HKSAR v. CHOW WING MAN

CACC 613/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 613 OF 2002

(ON APPEAL FROM HCCC 27 OF 2002)

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J U D G M E N T

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Stuart-Moore, Ag CJHC (giving the judgment of the Court):

Background

1. On 2 December 2002, following a trial before Tong J and a jury in the Court of First Instance, the applicant, aged 52, was convicted of murder and sentenced to life imprisonment. He now seeks leave to appeal against conviction.

2. The facts of the case as summarised in the written submissions helpfully prepared by Mr Saw, SC, on the respondent's behalf, were accepted by Mr Poll on behalf of the applicant. We can adopt his summary in large measure.

3. By way of background, on 21 April 2001, the decomposed body of Lee Yau-ming ("the deceased") was discovered in flat A on the 7th floor of No.16, Hung Fook Street, To Kwa Wan, Kowloon. The 7th floor of No.16 Hung Fook Street was divided into four flats. The deceased lived alone at flat A. The applicant occupied flat B.

4. There was no sign that the deceased's flat had been broken into or ransacked. His body was found in the living room, lying face upwards on the floor with his head just across the entrance to the washroom.

5. The decomposition of the body masked what had happened and led the police at first to believe that the deceased may have died from natural causes. A post-mortem on 3 May 2001, however, revealed that the deceased's throat had been cut. There were other wounds which had apparently also been caused by a knife, and further injuries indicated that the deceased had been struck on the face several times with a blunt instrument. It was estimated that death had occurred about a week before the deceased's body was discovered.

6. The findings of the post-mortem which were made available to police after 3 May 2001 led to a murder investigation. By the time police went back to the flat, it was found that the deceased's flat had been cleaned on or about 24 April 2001. Following this, it had been re-decorated and, on 29 April 2001, it was sold. The consequence of these actions was that any potentially useful forensic evidence had been lost.

7. A number of the deceased's neighbours gave evidence at trial. Significantly, two young persons living opposite his flat described hearing the cries of an elderly man in pain in the afternoon of 15 or 16 April 2001.

8. Suspicion fell squarely on the applicant when it was found that on 15 and 16 April 2001 respectively he had pawned two items of jewellery which belonged to the deceased. This suspicion was brought into sharper focus by the fact that both the ex-wife and ex-girlfriend of the applicant had been told by him that he needed money to leave Hong Kong because he had killed someone.

9. On 1 May 2001, the applicant went to the Mainland. However, on 14 June 2001, having received a call from his brother the day before which informed him that he was wanted by the police, the applicant returned to Hong Kong. When interviewed, he denied responsibility for the killing.

Prosecution's case

10. Taking some of the evidence called by the prosecution in greater detail, police officers described what they discovered when they found the decomposed body of the deceased in flat A on the evening of 21 April 2001. According to an inspector, there was no sign of the flat being broken into or ransacked. There was also no evidence of any fight or disturbance. The inspector saw that the calendar on the wall showed the date as 15 April 2001. The deceased's watch was on his wrist and he was still wearing a gold-coloured finger ring. Police also found a wallet and some cash in the flat. At this stage, with no apparent signs of foul play, the police believed the deceased may have died as a result of an accident, perhaps having slipped on his way to the washroom.

11. The applicant was routinely spoken to, on 21 April 2001, by the police. He was said to have been acting in a perfectly normal manner.

12. When Dr Ng, the pathologist, examined the deceased's body on 3 May 2001, his main finding was a gaping cut measuring 14 centimetres on the deceased's neck. This wound had caused death. Based upon the state of decomposition, death was estimated to have occurred about a week prior to the date of discovery of the body. Dr Ng was unable to say whether the other lacerations and injuries found on the deceased's body had been caused by one or more assailants.

13. The investigation, which began after the findings of the post-mortem became known, led to the discovery of a number of nearby residents in the block who had heard sounds of violence at or about the time of the killing. Amongst these, PW15 was a 13-year-old student who lived in the opposite flat with her family. Her evidence was that in the afternoon of 15 or 16 April 2001, she heard several cries, apparently from an elderly man. Then she heard the sound of "slapping" which she later explained had sounded as if someone was being struck with a folding chair.

