We respectfully agree that the distinction is often too fine to be of practical value in a jury trial. When the accused has made no prior statement, comment on the belatedness of an explanation advanced for the first time at the trial will usually not be fair unless his right to silence is also clearly explained and the jury are warned not to draw an inference of guilt from silence.

    In Gilbert the English Court of Appeal regarded the present position as unsatisfactory, contrasting the Judge's right to comment on the failure of an accused to give evidence with the restriction on adverse comment on the accused 's failure to make a statement earlier. With respect, we are less persuaded of this. Silence in the face of unsupervised interrogation by officials may be inspired by considerations different from those inducing an election not to go into the witness box."

19. We do not consider it necessary to refer to the rest of the authorities, from England and other Commonwealth jurisdictions, cited to us by Mr. McCoy. It was plain to us, that as the law now stands, the passage in the summing up of which complaint is made contained a misdirection, as Mr. Abbott who appeared for the Crown, fairly conceded. The cases show that the judge went too far despite his reference to the applicant's constitutional rights. The fine dividing line between what is, and what is not, fair comment on the applicant's failure to disclose his defence upon arrest was crossed. However, we entertained no doubt that no miscarriage of justice had actually occurred and so concluded that we should exercise our discretion to apply the proviso.

20. It was for these reasons that we allowed the application for leave to appeal against conviction, treated the hearing as the hearing of the appeal, and dismissed the appeal.