THE QUEEN v. CHAN KUNG LING

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REASONS FOR JUDGMENT

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Macdougall, J.A.:

1. The applicant was convicted after trial before Deputy Judge Leong and a jury of robbery and of using a firearm with intent to resist arrest. He applied for leave to appeal against these convictions. The court granted the application but dismissed the appeal, indicating that reasons would be given later. These are the reasons of my lord Clough and myself.

2. The evidence for the prosecution was that on 31 May 1989 a man wearing a stocking mask and a red windbreaker with the hood pulled over his head produced a revolver and ordered a teller at the Lok Man Estate branch of the Belgian Bank to hand over money and not to press the alarm. The teller obeyed by handing over $24,500 in $100 and $500 notes to the robber who put it in a plastic bag and left the bank.

3. The bank manager, a Mr. Wong, witnessed the robbery and followed the robber as he left the bank and walked down Kau Pui Lung Road. When the robber reached the Ka Nam kindergarten he took off the windbreaker. Shortly afterwards Mr. Wong met four customers of the bank, two of whom were a Mr. Chau and a Mr. Li. He quickly told them what had happened and pointed out the robber who was still walking down Kau Pui Lung Road carrying the plastic bag. Mr. Chau and Mr. Li began to pursue the man. Mr. Wong saw him turn into Lok Shan Road but eventually lost sight of him.

4. Mr. Chau and Mr. Li, however, managed to keep him in their sight. They saw his face as he turned into Lok Shan Road. The man soon became aware that he was being followed and broke into a run. Mr. Chau and Mr. Li followed him into Maidstone Road and thence into a lane leading east and then north parallel to Ma Tau Wei Road. When the man turned east into a lane leading to Ma Tau Wei Road, Mr. Chau and Mr. Li separated. Mr. Chau continued to follow the man, who was still carrying the plastic bag, into Ma Tau Wei Road, while Mr. Li continued running north.

5. The man then turned into a narrow lane leading west towards Maidstone Lane. Mr. Chau followed, but temporarily lost sight of him. Soon afterwards he met Mr. Li, and again caught sight of the man, still carrying the plastic bag, in a lane leading west to Kau Pui Lung Road. Mr. Chau and Mr. Li both recognised him from his face and his clothing. As they pursued him in the lane, the man suddenly drew a revolver from his trousers pocket, turned and fired at them.

6. Mr. Chau and Mr. Li then saw the man drop the plastic bag. The money and the windbreaker spilled out onto the ground. As the man squatted down to gather them up, Mr. Chau and Mr. Li caught hold of him and, after a struggle during which the man was still holding the revolver, managed to overpower him. He was the applicant. Soon afterwards a police constable arrived at the scene. The applicant told him not to be nervous as he was a fellow officer from Wong Tai Sin.

7. On giving evidence at the trial the applicant testified that he was a police officer attached to CID Wong Tai Sin and that on the day of the robbery he was on his way to an automobile accessory store on the corner of Kau Pui Lung and Lok Shan Roads to buy an oil filter for his car when he saw three or four men chasing a man in white who was carrying a plastic bag. The pursuers were shouting "Catch thief". The applicant immediately gave chase into the lane running east from Maidstone Road. He then turned north and continued pursuit along the lane until the man turned east into Ma Tau Wei Road. Here the man pointed a gun at him. Seeing this, the applicant drew his service revolver, which he said he carried with him at all times, and continued the chase down the lane and into Ma Tau Wei Road. The man then turned west into a narrow lane leading to Maidstone Lane. From there, however, the applicant took a different route from that taken by Mr. Chau and Mr. Li. According to him, he ran along Maidstone Lane to Kau Pui Lung Road. Here the man in white turned north and then east into the lane in which Mr. Chau and Mr. Li were approaching from the opposite direction.

8. Seeing that the man in white appeared to be exhausted, the applicant followed him into the lane. When the man again pointed his gun at him, the applicant opened fire at him but missed. Moments later he suddenly found himself being pulled by someone from behind. Another man appeared in front of him. There was a struggle in which the applicant fell to the ground and his police revolver was wrested from his grasp. He was hit on the head and lost consciousness. When he came round he found that he had already been handcuffed by a police officer.