14. PW16, the elder brother of PW15, testified that between 1 to 2 pm on 15 or 16 April 2001, he heard chairs and a table being bumped. Then he heard the voice of an elderly man. It sounded as if his mouth was being gagged. This went on for about ten minutes before it stopped.

15. PW17, the father of PW15 and PW16, recalled that he had seen the deceased at around 11 am to noon on 14 April 2001.

16. PW1 was the landlady of both the deceased and the applicant. She said that on 21 April 2001, someone had made a complaint to her about a bad odour coming from flat A. This led to a report being made to the police. In cross-examination, she agreed that the applicant had made an earlier complaint to her about the smell.

17. It was an admitted fact that the applicant had pawned two items which had belonged to the deceased. On 15 April 2001, he had taken a gold bracelet to a pawnshop in To Kwa Wan where he obtained $4,300 for it. Then, on 16 April 2001, he obtained $3,800 at a pawnshop in Macau for the deceased's gold necklace. The necklace, when recovered by the police, was found to have blood flakes on it. DNA profiling later established that this was the deceased's blood. When pawning the items, the applicant had given a false street name to each of the pawnbrokers, saying that he lived at 16, Ngan Hon Street, 7/F, Kowloon.

18. In addition, evidence was given by the applicant's ex-wife, Madam Cheng, that on the day after the Easter holiday, probably on 23 April 2001, the applicant had telephoned her and said that he had "done somebody in". She understood this to mean that he had killed someone. He wanted to borrow money from her to go back to the Mainland as he was very scared. He said that he had stabbed a loan shark who had been pressing him for money. He had used the knife once whilst struggling with him and had removed the fingerprints from the weapon.

19. The applicant's ex-girlfriend, Madam Chan, gave a similar account of receiving from the applicant a request for money on or about 23 April 2001. The applicant told her over the telephone that he had been pressed by a loan shark and that he had "done the loan shark in" and needed money to go to Shanghai. She lent him $5,000 but, on the next day, when she saw nothing in the newspaper about the killing, she accused the applicant of cheating her. The deceased maintained that what he had told her was true.

20. The prosecution's case was essentially a circumstantial one as, although he had apparently confessed to a killing, he had described his victim as a loan shark. The deceased appears to have been a retired construction worker and there was no evidence that he had in any way been connected to loan-sharking activities.

21. The applicant was detained at an immigration control point on 14 June 2001, coming from the Mainland to Hong Kong. When he was later questioned, in interviews to which we shall need to turn in greater detail later, he denied responsibility for the killing. However, it suffices at this stage to say that he effectively declined to answer any of the questions he was asked with specific regard to the murder.

Defence case

22. The applicant elected to give evidence in his own defence when his explanations in respect of the circumstantial evidence against him emerged for the first time.

23. The applicant explained that his marriage had broken down primarily because of his gambling. After he and his wife separated, he became friendly with Madam Chan. He lived with her for some time but was forced to move out because he had become heavily indebted to a loan shark. To assist him, Madam Chan had originally rented his flat for him in her name.

24. The applicant said that his gambling habit had been a major problem for much of his life. However, from November 1999 to April 2001, he stated that he had managed to stop gambling altogether. During this period, immigration records confirmed that he had not gone to Macau. However, by mid-April 2001, he had recommenced his gambling habit in Macau.

25. In dealing with his knowledge of the deceased, the applicant said that he had only seen the deceased on one occasion. This was when he spoke to him outside his flat.

26. During the evening, on 14 April 2001, the applicant left Hong Kong for Macau. He returned on 15 April 2001, arriving at the Hong Kong terminal at 11:22 am. He said that he returned with only a few hundred dollars having lost his money. He explained that after this, he went to eat something near his home at around noon. He then returned to his flat and, as he walked up the stairs, he discovered a semi-transparent bag containing a necklace and a bracelet. Later that day, he pawned the bracelet at the pawnshop in To Kwa Wan. He supplied a false address because, according to him, he feared that the pawnbroker and the triads might be connected. He then returned home. Between 2 to 3 pm, his Indonesian girlfriend, Anna, came over to see him. The applicant said that she stayed with him until about 8 pm. When she left, he returned to Macau.

