HKSAR v. HUANG RUIFANG (黃瑞芳)

Press Summary (English)

Press Summary (Chinese)

FACC No. 2 of 2025

[2026] HKCFA 3

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 2 OF 2025 (CRIMINAL)

(ON APPEAL FROM CACC NO. 106 OF 2022)

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J U D G M E N T

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Chief Justice Cheung:

1.  I agree with the judgment of Mr Justice Stock NPJ.

Mr Justice Fok PJ:

2.  I agree with the judgment of Mr Justice Stock NPJ.

Mr Justice Lam PJ:

3.  I agree with the judgment of Mr Justice Stock NPJ.

Mr Justice Stock NPJ:

Introduction

4.  This appeal concerns the right of silence of a defendant in criminal proceedings, in particular, the effect given to that right by the statutory prohibition on the prosecution from making any comment on the failure of a defendant to give evidence in those proceedings.  At issue is a suggested breach of section 54(1)(b) of the Criminal Procedure Ordinance, Cap 221 (“CPO”) which provides that:

“(1) Every person charged with an offence, whether charged solely or jointly with any other person, shall be a competent witness for the defence at every stage of the proceedings:

Provided as follows—

(a) ….

(b) the failure of any person charged with an offence to give evidence shall not be made the subject of any comment by the prosecution…”.

5.  The appellant was convicted upon a retrial of the offence of trafficking in a large quantity of cocaine.[1] She was sentenced to imprisonment for 27 years and 10 months. That sentence was reduced on appeal to 25 years’ imprisonment. She had been arrested on 8 April 2017 at the airport in Hong Kong upon arrival from Sao Paulo in possession of two suitcases in which were nine cylindrical cans inside of which was liquid containing 4,770 grammes of cocaine. She was interviewed after arrest. In the course of that interview, she asserted that she did not know that the cans contained a dangerous drug but believed the contents to be Acai juice for that is how the cans were labeled and that is what she had been told by an acquaintance, “Ching Tse” for whom she was bringing the cans. The record of that interview was adduced in evidence as part of the prosecution case. She did not testify in her own defence at trial, nor did she call any witness on her behalf.

6.  As prosecuting counsel acknowledged in his closing submissions, the sole issue for the jury was whether it was proved that the appellant knew that there were dangerous drugs inside the suitcases. He asserted, by reference to the appellant’s account in the interview – which he contended contained inconsistencies and inherent improbabilities – and by reference to the contents of WeChat messages referred to in that interview, that her contention that she did not know that the suitcases contained dangerous drugs was a lie.

The impugned remarks

7.  In his closing submissions prosecuting counsel said:

“Now, remember suspicion is not enough. If you only suspect that the defendant had committed the crime that is not enough. You must give the benefit of the doubt to the defendant and you must acquit her. As the learned judge also said, the defendant needs not prove her innocence. She needs not prove anything. She needed not to give evidence. She needed not to call any defence witnesses and she only exercised her right not to give evidence and not to call any defence witnesses and no adverse inference can be drawn against her. The burden is all along on me, on the prosecution, but the fact remains the defendant did not give evidence.”

Later in his closing submissions prosecuting counsel said:

“Now, again the defendant’s case: you will remember the defendant exercised her right not to give evidence, not to go to the witness box. That’s her right. That’s fine. As I have said the burden is on me to prove the case. But I did not have the opportunity to cross-examine the defendant. I cannot ask her any questions. I did not because she elected not to give evidence and I am unable to test her credibility to test whether she is an honest person, to test about her reliability, whether what she says would be reliable. I have no such opportunity. But in any event, of course she had chosen to speak up in the video-recorded interview, but it is my position and it is my case that the defendant had not told you the truth and/or the whole truth about her story. ”

8.  Prior to closing submissions, prosecuting counsel provided to the court a copy of his proposed speech to the jury. Defence counsel expressed concern about the prosecutor’s proposed remarks about not having had the opportunity to cross-examine the defendant to test her credibility and reliability. That, said defence counsel, implied criticism of her for not giving evidence and he contended that it should not be permitted. The Recorder came to the conclusion that prosecuting counsel was doing no more than conveying the same message as he, the Recorder, would convey in his directions to the jury and left the matter on the basis that prosecuting counsel’s remarks to the jury, in this context, should be in the same terms as the standard specimen direction, which is to the effect that less weight could be attached to a statement that could not be tested by cross-examination. Immediately after this discussion, the jury returned to the courtroom and defence counsel formally closed the defence case, without the defence presenting any evidence. The Recorder then informed the jury of the defendant’s right to remain silent and that her decision not to give or to call any evidence should not be treated adversely to her.

9.  Prosecuting counsel then made his closing submissions which included the impugned passages to which I have earlier referred. The Recorder did not allude to these submissions, either at the time they were advanced or in his summing up. He did, however, in his summing up, instruct the jury that there was no obligation on the defendant to testify and that they must not assume guilt because she had not given evidence. He said:

“Now, the defendant has chosen not to give evidence. The defendant does not have to give evidence. She is entitled to sit in the dock and require the prosecution to prove its case. You must not assume that she is guilty because she has not given evidence. The fact that she has not given evidence proves nothing, one way or the other. It does nothing to establish her guilt. On the other hand it means that there is no evidence from the defendant to undermine, contradict or explain the evidence before you by the prosecution. That said, it is still important, and I stress this, for you to bear in mind that the burden of proof is always on the prosecution. So you still have to decide whether, on the prosecution’s evidence, you are sure of the defendant’s guilt.”

In relation to the appellant’s video-recorded interview, he said:

“You must consider the whole of the statement in deciding where the truth lies. You may feel that the incriminating parts are likely to be true for why else would she have made them. You may feel that there is less weight to be attached to her explanations for they were not made on oath, have not been repeated on oath and have not been tested by cross-examination. So this is how you should approach the statements made by the defendant under caution in her video recorded interview.”

