HKSAR v. TANG SIU MAN

FACC No. 1 of 1997

- Headnote -

Criminal law and practice - "Good character" direction according to Vye [1992] Cr.App.R. 134 as confirmed by Aziz [1996] AC 41 - Whether the invariable rule of practice (subject to qualification when the application of the rule might be "an insult to common sense") established by the English courts in Vye and Aziz should be adopted as the governing rule for the Hong Kong SAR: Whether the trial judge erred in law in failing to give a "propensity" direction to the jury.

Held (CFA, by a majority, Bokhary PJ dissenting): The fundamental rule is that a summing-up must be fair and balanced: The modern tendency is to limit the range of compulsory standard directions: There is no need to impose the Vye and Aziz regime on trial judges in Hong Kong: The trial judge's summing-up was fair and balanced: There was nothing useful that could have been said concerning the appellant's propensity for the crimes charged.

Court of Appeal's decision to dismiss the appellant's appeal affirmed, albeit on a different ground.

FACC No. 1 of 1997

IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 1 OF 1997 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM CACC No. 360 OF 1996)

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J U D G M E N T

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Chief Justice Li:

1. I have read the judgment of Mr Justice Litton PJ and agree with it. For the reasons which he gives, I would dismiss the appeal. The approach adopted in that judgment gives a wider discretion to the trial judge in directing the jury when compared to the rather rigid regime in Vye and Aziz. Trial judges would no doubt exercise that discretion with common sense to ensure that the direction is fair and balanced which is of course fundamental for a fair trial. In my view, the approach adopted, when properly understood and applied, is not, in any way, less protective of an accused person when compared to the approach in Vye and Aziz.

Mr Justice Litton PJ:

Introduction

2. This appeal concerns the question whether a trial judge is required, as an invariable rule of practice, to give directions to the jury with regard to the "good character" of a defendant in certain circumstances and, if so, the nature of those directions.

3. The appellant was, on 23 May 1996, convicted after trial before Saied J and a jury of one count of manufacturing a dangerous drug (heroin hydrochloride) and one count of trafficking in dangerous drugs (heroin hydrochloride and diazepam). The convictions were on majority verdicts of 5-2. He was sentenced to 28 years' and 24 years' imprisonment for the respective counts, to be served concurrently. He applied to the Court of Appeal for leave to appeal. On 8 July 1996 the Court of Appeal (Power V-P, Mayo JA and Wong J) refused his application for leave to appeal against conviction. They reduced the sentence on the manufacturing count to 25 years.

4. The offences occurred on 15 July 1995 when the appellant was nearly 23 years old. He had left school after Form 3. He was, in July 1995, working as a driver for a towing company. He also had casual work at a cooked-food stall. He was married and his wife worked as a sales-girl. He had one previous conviction: for assault occasioning actual bodily harm for which he was put on probation. This happened when the appellant was 20.

Background

5. The circumstances giving rise to the convictions are these: In the afternoon of 15 July 1995 the police had mounted a surveillance operation in relation to a flat on the 19/F of Chuen Fai Centre, Kong Pui Street, Shatin. They saw a man approach the flat, take out keys, open the iron grill and then the wooden door. The police intercepted the man and brought him into the flat. The flat was found to contain, packaged in different ways, a total of 2.218 kilogrammes of a mixture containing 1.039 kilogrammes of heroin hydrochloride, 9,718 tablets and 2 fragments of diazepam. The heroin was packaged in quantities of different purity. There was found at the same time a great deal of equipment commonly associated with the manufacture of heroin and substances used for mixing or adulterating heroin. The man whom the police first intercepted became the first defendant at the trial. A palm-print and finger-print matching those of the first defendant were found on an electric balance. He subsequently pleaded guilty to trafficking in dangerous drugs and took no part in the trial.

6. Some 40 minutes later, at 5.55pm, the appellant arrived at the flat. The prosecution case was this: The police heard the key turn in the lock, so they opened the door, and when the appellant walked into the flat and saw the police he said: "Ah Sir, I've been caught red-handed. I have nothing to say." The appellant was searched and a bunch of keys was seized. The police asked the appellant if he lived there, to which he answered that he lived there occasionally. He admitted that the flat was rented by him. The appellant was then asked if the drugs belonged to him: He made no reply but hung his head. When he was asked if he had heard the question he still hung his head and said nothing.

7. The appellant was taken outside the flat to avoid contamination with the exhibits, was formally arrested and when asked (after having been cautioned) if he had anything to say, he replied: "Ah Sir, I have nothing to say now". The earlier statement was not post-recorded nor put to the appellant. Inside the flat the police found a tenancy agreement in the appellant's name. The flat was bare of furniture except for a few items, and had no cooking utensils or anything associated with daily living.

8. The appellant's case was this: His home was at his mother's flat at Sau Mau Ping Estate but because his mother did not get on with his wife he had rented the flat at Shatin, paying $6,200 a month. The tenancy agreement was signed in March 1995 with a down-payment of $21,700 which included the deposit, payment of rent in advance and agency commission. He then moved into the flat with his wife. But a month later, because his mother's health had declined, they moved back to Sau Mau Ping and took back all the furniture, except for a stereo-set. He had then sub-let the flat to an old friend, the first defendant, at a rent of $4,000 a month. The arrangement was oral. He kept one set of keys, and so did his wife. The reason why he went to the flat in the late afternoon of 15 July was to collect rent from the first defendant and to get back the stereo-set. He claimed that when he got to the flat he had rung the door-bell but, getting no response, had then let himself in with his spare keys. He denied saying to the police: "Ah Sir, I've been caught red-handed. I have nothing to say." Instead, what he said was: "The white powder has nothing to do with me. I have sub-let the premises to him".

9. The issue for the jury was straight-forward. It turned on credibility. The prosecution evidence was fairly strong against the appellant, but if his story raised a reasonable doubt in the minds of the jury then he was entitled to be acquitted on both counts. No criticism has been made of the summing-up - except on one point which became the sole issue in the Court of Appeal and is now the point of law for our determination. The judge's summing-up was, on any view of the matter, full and balanced in every other respect. For instance, in relation to the oral admission - which, if true, was a cogent piece of evidence against the appellant - the judge said:

"You must clearly understand that when you are dealing with this issue, that evidence of oral admissions ought always be received with great caution, more so when no contemporaneous record is made at the time."

Point of law

10. This appeal comes to us on a point of law certified by the Court of Appeal under section 32(2) of the Hong Kong Court of Appeal Ordinance in these terms:

"Whether the trial judge having decided to direct the jury to treat the [defendant] as a man of good character in spite of a previous conviction, is then obliged to give a direction on both credibility and propensity?"

The Vye principles

11. "Credibility" and "propensity" are shorthand terms used to identify the entitlement of a defendant in a criminal trial to favourable directions by the judge with reference to his character in certain circumstances, as established by the English Court of Appeal in R. v. Vye [1993] 97 Cr.App.R. 134 and affirmed by the House of Lords in R. v. Aziz [1996] 1 AC 41. Those circumstances arise where the defendant is a person of "good character". The expression "good character" is, however, not self-explanatory. According to Aziz it could cover three situations: (i) where the defendant is of positive good character: that is where the defendant has adduced evidence to establish his (or her) own standing and reputation; (ii) the case of a defendant with no previous convictions; (this stands as a bare fact on its own, usually elicited by cross-examination of police witnesses); this might also include the situation where - as in the present case - the defendant has previously offended but is treated by the judge as a person of good character because the previous convictions are deemed irrelevant; and (iii) where the defendant has no previous convictions, but in the course of the trial itself it is shown that he has acted discreditably or dishonestly, but the judge nevertheless decides to treat him (or her) as a person of "good character": The example given in Aziz at 52G-H is that of a middle-aged man with a clear record charged with theft from his employers, but during the trial it emerges that he has made dishonest claims on insurance companies over a number of years.

12. The House of Lords in Aziz, in affirming Vye, laid it down as an invariable rule of practice that once a defendant has been determined by the judge to be a person of "good character" in any of the senses set out above, he is entitled to a summing-up in accordance with the principles in Vye, subject to this: The trial judge has a residual discretion to decline to give any character directions in the case of a defendant without previous convictions if the judge considers it an insult to common sense to do so, or to qualify the directions by adding appropriate words to deal with the defendant's criminal conduct revealed in the course of the trial.

13. The Vye principles are as follows (see Aziz at 51-D):

(1) A direction as to the relevance of his good character to a defendant's credibility is to be given where he has testified or made pre-trial answers or statements. (2) A direction as to the relevance of his good character to the likelihood of his having committed the offence charged is to be given, whether or not he has testified, or made pre-trial answers or statements. (3) Where defendant A of good character is jointly tried with defendant B of bad character, (1) and (2) still apply.

14. A direction in accordance with paragraph (1) above is the "credibility" direction, and that in accordance with paragraph (2) is the "propensity" direction; and where appropriate these directions would generally be along the following lines (see the judgment of the Court of Appeal in The Queen v. Lee Kam Yuen [1995]1 HKCLR 264 at 266 :

"The accused's good character helps him in two ways. First, it is to be taken into account in his favour when you decide the weight to give to what he said in the witness-box. Secondly, he can rely on his good character as making it more unlikely than otherwise that he would commit crime, as the prosecution alleges he did."

Summing-up

15. At the trial, the appellant gave evidence, but only relating to the circumstances surrounding the charges against him. He did not testify as to his own character. He was only 23, had minimal education: perhaps there was not much to be said about his own character when he was in the witness-box. The judge, in summing-up the case, said this to the jury:

"... the issue of credibility is of vital importance. In deciding this issue, you must understand that it is not the correct approach to a decision in a criminal case to approach the question of guilt or innocence of the defendant on the basis of deciding which of those two versions you should believe. You must always bear in mind that neither may be true. And the law requires that in a criminal case you shall be satisfied that the prosecution version is true.... While on this issue of credibility, you will recall that the defendant admitted that he had one previous conviction for Assault occasioning actual bodily harm for which he was placed on probation for a year when he was aged twenty. That conviction appears to have been for a not serious assault and it certainly did not involve dishonesty, it was straight forward simple assault. I expect that you would like to put that previous conviction aside and treat him, effectively, as a person of good character. Of course, good character cannot amount to a defence, but as with any man of good character, it supports his credibility."

