HKSAR v. CHAN HING KAI

CACC 65/2017

[2019] HKCA 172

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 65 OF 2017

(ON APPEAL FROM HCCC NO 1 OF 2016)

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J U D G M E N T

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Hon Zervos JA (giving the Judgment of the Court):

Introduction

1.  On 9 March 2017, the applicant was convicted after trial before Wong J (the judge) and a jury of a single count of unlawfully trafficking in a dangerous drug, namely 2,608 grammes of a solid containing 1,808.1 grammes of cocaine and was sentenced to 26 years’ imprisonment.  He subsequently applied for leave to appeal his conviction.

2.  The sole ground in this appeal relates to the implications of the judge’s summing-up in respect of the applicant’s evidence at trial and its inconsistency with what his counsel had put to a prosecution witness.  This ground raises for consideration the rule in Browne v Dunn[1]which provides that a cross-examiner should put to an opponent’s witness matters that are inconsistent with what the witness says and which are intended to be contradicted or discredited in due course.

The charge

3.  The charge alleged that on 27 July 2015, the applicant, together with Wong Hui (Wong) and Lin Chi Shing (Lin), brought into Hong Kong from Philippines the quantity of cocaine as particularised in the count.  The cocaine was concealed on Wong and Lin, who each pleaded guilty to trafficking in the quantity of cocaine that was respectively found on their person.  The applicant proceeded to trial in relation to the total quantity of cocaine found on both Wong and Lin.  At the applicant’s trial, Wong gave evidence for the prosecution.

The prosecution case 

4.  The prosecution case was that the applicant had recruited Wong and Lin in Hong Kong to travel to Manila, Philippines, and return to Hong Kong with a quantity of cocaine.  In accordance with this arrangement, on 25 July 2015, the applicant together with Wong and Lin took a flight to Manila.[2]The applicant obtained a quantity of cocaine which he arranged to be concealed on Wong and Lin.

5.  On 27 July 2015, the three men took the same return flight to Hong Kong.[3] Upon arrival in Hong Kong, the three men were separately intercepted by police officers and searched. Wong and Lin were found to have concealed on them 862.1 grammes and 946 grammes of cocaine narcotic, respectively.  The total quantity of cocaine narcotic was contained in 14 packets with 7 packets concealed on each of Wong and Lin, variously in their underpants, socks and shoes.[4]The retail value of the cocaine at the time of the offence was $3,038,320.[5]

6.  The applicant was arrested inside a toilet at the airport.  No drugs were found on him. However, he was in possession of two telephones and a card with the telephone numbers of “Ah Hui” and “Ah Shing”.

7.  After he was cautioned, the applicant’s initial response was that he had nothing to say.  However, after he read the declaration of the post record he told the police officer: “Sir, I want to be frank”.  He was reminded he was still under caution and asked what did he mean, whereupon he said, “In fact, I was only responsible for watching ‘Ah Hui’ and ‘Ah Shing’ to bring dangerous drugs back to Hong Kong.  I did not bring any dangerous drugs.”  This oral statement was post recorded in the police officer’s notebook which the applicant confirmed and signed.

8.  In a subsequent video recorded interview, the applicant gave a mixed but mostly exculpatory statement.[6]He confirmed his earlier statement, but then proceeded to deny knowledge of the drugs or being involved in bringing them to Hong Kong.  He said he did not know the full names of the other two men and only referred to them as “Ah Hui” and “Ah Shing”.  He said in June 2015 he had been asked by an Indian friend named “Raj” to travel to Philippines with the two men and watch them board and alight from the aircraft.  He did not know the reason for doing this, but agreed to do it for a reward of $5,000.  He said apart from keeping an eye on them, nothing else was required of him.  “Raj” gave him the telephone number of “Ah Hui”, whom he contacted to meet before the trip.  Several days later, he met the two men and gave them flight tickets and some pocket money from “Raj”.  He agreed they departed Hong Kong on the same flight on 24 July 2015 (the correct date was 25 July 2015), but neither of the other men knew he was on the flight because they were sitting apart.  He said he never met or contacted them during their stay in the Philippines.  He was, however, contacted by “Raj”, who inquired about his arrival there.  Other than that, “Raj” did not arrange him to do anything else for him.  Several days later, on 27 July 2015, he saw the two men board the flight to Hong Kong.  After he disembarked from the aircraft, he called “Ah Hui” on his telephone.  He said he did not know that the two men were carrying dangerous drugs and he had never seen the dangerous drugs or other items seized from them.