The Court of Appeal

10.  Whilst the Court of Appeal granted leave to appeal against conviction, the appeal was, by a majority, dismissed[2]:

(1)     Macrae VP concluded that the prosecutor’s statements did not amount to a material irregularity but that even if they did, the proviso to s. 83(1)(c) CPO should be applied. He said that commenting on someone’s failure to do something ordinarily carries with it a pejorative connotation, whereas merely referring to the fact that he did not do something does not necessarily do so. Prosecuting counsel had referred to the fact that the appellant had not given evidence but, in context, “the emphasis of the point he was making was that the burden of proving the case against the appellant remained on the prosecution throughout.” He noted that immediately after the appellant’s election not to testify, the Recorder had reminded the jury not to draw any adverse inference from that election. The learned Vice-President saw “no prejudice whatsoever from prosecuting counsel stating, in a factual way that was advantageous to her, exactly what the judge was bound to tell the jury, and which he had already told the jury”. He did not see in either impugned passage any comment, “certainly not a pejorative one” on the appellant’s failure to give evidence. He concluded that there was no material infringement of the statutory prohibition “since in my view what prosecuting counsel said did not amount to comment on the applicant’s failure to give evidence.” But he added that: “Had I formed the view that it was prosecuting counsel’s intention to use the applicant’s failure to give evidence to advance the prosecution’s case in some way, or had that been the necessary implication of his remarks, and the judge had failed to spell out the terms of Specimen Direction 44, I might have come to a different view as to the materiality of what he said.”^[3] As for the proviso, he noted that there was very strong evidence of the appellant’s guilt and concluded that it would be a manifest injustice if the conviction were set aside on the basis solely of prosecuting counsel’s impugned remarks, “which can have had no impact whatsoever on the verdict.”

(2)     M Poon JA said that it was incumbent upon the appellate court to examine whether any harm had been done to the defence case and whether the judge’s summing up provided a sufficient remedy. She concluded that although there had been a breach of the statutory prohibition, the Recorder’s directions sufficiently remedied the breach reducing it to insignificance. The breach was therefore not a material one but if it was, any possible harm had been diffused by the Recorder’s directions and she concluded that this was a case for the application of the proviso.

(3)     In his dissenting judgment, Zervos JA stated that the prosecutor had “pinpointed the alleged dishonesty of the applicant by singling out her lack of evidence at trial.” The impugned remarks clearly amounted to comment on the failure of the appellant to give evidence and “conveyed the clear implication that the applicant did not give evidence in court because she was guilty of trafficking in dangerous drugs.” He was satisfied that the remarks would have had a lasting effect on the jury, that they required the Recorder immediately to direct the jury in specific and emphatic terms that the remarks had been inappropriate. The prosecutor had “connected the applicant’s election not to give evidence with the honesty and reliability of her explanation in her out-of-court statement,” that the comments “went considerably further … than the judge did in his standard and impartial directions”; and that in any event, what was permitted to the trial judge was not necessarily permitted to the prosecution, given the terms of the statutory prohibition. He was satisfied that there had been a material irregularity and that it was inappropriate to apply the proviso. He said that he would allow the appeal, quash the conviction and order a retrial.

The certified question

11.  On 29 May 2025, the Court of Appeal granted a certificate under section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, in the following terms:

“On a true construction of section 54(1)(b) of the Criminal Procedure Ordinance, Cap 221, which provides 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’, what is the nature of the words or conduct on the part of a prosecutor which constitutes a prohibited comment under section 54(1)(b) and what are the appropriate remedies for a breach of the prohibition?”

12.  On 22 August 2025, the Appeal Committee[4] granted the applicant leave to appeal in respect of the question certified by the Court of Appeal but added that: “In so granting leave, we would observe that the question so framed is overly broad. However, we grant leave so that the question raised in the context of the present case, which involves the proper interpretation of section 54(1)(b) of [the CPO] can be answered to the extent appropriate to the needs of this case.” The Committee also expressed satisfaction that it was reasonably arguable that the prosecutor’s remarks constituted a material irregularity, not cured by the trial judge’s directions to the jury and resulted in substantial and grave injustice to the applicant. Accordingly, leave was granted on that ground also.

The right of silence

13.  The right of silence is deeply rooted in the common law. It is also given express protection by Article 11 of the Hong Kong Bill  of Rights Ordinance, Cap 383, which, in so far as is presently relevant, provides:

“(1) Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

(2) In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality –

…

(g)    not to be compelled to testify against himself or to confess guilt.”

14.  The right is a facet of the presumption of innocence which in turn dictates that the burden of proving guilt rests exclusively on the prosecution. Compelling an accused to testify in his own defence is inconsistent with that burden. The right further stems from the need to protect individuals from physical or other coercion by those in positions of authority and is also designed to protect the innocent from the assumption that a failure to testify is tantamount to an admission of guilt.