27. During the early hours of the morning, on 16 April 2001, the applicant went to a Macau pawnshop with the necklace and, with the money he obtained, he went gambling again. He returned to Hong Kong later that day with about $10,000 in his pocket.

28. An important part of the applicant's evidence was concerned with the telephone calls to his ex-wife and to Madam Chan and his reasons for leaving Hong Kong to go to the Mainland.

29. In regard to his trip to the Mainland, the applicant said that when he lost his job in March 2001, he had thought about going there to find work. About a year earlier, his brother had contacted him to see if he needed any assistance but, as he was employed at that time, he declined the offer. However, after his last visit to Macau on 27 April 2001, the applicant said that he telephoned his brother to ask him for help. His brother then made arrangements for him to work for his partner in a factory. On 1 May 2001, the applicant went to the Mainland where he was duly given employment but six weeks later, on 13 June 2001, his brother informed him that the police were looking for him as he might connected with a murder case. The applicant then voluntarily returned to Hong Kong the next day.

30. The applicant admitted telling his ex-wife and Madam Chan, in telephone calls that were made on 23 April 2001, that he had killed a loan shark. His explanation was that this was a story which had been prompted by the discovery of the deceased's body. He had thought he could turn this into an excuse to borrow money. There had, he said, been no truth in the excuse he had used.

Grounds of appeal

31. Four grounds of appeal were advanced on the applicant's behalf by Mr Poll. It is convenient to deal very briefly with the last two of these before turning to the earlier grounds.

Ground 3 - Burden/Standard of proof

32. In ground 3, it was submitted that the judge had fallen into error by remarking to the jury, towards the end of the summing up, that it was up to them to decide whether or not to believe the applicant's account. The principal point made by Mr Poll was that this might, despite the impeccable directions given earlier as to the burden and standard of proof, have confused the jury by leaving an impression that they had to make a simple choice between belief or disbelief in the applicant's evidence.

33. The judge's comment was described by Mr Poll as a "slip" and by Mr Saw as a "momentary lapse" in an otherwise flawless summing up. The judge had said:

"Here, you have heard the prosecution's analysis of the case. If, having also heard defence counsel you do not agree with the prosecution's analysis, then you should acquit the defendant. In other words if you think that there is a reasonable doubt in the prosecution case you should acquit the defendant. Can I remind you also that you must not draw any adverse inference against the defendant when he chose to remain silent in the police interviews. He was entitled to exercise his right of silence. He has told his account now in court. It is up to you to decide whether you would believe him or not.

In a moment's time you will retire to consider your verdicts." (Appeal bundle pp. 33-34)

34. We were in agreement with counsel that the offending words (which we have italicised in the passage cited above) would have been better left to the jury with a further qualification, despite earlier ones which correctly reminded them how to approach the burden and standard of proof in the light of the applicant's own testimony. Nevertheless, we are satisfied that the jury would have been under no misapprehension arising from this somewhat abrupt comment. Earlier the judge had given the jury more than ample directions to ensure that they were fully aware of the correct approach to the evidence generally and to the defence case in particular. Amongst other things, he had told them:

"The defendant does not have to prove his innocence. He does not have to prove anything. He can just sit back, not testify, not produce any documents or exhibits and not call any witness. He could simply let the prosecution prove its case. That is our law." (Appeal bundle pp. 1-2)

Dealing a little later with the standard of proof, the judge observed:

".... the prosecution must satisfy you so that you are sure of the defendant's guilt, and nothing less than that will do." (Appeal bundle p. 2)

35. At the commencement of his summing up of the defence case, the judge said:

"The defendant had elected to give evidence. As defence counsel pointed out, the defendant did not have to give evidence. He could sit back and let the prosecution prove its case. But now he chose to disclose to you his account of the event." (Appeal bundle p. 19)

36. When the judge turned to the evidence given by the applicant's girlfriend, he said:

".... defence counsel raised the point that the defendant had no duty to call Anna to testify as the defendant had no burden of proof, and it is really for the prosecution to disprove the alibi. This, members of the jury, I agree is the correct approach." (Appeal bundle p. 29)

He went on to say:

"Counsel also submitted to you that the defendant's account was true. In any event, he was entitled to be acquitted even if what he said may be true. In effect, what defence counsel was saying was that the hard facts, taken individually, was weak evidence against the defendant, and the combined effect of these facts could not make the prosecution case stronger. Members of the jury, whether that is the case is a matter for your consideration." (Appeal bundle p. 29)

A little later, the judge added:

"As the prosecution has to prove the guilt of the defendant so that you are sure of it, the defendant does not have to prove he was elsewhere at the time. On the contrary, the prosecution must disprove the alibi. That is the basic position. Even if you conclude that what the defendant said about being with Anna at home at the time was false, that does not, of itself, entitle you to convict the defendant. The prosecution must make you sure of his guilt." (Appeal bundle p. 30)

37. The judge's directions about the applicant going to the Mainland were as follows:

".... the defendant said that he just went to China to work and had no intention to flee. If you think the defendant's explanation is, or may be, true, then you should take no notice of the fact that he chose to leave Hong Kong and worked in China. It is only if you are sure that he did not leave Hong Kong for an 'innocent' reason that his action in going to China may be regarded as evidence which tend to support the prosecution's case." (Appeal bundle p. 31)

Near to the end of the summing up, the judge said:

"Members of the jury, before I conclude my summing up, can I remind you of the following. If you believe the defendant's account, or you think what he said is possibly true, then you have to acquit the defendant. Even if you do not believe the defendant or his witnesses you cannot jump to the conclusion that he is therefore guilty. You still have to consider very carefully the prosecution case." (Appeal bundle p. 33)

38. With all of these passages in mind, we are satisfied that the jury were properly directed and that no material irregularity arose from the unqualified comment about which the complaint was made.

39. This ground fails.

Ground 4 - Unsafe or unsatisfactory verdict

40. In the fourth ground of appeal, Mr Poll suggested that the evidence was insufficient to have enabled the jury safely to convict. He took many of the points raised by the applicant in an original notice of appeal which listed what were allegedly the weaknesses in the prosecution's case.

41. Dealing briefly with most of the points raised under this ground, the first was that no one had seen the applicant at the murder scene. This is, of course, perfectly true. However, the applicant was linked to the deceased in that he was an immediate neighbour. Having regard to the circumstances of this killing, which involved no forcible entry to the deceased's unit and apparently no sign of a struggle between himself and the killer, it is highly probable that there was no eye-witness to the event.

42. The second of the matters raised by the applicant was again correct up to a point. It was said that there had been no forensic evidence to link the applicant with the murder scene. No doubt this was a reference to the deceased's room which had been cleaned and painted. However, the necklace, bearing such small traces of the deceased's blood that if it had been worn around the neck when the deceased's throat was slit suggests that it had been washed, was admittedly pawned by the applicant on 16 April 2001 in Macau and gave rise to a strong forensic link between the murder scene and the applicant. Furthermore, although there were several items of property which had not been taken from the deceased, the fact remains that, on any view, the killer also appears to have been a thief. The applicant's money troubles provided him with a possible motive to steal.

43. The third point was of no significance at all and merely alleged that the deceased's exact time of death had never been established. Whilst again this is strictly accurate, the pathologist stated that death had occurred on about 15 April 2001 and this, as it happened, was the same day that the applicant had pawned the deceased's bracelet in To Kwa Wan.

44. As to the other matters which were raised, it was submitted that a neighbour (PW20) had said that she heard a person, speaking with an accent, on or about 9 or 10 April, saying something about chopping someone to death. The last sighting of the deceased by any of the prosecution's witnesses had been on 14 April 2001 and there was evidence from PW1, the applicant's landlady, that he spoke with a Toishan accent.

45. Another observation was that it was the applicant who first drew attention to the foul smell on the 7th floor, thereby precipitating the possibility of a police investigation. This is again true but it takes the matter no further. If the applicant was the culprit responsible for the murder, he would have been expecting the smell to permeate the floor on which he lived and he might well have been the first to notice it. Furthermore, it would bound, sooner or later, to be reported. It might be said that he could no more fail to make some sort of report about the very obvious smell, which everyone on his floor would soon notice, as immediately disappear from his flat to go to the Mainland without drawing suspicion on himself.