16. What the judge did not do was to give the "propensity" limb of the Vye directions. He had not been asked by counsel to do so, and this omission was not mentioned by counsel at the end of the summing-up.

Court of Appeal

17. The appellant sought leave to appeal in the Court of Appeal, alleging through counsel that the judge's failure to give the "propensity" direction rendered the jury's verdict unsafe and unsatisfactory. Counsel for the appellant relied in the Court of Appeal on two cases: The Queen v. Lee Kam Yuen, and Aziz. In dismissing the application the Court of Appeal said:

"Both those cases are immediately distinguishable from the present case. In neither of these cases did the appellant have any previous convictions. In the present case the applicant did have a conviction for assault occasioning actual bodily harm. He was accordingly not entitled to be treated as a person of good character.

The judge was being particularly helpful to the applicant when he referred to the fact that the offence he was convicted of did not involve any element of dishonesty and that accordingly so far as the applicant's credibility was concerned he could be treated as a person of good character. Was it necessary to go on to direct the jury on the applicant's propensity to commit a crime?

As was made clear in the speech of Lord Steyn in R. v. Aziz a wide discretion is reposed in a judge in deciding whether or not to give directions as to character and the form of such directions. We do not think that we would be justified in interfering with the way in which Saied J exercised his discretion.

Such a direction would, moreover, have been of little assistance having regard to all of the circumstances of this case.

The application for leave to appeal against his conviction is refused."

18. The Court of Appeal was incorrect in saying that "the appellant" in Aziz did not have any previous convictions. There were in fact three appellants; Aziz himself - like the appellant in this case - had previous convictions which were, however, treated as of no relevance by the judge; the other two appellants, whilst of clear record, were not of unblemished character. The appellant Yorganci had accepted in his testimony that he had knowingly made a false mortgage application and had lied to customs officers during an interview. The appellant Tosun had conceded in his testimony that he had not declared his full earnings for inland revenue purposes, and that he had allowed employees to declare substantially less income than they were in fact earning. Despite the fact that the charges which the three appellants were facing related to income tax and VAT frauds, the English Court of Appeal nevertheless held that Yorganci and Tosun were both entitled to a full Vye direction by the trial judge and quashed their convictions because the trial judge had failed to do so: A judgment affirmed by the House of Lords.

19. It is therefore clear that the court below had erred in seeking to distinguish Aziz. The appellants in Aziz had entitlements which the House of Lords upheld; their "characters" were no worse than the appellant's, and if the principles set out in Aziz applied in Hong Kong, then Saied J in failing to give the "propensity" direction to the jury had erred and, subject to the application of the proviso in s83(1) of the Criminal Procedure Ordinance, the appellant's appeal should have been allowed.

The nature of the Vye directions

20. What exactly are Vye directions in the context of a criminal trial, and how might the conduct of criminal trials be affected if they were to become invariable rules of practice?

21. One thing is sure. These are not directions on law which a jury is bound to follow. They relate to evidence which, at the end of the day, is the province of the jury. However entrenched these rules might be in the criminal justice system they can amount to nothing more than an indication of the way the jury might properly make use of the evidence.

22. Take the instance of demeanour: Judges sometimes tell the jury (as Saied J did in this case) something along these lines:

"In considering the evidence you may take into account the demeanour of the witness. That is the manner in which the witness appeared to you and the impression you formed of his credibility or otherwise. Demeanour, however, is not always a sure guide to the witness's credibility. It is a common place of judicial experience that a witness who makes a poor impression may be found, at the end of the day, when his evidence is considered in the light of other evidence bearing upon the issue, to have been both truthful and reliable."

23. The judge may feel it desirable to so direct the jury because a witness had been particularly awkward or nervous in the witness-box, or because of adverse comments by counsel on the demeanour of a witness which he feels should be redressed.

24. If the judge had omitted such directions altogether, can the defendant complain of miscarriage of justice, if the summing-up was otherwise balanced and fair? The answer must be NO.

25. The average juror, it must be assumed, is imbued with intelligence and common sense: And, it might be added, having regard to the educational requirements for jury service in Hong Kong, the quality of the Hong Kong panel of jurors probably ranks among the highest in the common-law world. The criminal justice system leaves full scope to the jury to exercise common sense with regard to the evidence. Whatever a judge might say about the relevance of character to credibility and propensity, the weight of such evidence rests with the jury and the jury alone.

First principles

26. Every defendant in a criminal trial in the High Court has a fundamental right to a fair trial, conducted in accordance with law. The responsibility for ensuring a fair trial rests with the trial judge who must exercise judgment in an infinite variety of circumstances to ensure that this primary objective is achieved. Consonant with this, appellate courts have strained to avoid legalism in criminal practice so as not to tie up trial judges with artificial rules. Whilst rules of practice help to establish uniformity in the courts, they tend to make the trial process mechanical. If trial judges feel that they are enjoined, more or less, to repeat to the jury set formulas learnt by rote, the risk is that they might forget the fundamental reasons for such formulas. As Lord Morris of Borth-y-Gest explains in R. v. Hester [1973] AC 296 at 309, with reference to the trial of sexual offences, the accumulated experience of courts of law, reflecting accepted general knowledge of the ways of the world, has shown that there are circumstances which justify the evolution of rules of practice: For example the rule, in sexual cases, that juries must be told that there are dangers in convicting on the uncorroborated testimony of a complainant. But such rules of practice have evolved over a long period; it is through the accumulated experience of the courts that the conclusion is reached that, without such rules, real injustice might be done. They have not evolved simply for the sake of uniformity, nor to lessen the burden on appeal courts. Nor have rules of practice necessarily cut down on appeals: The "corroboration rule" in relation to accomplice witnesses is an example. Here, the legislature has intervened, and by s60 of the Criminal Procedure Ordinance, Cap 221, this rule of practice has been abolished. This is simply a reflection of a "modern tendency ... to limit as far as possible the range of compulsory, standard directions which a trial judge is required to give to a jury, leaving him free to sum up in a manner best suited to the facts of the case and the interests of justice: e.g. Vetrovec v. The Queen [1982] 136 DLR (3d) 89": per Dawson J in McKinney v. The Queen [1990-91] 171 CLR 468 at 488.

27. When it comes to the summing-up, the fundamental rule is that this must be fair and balanced, so that the jury can properly weigh up the true issues. As to the character of the defendant, its relevance in the course of a criminal trial must depend upon a wide range of circumstances: What is the age, personal circumstances and standing of the defendant? What crime is he charged with? How has he reacted to the charge (for instance has he complied scrupulously with the conditions of bail)? What has been revealed concerning his character by the evidence in court?

28. Given the wide spectrum of circumstances, any set rule of practice apt to cover all cases must necessarily be suspect. Take two defendants, both with no previous convictions. At the one end of the spectrum is the minister of religion, a family man, middle-aged, with a record of public service, charged with stealing from his own parishioners: Failure to give full weight to his "character" in terms more elaborate than a Vye direction might well render the summing-up unbalanced and unfair. At the other end of the spectrum is the young man of 18 or 19, unemployed, of no fixed abode who has left school at 15, charged with lift robberies: What can be said about him?

29. It must be borne in mind that the summing-up comes at the end of a criminal trial, after counsel's addresses. The judge may have to tailor his remarks according to what has been said, or omitted, by counsel. Take, for instance, the case of a defendant who has made a very poor showing in the course of his evidence in the witness-box: The judge may feel it fair to put greater emphasis on his disposition or "propensity" and say little or nothing about his credibility. Might the imposition of set rules of practice have the effect of taking away from judges such flexibility?

Good character

30. "Good character" is an elusive concept. The extent to which anyone's true character can be measured is questionable. It is illusory to think that in the artificial environment of a court of law, focussed upon evidence relating to the criminal charges and not on collateral issues, the "character" of a witness or of the defendant can be revealed in a truly meaningful way. Lord Steyn in Aziz at 51-C refers to "the usual case of a defendant with no previous convictions". What inference can properly be drawn about his character beyond the bare statement: He (or she) has no previous convictions? The reality is that evidence as to good character, in the run-of-the mill case, can seldom weigh heavily in the scales in favour of a defendant, though evidence of bad character might be extremely prejudicial.

31. In Stirland v. DPP [1944] AC 315 at 324 Viscount Simon LC posed the question whether character referred to the good reputation which a man may bear in his own circle, or to a man's real disposition as distinct from what his friends and neighbours think of him and said that he was disposed to think that when "character" was referred to in s1(f) of the Criminal Evidence Act 1898 both concepts were combined: A view not shared by Lord Devlin who in Jones v. DPP [1962] AC 635 at 698-9 said:

"... in the law of evidence 'character' normally means 'reputation'. Strictly speaking, it is not permissible to give evidence of particular acts done by the prisoner, unconnected with the offence charged, in order to show his disposition, whether his general character is in issue or not; for a man's character in the eyes of the law depends not on his disposition but on his reputation ... I find it impossible to believe that the framers of the Act of 1898 did not intend 'character' to have the meaning of 'reputation'. Although the merits of the rule had frequently been questioned, it was firmly settled in the eighteenth century. A vigorous attempt to dislodge it was made in 1865 and was unsuccessful. In Reg. v. Rowton it was authoritatively laid down by eleven out of the thirteen judges sitting in the Court of Crown Cases Reserved that evidence of the prisoner's character must not be evidence of particular facts but evidence of general reputation only. Even the two dissenting judges, though they were prepared to interpret character as including actual moral disposition, did not consider that evidence could be given of concrete examples of conduct. Not all the judges liked the rule. But Cockburn C.J. said: 'I take my stand on this: I find it uniformly laid down in the books of authority that the evidence to character must be evidence to general character in the sense of reputation.'"