History and rationale

15.  The right of silence in criminal proceedings finds its origins in the reaction to the harsh inquisitorial practices of ecclesiastical courts and the prerogative courts of High Commission and Star Chamber in England in the 17th Century. A defendant was required, on pain of imprisonment and other punishments, to take an oath to answer any questions put to him:

“When political and military reverses forced Charles I to summon Parliament in 1641, Parliament sided with the Puritans, abolished the courts of Star Chamber and High Commission, and forbade the ecclesiastical courts from using ex officio oath procedure. These events, especially the fall of Star Chamber, remain among the most celebrated landmarks of English political and legal history. The idea that no one need accuse himself, whatever that meant, was part of this constitutional triumph.”[5]

That left the common law courts to adopt and give effect to that principle:

“In the later eighteenth century and especially in the nineteenth century, a radically different view of the purpose of the criminal trial came to prevail. Under the influence of defence counsel, the criminal trial came to be seen as an opportunity for the defendant’s lawyer to test the prosecution case. The privilege against self-incrimination entered common law procedure (together with the beyond-reasonable-doubt standard of proof and the exclusionary apparatus of the modern law of criminal evidence) as part of this profound reordering of the trial. It was the capture of the criminal trial by lawyers for prosecution and defense that made it possible for the criminal defendant to decline to be a witness against himself.”[6]

16.  Something of the history of, and rationale for, the right may similarly be gleaned from the advice of Lord Mustill in R v Director of Serious Fraud Office, Ex p. Smith:[7]

“ … there is a long history of reaction against abuses of judicial interrogation. The Star Chamber and the [High] Council had the power to administer the oath and to punish recusants; and literally to press confessions out of those under interrogation. Even after the abuses of the Star Chamber had been curbed the magistrates, who in the absence of a police force had some of the functions of a modern juge d’instruction, had power to interrogate the accused before trial. It seems that the use of such powers to obtain compulsory response to interrogation gradually faded away, and in practice were replaced by a caution, well before the caution became mandatory in 1848. Nevertheless, although the misuse of judicial interrogation is now only a distant history, it seems to have left its mark on public perceptions of the entire subject: and indeed not just public perceptions, for in the recent past there have been several authoritative and eloquent judicial reminders of the abuses of our former inquisitorial system and of the need to guard against their revival. … It may however be noted that the immunity against judicial interrogation is no longer as complete as it was, for the abolition by the Criminal Evidence Act 1898 of the rule that an accused was not even a competent witness at his own trial opened up the possibility that if he did give evidence he would expose himself to questioning by counsel for the prosecution and in appropriate circumstances by the judge himself; and his privilege against self-incrimination whilst giving evidence was expressly removed by … the Act of 1898.

Next there is the instinct that it is contrary to fair play to put the accused in a position where he was exposed to punishment whatever he does. If he answers, he may condemn himself out of his own mouth; if he refuses he may be punished for his refusal … .

Finally there is the desire to minimise the risk that an accused shall be convicted on the strength of an untrue extra-judicial confession, to which the law gives effect by refusing to admit confessions in evidence except upon proof that they are ‘voluntary.’ This motive, which became prominent when inquisitorial methods waned and extra-judicial confessions became an important, and in many instances by far the most important, weapon in the prosecution’s armoury, was particularly weighty at a time when the accused could not rebut or explain away the confession by giving evidence on his own behalf. Even now, nearly 100 years after that disability has been removed, the imprint of the old law is still clearly to be seen.”

17.  In the same case, Lord Mustill pointed out that the right of silence “refers to a disparate group of immunities”, which include “a specific immunity, possessed by accused persons undergoing trial, from being compelled to give evidence, and from being compelled to answer questions put to him in the dock”; and “a specific immunity (at least in certain circumstances, which it is unnecessary to explore), possessed by accused persons undergoing trial, from having adverse comment made on any failure (a) to answer questions before the trial, or (b) to give evidence at the trial.”[8]

18.  Of the motives giving rise to these immunities, Fok PJ said in HKSAR v Chan Chu Leung[9] that, in summary, they were:

“… first, the assertion of personal liberty and privacy; second, the reaction against the abuses of judicial interrogation; third, the instinct that it would be contrary to fair play to put the accused in a position where he was exposed to punishment regardless of whether he answered or refused to answer; and fourth, the desire to minimise the risk of an accused being convicted on the strength of an untrue extra-judicial confession.”

He added:

“Closely connected with these motives underlying the right of silence are the two important principles that an accused has a right against self-incrimination and also, of course, that the burden of proof in a criminal matter, save for limited statutory exceptions, rests entirely on the prosecution. Ultimately, the right of silence is a facet of an accused person’s right to a fair trial. ”

19.  In R v L,[10] the Court of Appeal in New Zealand was concerned with the prohibition enacted by section 366(1) of the Crimes Act 1961 against comment on the failure of a defendant to give evidence at his or her trial.  Eichelbaum CJ said that:

“The purpose of provisions such as s 366 has been described in various terms: to protect accused persons against the danger of having their right not to testify at trial presented in such a fashion as to suggest that their silence was a cloak for their guilt …; to make the law as to freedom from coercion to give evidence real and complete…; that the accused must be under no compulsion of any kind to give evidence as otherwise the capacity to give evidence would be a source of disadvantage to an accused…; a proviso to the statutory right of an accused to give evidence on his own behalf, designed to prevent that right being turned to his disadvantage… . The common underlying theme is that the object is to prevent undermining the accused’s right not to testify, and to forestall coercion to do so.”

20.  Section 407 of the Crimes Act 1900 (New South Wales) prohibited comment by the trial judge as well as by prosecuting counsel on the failure of an accused to testify, as to which Barwick CJ in Bridge v The Queen[11] referred with approval to the comments of Isaacs J in R v Ellis[12] that the intention of Parliament in enacting the provision was obviously “to make its law as to freedom from coercion to give evidence real and complete.” The Chief Justice added:[13]

“It is thus very important in approaching the question of whether or not some expression of a judge presiding at a jury trial for a criminal offence offends the section, to bear in mind that the policy of the legislature is that the accused must be under no compulsion of any kind whatever to give evidence as otherwise the capacity to give evidence would be a source of tremendous disadvantage to an accused.”

