YUEN KWAI CHOI v. HKSAR

FACC No. 6 of 2002

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 6 OF 2002 (CRIMINAL)

(ON APPEAL FROM CACC NO. 166 OF 2000)

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J U D G M E N T

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Chief Justice Li:

1. I agree with the judgment of Mr Justice Chan PJ.

Mr Justice Bokhary PJ:

2. I agree with the judgment of Mr Justice Chan PJ.

Mr Justice Chan PJ:

Introduction

3. The appellant together with another defendant (whom I shall call D1) were convicted after trial before a judge (Deputy Judge Longley) and jury in the Court of First Instance of trafficking in a dangerous drug, namely, almost 30 kg of what is commonly known as "ice". His appeal against conviction was dismissed by the Court of Appeal (Mayo VP and Stock JA, Keith JA dissenting). The Appeal Committee granted leave to appeal on the ground of substantial and grave injustice.

4. The present appeal involves two main issues: first, whether, in the circumstances of this case, the trial judge erred in omitting to give a "lies" direction to the jury in relation to the appellant's case was a material irregularity; and second, if he did, whether the majority of the Court of Appeal was justified in applying the proviso under s.83 of the Criminal Procedure Ordinance, Cap. 221, in upholding the conviction.

Unusual features in this case

5. The appellant admitted possession of the travelling bag and the suitcase which contained the drug. The issue at the trial was whether he had knowledge of the contents thereof. The burden was on him to rebut, on the balance of probabilities, the presumption arising from s.47(2) of the Dangerous Drugs Ordinance, Cap. 134, to the effect that he knew what was contained inside the bag and the suitcase. His evidence and hence credibility were of critical importance.

6. This case was complicated by two unusual features which have a bearing on the appellant's evidence. First, the informer who gave information to the police about the drug transaction was called as a defence witness for the appellant. He admitted that he was involved in the transaction and that it was he who had made use of the appellant to make delivery of the drug for him without telling the appellant what was really contained in the bag and the suitcase. His dealing with the appellant, particularly his contact with the appellant on the day of the transaction, was relevant to the issue of knowledge on the part of the appellant.

7. Secondly, D1 was permitted by the trial judge to adduce "rebuttal evidence" after the appellant had testified in a way which was detrimental to D1's case. The rebuttal evidence, if accepted by the jury, would tend to contradict that part of the evidence given by the appellant with regard to his contact with the informer on the day of the transaction.

8. Since the evidence adduced at the trial was not entirely straightforward, it is necessary to set it out in some detail in order to decide the two issues in this appeal.

The prosecution case

9. The prosecution's case as presented before the jury was as follows. In the morning of 25 May 1999, the police received information that a drug transaction would take place later that day involving a private car, a SAAB of registration number HG 2889 which was owned by the appellant. Acting on such information, sometime after 11 am, the police started to keep observation on the SAAB which was then parked inside the Kwong Fat Car Park in Mongkok.

10. Later that day, the police learned through the informer that the drug transaction would take place at 4 pm at the Holiday Inn in Tsimshatsui and that another private car, a Volvo of registration number FM 2119 which was also owned by the appellant would also be involved.

11. Sometime shortly after 4 pm, the police saw that the SAAB came out of the car park, drove to the Stanford Hotel to pick up D1 and then went to the Holiday Inn. There, the SAAB stopped near the Volvo at which the appellant was waiting. D1 got off and joined the appellant. The appellant was seen to open the boot of the Volvo, took a travelling bag from the boot and handed it to D1. D1 took it, opened it and had a look at what was inside with the appellant looking on. After that, he took the bag out of the boot and put it on the ground. Then, both the appellant and D1 together lifted a suitcase out of the boot of the Volvo and put it on the ground. D1 placed the bag on the top of the suitcase, strapped them together and dragged them along the ground onto the pavement. They were then arrested by the police.