32. R. v. Rowton [1865] 10 Cox CC 25 was decided at a time when defendants could not testify in their own defence, but the rule that character evidence was confined to general reputation remained more or less the law for well over 100 years. Thus, in R. v. Redgrave [1982] 74 Cr.App.R. 10, where the defendant was charged with making homosexual overtures to the prosecution witnesses, the question was whether the defendant could put before the jury love letters, Valentine cards and photographs suggesting that he had been on intimate sexual terms with young women. The Court of Appeal applied the rule in Rowton and at p14 Lawton LJ said:

"In our judgment the defendant is bound by the same rules as the prosecution. He can call evidence to show that he did not commit the acts which are alleged against him, but he is not allowed, by reference to particular facts, to call evidence that he is of a disposition which makes it unlikely that he would have committed the offence charged."

33. In reality, the line between evidence as to reputation (which is admissible) and disposition (which is inadmissible) is blurred. In Rowton at 30 Cockburn CJ said:

"It is true that in practice, whenever a witness is called to character it gives a greater cogency and force to his evidence, if the evidence be introduced by a statement of circumstances from which it may be the more apparent and readily believed that the witness has had a full and abundant opportunity to acquire information so as to be able to speak satisfactorily upon the character of the prisoner; and in practice it is very often carried beyond what, I think, if we stood upon the strict letter of the law, can be altogether justified."

34. As the Criminal Law Revision Committee in its 11th Report (1972), at para 134, observed, the rule is persistently ignored in practice. This caused Lord Goddard CJ in R. v. Butterwasser [1948] 1 KB 4 at 6 to remark:

"Evidence of character nowadays is very loosely given and received, and it would be as well if all courts paid attention to a well-known case in the Court of Crown Cases Reserved, Reg. v. Rowton, in which a court of twelve judges laid down the principles which should govern the giving of evidence of character and of evidence in rebuttal of bad character. It was pointed out that the evidence must be evidence of general reputation and not dependent upon particular acts or actions".

35. It is not surprising that character evidence, when adduced, is usually amorphous and imprecise - and the mere fact of a clear record, with reference to a person barely out of his teens, is hardly evidence at all.

Relevance of good character in a criminal trial

36. Since good character is such an elusive concept, it is not surprising that courts are not unanimous with regard to its relevance in a criminal trial.

As "disposition" cannot be probed, and given that trials often centre upon the defendant's word and that of the prosecution witnesses, it is not surprising that, in modern English law at any rate, evidence of good character is said to be primarily a matter which goes to credibility: see R. v. Bellis [1966] 50 Cr.App.R. 88, Marr [1990] 90 Cr.App.R. 154 and Berry v. The Queen [1992] 3 WLR 153 at 166-F (P.C.). But, as Widgery J observed in Bellis at 89-90, if the judge had directed the jury that a man of good character was more likely to be credible than one of bad character, it logically followed that he was less likely to commit the offence. So in truth, when it comes to the relevance of good character, "credibility" and "propensity" often merge.

37. It must be remembered that before the 1898 Criminal Evidence Act, defendants in England could not testify in their own defence: Hence good character evidence could only relate to propensity; The criminal process did not allow for the defendant's own credibility to be assessed. It would not be surprising, therefore, that as English law came to be received and applied in other jurisdictions, the relevance of good character was seen more in terms of propensity than credibility.

38. In Australia the courts have tended to play down the relevance of good character to "credibility". Thus, in Attwood v. The Queen [1960] 102 CLR 253 at 359 the High Court said:

"The expression 'good character' has of course a known legal significance in relation to evidence upon criminal trials; for it denotes a description of evidence in disproof of guilt which an accused person may adduce. He may adduce evidence of the favourable character he bears as a fact or matter making it unlikely that he committed the crime charged."

39. This is an echo down the ages of what Cockburn CJ said in Rowton at 29:

"I quite agree that what you want to get at, as bearing materially on the probability or improbability of the prisoner's guilt, is the tendency or disposition of his mind to commit the particular offence with which he stands charged; but no one ever heard of a question put deliberately to a witness called on behalf of a prisoner as to the prisoner's disposition of mind."

40. Since, in truth, an inclination on the part of the jury towards believing the defendant - or not rejecting his story because of his good character - would result in the defendant's acquittal, to add "and he is less likely to have committed the offence" is generally a surplusage. To say that the omission of those words amounts to a misdirection seems an extreme proposition.

Common sense

41. A jury is invariably told by the trial judge - as was the jury in this case - that in viewing the evidence they must use common sense. Implicit in this statement is the proposition that in weighing up credibility the jury must have regard, as best they can, to the character of the person standing in the witness-box; and, in determining guilt or innocence, the disposition of the defendant, in so far as there is material bearing upon such disposition. But, so high is the concern of the common law for a fair trial that, in fact, trial judges normally do more than to simply enjoin the jury to use common sense: judges would, where appropriate, direct the jury regarding the relevance of good character to credibility and propensity: That is, tipping the scales slightly in favour of believing the defendant's story and questioning whether he (or she) might be the sort of person who would commit the offence charged. This, in effect, is nothing more than common sense writ large. And where judges have failed to do that, such failure might render the summing-up unbalanced and unfair, causing appellate courts to intervene. So judges, exercising prudence, often would give the full Vye direction when the defendant is a person with a clear record. This flexible regime has worked reasonably well in Hong Kong and, as counsel for the appellant Mr McLanachan candidly told the court at the hearing, it has not resulted in a spate of appeals. This regime is based on humanity and common sense, not on the application of a rigid set of rules.

Common sense applied in practice

42. Thus, in The Queen v. Lee Kam Yuen [1995]1 HKCLR 264, the defendant was charged with robbery, with an alternative count of burglary. He was acquitted of those charges, but convicted of handling stolen goods. The prosecution case was that the defendant was one of a number of persons involved in a robbery at a warehouse. There was no dispute that the robbery had occurred or that the defendant had driven the goods away in his lorry. The defendant, who had a clear record, gave evidence. He said that, having gone to the warehouse innocently, he subsequently suspected the other persons there were engaged in smuggling; as he feared his lorry might be damaged or he might be harmed if he refused to co-operate, he continued to assist in loading and transporting the goods. As can be seen, the defendant's story, even if thin, was not totally improbable: normally, robbers do not use their own lorries to take away the stolen goods. His guilt or innocence depended largely upon how the jury viewed his credibility and disposition. Of course, he had, on his own admission, lingered on at the scene and participated in removing the goods after his suspicions had been aroused. A purported character direction was given by the deputy judge, the direction being:

"He has a clear record. He has never been in a police station before, so he said that he is a man of good character."

This was of no assistance to the jury at all. The Court of Appeal held that this was a borderline case, but once the judge had decided to give a good character direction, he should have given an adequate one, and what the trial judge had said was not enough. Rightly so.

43. The Court of Appeal in Hong Kong has never adopted in terms the rule of practice in Vye, preferring to leave the matter to the good sense and judgment of the trial judges: remembering always that, at the end of the day, the summing-up must be fair and balanced, and any doubt must be resolved in the defendant's favour. Thus, in R. v. TangKao Sae Tang [Cr.App. No. 56 of 1994, 19.8.94, unreported] cited in Lee Kam Yuen at 267, where the judge had given only the "propensity" limb of the Vye direction, omitting the "credibility" limb, the Court of Appeal said:

"In taking into account the applicant's good character as an indicator that he was less likely than otherwise to have committed the offence of rape, the jury, in our view, would inevitably have also taken it into account in deciding whether he might have been telling the truth in the witness-box when denying that he had raped the complainant."

The policy behind Vye

44. In Lord Taylor's introductory passage in his judgment in Vye, he said that, at one time, the criticism of the trial judges' directions made on behalf of the three appellants "would not have been regarded even as arguable". He referred to R. v. Aberg [1948]32 Cr.App.R. 144 which applied the principle that the judge had no obligation to give directions on good character or even to remind the jury of it, and went on to say that since about 1989 there had been "a dramatic change".

45. The reference to the year 1989 was a reference to R. v. Rachid Berrada [1990] 91 Cr.App.R. 131 (decided in February 1989) where the appellant had been convicted of attempted rape: The appellant and the complainant had spent the evening together and had then gone back to the appellant's home, spending well over an hour together. The prosecution case was that, at about 1 a.m., the complainant had asked for a lift home and had declined an invitation to spend the night in the flat: it was at about this point in time that the attempted rape occurred. The appellant's case was that the complainant had got into bed with him, with only her bra and pants on, and then changed her mind about sexual intercourse. The appellant had previous convictions for drink/driving offences, but the judge treated him nevertheless as a person of good character. But her direction to the jury was put in tones of sarcasm :

"We are all born into this world without previous convictions and most of us hopefully leave it in the same state. But if there is to be a conviction, there is going to be a first time. You can and do get some people in that dock there with forty previous convictions who could, and doubtless did, say to a judge and jury at some stage: I have no previous convictions. So by all means give it some weight, but you must not give it too much".

46. In allowing the appeal the English Court of Appeal said:

" In the judgment of this Court, the appellant was entitled to have put to the jury from the judge herself a correct direction about the relevance of his previous good character to his credibility. That is a conventional direction and it is regrettable that it did not appear in the summing-up in this case. It would have been proper also (but was not obligatory) for the judge to refer to the fact that the previous good character of the appellant might be thought by them to be one relevant factor when they were considering whether he was the kind of man who was likely to have behaved in the way that the prosecution alleged. I think that the trial judge verged on saying something to that effect but she did not in fact say so in clear terms, because the point was submerged in other comment.

On behalf of the Crown, Mr. Vagg has suggested that a direction to the effect that I have indicated is not mandatory and he has referred to a very abbreviated report of the case of Smith [1971] Crim.L.R. 531. It is, of course, true that varying opinions have been expressed in the past about the need for a direction about a defendant's previous good character in the course of a summing-up. We have no doubt, however, that the modern practice is that, if good character is raised by a defendant, it should be dealt with in the summing-up. Moreover, when it is dealt with, the direction should be fair and balanced, stressing its relevance primarily to a defendant's credibility. The summing-up in the instant case was defective in that respect."

47. As can be seen, the trial judge's summing-up in Berrada was unbalanced and unfair: whilst purporting to indicate that the appellant's good character tended to make his story more credible, her remarks took away its effect.