21.  As to the real danger of a jury assuming that the right is exercised to hide guilt, that may be the motive in some cases but it is not necessarily so. This is a point which was made by Isaacs J in Bataillard v The King:

“ … reasons other than a sense of guilt, such as timidity, weakness, a dread of confusion or of cross-examination, or even the knowledge of a previous conviction, certainly in summary proceeding, and perhaps in the case of a trial for an indictable offence, might easily prevent the accused person from availing himself of the new means permitted by law.”[14]

I would add to that list the situation where a defendant decides not to testify or call witnesses on his or her behalf because the view is taken that the prosecution evidence is insufficient to establish guilt.

22.  This history and these authorities serve to underscore the central importance of the right in our criminal justice system. Comment by a prosecutor undermines the presumption of innocence and the burden of proof and risks instilling in the minds of jurors the impermissible notion that the defendant has chosen not to testify for fear of his or her guilt being exposed. Although in England and Wales the introduction of the Criminal Justice and Public Order Act 1994 makes an inroad into the right, the right in Hong Kong is unqualified. So too is the prohibition in s. 54(1) CPO, an unqualified prohibition and it is noteworthy that when s. 54 came to be amended by the Legislature in 2003, section 54(1)(b) remained in place, unamended.

What constitutes prohibited comment

23.  Against that background, the issues which arise in this appeal are these: what remarks by a prosecutor constitute prohibited comment on the failure of an accused person to testify and, further, what are the consequences of a breach of the prohibition?

24.  There is a line of authorities which suggests that a statement by the prosecutor to the effect that a defendant’s statement not made under oath and not subject to cross-examination is, for that reason, to be attributed less weight than evidence of witnesses under oath is a statement which does not contravene the prohibition. However, what the prosecutor may not do, if he is not to offend the prohibition, is directly or indirectly refer to the fact that the defendant had the power or right to give evidence yet chose not to do so. As will be clear from a later part of this judgment, I take the view that the prosecutor went well beyond any comment he made or could have made as to weight and infringed the prohibition of s. 54(1)(b) since the effect of his remarks not only drew direct attention to the fact that the appellant had a choice whether or not to testify and chose not to do so but went still further, in that the effect of his remarks was to use the exercise of the right to undermine the defence case and strengthen the prosecution case. For the moment, however, I wish first to address the question whether a comment that goes merely as to weight contravenes the prohibition, not least because the relevant authorities also delineate the boundaries beyond which the prosecutor is without question not permitted to go.

25.  It is uncertain what words were used by the prosecutor at first instance in R v L but Eichelbaum CJ said:[15]

“On their face however, the expressions recorded do no more than point out that the videotaped interview of the accused was not conducted under oath, nor was he subject to cross-examination, whereas the complainant had given her account on oath and had been thoroughly cross-examined. Prosecuting counsel advanced these matters as grounds, or additional grounds … for preferring her version to the appellant’s. Thus, regarding the passage as a submission on the weight to be given to the evidence of the complainant and the appellant respectively rather than a comment on the latter refraining from going into the witness box, absent authority we did not consider it crosses the line drawn by s 366(1).”

26.  The relevant legislation in Bataillard v R,[16] a decision of the High Court of Australia was the Crimes Act 1900, section 407(2) of which provided that “it shall not be lawful to comment at the trial of any person upon the fact that he has refrained from giving evidence on oath on his own behalf.” The prohibition was not restricted to comment by the prosecutor. The prosecutor said that the defendant’s statement was “a statement merely, not upon oath, and the Supreme Court of this State has gone so far as to hold that the statement cannot be regarded as evidence. It simply goes to the jury for what it is worth. A man makes a statement from the dock not on oath, not subject to the greatest of all tests – that of cross-examination. When people have their backs against the wall I don’t think they will stick at telling a few lies.” Griffith CJ said that he did not “assent to the suggestion that a mere statement of fact cannot of itself be a comment” and added that:

“What is forbidden by the Statute is commenting upon the fact that the accused person has ‘refrained from giving evidence on oath on his own behalf.’ In my opinion, the term ‘refrain’ imports two ideas - opportunity to give evidence on oath, and failure to take advantage of that opportunity. And I think that to call the attention of the jury to the ability of the accused to give evidence on oath, whether that ability is regarded as a matter of fact or law, and to his omission to do so, is a comment forbidden by the Statute. So far I have no difficulty. But in the application of the rule to the facts in the present case, I find great difficulty. … I think that the words complained of are ambiguous, and need something in the nature of an innuendo to explain them. …. If such words [as were here used] had been used immediately after the passing of the Act, and when the competency of accused persons to give evidence on their own behalf was not a matter familiar to juries, they might, and probably would, have been innocent. But when the law has been in force for many years, and the trial takes place, as this did, in a Court which is in almost perpetual session, and where the spectacle of an accused person giving evidence on oath on his own behalf is familiar, I am not at all sure that it ought to be inferred that the words would not convey a reference to the fact of the accused person’s competency. Again, a mere gesture on the part of the Crown Prosecutor, or a change of inflection in his voice, might have conveyed such a reference beyond all doubt.”[17]

27.  In the same case, Isaacs J said:[18]

“… comment may still be made, either that the prisoner has not made any statement as permitted by that section, or that the statement, if made under it, is not on oath, and therefore may not be considered as weighty as the evidence of witnesses under oath. If, however, reference, direct or indirect, and either by express words or the most subtle allusion, and however much wrapped up, is made to the fact that the prisoner had the power or right to give evidence on oath, and yet failed to give, or in other words, ‘refrained from giving,’ evidence on oath, there would be a contravention of the sub-section now under consideration.”

He held that the words used by the prosecutor did not in themselves exceed the legitimate boundary. Higgins J agreed adding, however, that he was unable to take the view that a mere statement of the fact that the prisoner had the power to give evidence and failed to use it could not under any circumstances be a comment.