9. In cross-examination, he agreed that when Mr. Chau and Mr. Li tackled him he had thought that they had mistaken him for the robber. He also agreed that notwithstanding that he had had the opportunity to tell them that he was a police officer pursuing the robber and that they had mistakenly seized hold of him, he had said nothing to them. He said that he has picked up the plastic bag because he thought that it might have contained the proceeds of the robbery. he also admitted that he had not told the constable who arrived at the scene shortly after Mr. Chau and Mr. Li had apprehended him, that he was a police officer pursuing an escaping criminal. He sought to explain that it was because he had been rendered unconscious in the course of the struggle that he had not disclosed his identity and explained his true role in the incident. Later, in cross examination, he changed his evidence and said that he had in fact told the constable that he was a policeman chasing a robber.

10. In a cautioned statement made some six hours after the incident he gave an account substantially the same as the second version he had given in cross-examination.

11. Mr. Grounds, who appeared for the applicant in this court but hot in the court below, submitted that, notwithstanding that there had been no objection by defence counsel; it was impermissible for prosecuting counsel to cross examine the applicant as to why, when tackled by Mr. Cnau and Mr. Li, he had not immediately protested to them that they were mistaken, that he was a police officer pursuing the robber and that the robber was escaping. The same line of questioning was likewise impermissible in relation to the applicant's initial version in court that he had failed to make a similar protest to the constable. Secondly, the deputy judge then misdirected the jury in the following terms:

"         Now he had given an explanation as to why he did not tell Mr. Chau and Mr. Li and why he did not tell the arresting officer that he was a policeman chasing a criminal it is for you to decide whether to accept this explanation. If you do not accept that, then you may ask yourself why he did not take the first opportunity of telling those who arrested him that it was all a mistake and that they had caught a police officer acting in his duties of chasing a dangerous criminal - if his evidence is what actually happened."

 

12. According to Mr. Grounds, the principle underlying his submission is that a suspect, whether he has been cautioned or not, has the right to remain silent. Accordingly it was wrong to suggest that any adverse inference could be drawn from his exercise of that right. Mr. Grounds sought to gain support for this contention from paragraphs 15-67, 15-68 and 15-70 of the 42th edition of Archbold. In particular he relied on the following passage from the judgment of the Court of Appeal in England delivered by Viscount Dilhorne in R. v. Gilbert (1978)66 Cr App R237 at 243:

"He [the judge] rightly told the jury that no adverse inference was to be drawn against Gilbert on account of his refusal to answer the questions put to him by the police officer. The words of the caution made it clear that he was entitled to keep silent. As the law now stands, although it may appear obvious to the jury in the exercise of their common sense that an innocent man would speak and not be silent, they must be told that they roust not draw the inference of guilt from his silence. There are, as the judge pointed out, those who think that the law should be altered and that it operates to protect the guilty. As Bentham said in his Treatise on Judicial Evidence (1825 ed.) at p.241, 'Innocence claims the right of speaking, as guilt invokes the privilege of silence. ' Nevertheless the law as it now is must be applied even though in some cases its application seems inconsistent with the exercise of common sense.

 

Having so directed the jury, the judge then read the statement made by Gilbert, which, it is to be observed, did not deal at all with the events of August 5 having read the statement the judge said: 'Now, members of the jury, while as I say, he is perfectly entitled to maintain silence, he is not required to make a statement. If he does elect to make a statement, you are entitled to look at the statement to see if it helps you in the task you have to perform. Bear in mind we have heard of this matter of self-defence for the first time. Ask yourselves the question, if it is the real explanation of what happened, do you or do you not think it remarkable that when making the statement, the accused says nothing whatever about it. That may help you, applying your common sense, to test the substance of the matter of self-defence, which he has now gone into in some detail in the witness box.'

 

Mr. Kennedy, for Gilbert, submitted that in posing this question for consideration by the jury, the judge made a serious error. It is not, in our opinion, possible to read this passage from the summing up as anything other than an invitation to the jury to reject self-defence as Gilbert had not mentioned it in his statement. Gilbert, it was said, and this was accepted by the Crown, after saying that the wished to make a statement and beginning a statement, had changed his mind and reverted to silence. Comment then on his failure to say more, on his failure to refer to self-defence, was in the circumstances just as wrong as comment on his failure to mention it to the police when questioned would have been.

