THE SECRETARY FOR JUSTICE v. CHAN HUNG YIP AND OTHERS

1998 HCAL No. 85

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

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J U D G M E N T

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The facts

1. In March 1997, three men were charged with offences contrary to the Gambling Ordinance (Cap. 148). They were alleged to have engaged in bookmaking activities. They were tried in the District Court. The trial was a lengthy one. 17 witnesses were called by the prosecution, and there was extensive legal argument throughout. The judge found that the Defendants had a case to answer, whereupon the Defendants elected neither to give nor to call evidence.

2. On 7th August 1998, which was day 19 of the trial, prosecuting counsel began his final submissions. They had been reduced to writing, and he expanded on them orally. That was a Friday, and when he returned to court on the following Monday, he produced supplementary written submissions. Para. 28 of those supplementary submissions read as follows:

"Finally, the Prosecution would comment that all of the Accused elected not to give evidence in this case. That is their right but they must bear the forensic consequences of such. This is not and cannot derogate from the burden upon the Prosecution to prove its case beyond reasonable doubt. But the Court is left with only the Prosecution case uncontradicted by any Defence evidence. There are cases which stand for the proposition that where there is no Defence evidence on the issue, the Court may be more ready to draw inferences arising from the Prosecution case. Sections of the work Bruce & McCoy 'Criminal Evidence in Hong Kong' (III [154]-[203]) are cited and the case of R. v. Lo Siu Wing (unreported) Criminal Appeal No. 509 of 1989 (in particular the judgment of McDougall J.A. at 15-18). In the absence of evidence, the Court cannot speculate a defence for the Accused."

In the course of his oral submissions on the Monday, prosecuting counsel said:

"There's nothing really much more about this point except para. 28, and perhaps I produce the relevant passage from Bruce & McCoy about the position of the court where it was dealing with a prosecution case in which the defence does not give evidence. I have cited the judgment of McDougall J. at page 15 to 18 of R. v. Lo Siu Wing. Your honour, I do not propose to go through that judgment."

Prosecuting counsel then summarised the effect of the judgment of MacDougall J.A. (as he then was) in that case, and added:

"In this case the prosecution evidence is uncontroverted. If the court is satisfied with the prosecution case then there is nothing further for the court to consider and the court is more ready to draw that inference. Bruce & McCoy, those paragraphs and R. v. Lo Siu Wing, in my submission, cover the point. That is in no way to derogate from the burden of proof upon the prosecution, but the court is to take the evidence as it finds it and not to speculate a defence for the accused person where none exists in the evidence."

3. At this stage, leading counsel for the Defendants intervened. He referred the Court to section 54(1)(b) of the Criminal Procedure Ordinance (Cap. 221), which provided, so far as is material, that

"the failure of any person charged with an offence ... to give evidence shall not be made the subject of any comment by the prosecution."

He submitted that prosecuting counsel had been in breach of that provision, that the breach could not be cured by the judge deciding that her "mind" was not "poisoned", and that the only course which the judge could take was to order a new trial. The hearing was then adjourned to the afternoon for prosecuting counsel to respond. When the hearing resumed, prosecuting counsel submitted that even if there had been a breach of section 54(1)(b), it was not incumbent on the judge to abort the trial and order a new trial. He contended that in the circumstances the judge should not do so because she was capable of putting out of her mind the comments which prosecuting counsel had made. When asked by the judge whether he was withdrawing those comments, prosecuting counsel said that he was.

4. The judge gave her ruling on the following morning, 11th August 1998. She ordered a new trial. In this application for judicial review, the prosecution apply for orders which have the effect of requiring her to continue hearing the case.

Prosecuting counsel's comments

5. I am not convinced that prosecuting counsel's observations amounted to "comment" on the failure of the Defendants to give evidence. Whether prosecuting counsel's observations amount to comment on the failure of a defendant to give evidence must depend on the circumstances in which the observations are made. For example, if the judge asks counsel what the effect in law of the defendant's failure to give evidence is, it would be absurd to suggest that counsel has to decline to give the judge the assistance sought, simply because to do so would amount to a breach of section 54(1)(b).