28.  The same approach is evident in the judgments of the Court of Criminal Appeal, South Australia, in R v Siebel[19] in relation to a statutory provision in the same terms as s. 54(1)(b) CPO. In that case, the accused did not testify and prosecuting counsel, having reminded the jury of that fact and of the law that they, the accused, were under no obligation to do so, said that in assessing the weight to be given to the evidence of the prosecution witnesses, “you can take into account the fact that [the prosecution] evidence was uncontradicted.” Against that background, King CJ concluded that the remarks of the prosecutor clearly amounted to an infringement of the statutory provision. It seemed to him, he said, that a statement that an accused person was not bound to testify necessarily drew attention to his failure to do so and that the comment was made the more potent by linking it with the point that evidence for the prosecution was uncontradicted. He added:[20]

“It is lawful, in my opinion, for counsel for the prosecution to make the point to the jury that the only version of the facts before them is that proved by the prosecution witnesses and, if counsel for the defence has engaged in speculation as to alternative scenarios, that there is no evidence to support such alternative scenarios. Any comment, however, that the accused person has failed to contradict prosecution witnesses or to provide an alternative version of events, or that he has not given evidence, must, in my opinion, amount to a prohibited comment.”

And further:

“To my mind the remarks of counsel for the prosecution at the trial clearly amounted to an infringement of the statutory provision … .The remark that the accused were not bound to give evidence clearly implied their right to do so; the jury were reminded that neither accused had given evidence; they were told that in assessing the weight to be attached to the evidence of Crown witnesses they might take into account that it had not been contradicted by evidence in the Court; specific attention was directed to the failure on the part of the accused persons to contradict or explain evidence for the prosecution and it was argued that such failure might confirm the inference that the accused persons were not acting in self-defence.”

29.  I agree that a submission by prosecuting counsel which is restricted to pointing out that a statement made by a defendant was not made under oath nor subject to cross-examination and may therefore be considered to carry less weight than the evidence of a witness under oath is not a comment on the failure of a defendant to give evidence and is therefore not a breach of s. 54(1)(b). But great care must be taken to confine that submission within those narrow limits lest, in conjunction with other comments or otherwise in context, the submission amounts, in effect, to a comment that the defendant had a choice whether to testify but has chosen not to do so. The strict limits of that confinement are emphasised in some of the authorities to which I have referred.

30.  In R v L,[21] Eichelbaum CJ noted that:

“Perusal of the Australian cases cited, and others, demonstrates however, the ‘very narrow limits’ within which such a statement [comparing the weight of unsworn and untested statements with the weight to be accorded to sworn evidence] must be confined if it is not to amount to a comment upon the accused refraining from giving evidence. ... As Windeyer J said in Bridge,[22] quoting a United States text, such comment is playing with fire. In R v McCarthy,[23] this Court drew attention to the desirability of prosecutors avoiding the risk of submissions which may be seen as an implied comment, in breach of the statutory prohibition.”

31.  In Bridge, addressing a statutory provision which prohibited a trial judge from commenting on the failure of an accused to testify, Barwick CJ said:[24]

“I would not wish in the least to disturb authorities which allow the presiding judge to call attention to the unsworn and untested character of the accused’s statement and to compare its weight with that of a sworn and tested statement or, for that matter, to speak of its weight, without actual comparison with other material in the case; but there are very narrow limits within which such a statement must be confined if it is not to amount to comment upon the accused’s failure to give evidence. The circumstance that jurors may be expected to know that an accused may give evidence on his own behalf and to observe that he has not done so may to some minds bring an air of unreality to the continuing prohibition of the section; but to my mind the circumstances make it all the more important that the presiding judge should not call attention, particularly in his summing up, directly or indirectly, to the fact that the accused has not submitted himself to cross-examination…. It may be that the line between what is permissible and what is not is a fine one but that seems to me to emphasize the scrupulous caution which the presiding judge must exercise.”

32.  So too, in a case where no comparison is intended or available with the testimony of a witness under oath, a comment by the prosecutor which merely points out that a statement by a defendant was not made under oath and not subject to cross-examination and suggests that therefore it carries less weight, is not a comment prohibited by s. 54(1)(b); but, again, great care must be taken to ensure that the words used and the context in which they are used do not amount to a suggestion,  express or implied,  that the defendant had a choice whether or not to testify and has decided not to do so.

This case

33.  I am satisfied that the prosecutor’s remarks in this case went well beyond any question of weight, and that they breached the statutory  prohibition.

34.  Neither of the impugned passages was limited to the question of weight; instead, the remarks were made in the context of drawing attention to the right not to testify and the choice made by the appellant not to testify. It was all very well to remind the jury of the right, but each reference to that right was followed by a qualification: first, “the burden is all along on me, on the prosecution but the fact remains the defendant did not give evidence”; and, later: “you will remember the defendant exercised her right not to give evidence, not to go to the witness box. That’s her right. That’s fine. As I have said the burden is on me to prove the case. But I did not have the opportunity to cross-examine the defendant. I cannot ask any questions. I did not because she elected not to give evidence and I am unable to test her credibility … .” (Emphasis added). These remarks not only drew direct attention to the fact that the appellant had had a choice whether or not to testify and that she had chosen not to do so but went further, for their effect, particularly by the second set of remarks, was to use the exercise of the right to undermine the defence case and by the same token to bolster the prosecution case.