9.  Wong gave evidence for the prosecution.  He testified that he was in debt and a friend called “Ah Yeung” told him he could refer a job to him.  He received a telephone call from the applicant, who asked him if he was interested in making “quick money”.  He said he was, and later also introduced his friend, Lin, to the applicant.  Prior to the trip to Manila, he and Lin met the applicant at a shoe shop, where they purchased shoes for the purpose of concealing the drugs.  On 25 July 2015, he saw the applicant at the airport and learnt that he was flying with them.  When in Manila, the applicant told him of the arrangements for conveying the drugs to Hong Kong.  On 27 July 2015, the applicant went to his hotel and placed the drugs in his shoes and underpants.  Upon arrival in Hong Kong, the applicant telephoned him to enquire about the drugs, but they were soon arrested.

The defence case

10.  The applicant gave evidence in his defence but did not call any witnesses.  His case was that he was not involved in the trafficking of the drugs.  He travelled to the Philippines for the sole purpose of delivering four mobile telephones for his friend “Ah Yeung”, who worked as a middleman in a casino in the Philippines.  It was through “Ah Yeung” that he met Wong.  He learnt that Wong was going to the Philippines and made contact with him.  They met each other in Mong Kok and Wong confirmed that he was going to the Philippines but did not tell him what he was going to do there.  He acknowledged that he received a screenshot from Wong showing a pair of sport shoes and he believed Wong asked him whether the shoes looked nice.  When he went to the airport on 25 July 2015 to travel to the Philippines, he saw Wong in the restricted area and had a cigarette with him but did not see Lin. 

11.  On arrival in the Philippines, he said he saw “Ah Yeung” at the airport and offered to give him the mobile telephones but he told him that he was waiting for Wong to take him to his hotel and it would be inconvenient to provide them to him at that time. “Ah Yeung” told him that he would meet the applicant at his hotel later on and collect the mobile telephones.  He knew nothing about the drug trafficking activities of Wong and Lin.  Moreover, he did not meet Wong or Lin during his stay in the Philippines.  He knew that Wong was on the same return flight as himself because “Ah Yeung” told him, but he did not see either Wong or Lin on the flight. 

12.  In cross-examination, he denied he had been told by “Ah Yeung” that Wong was on the same flight as him but when the audio recording of his testimony was played back to him, he said he had forgotten what he had said.  He did, however, make a call to Wong upon his arrival in Hong Kong, shortly before Wong was arrested by the police.  He said he left a voicemail message on Wong’s telephone, telling him that he had arrived in Hong Kong.  He was asked why he would telephone him on his return to Hong Kong when he said he had not contacted him in the Philippines.  It was in response to this question that the applicant said when he had a cigarette with Wong at the airport, Wong told him not to disturb him in the Philippines as he was not going there to have fun.  It was put to him that he had not given this evidence in examination-in-chief and he replied that he had mentioned it in his instructions to his counsel.

13.  The applicant denied making the verbal confession as claimed by the police officer.  He said he signed the post recorded confession in the police officer’s notebook because the police officer threatened to plant dangerous drugs in his belongings if he did not do so, and falsely represented to him that the post recorded entry was only for internal reference.  He said he was also induced to sign the post recorded confession by a police sergeant who pretended to be nice to him.  At the police station, he said he was further threatened, and overcame by fear and helplessness, he agreed to conduct the video recorded interview in accordance with “the story” made up by the police officer.

14.  During his detention at Lai Chi Kok Reception Centre, the applicant said he had contact with Wong on several occasions.  He claimed that Wong told him that he was going to plead guilty and demanded payment from him in exchange not to testify against him as a prosecution witness.  In cross-examination, it was put to him that the conversations he alleged he had with Wong had not been put to Wong when he testified, to which he agreed but denied that he was making it up.  The demands were allegedly recorded in three written notes which were produced at trial as exhibits D1, D2 and D3.[7]Although he discussed the proposal with Wong, he declined to give Wong the payment he had demanded.