6. It is important to remember that this was a trial by judge alone. In that context, prosecuting counsel's observations were capable, I think, of being construed simply as a reminder to the judge of judicial recognition of the greater readiness of the courts to draw inferences from primary facts where a defendant has elected not to give evidence. In other words, it is possible that prosecuting counsel's observations were simply a submission of law. I am inclined to think that the prohibition to which section 54(1)(b) relates is a prohibition on prosecuting counsel inviting the court to draw inferences of fact from a defendant's failure to give evidence. However, for reasons which will become apparent, this is not an issue which I need to decide, and I am prepared to assume in the Defendants' favour, but without deciding, that prosecuting counsel's observations amounted to a breach of section 54(1)(b).

The judge's reasoning

7. In her ruling, the judge cited a number of passages in the cases which had been referred to her. Towards the end of her ruling, she said:

"As I am sitting as a single judge, I am, in fact, sitting as judge and jury in this case. I would and do disregard such comments as those made by the prosecution when there comes the time for me to make a decision. On the other hand, the accused has the right to remain silent and not to call any evidence, and this has been guaranteed in the Bill of Rights Ordinance. After [counsel for the Defendants] made his application, I ... specifically asked [counsel] for the prosecution if he was going to withdraw those comments from his final submission. He declined my invitation to do so and said he would leave the matter to the court's discretion."

There was then some debate as to whether prosecuting counsel had indeed withdrawn his comments. The judge then said, and it is here that her reasons for the ruling can be found:

"Under those circumstances - and since section 54(1)(b) is a mandatory section, and this was held in Yu Yuk Kwong's case - I find that under those circumstances and on the facts before me, it is important that justice must be seen to be done and I have no alternative but to order a re-trial of this case."

In the case to which the judge referred, Yu Yuk Kwong v. R. [1979] HKLR 585, it had been held, albeit obiter, that section 54(1)(b) was a mandatory provision, and that its breach would "result in a quashing of the conviction or, at the least in appropriate cases, in an order for a re-trial."

8. I do not quarrel with the judge's characterisation of section 54(1)(b) as being mandatory. However, the issue was: what should the consequences of its breach have been? The answer to that question is not helped by stating that it is a provision which has to be complied with. I note the judge's comment about the importance of justice being seen to be done, but for the reasons which I shall come to, there was, in my opinion, no chance of anyone thinking that justice had not been done if the judge had continued to hear the case.

9. Since 1979, there has been a retreat from the view expressed in Yu Yuk Kwong. The authorities now show that, even in jury trials, a breach of section 54(1)(b) will not automatically result in a new trial being ordered. In the R. v. Wong Wah Chiu [1983] 1 HKC 131, Roberts C.J. said at p.137B-D:

"Insofar as [Yu Yuk Kwong] may suggest that a conviction must be quashed or a retrial ordered if there is any mention at all by the prosecutor of the failure by a defendant ... to give evidence, this seems to us to go further than the cases require."

He then referred to two cases, and added:

"In each of those cases, the prosecutor referred inadvertently to the failure of the defendant's wife to give any evidence. In both cases, the appeals against conviction were dismissed, the appellate court being satisfied that there had been no miscarriage of justice. The principle appears to be that if an appellate court is satisfied, taking into account the circumstances in which the comment was made and its terms, the jury would not have been influenced thereby, the proviso can properly be applied and the conviction upheld."

10. When it comes to trial by a judge alone, the position is even clearer. In a trial by judge alone, there is no real possibility of the judge being improperly influenced by a comment by prosecuting counsel in breach of section 54(1)(b). The fact that that a defendant has not given evidence is so obvious that the judge will not have forgotten it, and the judge does not need counsel to tell him what the legal effect of the defendant not giving evidence is. In any event, the judge should be capable of ignoring the comment. As Duffy J. said in Attorney-General v. Mo Wai Hung (MA 338/90):

"I find it difficult to envisage a case where a Magistrate or District Judge could not disregard a prosecutor's remark about the defendant's failure to give evidence."