48. Berrada, as mentioned earlier, was heard in the English Court of Appeal in February 1989. Marr [1990] 90 Cr.App.R. 154 was heard 4 months later. There the court had to deal with a direction as to character in terms almost identical to Berrada. There were other grounds of appeal. The appeal was likewise allowed.

49. A few months after that Cohen [1990]91 Cr.App.R. 125 was heard. The charge against the defendant was obtaining property by deception, heard together with a conspiracy count. The defendant pleaded total innocence: it was a case of mistaken identity. He was over 60 years old. In summing-up, the judge said:

"So far as this defendant is concerned, you have been told that he is a man of good character. I cannot tell you what weight to give to that, but in so far as you do give it weight, obviously you give it weight in his favour. It is right you should know this, as [counsel] rightly said. That does not entitle him to an acquittal because we all start off with a good character in life. It is a good character and he is over sixty years of age."

50. The prosecution did not seek to uphold this summing-up in the Court of Appeal.

51. Coming back to Vye, Lord Taylor at 136 said that since 1989 the English Court of Appeal had been inundated with appeals based upon the judge's alleged misdirection on failure to give any directions to the jury about good character. He then went on:

"Save in one respect, clear principles have not emerged and Mr. Martin Wilson, Q.C., on behalf of the Crown in these appeals described the present situation as 'something of a lottery.' After drawing our attention to all the relevant authorities reported and unreported since 1989, Mr. Wilson submitted that this court should now give clear guidance as to the relevant principles."

52. Thus it was that the Vye principles came into being: born of convenience and the need to cut down on appeals. The response of the court was to shift the issue from the trial judge's discretion to a rule of practice, in an attempt to eliminate the "lottery" in the courts.

How do the Vye principles apply in practice?

53. Remembering that, ultimately, the principle is that a summing-up must be fair and balanced in the particular circumstances of the case, the question must now be posed: How might the Vye principles apply in practice, day in and day out in the courts? The answer seems to be: with difficulty. The House of Lords in Aziz at p53 said that whilst a defendant with no previous conviction is entitled to directions according to Vye, the judge might add "qualifications" to ensure that a balanced picture is placed before the jury. That would appear simply to shift the area of controversy from the need to give Vye directions to the nature of the "qualifications". At p53C Lord Steyn added:

"A sensible criminal justice system should not compel a judge to go through the charade of giving directions in accordance with Vye in a case where the defendant's claim to good character is spurious. I would therefore hold that a trial judge has a residual discretion to decline to give any character directions in the case of a defendant without previous convictions if the judge considers it an insult to common sense to give directions in accordance with Vye."

54. "Insult to common sense" are strong words. The House of Lords did not regard the dishonest conduct of Yorganci and Tosun in Aziz - making false mortgage applications, making false inland revenue declarations etc, in the context of charges of defrauding the revenue and VAT - as sufficiently disqualifying, because they upheld the Court of Appeal and dismissed the Crown's appeal. This might well create difficulties for trial judges. If characters as flawed as Yorganci's and Tosun's are entitled to full Vye directions, what blemishes would disqualify? Take a few instances from the books: Anderson [1990] Crim.L.R. 862: A police officer (a man of "good character" by the nature of his office), on a rape charge, had on his own admission had sexual intercourse with the complainant in his panda car whilst on duty. Would it be an "insult to common sense" to treat him as a man of good character?

55. Richens (unreported - judgment November 5, 1992), referred to at p139 in Vye. The appellant, on a murder charge, was guilty of manslaughter on his own admission: Yet, "there might well be a residual argument that what was in issue was intent and he had never shown any intent to use murderous violence in the past": per Lord Taylor at 139.

56. Zoppola-Barraza [1994] Cr.L.R. 833. The defendant was charged with being knowingly concerned in the evasion of the prohibition on the importation of cocaine. He had taken delivery of a parcel from Columbia containing cocaine to the value of (80,000. He gave evidence to the effect that he had, on a number of occasions, smuggled gold and jewels into the country to avoid paying duty and VAT. It might be supposed that no jury would have regarded the defendant as a man of good character. Yet the recorder felt constrained to treat the defendant as a man of good character. [The trial was in fact before the decision in Vye].

57. Durbin [1995] 2 Cr.App.R. 84. The defendant, a long-distance lorry driver, appealed against his conviction for importing cannabis into the United Kingdom. He had the following blemishes on his character: (i) Two previous convictions, both for offences of dishonesty, but they were minor and "spent". (ii) He had told lies to two prosecution witnesses. (iii) He had, on his own admission, engaged in smuggling goods across Europe, and made false declarations to avoid customs duty and VAT. The Court of Appeal, in allowing his appeal, held that the defendant was entitled to a full Vye direction.

58. Vincent Joseph Wood [1996] 1 Cr.App.R. 207. The defendant, on a charge of having under his control explosives with intent to endanger life, admitted that, having received a tea-chest and discovered it contained semtex and timing devices, kept it because he was too frightened to tell the police. The defendant had no previous convictions. The trial judge refused to direct the jury as to the defendant's propensity to commit crime, but told them they were entitled to take that fact into account as to credibility, truthfulness, reliability. The Court of Appeal allowed the appeal on other grounds, and as regards the appeal based on "good character", it said:

" If we are allowed to say so, we doubt whether it would have made the slightest difference if the jury had been told that propensity was an additional matter to which previous good character was relevant. Nor are we sure that the keenest philosopher could argue that it should make a difference. The question for the jury was whether Wood possessed explosives with intent to endanger life, etc. The fact that he had not done it before was relevant in deciding whether he had done it this time or whether, by contrast, he was to be believed in saying that he had not.

Ever since the law started to lay down what a jury must be told as to the effect of good character nearly 30 years ago in Bellis [1996] 1 W.L.R. 234, there has been trouble. Could the jury perhaps be allowed to work it out for themselves? We are, however, bound by the case of Vye, Wise and Stephenson (1993) 97 Cr.App.R. 134, [1993] 1 W.L.R. 471 and the recent decision of the House of Lords in R. v. Aziz [1995] 2 Cr.App.R. 478, where it was upheld. In the ordinary way a direction as to propensity must be given as well as credibility when the accused is of good character. But here he was not wholly entitled to that accolade. On his own admission, he had possessed explosives in circumstances giving rise to a reasonable suspicion that it was not for a lawful object. In those circumstances the judge might perhaps have said nothing about propensity, as he did, ... or he might have said that Wood had shown some propensity to commit that offence but not a propensity to commit the other offence for which he was in the jury's charge. We decline to express a view as to which was the right course, if indeed either was more right than the other."

59. This is hardly encouragement to jurisdictions not bound by Vye and Aziz to follow suit.

The two elements: "credibility" and "propensity"

60. As enshrined in Vye and Aziz, the two "limbs" would appear now to have equal weight in the eyes of the courts in the sense that when a good character direction is required, then (if the defendant has made a pre-trial statement or had testified or both) both limbs must be stated by the judge. This goes against the earlier trend - for example Berry at 166-F - which gave primacy to the credibility limb. The Vye rules, applied in practice, might be highly artificial. They might amount to no more than the incantation of a well-worn formula. The need to heavily qualify the direction, to avoid an affront to common sense, might make the words virtually meaningless. This is liable to induce cynicism and despair on the part of trial judges, and lower the standing of the law in the eyes of juries. It might also confuse the jury.

61. Further, the "credibility" direction must be given according to Vye even if the defendant did not testify, so long as the prosecution has put before the jury a "mixed" statement and the defendant is, through counsel, relying on the exculpatory portions of it. The probative value of the statement might be virtually nil: It might be more consistent with common sense, and perhaps more favourable to the defendant, for the judge to focus on, and emphasize, the "propensity" limb, ignoring the "credibility" limb altogether. The Vye principles takes away from the judge this flexibility.

Other common law jurisdiction

62. In Australia, the position seems to equate with that of Hong Kong: That whilst there may well be situations where, for a fair and balanced summing-up, both "limbs" of the good character direction should be given, the matter is left to the judgment and good sense of trial judges. In Trimboli [1979] 1 A.Crim.R. 73 King CJ said:

" The long standing practice of this Court, so far as my experience goes, has been to direct juries along the lines of Attwood (1960) 102 C.L.R. 353. Often reference is made to the effect of the evidence of good character upon the credibility of the accused as a witness or of his explanations of the incriminating evidence. In most cases disproof of guilt and the credibility of the denial of guilt or innocent explanation are two facets of the same thing. Occasionally no direction is given as to the use to be made of the evidence of good character. Like Sholl J. in Schmahl [1965] V.R. 745 at p.750, I think that juries left to their own devices and common sense would be likely in most cases to use the evidence in the proper way. Nevertheless, I agree that it is desirable in all cases that an appropriate direction be given, especially where the judge discusses the significance to be attached to other pieces of evidence. In many cases it is essential, and failure to give it will result in a mistrial.

I think that it is possible to lay down some propositions which might be of assistance to the judge at the new trial and to other trial judges.

1. It is desirable in all cases in which there is evidence as to the accused's good character that a direction be given as to the use to which that evidence should be put.
   
2. No particular form of words is necessary, but the direction should convey to the jury that they should bear in mind the accused's previous good character when considering whether they are prepared to draw from the evidence the conclusion of the accused's guilt. They should bear it in mind as a factor affecting the likelihood of the accused committing the crime charged. The judge may add, if he thinks it appropriate in the particular case, that the jury should consider the accused's previous good character in assessing the credibility of any explanations given by him and, when he has given evidence, his credibility as a witness.
   
3. The judge is, of course, at liberty to remind the jury that people do commit crimes for the first time and that evidence of previous good character cannot prevail against evidence of guilt which they find to be convincing notwithstanding the accused's previous character. This last consideration may apply with particular force to certain types of crime and the judge is, of course, free to point that out to the jury if he sees fit."