35.  The Supreme Court of the United States “has emphasized … the maintenance of our adversary system of justice which prohibits the government from making a defendant the unwilling ‘instrument of his or her own condemnation’.”[25] In the present case, the burden was on the prosecutor to satisfy the jury that the defence put forward in the interview was untrue. That was a burden to be discharged without using the choice not to testify on oath as support for its case. Instead, counsel’s remarks were indeed making the appellant the unwilling instrument of her own condemnation. As I read the effect of his remarks – and it suffices if they may reasonably be interpreted this way – what the prosecutor was saying was this: “I was limited in my ability to prove that her defence is a lie. I was limited because the defendant made a choice not to testify. It was a tactical choice evidenced by the fact that she chose to stick with her explanation at interview as opposed to offering herself for cross-examination, and the reason for that choice was to deprive the prosecution of a tool by which to prove its case.” That, or a submission to that effect, is demonstrably a comment by the prosecutor which is prohibited by s. 54(1)(b) CPO. I wish only to add that it matters not whether prosecuting counsel intends or does not intend his or her remarks to convey a prohibited message; what matters is the effect or likely effect of the remarks.

36.  It is said that in making these remarks, the prosecutor was going no further than the judge’s directions; first, the direction that whilst the fact that the appellant had not given evidence proves nothing one way or the other, “on the other hand, it means that there is no evidence of the defendant to undermine, contradict or explain the evidence put before you by the prosecution”; and, secondly, the direction that the jury may feel that there was less weight to be attached to the explanation in her statement to the police for it was “not made on oath, has not been repeated on oath, and has not been tested by cross-examination.”

37.  The first and obvious answer to this contention is that what is permitted to the judge is not permitted to the prosecutor. Section 54(1)(b) restricts itself to comment by the prosecutor, no doubt because of the different roles of judge and prosecutor and in particular the likely perception of those roles by a jury: the judge’s comments are likely to be perceived by the jury to be part of a neutral presentation of the issues whereas comments by a prosecutor are likely to be perceived by the jury to be advanced in support of a conviction.  Secondly, the direction that “there is no evidence of the defendant to undermine, contradict or to explain the evidence put before you by the prosecution” is a comment by the judge on the evidence available to the jury, the evidence upon which their verdict is to be considered; in this case, the remarks by counsel for the prosecution went further than that.

38.  I pause here to observe that this part of the direction – namely that there was no evidence of the defendant to undermine, contradict or explain the evidence by the prosecution – was correct if it is taken to mean that no evidence was adduced by the defendant but was not correct if it is taken to mean no evidence emanating from the defendant. In Li Defan v HKSAR,[26] Lord Hoffmann said that the substance of that direction should “be given in every case in which the accused has not given evidence.” That was a case in which the appellant had offered an explanation when interviewed by the ICAC although the question whether that direction was appropriate in cases where a defendant had made a statement but had not provided oral testimony, was not an issue. It seems clear enough that the direction is intended to mean no evidence adduced by the defendant as opposed to no evidence emanating from the defendant, but there is a risk that it may be understood to include both.  Although the statement made by the appellant to the police was not made on oath and was not subject to cross-examination, it nonetheless constituted evidence which, if true or possibly true, undermined the prosecution case. The harm caused, if any, is counterbalanced by the unambiguous direction given by the trial judge in this (as in other like cases) that if the jury was of the view that the statement made by the defendant was or may be true, she must be acquitted. Nonetheless, I am of the view that the words “there was no evidence of the defendant to undermine, contradict or explain the evidence by the prosecution” should not be used by trial judges in cases where the defendant has given a statement to the police which in part or in whole does, if true, undermine, contradict or explain the evidence by the prosecution. However, in such cases, it remains appropriate for the judge to refer to the fact that the statement was not made on oath, was not subject to cross-examination, a matter for the jury to take into account when assessing the weight to be given to that statement.

39.  As for the second direction, namely, that the jury may feel that there is less weight to be attached to the statement since it is not made on oath and not tested by cross-examination, that direction is not a comment made by the judge in the context of an express reference to the defendant’s choice whether or not to testify. That was the impermissible context in which the impugned remarks by the prosecutor were made in this case.

40.  It is also suggested that the prohibition is restricted to making adverse comments on the right of silence. The statutory provision does not say that. The word “adverse” could readily have been inserted had that been the intention, but it was not: the prohibition is against any comment. There is some support in the authorities for the proposition that the prohibition is directed at adverse comment but there is ample authority which suggests otherwise.

41.  In support of the proposition Mr Man, for the respondent, cites the observation of Roberts CJ in R v Yu Yuk Kwong[27] that “the object of [s. 54(1)(b)] is to prevent counsel from inviting the jury to draw references adverse to the accused from his failure to give evidence”; and the comment of Eichelbaum CJ in R v L[28] that “the purpose of provisions such as s 366 has been described in various terms: to protect accused persons against the danger of having their right not to testify at trial presented in such a fashion as to suggest that their silence was a cloak for their guilt.”

42.  By contrast, in R v Riley[29], McCowan LJ said that the Court was disinclined to follow an earlier decision which held that there was no breach of the statutory provision unless the comment made by the prosecution had been unfavourable:

“We would be loath to follow that unless we have to since we are clearly of the opinion that the words ‘any comment’ mean what they say: there is to be no comment whatsoever by the prosecution; there is no question of favourable comment being all right but not unfavourable. It is quite apparent in this case, may we say, that the comment was not unfavourable. It was the sort of comment that would be made by a judge rather than by prosecuting counsel, but, as we say, we do not think that matters. There should not have been any comment at all.”[30]

He added that in such a case the court would be concerned to see whether the breach had been put right by the summing up.

43.  In Siebel, King CJ said:[31]

“The comments made by counsel for the prosecution might quite justifiably have been made by the trial judge, but it is to be remembered that what is forbidden to the prosecution is any comment on the failure to give evidence, whether that comment is fair or unfair, balanced or unbalanced, favourable or unfavourable. The policy of the statute is to leave the decision as to what, if any, comment is to be made upon the failure to give evidence to the impartial judgment of the trial judge.” (Original emphasis).