12. The prosecution alleged that both D1 and the appellant had possession of the bag and the suitcase, that both knew the bag and the suitcase contained ice and that they were involved in the trafficking of the drug.

D1's case

13. D1 did not testify against the appellant. But to understand why D1 applied to call rebuttal evidence, it is necessary to look at his evidence. He said that he was earlier approached by another man to move luggage in return for a reward of $10,000, but had not made up his mind whether to do so or not. He was later driven in the SAAB to the Holiday Inn where he met the appellant. He was handed the bag by the appellant which he instinctively took and put on the ground. He then helped the appellant to take the suitcase out of the boot of the Volvo. He did not look inside the bag. Nor did he drag the bag or the suitcase onto the pavement.

14. His defence was simply that he had no intention to take possession of the bag or the suitcase or the contents therein and that he did not know what was inside these bags. Whether he had handled the bag and the suitcase and whether he had opened the bag and examined its contents in the manner as alleged by the prosecution were decisive factors insofar as his case was concerned.

The appellant's case

15. The appellant's defence was that although he had physical possession of the bag and the suitcase, he had no knowledge of their contents. On 24 May, his friend, a Mr Liu Yat Sing, borrowed his SAAB in order to make a delivery. The appellant offered to assist him. On the following day, Liu came to see the appellant in the SAAB together with the bag and the suitcase. The bag and the suitcase were transferred from the SAAB to the boot of the Volvo. The appellant was told by Liu that these two pieces of luggage contained samples of industrial raw materials which were to be handed to a customer later in the day when the appellant would be told where to make the delivery. They parted shortly after 10 am.

16. The appellant said he then washed his Volvo and drove it to the Mongkok area. He parked it in a car park, but had now forgotten which car park it was. He then did some shopping and had lunch. He said he did not have any further contact with Liu that day except one telephone call in which he was told to go to the Holiday Inn to hand the two pieces of luggage to a customer. He had no idea that the luggage contained anything other than industrial raw materials.

17. As instructed by Liu, the appellant arrived at the Holiday Inn in his Volvo sometime after 4 pm and parked his car outside. Liu then came in the SAAB with D1. D1 got out of the SAAB and walked over to him at the rear of the Volvo. The appellant then opened the boot of the Volvo and handed the bag to D1 who attended to the bag. Together they put the suitcase onto the ground. D1 then put the bag on top of the suitcase and dragged them onto the pavement. The appellant went back to the driver's door, stood there, nodded and smiled at D1. It was then that the police arrived and arrested them both.

18. The appellant's defence was basically that he was told by Liu, whom he believed, that the bag and the suitcase contained industrial raw materials and that he did not know they contained "ice".

19. Liu gave evidence on behalf of the appellant. He said he was the police informer. There was no evidence from the prosecution that he was not. He told the police that he was instructed by a person called Chan to deliver some dangerous drug to a purchaser in return for a reward of $50,000. He was promised by the police another reward of $20,000 if the purchaser was apprehended. He set about doing this and borrowed the SAAB from the appellant. He also asked the appellant to assist him in delivering the drug to the customer. However, he told the appellant what was to be delivered was industrial raw materials.

20. In the morning of 25 May, after he had obtained from Chan the drug contained in the bag and the suitcase, he took them to the appellant and transferred them to the boot of the Volvo. He told the appellant that he would pick up a customer and asked the appellant to wait for his instructions. Liu then drove the SAAB and parked it in the Kwong Fat Car Park shortly before 11 am. Later that day, having received further instructions from Chan, he informed the police that the Volvo was also involved. He was assured by the police that no arrest would be made on him or the appellant. He then picked up D1 and drove him to the Holiday Inn to meet the appellant. At the Holiday Inn, having dropped off D1, Liu drove it to a nearby spot. When he came back, he saw that the appellant and D1 had already been arrested by the police.