15.  In his evidence, Wong denied any knowledge of the notes and stated that they were not in his handwriting. As already noted, the alleged conversations Wong had with the applicant were not put to him.

16.  We note that the three notes were written in Chinese and the English translations read as follows:

“I do not want to (do not) either, it is the police who taught me to give statement to frame you, do not blame me. You give me ($)20,000 first so that I can have a better life inside. I am not going to be an indemnified witness.” (exhibit D1)[8]

“Wong Hui asked you to buy him the private food, send him 5 packs of cigarettes first. You set a price, Wong Hui will discuss (it) with you after he considers (one wrong character) it. In short, he made it clear that he would not make you die if you gave him money.” (exhibit D2)[9]

“Wong Hui told me to tell you, you give ($)500,000 per person, then he will not go to court and will not frame you. Turn up to 8^th floor tonight if you want to talk about it, he will talk to you in detail at that time.” (exhibit D3)[10]

The ground of appeal

17.  In his oral submissions, Mr Gerard McCoy, SC, with Mr Oliver Davies,[11]for the applicant, framed the ground of appeal in terms of the following proposition.[12]

“It is a misdirection to direct a jury in unqualified terms that because of a lack of puttage by counsel the jury are invited to conclude from that omission a lack of credibility in the defendant by recent invention.”

18.  Mr McCoy submitted that the judge wrongly directed the jury on the inferences that could be drawn from the failure to put some parts of the defence case to Wong.  When the applicant gave evidence, he testified about certain things that were said and done by Wong which had not been put to him in cross-examination by defence counsel.

19.  It was submitted by the parties that the judge’s comments to the jury on this issue related to two matters, both of which had not been put to Wong when he testified.

20.  The first matter concerned the applicant’s testimony in examination-in-chief that during his detention at the Lai Chi Kok Reception Centre, Wong told him that both Wong and Lin (“Ah Shing”) were arrested by the police; that Wong was beaten up by the police; and that Wong was told by the police to falsely attribute the role of “Ah Yeung” (the organiser of the shipment) to the applicant.

21.  The second matter concerned the applicant’s testimony in cross-examination that when he met Wong at the airport on 25 July 2015, Wong told him that he did not want the applicant to disturb him when they were in the Philippines because he was “not going there to have fun.”  This had not been mentioned in examination-in-chief.

How the two matters arose at trial

22.  The prosecution case against the applicant was primarily based on the evidence of the accomplice witness, Wong, and the applicant’s admission to the police officer that he was responsible for watching Wong and Lin bring the drugs back to Hong Kong.

23.  Of the admission, the applicant claimed he had been mistreated by the police and did not make it.

24.  Of the evidence of Wong, the applicant claimed he was lying because Wong had tried to elicit money from him not to frame him or testify against him.

25.  In the course of the examination-in-chief of the applicant, Mr Davies, who represented the applicant at trial, took him to the occasion of his detention at Lai Chi Kok Reception Centre.  This is what was said about the first matter.

“Q. Okay. I want to move on a bit because later you were detained in Lai Chi Kok. You were not given bail.

A. Yes.

Q. Right. Now, in that time, did you have any contact with Wong Hui?

A. Yes.

Q. Did he say anything to you about this case?

A. Yes.

Q. What did he say?

A. He told me why he was arrested and he told me how he and Ah-Shing were arrested by the police when they were back. He told me that when the police arrested him, he beat him. Because at that time, there was Ah Yuen who the police wanted to arrest but as he was not in Hong Kong, the police could not do so. Then the police asked Wong Hui to replace Ah Yuen, replace the role of Ah Yuen with me.

Q. When did he tell you this, roughly?

A. Another appearance in court which should be in Tsuen Wan Magistracy.

Q. Right. Do you remember how many appearances you have made in court?

COURT: Should I tell the jury about the hearsay issue here?

MR DAVIES: Yes, yes.

…”[13](Emphasis added) (“Ah Yuen” is a reference to “Ah Yeung”)

26.  The judge then gave the jury a direction on hearsay in relation to what the applicant said he had been told by Wong.  After giving that direction, Mr Shaun Kelly, prosecuting counsel on fiat, informed the judge he wished to raise a matter in the absence of the jury.  The transcript of this interlude was not included in the appeal bundle but the following exchange took place.