46. The applicant's previous good character, and the fact that this attack was "out of character" on the evidence, was also thrown into the scales as a feature of the case which, it was argued, was consistent with the suggestion that there was insufficient material before the jury on which safely to convict. The judge, however, gave a full 'character' direction and the jury was reminded about other evidence which generally put the applicant in a good light.

47. Further factors were touched upon under this ground. It is not necessary to deal with them all. By way of examples, we were reminded that the applicant had acted normally during the course of all his interviews; that when the police searched his apartment on 21 May 2001, nothing suspicious had been found; and that on 14 June 2001 he had returned voluntarily to Hong Kong.

48. In essence, the propositions advanced under this ground amounted to a submission that there was no case on which a properly directed jury could safely convict. We do not agree.

49. This ground fails.

Grounds 1 and 2 - Admissibility of video-recorded interview (exhibit P.53)

50. The first of the grounds of appeal advanced by Mr Poll was that because the majority of the applicant's responses, in a video-recorded interview (exhibit P.53) on 14 June 2001, were to the effect that he was not willing to answer their questions, the judge had erred when permitting the prosecution to show the jury the video film of the interview and to produce the written version of what it contained. With considerable skill, Mr Poll submitted that this interview had no probative value but considerable prejudicial effect. This was coupled with a complaint in the second ground of appeal that the judge had failed to emphasise sufficiently to the jury that guilt could not be inferred by the applicant's refusal to answer questions and that, as the interview had not advanced the case for either the prosecution or the defence, it should be completely ignored.

51. In his written argument, Mr Poll identified six crucially important questions in exhibit P.53, the first video-recorded interview, where the applicant was being asked about aspects of the murder investigation to which the applicant had replied that he was not prepared to provide answers. In short, he submitted that the jury were likely to have used the applicant's failure to answer these questions as material from which they might have drawn adverse inferences about the applicant's credibility.

52. The admissibility of the first record of interview (exhibit P.53) was the subject of lengthy discussion between counsel and the judge at trial. Indeed, objection was originally also taken to the admissibility of a second interview (exhibit P.55), conducted on the following day. Ultimately, as to the second interview, with which we are not concerned in this application, it was accepted that the questions and answers numbered 1 to 120 could be admitted into evidence without objection and that the prosecutor would not seek to admit any of the questions and answers beyond these. In fact, the judge rightly pointed out that, in question and answer 85 and 86 respectively, some prejudice might arise if the jury was allowed to hear these. They introduced an allegation which the prosecution had not proved in evidence. Therefore, of his own motion, with the agreement of trial counsel, he excluded these passages and the record contained in exhibit P.55 was duly edited.

53. The late Mr Mullick, counsel who appeared for the defence at trial, stated in terms that he agreed with the course the judge had adopted in regard to exhibit P.55. The questioning was, as he put it, "fairly innocuous" and no harm could be done by the introduction of the questions and answers the judge was minded to permit and he accepted that they had some marginal probative value. However, he maintained his objection to exhibit P.53.

54. The reasons advanced by the trial prosecutor for wishing to have exhibit P.53 before the jury were stated by him in the course of his submissions to be supported by the observations of this court in HKSAR v Del Carmen [2000] 3 HKC 431 at 443 (a drugs case where the female appellant had imported a large quantity of cocaine), namely:

"Whilst common sense might dictate that the failure on the part of a defendant to reveal a defence at an opportune moment prior to trial is something to be weighed in the scales when determining how much weight to attach to a defence first raised at trial, it seems that common law precedent is generally opposed to permitting the judge making any comment which invites the jury to use this feature of the evidence in this way.....

The jury was entitled to know that the applicant had remained silent after her arrest and they would inevitably have drawn their own conclusions about the story she told for the first time in her evidence at trial."

55. The prosecutor requested the judge to permit the records of interview to be admitted into evidence but at the same time invited him to ensure, by proper directions, that they were not misused by the jury.

56. After lengthy submissions, the judge ruled that it was permissible to place exhibit P.53 before the jury. Having done so, a formula was reached, which was acceptable to both counsel, as to the manner in which the jury should later be directed in their approach to this evidence. The judge adhered meticulously to what had been agreed.

