HKSAR v. SAILESH LACHU HIRANANDANI

CACC 448/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 448 OF 2009

(ON APPEAL FROM DCCC NO. 264 OF 2009)

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BETWEEN

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DECISION

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Hon Tang Ag CJHC:

1.  The applicant was convicted by Deputy District Judge Woodcock of 5 counts of fraud, contrary to section 16A of the Theft Ordinance, Cap. 210. He was sentenced to imprisonment for 2 years after he has made full restitution.

2.  His application for leave to appeal to us was dismissed on 9 June 2010, and the Reasons for Judgment (“the Judgment”) was handed down on 29 June 2010.

3.  The applicant now seeks a certificate that a point of law of great and general importance is involved in the decision, namely:

“Whether an individual’s right of silence is extinguished after making his first partial, pre-trial explanation, so that adverse judicial comment is appropriate when the said individual subsequently proffers, additional but not inconsistent explanations.”

4.  Mr Boyton, for the applicant, submitted that the crux of the question is whether a suspected person’s partial explanation results in a complete waiver of his right to silence, or is it a partial waiver limited to the specific explanation(s).

5.  It is said that the question arose because I said in para. 34 of the Judgment:

“However, Mr Sailesh did not say during either interview that he had Exhibit D1. He did not mention D1 at all.”

6.  A few words of explanation are necessary. 

7.  According to the prosecution, a funding agreement dated 20 May 2006 was signed by PW1 on behalf of L’Sure Golf Tourism Pte Ltd and the applicant for the lender Universal Alliance Limited of London (“Universal Alliance”).  The evidence of PW1 was that there were two original copies of the funding agreement.  Both were kept by the applicant.  PW1 was, however, given a photocopy which was produced as Exhibit P1. 

8.  Exhibit D1 was produced by the applicant.  It purported to be one of the two originals.  However, Exhibit D1 bore what purported to be the signatures of PW1 and the signatures of a Mr Gandhi, purportedly signing on behalf of Universal Alliance.

9.  After the applicant was arrested on 14 September 2008, he was interviewed on the same day.  Under caution, he told the police that he was only a middleman and that the funding agreement was made between Mr Gandhi and PW1. 

10.  This is what I said in paras. 31 to 33 of the Judgment:

“31. … When he was shown a copy of Exhibit P1, and asked whether he had seen it before, he said:

‘I don’t remember.’

32. He said however that he wanted to see the original. When he was asked about the two signatures on Exhibit P1 he said:

‘I don’t remember this entire agreement.’

33. He also said, presumably referring to what purported to be his signature on Exhibit P1:

‘It looks similar but I don’t think I have signed that.’”

11.  Then in para. 34, I said:

“34. However, the applicant did not say during either interview that he had Exhibit D1. He did not mention Exhibit D1 at all.”

12.  That is correct as a statement of fact and was said in the introductory and narrative part of the judgment.

13.  When I dealt with the issues in the appeal, starting from para. 44 of the judgment, I did not say that because of his failure to mention Exhibit D1 during his interviews, the applicant should be disbelieved.  Nor had the learned trial judge said so.

14.  In para. 49, however, after referring to the fact that the applicant had on two occasions in 2008 sent monies to PW1 after receiving letters of demand from PW1’s solicitors, I went on to say:

“49. What is perhaps also telling is that despite such demands for payment, the applicant had not informed the PW1’s solicitors that he was merely a middleman or that Mr Gandhi was the lender. Exhibit D1 was only produced about two weeks after the applicant’s arrest.”

15.  I do not believe the question sought to be certified arises at all. 

16.  But first I must explain Mr Boyton’s point, which is a facet of the right of silence.

17.  The leading decision on the right of silence is Lee Fuk Hing v. HKSAR (2004) 7 HKCFAR 600.  In the judgment of Mortimer NPJ which had the concurrence of the other members of the court, he said at para. 57 at 622:

“57. We may add that, of course, if an accused person makes a statement to the police (under caution or otherwise) which is inconsistent with his defence which can be fairly criticized on other grounds it is open to the prosecution to cross examine and comment upon that statement and its relevance to the defence. The judge may also invite the jury to draw relevant and fair inferences even if they are adverse to the accused.”

18.  Mr Boyton submitted that whilst that is so if the statement to the police was inconsistent with his defence, no comment or cross-examination is permissible in respect of an omission.  Here the applicant had merely failed to mention Exhibit D1 when interviewed.  There was no inconsistency.

19.  I do not think it is necessary for us to decide whether on the facts of this case, it would have been permissible for the learned judge to draw adverse inference from the fact that although the applicant was shown Exhibit P1 during his interview, he had failed to mention that he had the possession of the original of the funding agreement which bore the purported signatures of PW1 and Mr Gandhi.

20.  It is unnecessary for this point to be decided because the fact that Exhibit D1 was not mentioned by the applicant was not a reason given by the learned trial judge for rejecting the applicant’s defence. Nor was that a reason for dismissing his appeal.

21.  The learned judge was satisfied that the prosecution witnesses were witnesses of truth; and that DW1 who was called on behalf of the defence (the applicant did not give evidence), in relation to Exhibit D1, was disbelieved by the learned judge.

22.  DW1’s evidence was described by the learned trial judge as:

“91. … a tailor-made story to support the defence that the defendant was a middleman only. ” para. 91 of the Reasons for Verdict.

23.  Furthermore, in any event, I would not certify the question.  The law is as stated by the Court of Final Appeal in Lee Fuk Hing and does not require clarification.  In some cases, it may be difficult as a matter of fact to decide whether an omission amounted to an inconsistency.  But that is a question of fact which has to be resolved in the particular case.  Nor for the reasons given above does it arise here.

24.  For the above reasons, I refuse to certify any question for the purpose of section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484.

Hon Lunn J:

25.  I agree with the judgment of Tang Ag CJHC and have nothing to add.

Hon Saw J:

26.  I agree with the judgment of Tang Ag CJHC and have nothing to add.