63. In Schmahl [1965] VR 745 the Victorian Full Court said at 750:

" With regard to the objection of non-direction by the trial judge to the jury on the evidence of the appellant's good character, taken in ground (1) of the notice, I think it would not be right to lay down a rule that in every case where evidence of good character is given, the judge must give a direction as to the way in which it can be used. It is, of course, a different matter if the judge gives a wrong direction, ... or if the prosecutor puts such a restricted view to the jury, when it would become the judge's duty to correct it. But, in general, non-direction with regard to good character evidence is not like non-direction with regard, say, to the evidence of an accomplice, where the jury without proper guidance might well misuse the evidence to the detriment of the accused. Ordinarily, if left without guidance, a jury would, I think, be inclined to use good character evidence in the way in which the High Court has said in Attwood v. R. (1960), 102 C.L.R. 353, at p.359, that it is to be used. But I would add that if counsel for an accused person asks for such a direction it would be wise for a trial judge to give it, lest it be afterwards suggested that in the circumstances of the particular case some less effective use of the evidence may have been made than the accused was entitled to expect. Personally, I always give the direction where evidence of good character is given."

64. In Lopatta [1983] 10 A Cr.R. 447, where the evidence of good character was "rather bland", White J in the Court of Appeal of South Australia said at p460-1 that, once the direction of good character was embarked on, it "would have been preferable to state both purposes of character evidence, although failure to state both purposes would not have been fatal here."

65. This is consistent with the general proposition laid down by the High Court in Simic [1980] 144 CLR 319 at 333:

"There is no rule of law that in every case in which evidence of good character is given the judge must give a direction as to the manner in which it can be used ...."

66. In New Zealand the position was recently considered by the Court of Appeal in R. v. Falealili [1996]3 NZLR 664. The court did not endorse the mandatory rule (subject to a residual discretion) in Aziz. The majority (Eichelbaum CJ, Richardson P, Henry and Neazor JJ) held that where positive evidence of good character is adduced (as opposed to a mere absence of prior convictions), an appropriate direction should be given as to its use and generally this direction should cover both limbs of credibility and propensity. This is intended to be the "standard practice". Thomas J dissented as to the need for a standard rule of practice. The judges were all agreed that the mere absence of previous convictions could not in itself be evidence establishing a person's good character.

67. Thomas J's argument for flexibility is convincing. He says at 668 that to impose a rule of practice on trial judges would at times stretch the jury's common sense to the limit. He takes the instance of a man charged with a sexual offence who adduced evidence to demonstrate his honesty. The Judge goes on: "The jury will readily understand that the evidence bears on his credibility, but receiving a direction to the effect that the evidence may be relevant to the likelihood he committed the sexual offence with which he is charged is certain to bemuse them. They will wonder what the accused's honesty has to do with his propensity to commit a sexual offence." Conversely, evidence that the defendant has a high reputation for sexual integrity may not be significant at all if he is charged with tax fraud.

68. At 670-671 Thomas J points to the difficulty attaching to an inflexible rule as demonstrated by Aziz itself. Yorganci and Tosun - persons with clear records - were on any view of the facts dishonest men by their own admission: "It beggars belief that in these circumstances a trial judge should be required to seriously contemplate that a good character direction should be given to the jury": per Thomas J at 671. And yet, applying Vye in its full rigour, the English Court of Appeal felt compelled to allow their appeals.

69. The analytical difficulty in Aziz, as Thomas J pointed out at 670, is this: On the one hand a direction is mandatory; on the other hand it is not. A rule of practice which governs until it becomes an "insult" to common sense, and needs to be qualified at some stage before that limit is reached, is likely to confuse the jury. And, as Thomas J added: "Why should a trial Judge's attention be redirected from the fundamental question whether the evidence of character is of significance or relevance to merit a good character direction to the 'test' of an effrontery to common sense?"

Conclusion

1. There is no need in this jurisdiction to impose the Vye and Aziz regime on trial judges. The regime has not been demonstrated to work well in other jurisdictions. At the extremity, those rules of practice require trial judges to give directions testing the limits of common sense, and then to add qualifications in an attempt to return to the confines of common sense. Whatever the imperatives making that regime desirable in England, none has been demonstrated here.

2. Where positive evidence of good character has been adduced and nothing discreditable concerning the defendant has emerged, a summing-up which fails to give a full Vye direction - and if needs be something more - might well render the summing-up unbalanced and unfair.

3. As a matter of humanity and indulgence - expressing the traditional inclination of the common law in favour of the defendant in criminal trials, springing from "the time when the law was according to the common estimation of mankind severer than it should have been" per Cockburn CJ in Rowton at 30 - trial judges have often in practice given both limbs of the good character direction on mere absence of previous convictions. They will doubtless continue to do so in the future. Sometimes one limb of the direction is enough: For example, where in essence the central issue is credibility and an inclination on the part of the jury to believe the defendant means in effect he is entitled to an acquittal: To fail to give the "credibility" direction in such circumstances may well render the summing-up unbalanced and unfair: To give the "propensity" limb may be a surplusage.

4. "Absence of previous convictions" is a concept indulgently construed by trial judges. One or two minor offences, not related to the charges in question, may be overlooked. A string of offences, even though unrelated, will begin to strain against common sense in the context of "good character". The judge's margin of assessment is wide in this area.

5. Where a person with a clear record is before the court, but in the course of the trial, discreditable matters concerning him (or her) are revealed, the judge again has a wide margin of assessment. Dishonest conduct, to borrow an example from Thomas J's judgment in Falealili, may be very relevant to credibility, but irrelevant to propensity towards sexual offences. To simply give the "propensity" direction alone may be appropriate - or none at all.

6. At the end of the day, the summing-up will be looked at by the appellate courts to see if it is fair and balanced. That is the ultimate test.

7. Saied J's summing-up in this case was impeccably fair and balanced. He was right to give primacy to the "credibility" direction. There was nothing useful that could have been said concerning the appellant's propensity for trafficking in dangerous drugs and being concerned in manufacturing heroin. The judge was not wrong to omit the "propensity" direction.

70. The Court of Appeal was right to say that such a direction would have been "of little assistance having regard to all the circumstances of this case". I would uphold the decision of the Court of Appeal and dismiss this appeal.

Mr Justice Ching, PJ:

71. I agree with the conclusions and the reasons given by Mr Justice Litton PJ and I have nothing to add.

Mr Justice Bokhary, PJ:

72. All criminal trials involve a measure of discretion vested in the trial judge. But when it comes to the protection to which an accused is entitled in a jury trial, certain directions are flexible only as to form being standard as to substance. For there is a minimum level of such protection below which no judge has any legitimate discretion to go when directing a jury.

73. This appeal concerns the minimum level of protection due to an accused by way of jury directions as to his good character. While I naturally respect the views of those who positively think to the contrary or at least harbour doubts in the matter, I for my own part am in complete agreement with the unanimous decision of the House of Lords in R. v. Aziz [1996] 1 AC 41 as to where that minimum level is to be maintained under a system which is safe and consistently so. I would not set any level or adopt any approach less protective of accused persons in the courts of Hong Kong.

74. To do so would lessen the protection which presently exists in Hong Kong. For R v. Aziz (supra) endorses R. v. Vye [1993] 1 WLR 471. And as the respondent says in its printed case:

"R. v. Vye has been followed consistently in Hong Kong. The only hint of dissent appears in R. v. Chan Chuen-kam & Others (1993) 1 HKC 241 where it was pointed out the Court of Appeal in R v. Vye omitted any reference to Berry v. R [1992] 2 WLR 153 where the Privy Council indicated that directions as to character were proper but not obligatory. R. v. Vye was nonetheless followed."

75. It is sometimes said that trial judges should not be over-burdened with too many standard directions which have to be given. Of course they should not. But do the present standard directions really over-burden trial judges? I think not. If those directions were not there to be given, the matters left to the trial judge's discretion would be enlarged to add to his burden in another way. In many a case problems caused by the trial judge's faulty treatment of the facts have been removed by the things which he said when giving standard directions. The truth of the matter, in any event, is that the responsibilities of the trial judge in a criminal case are by nature onerous. Nothing one way or the other can make it otherwise. And no judge worth his salt imagines that his job is an easy one.

Certified question

76. The Court of Appeal has certified that this appeal against its decision affirming the appellant's conviction in the High Court on one count of manufacturing a dangerous drug and one count of trafficking in dangerous drugs involves a point of law of great and general importance. That point is the one raised by the question formulated by the appellant's legal advisers thus:

"Whether the trial judge having decided to direct the jury to treat the Applicant as a man of good character, inspite of a previous conviction, is then obliged to give a direction on both credibility and propensity?"

Behind that "certified" question lie the following factual circumstances.

Factual circumstances

77. On the afternoon of 15 July 1995 a party of police officers were keeping watch on a flat in Shatin. A man (who was later to be the appellant's co-accused) approached the flat, took out a key and opened the front door. The officers intercepted the man and entered the flat with him. Inside they found paraphernalia and substances which pointed inexorably to the fact that heroin was being manufactured in the flat. They also found there the dangerous drugs the subject-matter of the trafficking count. Those drugs consisted of 2,218.14 grammes of a mixture containing 1,039.87 grammes of heroin hydrochloride and 9,718 tablets and two tablet fragments containing a total of 23.87 grammes of diazepam.

78. About half an hour after the officers had entered the flat, the appellant arrived. He used a key to let himself into the flat. The officers apprehended him. According to them, he said two things. The first was "I am caught red handed - nothing to say". And the second was that he was the tenant of the flat and occasionally lived there.

79. By the time the appellant's trial began, his co-accused had pleaded guilty to the trafficking count, and the manufacturing count had been left on the court file as against him i.e. the co-accused.

80. In the witness-box the appellant gave an account to this effect in his defence. He was the tenant of the flat. But he had sub-let it to his co-accused and moved out. He had no idea that the flat was being used to manufacture drugs. And he had nothing to do with the drugs found there. On the afternoon in question he had gone to the flat for the innocent purposes of picking up some hi-fi equipment which he had left there and collecting rent from his co-accused.

81. As for what the officers said he had verbally admitted when they apprehended him in the flat, he denied saying anything about being caught red handed or occasionally living in the flat.

82. In the course of his examination-in-chief, his counsel asked him this question:

"Well, if I can move to another item. Is it true that you have one previous criminal conviction for 'Assault occasioning actual bodily harm', for which you were put on probation when you were aged 20?"