 

There area large number of reverted cases arising from comments made at trials on the failure of the accused to disclose the defence put forward at the trial when questioned by the police or at an earlier stage of the proceedings. It is, as Lord Parker C.J. said in Hoare (1966) 50 Cr.App.R. 166, 169; [1966] 1 W.L.R. 762, 765, not possible to reconcile all of them. It is in our opinion now clearly established by decisions of the Court of Appeal and of the Court of Criminal Appeal that to invite a jury to forth an adverse opinion against an accused on account of his exercise of his right of silence is a misdirection (see Gerard (1948) 32 Cr.App.R. 132; [1948] 1 All E.R. 205, per Humphreys J. at pp. 134 and 206 of the respective reports, Davis (1959)43 Cr.App.R. 215, per Lord Goddard C.J. at p.218 and Hoare (supra)).

 

In Ryan (1964)50 Cr.App.R.144, it appears that a number of cases were cited but not Gerard (supra) and Davis (supra). In the light of the authorities cited to it, the Court held (1964)5U Cr.App.R. 144, 148 that it was wrong to say to a jury 'Because the accused exercised what is undoubtedly his right, the privilege of remaining silent, you may draw an inference of guilt. ' That Court, however, went on to say '.... it is quite a different matter to say, "This accused, as he was entitled to do, has not advanced at any earlier stage the explanation that has been offered to you today: you, the jury, may take that into account when you are assessing the weight that you think it right to attribute to the explanation. "' That Court felt that there was a clear dividing line between those two courses.

 

We have to confess that we are unable to perceive that that is the case. The second of the statements quoted seems to us an invitation to the jury to draw an inference adverse to the accused on account of his exercise of the right of silence, though in a more oblique fashion than in Davis (supra). It is perhaps unfortunate that this decision was not brought to the attention of the Court in the later case of Hoare (supra) and we do not find it possible to reconcile it with Gerard (supra), Davis (supra) and Hoare (supra).

 

We regard the present position as unsatisfactory. In our view it may not be a misdirection to say simply "This defence was first put forward at this trial" or words to that effect, but if more is said, it may give rise to the inference that a jury is being invited to disregard the defence put forward because the accused exercised his right of silence, in which case a conviction will be placed in jeopardy.

 

It is not within our competence sitting in this Court to change the law we cannot overrule the decisions to which we have referred. A right of silence is one thing. No accused can be compelled to speak before, or for that matter, at his trial, But it is another thing to say that if he chooses to exercise his right of silence, that must not be the subject of any comment adverse to the accused. A judge is entitled to comment on his failure to give evidence. As the law now stands, he must not comment adversely on the accused's failure to make a statement."

 

13. We think that the following short passage from the judgment of the court of appeal in England delivered by Stocker LJ in R. v. Raviraj (1987)85 Cr.App.R. 93 at 107 admirably summarises this aspect of the decision in Gilbert:

"It is important to observe that tire decision in Gilbert was confined to the trial judge's implied adverse criticism of the defendant's failure during interview after caution to make any reference to a defence raised at trial. It is further to be noted that in spite of the wrong direction by the trial judge in this regard, the Court applied the proviso and dismissed the appeal."

14. In our view nothing said in Gilbert or the authorities referred to in Archbold bears out Mr. Ground's contention. The true principle is much narrower than that for which he contended. It is clearly expressed in the following passage in the judgment of the Board in Hall v. R. (1971)55 Cr App R 108 at 111:

"It is a clear and recognised principle of the common law that a person is entitled to refrain from answering a question put to him for the purpose of discovering whether he has committed a criminal offence. A fortiori, he is under no obligation to comment when he is informed that someone else has accused him of an offence. It may be that in very exceptional circumstances an inference may be drawn from a failure to give an explanation or a disclaimer, but silence alone on being informed lly a police officer that someone else has made an accusation against him cannot give rise to an inference that the person to whom this information is communicated accepts the truth of the accusation."

15. All of the cases on which Mr. Grounds placed reliance are concerned with a situation in which a suspect is either being questioned or is being informed that an accusation has peen made against him.

16. Here there was no questioning either by the two civilians or the constable, nor did the constable caution the applicant or inform him that someone had made an accusation against him. The circumstances were entirely different from those in which a suspect is interrogated and avails himself of his right to remain silent. In our opinion it would be an affront to common sense and justice to hold that it is impermissible to cross examine an accused on his failure to do what it can hardly be doubted that any reasonable person would have expected him to do in a situation such as that in which the applicant alleged that he found himself.

17. Moreover, we think that even if, contrary to the evidence, Mr. Chau or Mr. Li has accused the applicant of being a robber and the applicant had failed to protest that he was a police officer, the line of cross examination would still have been permissible.