The rebuttal evidence

21. It can be seen that if the appellant's evidence as to what happened outside the Holiday Inn was to be believed, this would support the prosecution's case against D1 and show that D1 had not only handled the bag and the suitcase but also knew what was contained inside. Hence, at the end of the appellant's case, counsel for D1 applied to the trial judge to call "rebuttal evidence" for the purpose of discrediting the appellant. The judge allowed the application. The rebuttal evidence took the form of the evidence from an attendant of the Kwong Fat Car Park who produced records which tended to show that both the SAAB and the Volvo had entered the car park at more or less the same time after 10 am and that they remained in the car park until sometime after 3 and 4 pm. The appellant did not seek to testify again to counter such evidence.

22. The evidence of the car park attendant, although not quite satisfactory according to the trial judge, would, if believed by the jury, tend to show that the appellant was not telling the truth when he said that after his meeting with Liu in the morning, he had no further contact with Liu during the course of that day except one telephone call in the afternoon. If the jury considered that the appellant was lying on this aspect of the case, this might have an effect on his credibility casting doubt on his evidence denying knowledge and involvement in the drug transaction.

The summing up

23. There was evidence from the prosecution that when D1 was stopped and asked by the police what was inside the bags, D1 replied that he was just passing by and that they had nothing to do with him. It was not disputed that that was a lie by D1 who explained in evidence that he said so because he was scared. In his summing up, the trial judge gave the usual "lies" direction in relation to D1's case in the following terms:

"If you are satisfied that that was a lie, that does not necessarily mean, of course, that the 1st defendant is guilty of the offence with which he is charged. A defendant may lie for a number of reasons other than because he is guilty of the offence with which he is charged. It may be to protect somebody else or to conceal some other behaviour on his behalf that he does not want revealed, or simply out of panic and confusion.

... if you think that this (D1's) explanation for having said this may be true, or if you think there may be another innocent explanation - by "innocent" I mean an explanation unconnected with his guilt of this charge - then disregard it. It is only if you are satisfied that he did not lie for some other reason that his lie can be regarded by you as evidence which supports the prosecution case.

... If you find that he was lying to you in court, bear in mind what I said to you earlier about lies; they do not necessarily mean that he is guilty of the offence charged."

24. In respect of the rebuttal evidence, the judge summarized the evidence of the car park attendant and made certain comments on the accuracy of such evidence. The judge then said:

"So members of the jury, I would suggest to you that you may well feel that you could not be sure that both vehicles entered the car park at the same time. So in the light of Mr Chan's (car park attendant's) evidence, you will have to consider what weight, if any, you can attach to his record. If having considered his evidence, you were satisfied that both vehicles were in the same car park on the same day, would that still not be a most remarkable co-incidence, bearing in mind, members of the jury, you have heard the evidence that his was not a particularly large car park. It was a car park of only three storeys, and he told you that he could only accommodate 40 cars. You will obviously consider whether it could be a co-incidence or whether this is an indication that the account that the 2nd defendant (the appellant) and Liu have given of what happened that day is a fabrication."

25. The judge did not give any "lies" direction in respect of the appellant's case. There was no discussion between the judge and counsel for the appellant before the judge's summing up on how to deal with the rebuttal evidence. Nor had counsel raised that issue after the summing up.

The Court of Appeal

26. The judge's omission to give a "Lucas" direction to the jury in respect of the appellant's case was a complaint in the appeal before the Court of Appeal.

27. On this issue, the Court of Appeal was split. Mayo VP said:

"35. ... This is clearly not a case where the lies in question are determinative of the result of the trial. Here the lies form part of the background evidence. This was a case where a Lucas direction was required. The failure to give this direction amounted to a material irregularity."