And he answered: "That's right". At the time of his trial on the present counts he was aged 23.

83. On 23 May 1996, by a majority of 5:2, the jury convicted the appellant on both counts. And the judge (Saied J) sentenced him to a total of 28 years' imprisonment. He took the matter to the Court of Appeal on conviction and sentence. That Court affirmed his conviction, but reduced his sentence to 25 years' imprisonment. Now he is before this Court on conviction only.

84. He has never disputed that there was on each count evidence upon which to convict him. Nor has he ever suggested that the judge had misdirected the jury otherwise than in regard to good character.

Jury direction complained of

85. The direction of which he complained before the Court of

Appeal and now complains before us is the one in which the trial judge said this to the jury:

"While on this issue of credibility you will recall that the defendant admitted that he had one previous conviction for Assault occasioning actual bodily harm for which he was placed on probation for a year when he was aged twenty. That conviction appears to have been for a not serious assault and it certainly did not involve dishonesty, it was straight forward simple assault. I expect that you would like to put that previous conviction aside and treat him, effectively, as a person of good character. Of course, good character cannot amount to a defence, but as with any man of good character, it supports his credibility."

That complaint was advanced before the Court of Appeal in a single perfected ground of appeal against conviction expressed in these terms:

"Having invited the jury to treat the Appellant as a man of good character, the Learned Judge failed to give an adequate direction in that although he gave a direction on credibility he failed to give a direction on the propensity of the Appellant to commit such a crime given his good character."

Court of Appeal's judgment

86. On 8 July 1997 the Court of Appeal (Power VP, Mayo JA and Wong J) rejected that complaint. The judgment of the court was given by Mayo JA. After referring to the appellant's reliance on the decision of the Court of Appeal in R. v. Lee Kam-yuen [1995] 1 HKCLR 264 and that of the House of Lords in R. v. Aziz (supra), Mayo JA continued:

" Both those cases are immediately distinguishable from the present case. In neither of these cases did the appellant have any previous convictions. In the present case the applicant did have a conviction for assault occasioning actual bodily harm. He was accordingly not entitled to be treated as a person of good character.

The judge was being particularly helpful to the applicant when he referred to the fact that the offence he was convicted of did not involve any element of dishonesty and that accordingly so far as the applicant's credibility was concerned he could be treated as a person of good character. Was it necessary to go on to direct the jury on the applicant's propensity to commit a crime?

As was made clear in the speech of Lord Steyn in R. v. Aziz a wide discretion is reposed in a judge in deciding whether or not to give directions as to character and the form of such directions.

We do not think that we would be justified in interfering with the way in which Saied J exercised this discretion.

Such a direction would, moreover, have been of little assistance having regard to all of the circumstances of this case."

Character

87. As I see it, the best way to approach the determination of the certified question is to do these two things. First assemble a panoramic picture of how in the present state of the law's development in Hong Kong an accused's character, bad or good as the case may be, is handled in a jury trial. And then determine the certified question in that legal context.

88. Having done the first thing, the panorama which I find unfolded before me is one as protective as reasonably possible of an accused with a bad character and as advantageous as reasonably possible to an accused with, or treated as having, a good character. These are its most prominent features:

1. In general the prosecution cannot adduce evidence of an accused's bad character unless his character is directly in issue (for example where similar fact evidence is admissible). Equally the prosecution cannot cross-examine an accused about any offence unless proof that he has committed or been convicted of the same is admissible to show that he is guilty of an offence with which he is charged (again for example where similar fact evidence is admissible). And even where those conditions are satisfied there remains a judicial discretion to exclude such evidence or prevent such cross-examination if the same would be more prejudicial than probative.
2. By contrast, the accused is always perfectly free to give or call evidence of his own character: good, bad or mixed. Take for example a "cat" burglar charged with the murder of a householder. He may defend himself by saying that he has never resorted to violence and has always ensured that premises were empty and likely to remain so before breaking into them. And in support of that he may adduce evidence of a string of burglary convictions which reflect such a modus operandi. In such a case, he is adducing evidence of a mixed character: good in that it is non-violent although bad in that it is dishonest.
3. It may happen that the defence has led evidence suggesting that the accused is of good character, but the prosecution is in possession of evidence which would show the opposite to be true. In such a case, the judge may permit the prosecution to call its evidence of the accused's bad character to rebut the defence's evidence of his good character. And evidence of the accused's bad character would then come before the jury. But here it must be remembered that by definition rebuttal evidence involves no real initiative by the party adducing the same. All that rebuttal evidence really reflects is an ability to react to what the other party has initiated.
4. In addition to where an accused has given evidence of his good character, there are two other classic instances in which he may lose his shield against being cross-examined as to his bad character. One is where he or his advocate has questioned prosecution witnesses with a view to establishing his good character. The other is where the nature or conduct of his defence involves imputations on the character of the prosecutor or prosecution witnesses. In all these instances, too, it is the line adopted by the defence itself which puts the accused at risk. And even then cross-examination of him as to his character may be precluded by the judge in the exercise of his discretion if it would in all the circumstances amount to a disproportionate response to what the defence has done.
5. Where an accused has given evidence against a co-accused, counsel for that co-accused may cross-examine him as to his bad character. The judge has no discretion to preclude that. But if counsel for the prosecution wishes to cross-examine an accused as to his bad character on the ground that he has given evidence against a co-accused, the judge has a discretion to preclude counsel for the prosecution from doing so.
6. Where an accused has been cross-examined as to his previous convictions, the judge will direct the jury along the following lines. They must not assume that the accused is guilty, or that he is not telling the truth, because he has previous convictions. Those previous convictions are not relevant at all to the likelihood of his having committed the offence charged. They are relevant only to whether the jury can believe him. It is for the jury to decide to what extent, if at all, his previous convictions help them about that.
7. If the accused has had to admit that he had on any occasion pleaded not guilty but had been found guilty by a jury after giving evidence in the witness-box, it would be open to the judge to tell the jury that they may - not must - take that into account against him when deciding what weight to attach to his word.
8. But if the accused has been able to point out that all his previous convictions were arrived at upon his guilty pleas, then it is the other way round. And it would be appropriate for the judge to tell the jury that they may when deciding what weight to attach to the accused's word, take it into account in his favour that when in the past he was charged with offences of which he was guilty, he had pleaded guilty. So even an accused's bad character may sometimes help him.
9. His character always helps an accused of good character. A person is generally treated as being of good character if he has no previous conviction. But that is not invariably the case. For example, an accused with a clear record may be shown in the course of his trial undoubtedly to have been guilty of serious criminal misconduct similar to the offence for which he is being tried. In such circumstances, the judge has a residual discretion to decline to give him any good character direction, so declining on the basis that it would make no sense to give a good character direction in such circumstances. Again an accused is generally treated as not being of good character if he has any previous conviction. But that too is not invariably the case. The term "of good character" is not confined to an accused whose character is wholly unblemished. It extends to an accused whose character contains a blemish so insignificant in relation to the charge or charges on which he is being tried that the judge, in his wisdom, considers it right that such blemish should be ignored.
10. If an accused is of good character, the judge should refer to that fact in his summing-up. And if such an accused has given evidence or relies on exculpatory parts of a mixed statement, the judge should give the jury both limbs of the good character direction, putting it along these lines: "The accused's good character helps him in two ways. First, it is to be taken into account in his favour when you decide the weight to give to what he said in the [witness-box/ exculpatory parts of the mixed statement]. Secondly, he can rely on his good character as making it more unlikely than otherwise that he would commit crime, as the prosecution alleges he did." But if such an accused has not given evidence and does not rely on any exculpatory parts of any mixed statement, then only the second limb arises, and the judge should put it along these lines instead: "The accused's good character helps him. He can rely on it as making it more unlikely than otherwise that he would commit crime, as the prosecution alleges he did."
11. It has been held that in taking into account the accused's good character as an indicator that he was less likely than otherwise to have committed the rape with which he was charged, the jury would inevitably have also taken his good character into account when deciding whether he might have been telling the truth in the witness-box when denying that he had raped the complainant. But that was not said with a view to abrogating the salutary rule that the full good character direction should be given whenever an accused of good character gives evidence. In that situation any failure to give the full direction makes it necessary to inquire into whether such partial failure has resulted in a miscarriage of justice. And it is proper then to bear in mind that the failure was partial rather than total.
12. The importance of a good character direction to an accused of good character is well illustrated by the position which obtains when he is tried with a co-accused of bad character. With a view to protecting the co-accused of bad character, the judge may suggest in the jury's absence that the accused of good character content himself with references to his good character by his counsel in final speech. But if he insists on a good character direction by the judge, then he is entitled to it. And a good character direction cannot be withheld from him even though it makes things rather awkward for his co-accused of bad character.

89. The rules of criminal evidence regarding character are unavoidably imperfect. They are after all directed to that highly fallible thing known as human nature. But properly understood and sensibly applied, they form a workable code for doing practical justice.

90. As to whether an accused is to be treated as being of good character, the law as it found favour with the House of Lords in R v. Aziz (supra) can be summarised as follows.

91. Generally whether an accused is treated as being of good character depends on whether he has a clear record.

92. But there may be instances when that general approach would operate unduly harshly to an accused. Thus even an accused with one or more previous convictions may, at the discretion of the trial judge, be treated as being of good character if such blemish on his record is so insignificant in the context of the charge or charges on which he is being tried that it would be appropriate to ignore that blemish. Conversely even an accused with no previous conviction may, at the discretion of the trial judge, be treated as not being of good character if the evidence demonstrates that his character is in truth a bad one.

93. In those two areas flexibility as to substance as well as form is needed and exists.

94. So by the expression "an accused of good character" is meant an accused treated in conformity with those principles as being of good character. I very much respect ? although I am unable to share ? the thinking of those who prefer an approach less protective of accused persons.