18. In Parkes v. R. (1977) 64 Cr App R25 Lord Diplock delivering the judgment of the Board approved of the following passage from the direction of Cave J. in Mitchell (1892) 17 Cox C.C. at p508:

"Now the whole admissibility of statements of this kind rests upon the consideration that if a charge is made against a person in that person's presence it is reasonable to expect that he or she will immediately deny it, and that the absence of such a denial is some evidence of an admission on the part of the person charged, and of the truth of the charge. Undoubtedly, when persons are speaking on even terms, and a charge is made, and the person charged says nothing, and expresses no indignation, and does nothing to repel the charge, that is some evidence to show that he admits the charge to be true."

19. It could hardly be suggested that had Mr. Chau and Mr. Li questioned the applicant, they would have been speaking on better than even terms with the applicant. Indeed it might fairly be argued that, in the situation that then existed, the applicant, being a police officer, was oh even terms with the constable (see also Chandler (1976) 63 Cr. App. R1). Even accepting, in the situation we have postulated, that that would not have been his position vis a vis the constable, we do not think that any cross examination concerning his failure to respond either to a question from the constable as to his conduct or to a disclosure by the constaole that an accusation had seen made against him, would have added materially to the impact of his failure to protest to the two civilians that he was a police officer and that a mistake had been made.

20. We think it pertinent to observe that the present law that, subject to any statutory provision to the contrary, a suspect has the right to remain silent when questioned by a police or other law enforcement officer, has not escaped criticism.

21. In Gilbert, the case oh which Mr. Grounds places so much reliance, the court said this at p.245:

"The Criminal Law Revision Committee in its Eleventh Report (Cmnd. 4991) at paragraph 30 expressed the opinion that 'it is wrong that it should not be permissible for the jury or magistrates' court to draw whatever inferences are reasonable from the failure of the accused when interrogated, to mention a defence which he puts forward at his trial. To forbid it seems to us contrary to common sense and, without helping the innocent, to give an unnecessary advantage to the guilty."

22. In R. v. Alladice (1988) 87 Cr App R 380 at 385 Lord Lane C.J. made the following remark in respect of section 58 of the Police and Criminal Evidence Act 1984 and the code of practice issued thereunder:

"Paragraph C6.3 of the Code provides that a person who asks for legal advice nay hot be interviewed or continue to be interviewed until he has received it, unless delay has been lawfully authorised as described above.

 

The result is that in many cases a detainee, who would otherwise have answered proper questioning by the police, will be advised to remain silent. Weeks later, at his trial, such a person not infrequently produces an explanation of, or a defence to the charge the truthfulness of which the police have had no chance to check.

 

Despite the fact that the explanation or defence could, if true, have teen disclosed at the outset and despite the advantage which the defendant has gained by these tactics, no comment may be made to the jury to that effect. The jury may in some cases put two and two together, but it seems to us that the effect of section 58 is such that the balance of fairness between prosecution and defence cannot be maintained unless proper comment is permitted oh the defendant's silence in such circumstances. It is high time that such comment should be permitted together with the necessary alteration to the words of the caution."

23. More recently the Report of the Working Group on the Right of Silence (July 13, 1989) proposed the enactment, with modifications, of the proposals of the Eleventh Report of the Criminal Law Revision Committee (1972). These modified proposals have already been introduced in Northern Ireland by the Criminal Evidence (Northern Ireland) Order 1988 whim has altered the wording of the caution and permits reference to failure by an accused to mention facts during interrogation which are later relied upon at his trial.

24. We think that it would produce a farcical situation if we were to move in the opposite direction and hold that the present law concerning the right to silence extended to situations such as that in the present case.

25. Mr. Cross, who appeared for the Crown, surprisingly conceded that Mr. Ground's submission was well founded, but submitted that we should apply the proviso. Notwithstanding Mr. Cross' concession we are satisfied, for the reasons we have given, that the cross examination was proper and that the deputy judge was fully entitled to give the direction that he did. Had we come to a different conclusion, however, we would have had no hesitation in applying the proviso.

26. Mr. Grounds further submitted that the deputy judge failed to direct the jury properly in relation to the applicant's good character. The evidence was that the applicant had joined the police force in April 1974 and had received a commanding officer's commendation in 1983. It was Mr. Ground's initial contention that the deputy judge should have instructed the jury that the evidence of good character was not only relevant to the applicant's credibility but also indicated that he was a person who was unlikely to have committed the offence alleged against him. During the course of argument, however, Mr. Grounds conceded, that it was not mandatory for a judge to direct the jury regarding the second of these two considerations.