28. Keith JA agreed with Mayo VP and said:

"53. Secondly, I also agree with Mayo VP that the trial judge fell into error in relation to the direction which he gave to the jury on lies told by a defendant. Early on in his summing-up, the judge gave the jury the conventional direction about lies told by a defendant. But he did so in the context of a comment which the 1st Applicant (D1) had made to the police during his interview. In the present case, that was not enough. The jury had to be told that the direction which it was being given about lies told by a defendant applied ... (b) not merely to the 1st Applicant (D1), but to the 2nd Applicant (the appellant) as well. Moreover, the production of the vehicle registration book at the very end of the evidence was likely to have had a devastating impact on the 2nd Applicant's credibility in the eyes of the jury. Since the credibility of the 2nd Applicant was going to be seriously undermined if the jury thought that he had been telling lies in his evidence about whether he had been with Liu Yat Sing during the day, this was a case in which a direction as to lies had to be specifically tailored to cover those lies.

54. ... In the overwhelming majority of cases, it is the prosecution rather than a co-defendant which is seeking to rely on the lies which a defendant has told. But if a direction as to lies need not be given when it is a co-defendant who is seeking to rely on the lies which a defendant has told, the defendant will run the risk of being convicted because he told a lie rather than because of his guilt. A direction as to lies (where one is appropriate) has to be given, therefore, even when it is a co-defendant, and not the prosecution, which is seeking to rely on the lies which a defendant has told."

29. Stock JA however disagreed, saying that such a direction was not necessary in the present case. He said:

"63. I am not entirely persuaded that the failure of the judge to give a Lucas direction specifically directed at the lies told by A2 constituted a material non-direction. The fact of the matter is that the jury had its mind drawn to the fact that lies do not prove guilt, and that there may be innocent explanations for lies. In dealing with A1 the jury was told that: 'A defendant may lie for a number of reasons other than because he is guilty of the offence with which he is charged', and then a few examples were given; and the jury was told that it was only if they were satisfied that A1 did not lie for an innocent reason that the lie could be regarded as evidence which supported the prosecution case. Then again, later in the summing up, the jury was told that if they found that A1 had lied in court, they were to bear in mind what was said earlier about lies.

64. The reason why lies directions are given is to counteract a natural tendency to assume that lies mean guilt. If that fallacy is put to rest, in the minds of a jury, the judge's task in that particular regard is satisfied. How much needs to be said depends on the case and the issues. I suppose that it might be said, with some force, that given the turn of events in relation to exhibit D3, it was desirable for the judge to remind the jury that a lie in relation to D3 might have some innocent explanation and to speculate what that might be. But the question is whether the omission to repeat the warning in A2's case was material. It is noteworthy that counsel evidently did not think so at trial. It was never there raised. I doubt in the circumstances that the omission can be said to have been material."

"Lies" direction

30. What use a jury can make of lies told by an accused and what direction a trial judge should give to the jury are questions which have been subject to a lot of judicial discussion both in the courts here and in other common law jurisdictions. These questions are frequently encountered by juries, as sole judges of fact, in criminal trials. The principles in this area of law ought, depending on the circumstances of each case, to be applied in a common sense manner and in simple terms so that they are easily understood by the jury. I propose to summarise those principles which are relevant to the present appeal.

31. In almost every criminal trial, the jury are asked to assess the credibility of witnesses and to decide what evidence they are to rely on as the basis for their verdict. There may be many reasons for the jury not to rely on the evidence of a witness. It is not necessarily because the witness has lied. But even if he has lied, there may be different reasons for not telling the truth. There is, however, a natural tendency that if the jury consider that a witness is not telling the truth on one aspect of his evidence, they may not believe him in respect of other aspects. This tendency has a much greater impact on the criminal process when it is the accused who has testified in the witness box. If the jury consider that the accused is not telling the truth on one aspect of his case, there is a tendency that they may infer that he has lied because he is guilty of the charge before the court. This "impermissible process of reasoning", though sometimes natural enough for a layman, is to be avoided if the accused is to have a fair trial.