57. In the proceedings before us, the respondent pointed out that there was effectively little difference between the first interview (exhibit P.53) and the second interview (exhibit P.55) as to which, once it had been edited, no objection has ever been taken. In each, as Mr Saw pointed out, the applicant had expressed his willingness to be interviewed, but had then declined to answer questions which directly related to the murder investigation.

58. There is, however, an important distinction which needs to be drawn between the two interviews. In exhibit P.55, after editing, the unanswered questions which remained were "innocuous", as Mr Mullick had aptly described them. In exhibit P.53, however, examples of the questions which the applicant refused to answer were related to his whereabouts at the time of the murder and the telephone calls to his ex-wife and his ex-girlfriend in which he had admitted killing someone. The real point, in our view, is that the applicant was at no stage being selective about the questions directly related to the murder investigation. He answered none of them. If he had been answering some and not answering others, the position might have been different (see paragraphs 61-63).

59. When the judge dealt with the interviews in the summing up, he said about the applicant:

"He returned to Hong Kong on 14 June and was arrested. He recalled that the police said he might be connected with the murder case. He was cautioned and he said he had nothing to say. Then the defendant told you about what had happened after he was detained by the police and how he was interviewed. Basically he said that while he was willing to be interviewed on video or otherwise, he had listened to the legal advice and declined to say anything. But he did deny having murdered the deceased.

Members of the jury, the officer who had conducted the video interview was called by the prosecution and you have seen the tape in court. The officer confirmed that, having been advised by his legal representatives, the defendant chose not to answer most of the questions." (Appeal bundle pp. 23-24)

Later the judge said:

"Members of the jury, I do not think I need to go into detail about the solicitor's evidence. Basically he said he received instruction in the afternoon of 13 June 2001 from the brother of the defendant. Then he went to the police station to see the defendant with a barrister. At various stages the defendant was reminded of the right to remain silent." (Appeal bundle p.26)

60. Shortly before the summing up concluded, the judge gave a reminder of what he had said earlier:

"Can I remind you also that you must not draw any adverse inference against the defendant when he chose to remain silent in the police interviews. He was entitled to exercise his right of silence. He has told his account now in court. It is up to you to decide whether you would believe him or not." (Appeal bundle pp. 33-34)

61. The difficulty, it seems to us, with the introduction of exhibit P.53, was that it went further than merely informing the jury, as they were entitled to be told, that the applicant had maintained his right to remain silent when specific allegations relating to the murder were put to him and that he had denied being responsible for the killing. Here, precise questions, based on the information police had gathered from witnesses, which those witnesses had duly repeated at trial, were seen by the jury being put to the applicant at his interview followed by his refusal to provide answers. Although the applicant chose to reply to a number of questions, these were wholly peripheral issues, probative of nothing in themselves and suggested that the police were attempting to make the applicant feel better disposed towards answering. In this sense, the present case is to be distinguished from R v Mann [1972] 56 Cr App R 750 where it was said at page 757:

"It is, of course, well established by authority that, if an accusation is made against a suspected person, the mere fact that he is silent in the face of the accusation is not the basis upon which an inference against him can be drawn. If one wanted modern authority, it is found in Hall v R [1971] 1 W.L.R. 299. If the accused had failed to respond and kept silent to every question, it may very well be that on that simple principle it would be said that the evidence of the abortive dialogue, the one-sided dialogue, should not be admitted. But here one gets a different situation. One gets a number of questions answered by the appellant, which means the questions and answers are clearly admissible, and interspersed with those are questions which he refused to answer. There are a great many reasons, we feel, why in a situation of this kind it is right that the whole dialogue should go in before the jury. Sometimes indeed it will be for the benefit of the suspect, although this time it must be right, Mr. Lewis says, that in the end it reacts against him rather than in his favour, but, subject always to the discretion of the judge in individual cases, we think a dialogue of this kind which is clearly admissible in part should go in toto in the ordinary case. We think that is a much more likely route to the truth, and we find no substance in the end in the complaint in this case that a blue pencil should have been used and those questions which had not been answered should have been excised."