27. The deputy judge's direction was:

 

"         The evidence of the accused' s career record in the Police Force with commendation by his superior, the evidence that he did not owe anyone any money and had savings in the bank is not challenged. Having regard to this, you may ask yourself why should he do what is now alleged against him.

 

        These are all matters you should consider when deciding whether his evidence is to be believed. This is entirely within your province and it is your sole decision to accept or to reject the evidence of the accused."

 

28. It is at once apparent that, although he was only obliged to direct the jury that the applicant's good character was relevant to his credibility, the deputy judge in fact dealt with both considerations. We think that his direction was unexceptionable. There is no substance in this ground of appeal.

29. A further complaint was that the deputy judge wrongly directed the jury on the subject of lies. The relevant passage in the summing up is as follows:

"         The accused had made a cautioned statement, or a statement under caution, some six hours after the incident, and in this first statement he made to the police after his arrest, he told the police substantially what he told in evidence in court. Now, it is for you, members of the jury, to decide what he said in this cautioned statement is true. If you are satisfied that he had not told the truth to the police in his cautioned statement and what he told to the police was a lie, then you are entitled to ask yourself why he lied. But I must remind you, members of the jury, that the mere fact that the defendant tells a lie is not in itself evidence of guilt. You must ask yourself what prompted him to do so. An accused person may lie for various reasons - to protect someone, out of panic or confusion, or to save himself from embarrassment. If you think that there may be some innocent explanation for his lies, then you should pay no attention to the lies. But if you are sure that he, the accused, had lied and his lies were relevant to the allegations now made against him and he lied not because he was prompted by innocent motives of any kind, then these lies would be evidence going in proof of his guilt. Even if you do not believe his evidence, members of the jury, it does not mean the prosecution has proved the case, as I told you earlier. The burden always lies on the prosecution and the accused need hot prove his innocence."

 

30. In the earlier direction to which the deputy judge referrer: he said:

"         The cardinal principle of our criminal law is that : the burden of proving the accused is guilty of the offences now charged against him lies solely on the prosecution. It is not incumbent on the accused to prove he is innocent. The fundamental principle of our law is that a person is presumed innocent until he is proved guilty. An accused person is entitled to remain silent and if he has chosen to go to the box to give evidence as the and had done, it does not mean he is there to prove his innocence: he is merely exercising a right which he has. If you disbelieve the evidence of the accused, it does not, mean that the prosecution has proved its case because the burden of proof lies always on the prosecution. But of course when you are considering whether the prosecution has proved its case, you must consider all the evidence before you, be it prosecution or from the accused himself, and you have to give whatever weight you may think appropriate to the evidence."

 

31. Mr. Grounds submitted that the reference to telling lies to the police seriously detracted both rrom the jury's primary task of deciding whether the applicant was speaking the truth from the witness box and from the value which his previous good character may otherwise have had.

32. Although the deputy judge's direction initially centred on the cautioned statement which the applicant made to the police, we think it is clear from the words "Even if you do not believe his evidence" that he was referring also to the applicant's testimony and that the jury would have understood him to have done so.

33. It was also contended that the passage "then these lies would be evidence going in proof of his guilt" was a misdirection. The basis of this contention was that although lies can be supportive of other evidence indicative of guilt, they cannot of themselves be probative of guilt. However, the deputy judge did not suggest that lies could of themselves prove guilt. Indeed, the last two sentences in his direction on lies and the earlier passage therein referred to made it abundantly plain that lies told by the applicant could not prove the case against him, and that the burden rested on the prosecution on the whole of the evidence in the case to establish his guilt. There is no substance in this ground of appeal.

34. Lastly, Mr. Grounds submitted that "the instructions the [applicant] gave to his solicitor regarding what occurred at his arrest were never properly put to prosecution witnesses, nor was the [applicant] led in chief on them in a proper manner. " We were not invited by Mr. Grounds to can for that part of the transcript relating to the testimony of the prosecution witnesses. Instead he directed our attention to the transcript of the applicant's examination in chief.

35. We note from the transcript that when the applicant had reached that part of his testimony in which had was describing that the robber had turned right from Kau Pui Lung Road and had entered the lane, counsel asked him "Right, What happened next? Just tell us in your own words the sequence of events that happened next. " As the applicant continued to relate his story, counsel quite properly directed the applicant's attention to various matters without asking leading questions. Having reached that part of his testimony in which the applicant related that he had been rendered unconscious during the struggle with the two civilians and later, having regained consciousness, found that he was handcuffed, counsel asked him "We have heard the evidence - it is right is it not - that there was a time after you had been arrested that you has a conversation with the arresting officer and told him that you were a colleague, that is, a policeman from Wong Tai Sin?"