44.  In AJE v Western Australia[32] in relation to the statutory provision in the same terms as s. 54(1)(b), the Supreme Court of Western Australia said:

“The starting point is the statutory language of s 8(1)(c). It is in its terms a clear and absolute prohibition on the making of any comment by the prosecutor about the accused’s failure to give evidence. The words extend to implied as well as express comment …. What is prohibited is any comment on the failure to give evidence. As King CJ explained in Siebel, this means that a comment ‘whether… fair or unfair, balanced or unbalanced, favourable or unfavourable’ cannot be made by the prosecutor”.

45.  The prohibition in s. 54(1)(b) is absolute and is intended to obviate the risk that, however couched, the jury’s attention is drawn by the prosecutor to the defendant’s choice not to testify. Nevertheless, in my judgment, if it so happens that in a particular case comment, though prohibited by the statute, does not carry any adverse implication, that fact may well be relevant to whether or not to apply the proviso which in turn will depend on the words used and the context.

46.  Insofar as may be suggested that there is a distinction between comment and a statement of fact, and that the prosecutor was merely stating facts, the answer is that some statements of fact are also, when viewed in their context, comments. The distinction was prayed in aid in AJE v Western Australia[33] in relation to remarks by prosecuting counsel that the accused had elected not to give evidence, as was his right and that in consequence the jury had no version from him in which he admitted the allegations against him and no version in which he denied them which, said counsel, left the jury in a position where they had to look carefully at the complainant’s evidence and decide whether she was an honest and reliable witness. It was contended by the appellant that this constituted comment prohibited by s. 8(1)(c) of the Evidence Act, a provision which is in the same terms as s. 54(1)(b) CPO. In addressing the point, Mazza JA and Beech J said:[34]

“The subsection speaks of a ‘comment’ by a prosecutor. The state’s submissions invoke a distinction between a comment and a statement. It has been held that words which refer to the fact that an accused person has not contradicted the prosecution evidence, or has failed to provide an alternative version of events, or has not given evidence is comment upon the failure of the accused person to give evidence and is thus prohibited: Siebel at 562; 109, followed in R v SG (2011) 109 SASR 491 at [102]. … Express or implied reference to the fact that the accused had the opportunity to give evidence, and did not do so is comment prohibited by the statute: Bataillard at 1288, 1291. In this light ‘comment’ in s 8(1)(c) is used in a wide sense, and encompasses many things that might be seen as a statement of fact or law.”

47.  In my judgment it is manifestly clear that in the present case prosecuting counsel’s remarks constituted comment prohibited by s. 54(1)(b) CPO and that, uncorrected by the Recorder, it amounted to a material irregularity in the course of the trial.

48.  As to the absence of a correction by the Recorder, it is suggested by Mr Man, for the respondent, that any corrective remarks by the Recorder to the jury would have served to highlight, rather than dispel, the point being made by the prosecutor. In this case, the error lay in the failure to prohibit the prosecutor from making the comments once the intention to advance them was drawn to his attention. The learned Recorder, conscientious though he evidently was in discharging his duties, ought, with respect, to have instructed counsel not to address the jury in the terms contained in his draft speech. He did not do so and in his summing up he made no allusion to the prosecutor’s comments. Absent such an instruction, the appropriate direction to the jury at the time the comments were made or, if not then, in his summing up would have been one which informed the jury that the comments were fundamentally inappropriate, that the suggestion that the appellant had, by choosing not to testify, deprived the prosecutor of the chance of cross-examination which may have proved, or helped him in proving, her interview account to have been false was to shift the burden of proof, that there may be many good reasons other than guilt behind a decision not to testify and that the burden remained at all times on the prosecution to prove its case without praying in aid the defendant’s failure to testify.

The proviso

49.  Given the breach of the prohibition enacted by s. 54(1)(b), it is necessary to address the consequences of that breach and in particular whether to apply the proviso to s. 83(1) CPO.

50.  In R v Yu Yuk Kwong,[35] Roberts CJ referred to the provisions of s. 54(1) CPO as mandatory and said:[36]

“A breach of this provision will result in a quashing of the conviction or, at the least in appropriate cases, in an order for a re-trial.

…

We are inclined to the view that the section forbids even a mere reference by the prosecution to the fact that the defendant … has not given evidence….”

51.  However in R v Wong Wah Chiu[37]Roberts CJ noted that the passage in Yu Yuk Kwong referred to above was obiter and said:

“Insofar as that passage 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 or his wife to give evidence, this seems to us to go further than the cases require. … 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.”[38]

52.  In R v Ngatai,[39] prosecuting counsel was in breach of a statutory provision the effect of which was similar to s. 54(1)(b) CPO when he said that it was the accused’s right not to give evidence and his right to refrain from making a statement at the time of the allegations. The Court was satisfied that the statutory prohibition was absolute and then addressed the question whether the transgression by the prosecutor was “able to be ameliorated and thus saved by a direction from the trial judge in summing up”[40]. The Court noted that the trial judge had not specifically addressed or sought to remedy the breach but had simply relied on the standard directions relating to the burden of proof and the right of the accused to refrain from giving evidence. “As noted,” the judgment continued,[41] “the Crown prosecutor’s remarks, although clearly not intended to be adverse, nevertheless constituted a clear breach of the statutory prohibition … and was not ameliorated by any direction from the trial judge. We therefore confirm the approach taken in R v McCarthy:[42]

“To leave the verdict standing without a retrial could be seen as treating the Act as a dead letter when it prohibits comment by the prosecution.”