32. Lies usually affect credibility only. As a matter of law, a lie in itself can never prove guilt. This must be the starting point for any discussion or summing up on the question of lies. It is the risk of improper use by the jury of an accused's lie that the law wishes to guard against. As Lord Devlin in Broadhurst v. R [1964] AC 441 said, at p.457:

"It is very important that a jury should be carefully directed upon the effect of a conclusion, if they reach it, that the accused is lying. There is a natural tendency for a jury to think that if an accused is lying, it must be because he is guilty, and accordingly to convict him without more ado. It is the duty of the judge to make it clear to them that this is not so."

33. A rule of practice (which is sometimes referred to as the Broadhurst direction) has thus developed through the years requiring a trial judge to remind or even warn the jury, where there is a risk that they might wrongly infer guilt directly from their conclusion that the accused is not telling the truth, that they must not draw such an inference and that there may be an innocent explanation for his lie. This is a rule of practice which is designed at avoiding a risk of miscarriage of justice. See Brennan J in Bromley v. R (1986) 161 CLR 315.

34. Although as a general rule, a lie cannot in itself be used as proof of guilt, there are circumstances in which the prosecution may want to use a lie told by an accused to establish or assist the prosecution's case or to strengthen an inference of guilt against him. A lie may be used, for example, to provide corroboration for an accomplice's evidence (R v. Lucas (1981) 73 Cr. App. R. 159) or to support identification evidence (R v. Goodway [1993] 4 All ER 894). In such circumstances, the law requires that certain criteria must be met before a lie is permitted to be used in such a way. These criteria were set down by the Lord Chief Justice in R v. Lucas (at p.162 to 163). Briefly, they are: it must be a deliberate lie, relating to a material issue in the case; there is no innocent explanation for the lie and it is a lie which is either admitted or proved by independent evidence.

35. It must be borne in mind that this set of criteria (sometimes loosely described as a Lucas direction) was given by the Lord Chief Justice in a case where it was sought to make use of a proved untruth or lie as amounting to corroboration of an accomplice's evidence. Hence, it is necessary, for example, to have the 4th requirement, namely, that the lie must be admitted or proved by evidence other than the accomplice's evidence which it is sought to corroborate. See R v. Chong Chak On [1995] 2 HKCLR 226; and Edwards v. R (1993) 178 CLR 193.

36. In view of the circumstances in which the criteria were set, a "full Lucas direction" is not always necessary. Kennedy LJ in R v. Burge and Pegg [1996] 1 Cr. App. R. 163, at 173 summarised the circumstances in which a Lucas direction is usually required. However, he added that "where there is no need for such a direction (as in the normal case where there is a straight conflict of evidence), it will add complexity and do more harm than good."

37. In the great majority of cases where the prosecution contend that an accused is telling lies in the witness box, a direction on lies is inappropriate. R v. Barnett [2002] 2 Cr. App. R. 11 168, 173. In cases where the rejection of any explanation given by an accused almost necessarily leaves the jury with no choice but to convict as a matter of logic, or where the jury are asked to decide on the truth of what an accused said on a central issue in the case, the usual direction on the burden and standard of proof would normally be sufficient. See R v. Dehar [1969] N.Z.L.R. 763, 765; R v. Man Bing Chou [1993] 2 HKCLR 71; R v. Liacopoulos and others, unreported, August 31, 1994, referred to in R v. Burge and Pegg [1996] 1 Cr. App. R. 163, 172 to 173. In these situations, there is no danger of improper use by the jury of any lie told by the accused and there is no risk of miscarriage of justice.