95. It is therefore very respectfully that I invite those of that mind to consider this. Reservations over the present criminal justice system do not come from one direction only. There are, for example, responsible people who are very concerned, from the point of view of liberty and the protection of innocent persons who find themselves in the dock, that there is no agency to search for evidence in favour of accused persons as the police search for evidence against them. The response to such concerns always involves pointing to all the features built into the present system for the protection of the innocent, our system being of course one not only for the punishment of the guilty but the protection of the innocent.

96. In the same vein, it is to be remembered that persons who query the jury system are not confined to those who think that jurors are all too easily lost in the complexities of a commercial crimes trial. They include those who worry about those human prejudices from which lay tribunals are far less able to free themselves than a trained lawyer. Again the response always involves pointing to all those protective features.

97. It is no small matter to uproot any one of those features. The erosion which may follow is not easy to assess with any degree of confidence.

98. As to when an accused is to be treated as being of good character, I consider it unsafe to follow any approach less protective of accused persons than the one favoured by the House of Lords in R. v. Aziz (supra). That is sufficient reason for adhering to that approach. It is however possible to add this.

99. In R. v. Falealili [1996] NZLR 664 at p.667 four out of five judges in the Court of Appeal of New Zealand stated that an appropriate good character direction "should now become the general practice when evidence of good character of an accused has been adduced", and immediately continued by saying:

" It is necessary then to define what is evidence of good character in this particular context. In England the fact that an accused person has no previous convictions is regarded as being evidence of good character. This may well have led to some of the problems arising in that jurisdiction, still not entirely removed, as can be seen from the need recognised in Aziz to allow for an exception to the general rule where the result would be an affront to common sense. We think there are logical difficulties with the proposition that an absence of previous convictions is in itself evidence establishing a person's good character. It may be a factor in assessing good character, but standing on its own it is general neutral. A person of bad repute may well have no convictions. We do not think it necessary for directions to be given merely because absence of previous convictions has been elicited. The need will arise where evidence relating to character has been adduced which, if accepted by the jury, could properly be relevant or probative in determining whether guilt has been proved. That after all is the basis of its admissibility. The evidence, which must be of a general rather than a particular nature, may be expressly directed to either credibility or propensity or both. Whether the evidence in any given case is of that description will be for assessment by the trial Judge.

When such evidence is adduced, an appropriate direction should be given as to its use. Generally that will cover both limbs of credibility and propensity. No particular form of words is necessary, and because of the variety in the circumstances in which the need will arise, the direction will no doubt be tailored to meet those circumstances. In general such evidence may be used in the overall determination of whether guilt has been proved, and to that end it may assist in assessing the credibility of an accused's pretrial exculpatory statements, evidence at trial, or both. It may also assist in diminishing the likelihood that the accused has committed the offence charged. As with any other evidence its weight will be a matter for the jury. The trial Judge may comment on the good character evidence (and any rebutting evidence) in a fair and balanced way, including its significance or lack of significance in the particular case." (Italics supplied.)

100. In the course of the argument, I drew attention to those portions of that passage which I have put in italics, and invited Mr Bruce for the respondent to deal with them. He accepted - the reference to "rebutting evidence" made such acceptance inevitable - that the good character evidence contemplated could be controversial. He continued by saying - and I made a verbatim note of it - that "where an accused tries to establish good character he only has to show a reasonable possibility of his having a good character. "

101. If Mr Bruce is right, then it could be pointed out that having a clear record shows a reasonable possibility of having a good character. And one might ask why a trial should be burdened with evidence and perhaps rebutting evidence just to get back to where R. v. Aziz (supra) starts.

102. If Mr Bruce is wrong, then what is the effect of R. v. Falealili (supra) which, however appropriate it may be in New Zealand, has eluded the comprehension of so eminent a member of the Department of Justice here in Hong Kong but is nevertheless preferable to the unanimous view of the House of Lords?

103. Let us contemplate a case in which an accused has a clear record but has led a rather sheltered life so that there is nothing else which anybody can point to for the purpose of shedding further light on his character. He goes into the witness-box giving evidence in his own defence. Is his counsel precluded from pointing to his clear record and asserting that he can rely on it as making it even more unlikely that he would commit the crime charged and as adding weight to his word? Is the jury not entitled to know from the judge whether that assertion is sound? What if they send the judge a note asking him in terms whether it is sound?

104. Before leaving the question of what constitutes good character, I would just say this. If I favoured - which I do not - a change over to a requirement of good character beyond a clear record, then I would effect such change only prospectively. Otherwise accused persons, including the appellant, might be unfairly prejudiced. For it may well be that they were in a position to adduce such evidence and would have done so if they had reason to believe that doing so was essential. In this connection, Mr Bruce helpfully drew our attention to the decision of the High Court of Australia in McKinney v. R. (1990 - 1991) 171 CLR 468. There their Honours made a change but only prospectively. That change happened to favour accused persons. The need to make a change only prospectively must surely be at least as strong where the change is against accused persons. If anything the need would be even stronger.

105. Turning now to the good character direction due to an accused of good character, the law as it found favour with the House of Lords in R. v. Aziz (supra) - and with which the decision of the Court of Appeal of New Zealand in R. v. Falealili (supra) conforms - can be summarised thus.

106. If an accused of good character has given evidence or relies on the exculpatory parts of a mixed statement, the judge should give the jury both limbs of the good character direction. Under the first limb, the jury should be told that the accused's good character is to be taken into account in his favour when they decide the weight to give to what he said in the witness-box or to the exculpatory parts of the mixed statement. That is the "credibility" direction. And under the second limb, the jury should be told that the accused can rely on his good character as making it more unlikely than otherwise that he would commit crime, as the prosecution alleges he did. That is the "propensity" direction.

107. If an accused of good character neither gives evidence nor relies on the exculpatory parts of any mixed statement, then only the propensity direction should be given.

108. Those directions are simple. They are moderate. And they represent the minimum due to any accused of good character. In some cases the trial judge may think fit to say more for such an accused. But I do not see how it would ever be right to give him less than that simple and moderate minimum. It is a commonplace of the criminal law that certain jury directions are standard and due to all accused. The trial judge may expand upon, emphasise, illustrate or repeat the same as he sees fit in any given instance. But at least the bare minimum is of course due in every instance.

109. The precise words do not matter. So even here there is some flexibility as to form. But the message is a must. And it is a matter of substance which cannot be sacrificed in the name of flexibility.

110. In regard to all the points here in question, I have naturally been interested in the views of the High Court of Australia. And it seems to me that if there is any difference between the views of that Court and those of the House of Lords, then such difference would be more apparent than real. For our attention has been drawn to Simic v. R. (1980) 144 CLR 319 in which their Honours said this (at pp 333 - 334) in a unanimous judgment:

"There is no rule of law that in every case in which evidence of good character is given the judge must give a direction as to the manner in which it can be used. We agree with what was said on this point in Reg. v. Schmahl [1965] VR 745 at p.750. No doubt, speaking generally, it is right to add, as was said in that case, that if such a direction is asked for it would be wise to give it.

In the present case no direction as to the evidence of the applicant's good character was asked for. There is no reason to believe that the jury would not have understood that a man of good character would be unlikely to commit a crime of savage violence such as that with which the applicant was charged. In other words, there is no reason to conclude that the jury would have failed to give the evidence as to good character such weight as it deserved. No miscarriage of justice was in our opinion occasioned by the omission to give a direction on this question."

111. As to the first paragraph of that passage, the point to note is this. As we have seen, the House of Lords does not differ from the proposition that there is no rule of law that in every case in which evidence of good character is given the judge must give a direction as to the manner in which it can be used. Whatever evidence of good character may have been given, countervailing evidence may show that giving a good character direction would not make sense in the circumstances. In that situation, the trial judge would be right to withhold such a direction.

112. As to the second paragraph of the passage, it is to be noted that the test which their Honours' applied was one of whether the omission of a good character direction had occasioned a miscarriage of justice. That must be the test to be applied whether the need or otherwise of a good character direction in certain circumstances is judged by reference to law, practice or the demands of a legitimate exercise of judicial discretion.

Precedent

113. To develop our own jurisprudence to greatest advantage, it is appropriate for us to tap the best available wisdom of other jurisdictions. In the present appeal, the cases which we have considered include ones decided by the House of Lords, the High Court of Australia and the Court of Appeal of New Zealand. It is true that the decisions of the last of those three tribunals may be reviewed by the Judicial Committee of the Privy Council. But that does not mean that there is nothing to be gained by our considering New Zealand thinking even where it may be at odds with English thinking.

114. In regard to good character directions, the position in Britain is governed by R. v. Aziz (supra), a recent and unanimous decision of the House of Lords focused on that subject. It is therefore in that decision that the best available wisdom from that jurisdiction is found. So in tapping such wisdom I would not be distracted from that House of Lords decision by the decision of the Privy Council in Berry v. R. (supra), an appeal from Jamaica where the words " though not obligatory" appear in parenthesis in the following passage (at p.166 C-D) in their Lordships' advice:

" The defendant then complained that the trial judge had failed to direct the jury adequately with regard to the defendant's previous good character in that he failed to point out that this is primarily relevant to the question of credibility. While the historical survey of Viscount Simon L.C. in Stirland v. Director of Public Prosecutions [1944] A.C. 315, 324-326, is both interesting and instructive, the modern case law all points the same way on this point: see Reg. v. Bellis [1966] 1 W.L.R. 234; Reg. v. Falconer-Atlee (1973) 57 Cr.App.R. 349; Reg. v. Marr (1989) 90 Cr.App.R. 154; Reg. v. Cohen (1990) 91 Cr.App.R. 125 and Reg. v. Berrada (Note) (1989) 91 Cr.App.R. 131. The last three cases are also authority for the proposition that it is proper, though not obligatory, for the trial judge to tell the jury that, as well as going to credibility, good character is relevant when considering whether the defendant is the kind of man who is likely to have behaved in the way that the prosecution alleged. But the primary point, one now has to accept, is credibility. The Crown admitted that the judge's direction as to the effect of good character was flawed in the manner contended for by the defendant but, adopting the view of the Court of Appeal, while admitting the error, contended that it had caused no injustice.