62. For what purpose, we have asked ourselves, other than to attack the applicant's credibility on his account, given for the first time at trial, was the prosecution really seeking the introduction of this evidence? We were unable to find any other purpose. Indeed, Mr Saw's response on this point amounted to an argument that, in the confined way the evidence had been placed before the jury without adverse comment by counsel or the judge, the evidence could be viewed by the jury as a measure of the applicant's credibility. Mr Saw produced no authority for his proposition.

63. We have concluded that the first interview (exhibit P.53) should not have been exhibited in either video or written form. Here it had been both. The applicant's silence, in the face of highly pertinent questioning on issues of crucial significance, may, we consider, have had an adverse effect on his trial. The applicant had received legal advice, before the interview began, that he was entitled to decline to answer the questions he was asked and the caution, at the start of the interview, provided him with confirmation of his right to remain silent. Although the judge made no adverse comment in this regard, and had directed the jury not to hold the applicant's silence against him, we are driven to the conclusion that the jury may have used the applicant's refusal to answer as a reflection on his credibility because they had seen on video and read in the record of interview the full extent of the questioning. Such material should, in the particular circumstances which had arisen, have been excluded from their consideration. It provided a wholly "one-sided dialogue" to adopt the words of the judgment in R v Mann (above). If the applicant had been selective as to which questions relating to the murder he chose to answer and those which he declined to do so, then no doubt the whole of the interview could have been admitted but the applicant answered none of them.

64. We are conscious that in some respects this area of the law appears to contradict common sense. It may well be considered a valid and sensible point, after a suspect has declined to answer all questions of central importance to the investigation that this should reflect on his credibility as a whole when, for the first time at his trial months later, full answers are provided to the same questions. Nevertheless, as the law presently stands, it is the practice merely to allow the jury to be told that the defendant's account has been given for the first time at trial having declined to answer questions earlier. This creates a fine distinction and no doubt the reason for this practice is to avoid the prejudice which is likely to arise from the jury being allowed to see the full context of the questioning being responded to by a blanket refusal to answer.

65. Unquestionably the safeguards, which were put in place to protect what has traditionally been called the 'right of silence', were introduced before recording devices were added to the long-established right of every suspect to have a lawyer present for an abundance of good reason. However, nowadays in England and Wales (albeit in the aftermath of the Police and Criminal Evidence Act, 1984), section 34 of the Criminal Justice and Public Order Act 1994, makes specific provision to deal with the effect of an accused's failure to mention facts when questioned or charged. Giving effect to these provisions, the English code of practice for the interviewing of suspects (referred to in HKSAR v Del Carmen (above) at p. 440) provides that the caution to be given by a police officer should be in these terms:

"You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence."

66. This wording does not, of course, remove the so-called privilege against self-incrimination. No one can be forced into providing evidence against themselves and the new caution continues to remind the suspect that he does not have to say anything. It does, however, permit common sense to prevail in a situation which not infrequently arises. We would invite consideration being given by the Secretary for Justice as to the advisability of similar legislation being introduced into this jurisdiction.

Conclusion

67. We have concluded in the light of the arguments under grounds 1 and 2 that the introduction of the first interview (exhibit P.53) was a material irregularity at trial. We shall, therefore, grant leave. This was not a case in which it was appropriate to consider the application of the proviso. The applicant's credibility was pre-eminently a matter for the jury and we consider that a proper assessment of this vital aspect of the trial may have been compromised by an adverse approach taken by the jury to material which they should not have been shown or, at least, should have been told to ignore.

68. Accordingly, treating the hearing as the appeal, we shall allow the appeal and quash the conviction.

69. By an oversight when we reserved judgment, we failed to invite the views of counsel as to whether there should be a re-trial. As we have indicated, there was an abundance of evidence for the consideration of the jury and it is only because of the unfortunate introduction of exhibit P.53 that the appeal has been allowed. In these circumstances we shall, subject to written representations to the contrary being received within fourteen days from the date on which this judgment is handed down, order that the applicant should be re-tried on a fresh indictment for murder. In the event that it is desired to make representations to oppose the order for a re-trial, we shall endeavour to have the matter re-listed for hearing as soon as may be practicable. The applicant will be remanded in custody pending the re-trial or further order.