38. Where there is a risk that the jury may regard lies told by an accused as probative of his guilt, as in the case where the prosecution address the jury on the basis that the accused has lied in what he said and that the lie is supportive of the prosecution's case (e.g. in R v. Mok Lun, unreported, Criminal Appeal No. 502 of 1993; R v. Ho Che Chung [1994] 2 HKC 148; R v. Wai Wing Sang and another [1992] 2 HKCLR 23), or where there is a danger that the jury may in any way misuse the lie, it is necessary to give a direction on lies. See R v. Richens [1993] 4 All ER 877, 886 and the second paragraph of the conclusions in HKSAR v. Mo Shiu Shing [1999] 2 HKLRD 155, 168. In considering whether a direction on lies should be given, particularly when the trial judge entertains a doubt as to what he should say to the jury in case he decides to give such a direction, he should first raise the matter with counsel and then give the direction unless it is clear that such a direction is not only unhelpful but may also mislead the jury. In this connection, it is apposite to consider the advice of Judge LJ in R v. Middleton, unreported, March 23, 2000 at paragraph 22:

"We suggest that when, at trial, the question arises, should a Lucas direction be given or should it not, it will usually be more useful to analyse the question in the context of the individual case by examining the principles rather than by laboriously trawling through hosts of reported and unreported cases and learned commentaries."

39. Where a direction on lies is required, the jury must be directed that a lie in itself can never prove guilt and that they cannot use the lie to strengthen or establish the prosecution's case unless they are satisfied that the lie was told because: "he was unable to account innocently for the evidence that has been given against him." (Edwards v. R (1993) 178 CLR 193, 199); or "there is no innocent motive for the lie." (R v. Goodway (1994) 98 Cr. App. R. 11, 15). The jury should also be reminded that there may be innocent reasons for the lie other than consciousness of guilt (HKSAR v. Mo Shiu Shing [1999] 2 HKLRD 155, 168H). The terms of the direction must, however, ultimately depend on the circumstances of each case. In deciding what language to adopt, a trial judge should consider the use to which the lie in question is intended to be put or may be put, and the possible effect it may have on the accused's case, always bearing in mind that the purpose of such a direction is to avoid possible misuse of lies by the jury. Reference can be made to the specimen directions approved by the Court of Appeal in HKSAR v. Mo Shiu Shing [1999] 2 HKLRD 155, 169.

40. I should add that some of the difficulties which had arisen in many of the previous cases on what direction should be given to the jury were complicated by the use of terms such as: a Broadhurst direction, a Lucas direction, a full Lucas direction. These terms are sometimes confusing as slightly different meanings have been attributed to them in different cases. I would prefer to simply call it "a lies direction".

Whether a lies direction required in this case

41. In the present case, it was not the prosecution which relied on any lie told by the appellant to establish or strengthen their case against either D1 or the appellant. The prosecution did not address the jury on the basis that the appellant had lied and that the lie was supportive of the prosecution case. This was also not the situation where the lie went to a central issue in the case or was determinative of the guilt of the appellant. The question is: was a lies direction still necessary in this case?

42. It was D1 who relied on the appellant's lie to cast doubt on the appellant's credibility. The result which D1 intended to achieve by calling rebuttal evidence to contradict the appellant's evidence regarding his contact with Liu was to persuade the jury not to rely on that part of the appellant's evidence which said that D1 had opened the bag and looked at its contents and had possession of the bag and the suitcase by handling them and dragging them onto the pavement. Such rebuttal evidence might not have had the desired effect in view of his guilty verdict. But it might have had the effect of casting doubt on the appellant's credibility.

43. The crucial issue in respect of the appellant's case is whether he knew that the bag and the suitcase contained "ice". He denied that he had such knowledge. He said he was told by Liu that the bag and the suitcase contained only industrial raw materials. This was supported by Liu's evidence. Both the appellant and Liu gave evidence to the effect that since they had parted in the morning after Liu had transferred the bag and the suitcase into the boot of the Volvo, they did not have any contact with each other until sometime in the afternoon when Liu telephoned the appellant giving him instructions to meet a customer at the Holiday Inn.

44. It is true that the trial judge was at pains to point out to the jury that the car park attendant's evidence was not entirely satisfactory in that the circumstances in which his record was made as well as the times of entry and exit as recorded by him were not particularly clear. However, the significance of such evidence, if accepted by the jury, would be that if the SAAB and the Volvo had indeed entered the car park at more or less the same time, that is, shortly before 11 am, it was most likely that the appellant was not telling the truth when he said that he had no contact with Liu after they had parted in the morning except for the telephone call in the afternoon. Even the trial judge in his summing up suggested to the jury that the fact that both the SAAB and the Volvo entered the car park at the same time was either a remarkable co-incidence or something which tended to show that the account given by the appellant and Liu was a "fabrication".