“COURT: Yes, please.

MR KELLY: My concern is this, this aspect was not put to the witness, Wong Hui, so not only is it hearsay, but the witness has never had an opportunity to either accept or deny it, but the point … I don’t think there’s anything (we) can do now.

COURT: Up to counsel to handle the situation …

MR DAVIES: I don’t wish to … I don’t think there is much I can say …

MR KELLY: Right …

MR DAVIES: I am bound by my instructions.

…”

27.  After the jury returned, Mr Davies continued with his examination-in-chief of the applicant, who went on to repeat what he claimed had been said to him by Wong.  He said Wong had demanded money from him, not to frame him or give evidence against him, which he claimed was evidenced by the three hand-written notes that he had received, exhibits D1, D2 and D3.

28.  The notes were shown to Wong in cross-examination, which he denied were written by him.  However, as noted by Mr Kelly, the conversation that the applicant claimed he had with Wong had not been put to Wong.

29.  As already mentioned, the second matter only arose in the cross-examination of the applicant as follows:

“Q. You went to the Philippines at the same time, but on your evidence, you never met him once in the Philippines while you were there.

A. Right.

Q. Yes. And friends on the same flight going down would surely meet up in the Philippines, but you didn’t do that.

A. Before I went to the Philippines, when I saw Wong Hui in the airport, it was Wong Hui who firmly told me that he did not want me to disturb him when we were in the Philippines because he was not going there to have fun. But for me, I was only travelling there. That’s why I did not contact him further.

Q. You say he told you he didn’t want to disturb you because he wasn’t going there for fun. He didn’t want you to disturb him, yes.

A. Right.

Q. When did he tell you this?

A. In the airport when we were smoking.

Q. Yes. You never told us that when you were answering questions from your counsel.

A. In fact, according to the instructions I gave to my counsel, I did mention it.

Q. Because you were asked what sort of conversations you had with him.

A. Yes.

Q. And you had been talking to him for some five minutes, or after five minutes you left the smoking room.

A. Yes.

Q. So why didn’t you volunteer that information when you were asked the question about what was going on in the smoking room?

A. At that time I was not yet up to tell that part of evidence to you, but now, when the prosecuting counsel asks me things in this area, I told you so.”[14](Emphasis added)

30.  Mr Kelly next questioned the applicant about the first matter.

“Q. Now, let’s move on to the time when you were remanded to the Lai Chi Kok Reception Centre. You told us a piece of conversation that you had with Ah Hui.

A. Yes.

Q. And you said he told you certain things, for example, that he had been beaten up and that he had been asked to substitute the role of Ah Yeung with your role, with you.

A. Right.

Q. Again when you were giving your evidence-in-chief, you never told us this.

A. Can I now tell you this matter?

Q. Well, you have already told this. Sorry, when you told it but did you tell your counsel this? Was this part of your instructions to your counsel?

MR KELLY: Sorry. I think I may have confused and I think I should start again, my Lord.

MR DAVIES: I think that ...

MR KELLY: Yes.

MR DAVIES: I think you’d better be careful.

COURT: That’s what ...

MR DAVIES: We’re discussing what he is telling his lawyer.

COURT: Yes.

MR DAVIES: I mean that’s ...

MR KELLY: Well, of course it’s ...

MR DAVIES: ... subject to legal professional privilege ...

COURT: Yes.

MR DAVIES: ... as you know.

Q. In any event, you would be aware that this allegation against Ah Hui was never put to Ah Hui in this trial. You would know that, wouldn’t you?

A. Yes.

Q. Yes, all right. And is that because you are only making this up now as you go along?

A. I disagree.

Q. All right. Thank you. …”[15]

31.  Mr Kelly in this exchange with the applicant put to him that his counsel had not put the conversation to Wong because it was a fabrication by the applicant, to which he disagreed.