Their Lordships, however, did not feel able to accept this conclusion. Such case as the defence were able to make depended, like the defence in some of the cases cited above, almost entirely on the defendant's credibility if it was to have any prospect of success and therefore the misdirection was material. Had this been the only ground of complaint, their Lordships might have reached a different conclusion on the appeal."

115. As can be seen, despite using of the words "though not obligatory", the Privy Council did not rule out the possibility of the conviction being quashed on that ground of complaint alone. In the result, the conviction was quashed on another basis. As Mr Bruce rightly observed in the course of argument, the Privy Council had things to deal with which were of more obvious importance to the result than the question of good character directions.

116. Clearly the Law Lords' views on what we have to decide in this appeal is to be found in R. v. Aziz (supra). I share those views. And I of course do so by reference to the cogency of their Lordships' reasoning and not, since 1 July 1997, the authority of their Lordships' House or their Lordships' Board.

Non-direction?

117. Doing so in the legal context set out above, I turn now to the question of whether the judge's omission of the propensity limb of the good character direction constituted a non-direction.

118. The Court of Appeal thought that it did not, reasoning as follows. Since the appellant had a previous conviction, the judge could justifiably have declined to give any good character direction at all. Having decided to give one, the judge justifiably limited it to credibility leaving out propensity.

119. The Court of Appeal also said that a propensity direction would have been of "little assistance" having regard to all the circumstances of the case. But little assistance is not the same as no assistance. And by their nature considerations of that kind do not go to whether a direction should have been given. They go instead to whether it can safely be said that its omission has not resulted in a miscarriage of justice.

120. In support of its view that the judge was justified in limiting the good character direction to credibility leaving out propensity, the Court of Appeal said:

"As was made clear in the speech of Lord Steyn in R. v. Aziz a wide discretion is reposed in a judge in deciding whether or not to give directions as to character and the form of such directions."

121. In regard to that discretion, what Lord Steyn (with whom all the other Law Lords present agreed) said in R. v. Aziz (supra) was this (at p.53 D-F):

" That brings me to the nature of the discretion. Discretions range from the open-textured discretionary powers to narrowly circumscribed discretionary powers. The residual discretion of a trial judge to dispense with character directions in respect of a defendant of good character is of the more limited variety. Prima facie the directions must be given. And the judge will often be able to place a fair and balanced picture before the jury by giving directions in accordance with Vye [1993] 1 WLR 471 and then adding words of qualification concerning other proved or possible criminal conduct of the defendant which emerged during the trial. On the other hand, if it would make no sense to give character directions in accordance with Vye, the judge may in his discretion dispense with them.

Subject to these views, I do not believe that it is desirable to generalise about this essentially practical subject which must be left to the good sense of trial judges. It is worth adding, however, that whenever a trial judge proposes to give a direction, which is not likely to be anticipated by counsel, the judge should follow the commendable practice of inviting submissions on his proposed directions."

122. That addresses the sort of cases which Lord Steyn had described earlier (against the marginal letter B on the same page) as those which "occur from time to time where a defendant, who has no previous convictions, is shown beyond doubt to have been guilty of serious criminal behaviour similar to the offence charged in the indictment". And it has to do with whether in such circumstances a good character direction should be dispensed with or at least have some words of qualification added to it concerning such behaviour. It has nothing to do with leaving out one limb or the other of the full character direction where an accused with, or properly to be treated as having, a good character has given evidence or relies on exculpatory parts of a mixed statement.

123. In my view, the judge's omission of the propensity limb of the good character direction did constitute a non-direction.

Answer to the certified question

124. The certified question, let us remind ourselves, is: "whether the trial judge having decided to direct the jury to treat the Applicant as a man of good character, inspite of a previous conviction, is then obliged to give a direction on both credibility and propensity?" In my view, it should be answered in the affirmative.

125. When an accused is treated as a man of good character even though he has one or more previous convictions, that is because the blemish on his character resulting therefrom is so insignificant in relation to the charge or charges on which he is being tried that the judge, in his wisdom, considers it right that such blemish should be ignored. If that is right, then it cannot be at the same time right to use the very same blemish to omit one limb of the good character direction otherwise due to him. And I am unable to attribute to the judge any deliberate decision to do so. The omission was a slip in the course of an otherwise typically careful summing-up.

126. Before moving on, I would just say this. The full good character direction is not to be regarded as unnecessary just because sensible jurors would think along those lines anyway.

127. For one thing, jurors are routinely warned against harbouring notions which are not sensible. Thus it is common for jurors to be warned against things such as, on the one hand, thinking that there is no smoke without fire so that mere presence in the dock is suggestive of guilt or, on the other hand, being distracted by sympathy for someone just because he is in the dock.

128. For another thing, just because something accords with common sense or common knowledge does not necessarily mean that it is not the fit subject of a standard direction. Take for example the standard direction as to the onus of proof being on the prosecution. That the onus is on the prosecution is common knowledge. Most potential jurors would know that even before coming to court. For what would happen if it were suddenly announced that the presumption of innocence was to be abolished? The reaction of the general public would be strong and universal: because people know and set great store by the rule that the onus of proof is on the prosecution. And even if he did not know it at first, any sensible juror who has sat through the evidence and speeches in a criminal trial in Hong Kong would have gathered even before the summing-up commences that the onus of proof is on the prosecution. And yet a standard direction to that effect is given to every jury.

Any miscarriage of justice?

129. There having been a non-direction, the question becomes whether it has resulted in a miscarriage of justice. If it has the appeal should be allowed. Otherwise the appeal should be dismissed. This Court is here to do justice. To allow an appeal just because something has gone wrong at the trial even though it has not resulted in a miscarriage of justice would not be doing justice.

130. It is worth mentioning for the sake of completeness that it is not a question of applying the proviso to s.83(1) of the Criminal Procedure Ordinance, Cap.221. That proviso is necessary for the Court of Appeal because the subsection directs that court to allow an appeal in the circumstances set out in items (a), (b) or (c) thereof unless the proviso thereto applies. This Court, on the other hand, faces no such direction and therefore needs no such proviso. Here there is nothing for the proviso to be a proviso to. It is simply a matter of what is inherent to a court of law as opposed to an academy of law.

131. No evidence against the appellant was wrongly received. Nor was any evidence in his favour wrongly excluded. There was no misdirection or non-direction apart from the omission of the propensity limb of the good character direction. It is true that there are cases in which a full good character direction is of greater significance than it was in the present case. But that direction was nevertheless significant here. The prosecution's case was, it must be recognized, strong. But it was by no means open and shut. The graver the allegation the more cogent must be the proof. Here the allegations were of the utmost gravity, being of crimes for which the total sentence was no less than 25 years' imprisonment. Out of a jury of seven, five convicted.

132. Can it safely be said that acting reasonably those five jurors would inevitably have convicted even if they had been directed - as they should have been but were not - that the appellant could also rely on his good character as making it more unlikely than otherwise that he would commit the crimes which the prosecution alleged against him?

133. In all the circumstances, I feel unable safely to say that. Accordingly, I would allow the appeal so as to quash the appellant's conviction and set aside his sentence.

Retrial and remand

134. In all the circumstances, I am of the view - and Mr McLanachan for the appellant concedes - that the interests of justice require that the appellant be retried on the same two counts and that he be remanded in custody pending such retrial. I would order such retrial and remand the appellant in custody pending the same.

Sir Daryl Dawson NPJ:

135. I agree with Litton PJ that it is undesirable to lay down an invariable rule of practice that, where evidence of good character is adduced, a direction as to the use to which the evidence may be put must be given. I also agree with Litton PJ that in this case the direction given was adequate and that the appeal must fail.

136. It has become customary in Hong Kong and other common law jurisdictions when there is evidence of good character to give a direction along the lines that the evidence, if accepted, may make it less likely that the accused committed the crime charged and, where relevant, that it may bear favourably upon his credibility. However, such a direction has not been invariably required nor has it been required to be in any particular form. That is not to say that in some cases the failure to give a direction in the customary form might not amount to error; many cases call for such a direction.

137. In England, the position has been reached where, not only must a direction be given whenever evidence of good character is adduced, but it must specify that the evidence, if accepted, may make it less likely that the accused committed the crime charged and, if relevant, enhance his or her credibility. Not only that, but it now appears that in England evidence establishing the mere absence of relevant previous convictions ordinarily amounts to evidence of good character calling for a direction containing the two limbs. No doubt this latter position represents a retreat from the requirement laid down in R. v. Rowton (1865) 10 Cox CC 25; 169 E R 149 that evidence of good character can only be in the form of evidence of reputation and may be justified as a matter of practicality now that an accused can give evidence in his own defence and can hardly be expected to give evidence of reputation. Be that as it may, the rigidity of the English rule is tempered only by the qualification that the required direction is unnecessary where the trial judge considers it an insult to common sense to give it. That approach has been in response to the English experience of a proliferation of appeals when the form of the direction was discretionary. See Reg. v. Berrada (1989) 91 Cr. App. R131; Reg. v. Vye (1993) 1 WLR 471; Reg. v. Aziz (1996) A.C. 4.

138. But that has not been the experience in Hong Kong where hitherto the trial judge has had a discretion whether to give a direction as to the use to which good character evidence may be put and as to the form of any direction when it is given. Litton PJ has pointed to the difficulties which arise under the English practice and it appears to me that, experience in Hong Kong having differed from that in England, it is undesirable to introduce here an invariable rule of practice requiring a direction to be given and given in a particular form whenever there is evidence which may amount to evidence of good character particularly when that evidence points only to the absence of prior convictions. Such a rule would, I think, run counter to the modern tendency to limit as far as possible the range of compulsory, standard directions which a trial judge is required to give to a jury and to leave it to him or her to sum up in a balanced and fair manner which is suited to the particular requirements of the case.

139. Of course, where evidence of good character is adduced the summing up should ordinarily include a direction concerning the use to which it might be put and in many, if not most, cases, the direction should refer to its bearing upon propensity and credibility. That is because in most cases such a direction will assist the jury. However, ultimately the trial judge should retain a discretion, however confined, to determine in all the circumstances whether a direction is called for and the form it should take.

Chief Justice Li:

By majority (Mr Justice Bokhary PJ dissenting), this appeal is dismissed.