45. That being the case, there was, in my view, a danger that the jury would think that since the appellant was not telling the truth in respect of his contact with Liu, the appellant's denial of lack of knowledge was also suspect, to say the least. The whole story given by the appellant might be infected by such untruthfulness.

46. The consequence of the jury's conclusion that the appellant was not telling the truth with regard to this part of his evidence was that they might think that there were two possible explanations for such lie, one inculpatory and the other exculpatory. They might think that the appellant was endeavouring to conceal his knowledge that the bag and the suitcase contained "ice". Alternatively, the jury might think that the appellant was frightened by the revelation that the bag and the suitcase contained "ice" after they were seized by the police and hence endeavoured to distance himself from Liu by denying any contact with Liu during the course of the day.

47. In the absence of any guidance from the judge as to how they should approach this lie and how they should assess the rest of the appellant's evidence and his defence, there was a real risk that the jury might make improper use of the lie and wrongly infer guilt directly from it. Under these circumstances, it is, in my view, necessary that a lies direction should be given. The trial judge ought to have warned the jury that the appellant's lie, should they consider that the appellant had lied, did not in itself prove guilt or amount to evidence of guilt. The judge should also have directed the jury that there might be an innocent explanation for the appellant's lie such as the one mentioned above and that the lie could not strengthen the prosecution case or undermine the defence unless they are sure there is no innocent explanation of his lie.

48. It must also be remembered that since the appellant had admitted possession of the bag and the suitcase, he had the burden to rebut the presumption that he had knowledge of their contents by virtue of s.47(2) of the Dangerous Drugs Ordinance. The effect of the jury having entertained a doubt on the credibility of the appellant as a result of the rebuttal evidence would certainly make it more difficult for the appellant to rebut the presumption.

49. Stock JA considered that since the trial judge's direction to the jury in respect of D1's lie was couched in general terms, this would be sufficient to serve as a warning to the jury when they approached the appellant's evidence. With respect, I would agree with leading counsel for the appellant that such a direction was not enough for the protection of the appellant against an impermissible process of reasoning by the jury. Further, in my view, the fact that the judge had summed up in respect of D1's case but did not do so in respect of the appellant' case might, arguably, be regarded by the jury as having some significance. It is possible that they might think that while they should not rely on D1's lie to infer guilt against D1, they might do so in respect of the appellant's case.

50. Here the trial judge invited the jury to consider whether the appellant had fabricated an account on an issue which was not determinative of his guilt but was material to the jury's verdict. In such circumstances, the giving of a lies direction is an accepted norm. In my view, the trial judge erred in failing to give a lies direction in respect of the appellant's case.

Application of Proviso

51. The majority of the Court of Appeal, Mayo VP and Stock JA, considered that even if the judge's omission to give a lies direction was an error, it was an appropriate case for the application of the proviso under the Criminal Procedure Ordinance. Keith JA dissented.

52. Mayo VP considered that the case against the appellant was overwhelming but did not go further to explain why the proviso should be applied. Stock JA gave a number of reasons for applying the proviso including the absence of objection by counsel for the appellant at the trial, the failure of the appellant to give evidence to counteract the impact of the rebuttal evidence, the absence of any cumulative error and what one could make of the jury's questions for further direction.

53. Keith JA considered that it was not an appropriate case for the application of the proviso, laying emphasis on the fact that it was a majority verdict of 5 to 2 and that it was reached after a long period of deliberation.