How the two matters were discussed in closing addresses

32.  Mr Kelly in his closing address, did not mention the first matter, although he briefly touched upon the second matter as follows:

“Now, remember that the tickets, according to the defendant, the tickets, the air tickets were booked, I think, by Ah Yuen, but the flights were the same. They were both scheduled to go on the same flight and return on the same flight. That might suggest to you they were two friends going for fun and that’s really what the defendant would want you to believe, but the curious thing about that, ladies and gentlemen, is that on his own evidence the defendant says he didn’t see Ah Hui in Manila at all, didn’t have any fun, And, of course, he gives you a convenient explanation again, he said, well, he said, ‘He told me didn’t want to be disturbed, that he wasn’t going for fun’, that’s Ah Hui. The flights were booked together and here’s a situation where they don’t even meet up in Manila. So clearly not friends in the conventional sense of the word, so why would you immediately getting off the Manila flight, the Manila to Hong Kong flight, immediately dial this person to say, ‘I’ve arrived safely’, but he’s on the same flight and you know that? And the answer is because Wong Hui is telling you the truth He was in telephone conversation with him in relation to the bringing in of the drugs to Hong Kong.”[16](Emphasis added)

33.  Mr Davies did not refer to either of the two matters in his closing address.

How the judge summed-up on the two matters

34.  The judge in his summing-up to the jury mentioned the second matter, incorporating Mr Kelly’s description of it as “a convenient explanation”.[17] Nothing else was said about the second matter.  He then noted that during cross-examination of the applicant, the applicant told the jury “some factual scenario”, which had not been put to the relevant witness for him to respond.  He went on to say that the fact that such allegation had not been put to the relevant witness for him to respond was a matter which they were entitled to take into account in their assessment of the credibility of the applicant.  This is what the judge actually said:

“During cross-examination of the defendant, it was pointed out that some factual scenario he told you had not been put to the relevant witness for him to respond. This is so in particular in relation to something which the defendant alleged Wong Hui had said to the defendant. Despite so, what the defendant told you is evidence and you must take it into account in your consideration. However, the fact that such allegation had not been put to the relevant witness for him to respond is a matter which you are entitled to take into account in your assessment of the credibility of the defendant.

If you consider it appropriate, you may ask yourself whether it was an indication that the defendant was making up a false story when he went along in giving evidence, as otherwise his counsel would have put those allegations to the relevant witness. Whether this matter affects your assessment of the defendant’s credibility is a matter entirely for you.

Such omission of putting of a case was in relation to certain factual scenario only. If you find such omission affects your assessment of the defendant’s credibility, it is also up to you to decide whether its effect is confined to that particular version of facts or it affects your assessment of the defendant’s overall credibility. Whether or not you are to accept the evidence of a particular witness is a matter entirely for you.”[18](Emphasis added)

35.  We are of the view that the judge was only referring to the first matter in these remarks.

The rule in Browne v Dunn

(a)  The nature and ambit of the rule

36.  Lord Herschell in the House of Lords decision of Browne v Dunn[19]expounded the common law rule, known by the name of the case, that ensures a witness has the opportunity to explain a matter of substance if the opposing party intends to later contradict or discredit the witness in relation to it.  Sometimes the rule is referred to as the “lack of puttage”.

37.  The rationale of the rule was explained by Lord Herschell as follows:

“Now my Lords, I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses. Sometimes reflections have been made upon excessive cross-examination of witnesses, and it has been complained of as undue; but it seems to me that a cross-examination of a witness which errs in the direction of excess may be far more fair to him than to leave him without cross-examination, and afterwards to suggest that he is not a witness of truth, I mean upon a point which it is not otherwise perfectly clear that he has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling. Of course I do not deny for a moment that there are cases in which that notice has been so distinctly and unmistakably given, and the point upon which he is impeached, and is to be impeached, is so manifest, that it is not necessary to waste time in putting questions to him upon it. All I am saying is that it will not do to impeach the credibility of a witness upon a matter on which he has not had any opportunity of giving an explanation by reason of there having been no suggestion whatever in the course of the case that his story is not accepted.”[20]

38.  The rule in Browne v Dunn is a rule of fairness, and although the rule arose in a civil case, it quickly gained currency in criminal cases because of its importance to the fair and orderly conduct of trials.  However, the content of the rule is narrower than in civil proceedings.  This is due to the accusatorial nature of criminal trials, the obligation on the prosecution to present its whole case and the burden of proof.[21]These matters will obviously need to be taken into account when considering the scope of the rule and the remedies for its breach.  It has been said, and we agree, that there are two aspects to the rule in Browne v Dunn.[22] The first aspect is that it is a rule of practice or procedure designed to achieve  fairness to witnesses and a fair trial between the parties.  The second aspect is that it is a rule relating to weight or cogency of evidence. 

