R. v. KWAN CHIN TONG

IN THE COURT OF APPEAL

1994, No. 57
(Criminal)

- Headnote -

Criminal law - constitutional right of silence - Includes the proposition that an accused is not required to put his full defence to the Police - Credibility in issue - Prosecutor entitled to suggest to the accused that his defence was a recent invention - Had judge in summing-up to the jury crossed the line and breached the accused's right of silence?

IN THE COURT OF APPEAL

1994, No. 57
(Criminal)

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J U D G M E N T

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Litton, V.-P. (giving the judgment of the Court):

1. This is an application out of time to appeal against sentence. The applicant Kwan Chi-tong was convicted after trial before Jerome Chan J and a jury on 24 January 1994 on one charge of trafficking in heroin.

2. The particulars of the charge were that on 11 February 1993 outside the ground floor of No. 29 Hak Po Street Mongkok, he trafficked in a dangerous drug, namely 324.34 grammes of a mixture containing 137.11 grammes of salts of esters of morphine. He was sentenced to nine years' imprisonment.

3. The prosecution case was extremely simple. The applicant was seen by the police in the early hours of 11 February to act suspiciously outside No 29 Hak Po Street. He was stopped and searched. The heroin, the subject matter of the charge, was found in an envelope inside the waist-band of his trousers. He was wearing a sweater at the time. There were 13 separate packages inside the envelope. After being cautioned by the police, the applicant said "Sir, give me a chance. Let me have a way out." The applicant had $6,000 in cash on him. He was also carrying a portable phone and a pager. The applicant was taken to his flat at Room F on the 5/F, 29 Hak Po Street where scales and other equipment capable of being used for packaging drugs were found. In particular, there were zip-lock bags similar to the 13 packages found inside the envelope.

4. The applicant in his defence did not deny that he was stopped by the police in the street. He claimed that he was carrying the envelope in his hands and it was not concealed. He denied knowledge of the contents of the envelope and said he was bringing the envelope to his father, having been asked on the phone to meet his father at a restaurant. The envelope was located just beneath the television in his flat. His father, according to the applicant, was a drug addict. He denied that the $6,000 in cash was found on him on being searched.

5. The issue at the trial turned on the applicant's knowledge of the contents of the envelope. Complaint is made by counsel in this court of a series of questions put by the prosecutor to the applicant in cross-examination as follows:

"Q. Now when the police first arrested you why did you not tell them you did not know what was in the packet?

A. I was too frightened and confused.

Q. You had never mentioned to the police at all that the drugs were to do with your father?

A. Correct.

Q. You have never before given the police any explanation as to why you had the drugs on you?

A. Correct."

6. As to this the judge directed the jury in his summing-up as follows at p13 of the summing-up:

"The prosecution also relies on the failure of the accused to explain to the police at any time after his arrest that the envelope was in fact his father's. You recall I have already refreshed your memory as to the accused's explanation of this failure already."

7. It is said by counsel Mr McCoy that this, in effect, eroded an accused's constitutional right of silence.

8. To put the matter in its context it is necessary to consider the circumstances under which the applicant, according to him, came to be arrested. He said he was at home with his girlfriend; late at night his father telephoned asking him to bring the envelope to be found beneath the television to a nearby restaurant; his father, he said, had many convictions for drug involvement. It did not occur to him that his father would use him to traffick in drugs because "he knew that I hate drugs so much". (At p74 of the transcript). He accepted in evidence that he was formally cautioned by the police when he was arrested at the bottom of the building where he lived. He was cautioned to the effect that he was not obliged to say anything; it was however not his case that he exercised his right of silence and said nothing. He claimed he told the police on being cautioned "It has nothing to do with me."

9. The prosecution version of the events was, as we have mentioned earlier, rather different. According to the police he said "Sir, give me a chance. Let me have a way out." So there was a conflict in the evidence and clearly Crown Counsel was duty-bound to cross-examine the applicant in that regard.

10. Obviously, where a defendant maintains his right of silence it would be wrong to suggest that, from the exercise of that right, there could be an inference of guilt. But here the applicant did not exercise his right of silence. On the contrary, he said he told the police that the envelope had nothing to do with him. This statement according to him was not elaborated upon but at his trial he claimed he was taking the envelope to his father. Plainly Crown Counsel was entitled to cross-examine the applicant to show that he was lying in that regard; that in truth the applicant had asked the police for a chance after he was cautioned.

11. We were referred to Hung Wai-hung [1990]1 HKLR 431 and the cases dealing with the exercise of an accused's constitutional right of silence. They clearly establish the proposition that in summing-up the case to the jury the judge must not invite the jury to infer guilt from the fact of silence. There is also a wider proposition to the effect that a defendant's failure to advance his full case in the course of being interviewed by the police may only be the subject of comment by the judge in very limited circumstances: The constitutional right of silence includes the proposition that an accused is not required to put his full defence to the police.

12. Has the judge by the passage at p13 infringed this principle? There was, as we have said earlier, a sharp issue on credibility. It focussed on two things: (1) Were the police telling the truth that the envelope was concealed in the applicant's waist-band? (2) Were the police telling the truth when they alleged that the applicant on being cautioned said "Sir, give me a chance. Let me have a way out"? As to the second matter, Crown Counsel was plainly entitled to cross-examine the applicant to convince the jury that he lied in his version. If that led to the proposition that his defence at the trial was a recent invention, so be it. It tended to show that his alleged statement to the police in answer to the caution was a lie.

13. Was the judge, then, in the passage on p13 doing more than assisting the jury on the question of credibility? Were the jury in effect being invited by the judge to infer guilt from the fact that on being questioned after cautioned the applicant did not advance his full defence? That is, that the applicant failed to tell the police that he was simply bringing the envelope to his father at the restaurant? If this was so, it was a plain misdirection.

14. In our judgment this is not something that we need in the circumstances of the present case to decide. The passage impugned by Counsel is by no means clear. If it amounted to a misdirection this is a clear case where the proviso to section 83(1) of the Criminal Procedure Ordinance would apply. Allowing the application for leave and treating the hearing of the application as the hearing of the appeal, we dismiss the appeal.