54. The test for an application of the proviso was discussed by this Court in Launder v. HKSAR [2002] 1 HKLRD 150, following Stirland v. DPP [1944] AC 315, 321 and Commissioners of Customs and Excise v. Harz and another [1967] AC 760, 823 to 824. See also Stafford v. DPP [1974] AC 878, 893G. It is: whether a hypothetical reasonable jury, properly directed, would inevitably have come to the same conclusion or would no doubt have convicted. Although the test anticipates the view of a hypothetical reasonable jury, the view of the jury which had tried the case must be a factor - albeit not conclusive - to be taken into account in considering what the view of the hypothetical reasonable jury would be. The fact that a particular jury only reached their verdict by a bare majority of 5 to 2 would indicate that two jurors had entertained some doubts about the guilt of the accused. See a similar remark in Launder v. HKSAR [2002] 1 HKLRD 150, at 164. In the present case, the majority verdict would mean that at least two jurors had considered that the appellant's defence might be true.

55. Counsel for the appellant referred to a number of authorities showing that where a lies direction was required but was omitted by the trial judge, the Court of Appeal would normally be very reluctant to apply the proviso. For example, R v. Mok Lun, unreported, Criminal Appeal No. 502 of 1993, 22 February 1995; R v. Ho Che Chung [1994] 2 HKC 148 and R v. Wai Wing Sang and another [1992] 2 HKCLR 23. It is not surprising that this has been the attitude of the Court of Appeal. A lies direction is aimed at warning the jury not to adopt an impermissible reasoning process. Where this is required either as a matter of law or as a matter of practice, and if the judge had failed to give such a direction, there is a risk that the jury might adopt such a reasoning process, and if so, they might not have given the accused's case a fair assessment. This is particularly detrimental to a defendant (as the appellant in the present case) who has the burden to rebut a statutory presumption on the balance of probabilities. His credibility is clearly of crucial importance and where credibility is an important issue and the jury is left with an inadequate or incorrect direction on credibility, the appellate court is reluctant to apply the proviso. See e.g. White (Kory) v. R (1997) 53 WIR 293 and Barrow (Terrence) v. The State (1998) 52 WIR 493, PC.

56. The fact that counsel in the trial did not raise objection when the trial judge had failed to give a lies direction in his summing up when such a direction is required is only a factor to be taken into account. The absence of objection at the trial might be an indication that counsel did not at that time think that there was any significance in such omission on the part of the judge. But there might also be other reasons for not raising an objection there and then. However, it does not necessarily warrant an application of the proviso. See KBT v. R 149 ALR 693. Furthermore, if what was undermined was the reasoning process of the jury in assessing the appellant's evidence, the fact that the appellant did not see fit to give evidence to counteract the impact of the rebuttal evidence is of little relevance.

57. With regard to the jury's question for further direction, I confess that I have difficulty in understanding what it meant. I do not think one can fairly make very much sense and hence much use out of it.

58. If the jury were not warned about the lie told by the appellant in respect of his contact with Liu, it was possible that he might have lost an opportunity of acquittal. See Mraz v. R (1955) 93 CLR 493 at 514; Wilde v. R (1988) 164 CLR 365 at 371-2. In the circumstances of this case, it simply cannot be said that a reasonable jury, properly directed, would inevitably have come to the same conclusion.

Conclusion

59. For these reasons, I am of the view that this is not an appropriate case to apply the proviso in upholding the conviction. The appellant is therefore entitled to succeed on the substantial and grave injustice ground.

60. Counsel for the prosecution had indicated that in the event the appeal was successful, the prosecution would seek a retrial. Counsel for the appellant did not object to such a course. I would therefore allow the appeal, quash the conviction, set aside the sentence and order a retrial.

Sir Noel Power NPJ:

61. I agree with the judgment of Mr Justice Chan PJ.

Sir Gerard Brennan NPJ:

62. I agree with the judgment of Mr Justice Chan PJ.

Chief Justice Li:

63. This Court unanimously allows the appeal, quashes the conviction, sets aside the sentence and orders a retrial.