39.  The nature and application of the rule in Browne v Dunn have been the subject of elaboration and caution.  There have been a series of Australian cases that have provided useful analysis and guidance in relation to the rule.  In R v Manunta,[23]King CJ, in giving the leading judgment of the South Australian Supreme Court, expressed the following concerns if the rule was strictly applied.

“... It is legitimate, of course, to draw appropriate conclusions from counsel’s failure to put in cross-examination some matter to which his client or his witnesses subsequently depose. It is a process of reasoning, however, which is fraught with peril and should therefore be used only with much caution and circumspection. There may be many explanations of the omission which do not reflect upon the credibility of the witnesses. Counsel may have misunderstood his instructions. The witnesses may not have been fully co-operative in providing statements. Forensic pressures may have resulted in looseness or inexactitude in the framing of questions. The matter might simply have been overlooked. I think that where the possibility of drawing an adverse inference is left to the jury, the jury should be assisted, generally speaking, by some reference to the sort of factors which I have mentioned. Jurors are not familiar with the course of trial or preparation for trial and such considerations may not enter spontaneously into their minds. Whether such matters should be brought to the attention of the jury and the manner in which that should be done are matters for decision by the trial judge in the atmosphere of the trial.”[24]

40.  In R v Birks,[25]Gleeson CJ (as Gleeson NPJ then was), in giving the leading judgment of the New South Wales Court of Criminal Appeal, adopted the views expressed by King CJ in Manunta and added his own caution:

“… I would add that one particular matter which makes it difficult for jurors to use the conduct of counsel as a basis for drawing inferences of fact is that most jurors are unaware of the principles, some of which have been set out earlier in this judgment, relating to the wide discretion available to counsel as to the manner in which a trial may be conducted. It may be easy for a jury, unless given an appropriate warning, to assume that a barrister is merely some kind of ‘mouthpiece’ for the client, conducting the case in close conformity with the client’s directions. For reasons that have already been explained, this is far from the truth.”[26]

41.  The rule in Browne v Dunn recognised the need for flexibility in its application, and as explained by Gleeson CJ:

“… That need arises on the very nature of the subject matter which it concerns. The central purpose of the rule is to secure fairness in the conduct of adversary proceedings. That consideration provides the best guide, both to the practical requirements of the rule in a given case, and to the consequences which may properly flow from its non-observance, including the remedies that are available to deal with a problem so created.”[27]

42.  The key feature of the rule in Browne v Dunn is the objective of securing fairness and in so doing it is important to bear in mind the practical effects of the rule in the context of a criminal trial.  As observed by Gleeson CJ:

“… It is one thing to say that the interests of fairness to a witness or a party require observance of the rule, and that some interests of fairness may well produce various consequences if the rule is not observed. However, the rule is often invoked for the purpose of entering into another area of discourse, that is to say, the drawing of inferences by a tribunal of fact. This is what is often behind references that are made to a ‘comment’ following apparent non-observance of the rule. It is important, in the interests of accuracy, to consider the substance of the comment to which reference is made. It is one thing to remark upon the fact that a witness or a party appears to have been treated unfairly. It is quite another thing to comment that the evidence … of a person should be disbelieved, perhaps as a recent invention, because it raises matters that were not put in cross-examination to other witnesses by that person’s counsel. Depending upon the circumstances of the case either or both of those comments may be available … However, especially in a criminal trial, there are considerations which may indicate the need for caution. …”[28]

43.  It was noted by the Queensland Court of Appeal in R v Foley[29]that the cases do not mark out clearly how far counsel must go in putting the defence case to a witness, but if the essential elements of the eventual case are not put to witnesses who might have the capacity to cast doubt upon them, a fair trial to both sides will have been jeopardised, and appropriate adverse comment may reasonably be expected.[30] However, the Court added the following qualification, expressing the need for care if a judge is inclined to direct the jury on the matter:

“While variations in circumstances of particular cases may call for different responses, it is now generally recognised in criminal trials that in summing up on this issue, the judge should simply point out to the jury that the particular matter was not put to the relevant witness; that it should have been put so that the witness could have the opportunity of dealing with the suggestion; and that the witness has been deprived of the opportunity to give that evidence and that the court has similarly been deprived of receiving it. There will be exceptional cases where it is necessary to go further, for example where there seems to be a tenable case of recent invention. There may for example be a strong perception that the cross-examiner has deliberately preserved a case from damage by preventing it from being tested, and that this has enabled the client to lie by and present the case that belatedly seems opportune. The giving of additional directions in such cases is, however, fraught with difficulty.”[31]

44.  The dynamics of a criminal trial can be quite complex and a failure by counsel to put an essential matter to a witness may not be the fault of an accused.  It will only be in exceptional and clearly obvious cases that a judge would go further than the usual instruction in relation to assessing the weight or cogency of the uncontradicted evidence, although to do so is “fraught with difficulty”. 

45.  Acknowledging the warnings in Manunta and Birks, the Court in Foley went on to state:

“There are many possible explanations of a failure by counsel to observe the rule, and some of these do not reflect upon the credibility of the client. Counsel, for example, may have misunderstood the instructions, or the failure may be through oversight. Jurors are not familiar with the rules and practices of preparation for trial, the special relationship between lawyer and client or counsel’s duties and responsibilities to the court in conducting a case. If then a jury is to be instructed in a way which will permit adverse inferences to be drawn against the credibility of a defence witness, there must be at least some explanation of these factors, and particular mention of the possibility of other explanations such as misunderstanding or error on the part of counsel. It should also be made clear that before drawing an adverse inference against the accused, the jury should be satisfied that there is no other reasonable explanation for the omission to cross-examine.” [32]

46.  In such circumstances, every effort should be made to employ permissible means of rectifying the problem and avoid it becoming an issue at trial with any comment or direction as a matter of last resort.  This was also emphasised by the Court in Foley:

“There are of course ways and means of avoiding the necessity of presenting such issues to juries at the end of the trial. Sometimes it is possible to have a witness or witnesses recalled for cross-examination. Sometimes it may follow from the conduct of the trial that it is not fairly open to counsel to make a particular suggestion in address. Sometimes the reason for the omission is itself explored at trial, and if it can be seen that the omission reflects only on counsel (or solicitor) and not the accused, then the only available comment would relate to the potential disadvantage to the witnesses or to the Crown’s case from the omission, with an express statement that this was not fault of the accused but rather of counsel.

It will, however, be necessary for additional directions to be given in some cases notwithstanding their difficulty. Without this safeguard some counsel might deliberately follow the undesirable practice of what is colloquially described as beating around the bush. The practice of failing to expose actual instructions of the case that is to be put cultivates dishonesty and is unworthy of counsel.”[33]

47.  A summary of the principles in relation to the rule in Browne v Dunn in the context of a criminal trial was succinctly stated by Redlich JA, giving the majority judgment of the Victorian Court of Appeal, in R v Thompson[34]as follows:

“111 The rule in Browne v Dunn is a rule of law and practice. In a criminal trial the rule will become relevant during the cross-examination of any prosecution or defence witness whose evidence is to be contradicted by other evidence called by cross-examining counsel or otherwise challenged. The obligation will also arise where the cross-examiner intends to adduce evidence as to the conduct of the witness which may be a matter of controversy. That conduct must be put to the witness. The rule rests upon notions of fairness. It is designed to give the witness, and the party calling that witness, an opportunity to meet that challenge and to facilitate the tribunal’s assessment of the reliability and accuracy of the witness. Where matters in controversy are not ‘put’ to the witness in cross-examination, the tribunal’s capacity to assess the credit of the witness is likely to be impeded. Any relaxation of the obligation to comply with this rule increases the risk of injustice to the witness and the party calling that witness.