The Court continued:

“Although not applicable in the present case we leave open the possibility that the proviso … may be applied in circumstances where, despite a breach of [the statutory provision], the Court is satisfied that no substantial miscarriage of justice has actually resulted. Having regard to the absolute prohibition on comment in [the statutory provision], we doubt that the proviso would apply but we note that the majority decision in McConnell and Beer[43] supported the use of such a proviso in circumstances where the verdict would necessarily have been the same if the error had not occurred. In R v Greciun-King[44], the Court held that a similar proviso could not save the verdict in that case as it could not be said that the direction given by the judge had no significance on the outcome of the trial.”[45]

The Court was not satisfied that the breach in that case had had no impact on the jury’s deliberations and did not apply the proviso.

53.  In Siebel, King CJ said:

“The rule prohibiting comment by the prosecution upon the failure of an accused person to give evidence is a basic rule for the conduct of a criminal trial. It confers upon an accused person a right to have a trial free of the prohibited comment. The infringement of such a right cannot be lightly overlooked. I think that where such infringement has occurred, it is necessary for the court to be more than ordinarily vigilant to ensure that the proviso is only applied where the prohibited comment could not reasonably be supposed to have affected the result.”[46]

54.  In AJE the Court said that:

“… it will be rare that a conviction will be saved on appeal by the intervening decision of the trial judge to give more stringent directions to the jury … or to give ameliorating directions. This is because the legislature has conferred on an accused a right to have a trial free of the prohibited comment, and the infringement of that right cannot be lightly overlooked ...”[47].

55.  I respectfully endorse the approach in those judgments, save that I would not go so far as to endorse the suggestion in Yu Yuk Kwong that any breach of the prohibition will necessarily result in the quashing of the conviction.

56.  Although the statutory prohibition on comment is not restricted to adverse comment, the effect of the comments in this case was adverse and, furthermore, went to the core issue in the case, namely, the credibility of the defence offered by the appellant in her interview. That was the only live issue. The impugned comments carried the implication that the appellant’s choice not to testify and to rely instead on a statement the veracity of which could not be tested was to avoid the risk that cross-examination would or might demonstrate her defence to be false. Accordingly, it was a serious breach of the prohibition.

57.  The Recorder’s directions about the burden of proof, that the appellant did not have to prove her innocence, that she was entitled not to testify and that they must not assume guilt on account of her decision not to testify, were all standard directions which did not address the assertion by prosecuting counsel that her choice had put him at a disadvantage and it is, in my judgment, not safe to conclude that the impermissible comments would have had no material impact on the minds of a jury and that, absent that irregularity, a reasonable jury would inevitably have convicted the appellant.

58.  Accordingly, this is not a case in which in my judgment the proviso should be applied.

Conclusion

59.  For the reasons I have given, I am satisfied:

(1)     that the impugned remarks by prosecuting counsel constituted comment prohibited by s. 54(1)(b) CPO;

(2)     that the breach of that prohibition was a material irregularity in the course of the trial;

(3)     that this is not a case in which the proviso to s. 83(1) CPO should be applied; and

(4)     that substantial and grave injustice has been occasioned.

Therefore, I would allow the appeal and quash the conviction.

60.  In relation to the certified question[48], I respectfully agree with the comment by the Appeal Committee that the question is overly broad and can only sensibly be answered to the extent appropriate to the needs of this case.

61.  The question falls into two parts: first what is the nature of the words or conduct on the part of the prosecutor which constitutes prohibited comment under s. 54(1)(b) CPO and second, what are the appropriate remedies for breach of the prohibition?

62.  I have addressed in some detailthe first part of the certified question and, given the wide variety of circumstances in which the issue may arise, it is neither feasible nor sensible to attempt to reduce the effect of that detail to a sentence or two that will cover all eventualities. The answer in each case will depend on the words used, the full background and context in which they are used and their effect. The authorities to which I have referred provide ample guidance as to what is prohibited comment and beyond that, it is not necessary to go.

63.  As to the remedy for a breach, the answer must be that the remedy is case-specific. We were told by Mr Bruce SC, for the appellant, that it is not common practice for prosecuting counsel to present to the court and to his or her opponent a draft of his or her intended closing submissions. Be that as it may, if in any particular case such a draft is presented by prosecuting counsel and the draft contains comment which the judge, after hearing submissions, deems to contravene the prohibition of s. 54(1)(b), the obvious remedy is to prohibit counsel from advancing those submissions to the jury. If no advance warning is given and prohibited comment is made in the course of closing submissions, the appropriate step, normally, will be to direct the jury either at the time the comment is made or in the summing up that the comment was not permissible, explaining why that is so and impressing upon the jury the imperative of reaching a verdict having put the comment and its implication completely aside. I say “normally” because there may be cases where, despite a breach of the prohibition, the judge, having heard counsel, may properly take the view that the comment is so innocuous that a corrective direction is likely to do more harm than good and that, accordingly, it is better to say nothing to the jury about the comment.

64.  I would only add that henceforth, if prosecuting counsel intends to make a remark or remarks in any particular case about the absence of evidence on oath by a defendant, whether the intended remark is as to weight or otherwise, he or she should, before closing submissions, and whether or not a draft of the submissions has been presented, draw that intention to the attention of the trial judge, so that the judge, having heard counsel, can rule on the matter, thus avoiding the need for interruption during the closing speech or of corrective remarks in the summing up.

Retrial

65.  We have heard counsel on the question whether, in the event that the appeal succeeds, this Court should order a retrial. On the one hand, the appellant has already been subjected to two trials and has been in custody since April 2017. On the other hand, the charge is particularly serious involving the alleged importation of over 4 kg of cocaine. That fact and the apparent strength of the prosecution case militate, in my judgment, in favour of a retrial, and that is the order I would make.

Lord Neuberger of Abbotsbury NPJ:

66.  I agree with the judgment of Mr Justice Stock NPJ.

Chief Justice Cheung:

67.  Accordingly, the Court unanimously allows the appellant’s appeal, quashes her conviction and orders a retrial.  She is remanded in custody pending retrial or further order.