Silke V.-P. said much the same thing in a slightly different context in R. v. Takeshi Machiya [1990] 1 HKC 73 at p.82C:

"Professional judges are capable, and must be accepted as being capable, of putting out of their minds, should the evidence not eventually come before the court, anything that they might have learnt from their perusal of it."

That is something which judges of the District Court have to do, for example, when they rule, following a voir dire, that a defendant's confession is inadmissible. No-one suggests that they are not capable of putting out of their minds the confession which the defendant is supposed to have made. That was expressly recognised by the Privy Council in Attorney-General v. Siu Yuk Shing [1989] 1 WLR 236 at p.241A-D. Indeed, that was the reasoning in R. v. George Kong (CA 397/84), in which in a trial by judge alone, prosecuting counsel had commented, albeit not adversely, on the Defendant's failure to give evidence. Roberts C.J. said:

"In this case the reference by prosecuting counsel contained no adverse comment and the trial was before a judge alone, who can properly be assumed to have disregarded such comments as were made. Had it been a jury trial, we think that the judge could and should have corrected, at the appropriate time, any wrong impression the jury might have gathered from the remark of the prosecutor. Thus, although there has been an infringement of the section, we have no hesitation in concluding that it caused no injustice and that the proviso can be properly applied."

And in HKSAR v. Kwok Chi Wah (CA 682/97), Mortimer V.-P. said that a breach of section 54(1)(b)

"may be very serious if it takes place before a jury. Usually but not always it is less serious when such submissions are made before a judge alone but it is still a breach and must not be allowed ... Here ... the comments ... clearly had no effect upon this judge's decision ... Although they amounted to an irregularity, they were not a material irregularity."

11. In this case, the judge herself said that she was able to ignore prosecuting counsel's remarks. She said:

"I would and do disregard such comments as those made by the prosecution when there comes the time for me to make a decision."

I would have assumed that to be the case even if the judge had not spelt that out. But having spelt it out, there was, in my judgment, no basis on which she could fear that justice might not be seen to be done if she continued to preside over the trial, and therefore no basis on which she could properly order a retrial.

The appropriate orders

12. For these reasons, I make an order of certiorari, quashing the decision of the judge to order a retrial. But that is not quite the end of the matter. It is argued that the judge may not now be able to recollect the evidence, or the way it was given, sufficiently well to decide the case. If I had thought that that point was a persuasive one, it would not have prevented me from quashing the judge's decision to order a retrial on the ground of prosecuting counsel's comments. What I would have done, however, would have been to decline to make an order of mandamus requiring her to hear the trial to its conclusion. I would have left it to her to decide whether her recollection of the evidence and the way it was given was such that she could not decide the case properly.

13. However, I have concluded that that is not the course which I should take. As was said in Nattrass v. Attorney-General [1996] 1 HKC 480 at p.491A-B:

"Provided that [the judge] still holds judicial office, he is available to continue to preside over the trial. Cases are frequently adjourned part-heard, and judges are used to picking up the reins again after the lapse of perhaps many months. It is a burden for the judge to have to read himself into the case again, but it is a task which any conscientious judge is able to perform."

In this case, the judge will have the benefit of the transcript if she feels that her own note of the evidence is insufficient. I accept that the transcript will not reveal the appearance of the witnesses, but it will, at least to some extent, disclose any uncertainties or hesitations in their evidence, and my experience is that reading the transcript of a witness's evidence tends to bring back really quite easily one's impression of what the witness was like as a witness. For these reasons, therefore, I also make an order of mandamus requiring the judge to continue to hear the criminal proceedings brought against the Defendants.