36. Mr. Ground's complaint is that when the applicant replied "Correct" to this question, counsel failed to ask him exactly what it was that he had said. Had counsel asked the appropriate question it is likely, contended Mr. Grounds, that he would have responded in accordance with the following instructions he had given to his solicitor:

"When I became conscious, my pistol had been snatched and one of my hand (left one) was handcuffed. I saw a uniformed policeman and I was quickly being handcuffed at the back and fetched to a police car at the road side. My head still caused me pain but I was more conscious by then; therefore I immediately went towards a policeman by me (later known to be PC 20521) and said 'Don't panic. I am also a policeman'. At that time the policeman handcuffed me by 2 pairs of handcuffs and masked me up. I then said' I only help to catch thief!' PC 20521 had asked me what type of policeman I was. I replied him that I belonged to Wong Tai Sin Police and asked PC 20521 to report the incident to my superior. He, on the one hand, reported via the microphone, on the other hand, he asked me how my (sic) robbers there were. I said there was one. He asked me which groups in the Wong Tai Sin I belonged to. I replied that I was in Intelligence Bureau. He then asked me whether I was a robber. Since I felt painful and I was furious, I asked him to ask the bank if he did not trust me. I once again requested him to inform my superior and squad members."

37. Whether the applicant would have come up to proof is a matter of sheer speculation. The way in which counsel conducts his examination in chief is a matter which he must decide in the light of the evidence that has been given, his feel of the case and his assessment of his lay client. Indeed it seems that had he asked a question such as that suggested by Mr. Grounds, he would have risked receiving the answer that prosecuting counsel received when he asked the applicant about this very matter. The relevant cross examination was as follows:

and later

38. It is clear from the above extracts from the cross examination that the applicant was given every opportunity to give testimony in accordance with the instructions which he gave to his solicitor.

39. It was not until later in cross examination when prosecuting counsel had put to him that the man in white whom he said he had been chasing was a figment of his imagination, that the applicant asserted that he had told the police at the scene about the robber. The following exchange occurred:

40. We do not accept that defence counsel was derelict in his duty as suggested by Mr. Grounds. Whether counsel decides to ask certain questions in examination in chief is often a matter of very fine judgment. In the present case it appears to us that counsel would have had every justification for thinking that he was embarking on dangerous ground in asking the applicant questions on this matter.

41. Lest it be thought that by having embarked on a detailed analysis of this ground of appeal we encourage submissions of this nature we think we should issue a timely reminder that except in the case of flagrantly incompetent advocacy this court will not set aside a conviction on the ground that counsel has made a decision or pursued a course in the conduct of a trial which later appears to have been mistaken or unwise, even if the decision or course of conduct was contrary to the accused's wishes (See R. v. Ho Shu-chung [1990]1 HKLR 180).

Kempster, J.A.:

42. I have the misfortune to differ from the reasons given by Clough and Macdougall, JJA in relation to and only to the propriety of the cross-examination of the applicant as to his failure to give an account of himself at the first opportunity and of the judge's endorsement of that approach in his summing-up. As the law stands, illogical and open to criticism as it is, a suspect has the right at Common Law to remain silent in circumstances when an allegation is expressly made against him or he is told of such an allegation. The caution is no more than a reminder of that right. The suspect's failure to give the explanation which would be expected of an innocent man cannot be left to the jury as an indication of guilt. I am unable to distinguish between circumstances where a man is told that someone has accused him of an offence and those of the instant case where the applicant must have appreciated that Mr Chou' and Mr Li were treating him as an offender and, to use the applicant's own words when cross-examined about his conversation with the police officer first on the scene: -

"... he had already taken me as a culprit ... "

43. I feel bownd so to find on the Privy Council authority of Hall v R [1971 1 All ER 322 to which my Lords have referred; as they did to the decision of the English Court of Appeal in R v Gilbert (1978) 66 Cr App R 237 which I find consistent with Hall v R.

44. In the light of other compelling evidence of guilt available to the jury and of the further reasons given by my Lords, with which I agree, I thought it appropriate to apply the proviso to section 83(1) of the Criminal Procedure Ordinance (Cap 221) in allowing the application and dismissing the appeal.