112 Where in breach of the rule, a matter has not been ‘put’ to a witness by counsel and is subsequently deposed to in evidence by counsel’s client, an inference may arise that the matter has been recently invented. It is a process of reasoning fraught with peril which should therefore be employed only with much caution and circumspection, there being many explanations of such omissions which do not reflect upon the credibility of the witnesses. Accordingly, in a criminal trial the application of the rule and the circumstances in which an inference should be drawn from non-compliance with the rule must be seriously qualified. Where a party seeks to invite the jury to draw such an inference, a careful direction should normally be given concerning the operation of the rule and the limited circumstances in which that inference may be drawn.”[35]

48.  The need for caution in the application of the rule in Browne v Dunn in criminal trials cannot be overstated and this was advocated in the joint judgment of Gummow, Kirby and Callinan JJ of the Australian High Court, in MWJ v R,[36]where they said:[37]

“[18] … However, for reasons explained, for example, in R v Birks, and R v Manunta, it is a principle that may need to be applied with some care when considering the conduct of the defence at criminal trial. Fairness ordinarily requires that if a challenge is to be made to the evidence of a witness, the ground of the challenge be put to the witness in cross-examination. This requirement is accepted, and applied day by day, in criminal trials. However, the consequences of a failure to cross-examine on a certain issue may need to be considered in the light of the nature and course of the proceedings.

…

[38] … The rule is essentially that a party is obliged to give appropriate notice to the other party, and any of that person’s witnesses, of any imputation that the former intends to make against either of the latter about his or her conduct relevant to the case, or a party’s or a witness’ credit.

[39] One corollary of the rule is that judges should in general abstain from making adverse findings about parties and witnesses in respect of whom there has been non-compliance with it …

[40]    Reliance on the rule in Browne v Dunn can be both misplaced and overstated.  If the evidence in the case has not been completed, a party genuinely taken by surprise by reason of a failure on the part of the other to put a relevant matter in cross-examination, can almost always, especially in ordinary civil litigation, mitigate or cure any difficulties so arising by seeking or offering the recall of the witness to enable the matter to be put. …”

49.  From the authorities to which we have referred we derive the following summary of the relevant principles:

(1)  The rule in Browne v Dunn is a rule of professional practice and of fairness designed to allow witnesses to confront and respond to any proposed challenges to their evidence.[38]

(2)  The rule does not apply to criminal proceedings in the same way or with the same consequences as it does in civil proceedings, due to the accusatorial nature of criminal trials and the different obligations placed on the prosecution and the defence.[39]

(3)  The rule admits of flexibility[40]and requires considerable care and circumspection in its application.[41]

(4)  The extent of the obligations that arise under the rule in a particular case will be informed by the nature of the defence case and the forensic context of the trial.  A cross-examiner must not only disclose that the evidence of the witness is to be challenged, but also how it is to be challenged.[42]

(5)  Where counsel does not comply with the rule, the trial judge has a discretion as to how to remedy any unfairness that may result and the actions he takes will depend on the circumstances of the case.[43]

(6)  Measures should be employed to avoid having to direct the jury about a breach of the rule, such as, drawing the attention of counsel to the need to put matters to the witness, and permitting a witness to be recalled to be cross-examined and questioned on the matters omitted.[44]Other measures may also be available depending upon the nature of the breach of the rule and the circumstances of the case.

(7)  Where an apparent failure to comply with the rule is followed by judicial comment to the jury, it is important to consider the substance of the comment, the purpose of which may differ depending on the circumstances.[45]

(8)  Where the trial judge considers that it is necessary to direct the jury about the effect that failure to comply with the rule may have on their assessment of the contradictory evidence, the judge should:

(i)  outline the rule in Browne v Dunn and its purpose;

(ii)  tell the jury that, under the rule, the witness should have been challenged about the relevant matters, so that he or she had an opportunity to deal with the challenge;

(iii)  tell the jury that the witness was not challenged, and thus was denied the opportunity to respond to the challenge; and

(iv)  tell the jury that they have therefore been deprived of the opportunity of hearing his or her evidence in response.[46]

(9)  Only in exceptional cases should the trial judge consider directing the jury that an adverse inference as to credibility may be drawn against the accused in consequence of a breach.[47] It is one thing to remark upon the fact that a witness or a party appears to have been treated unfairly, but it is another thing all together to comment that the evidence of a person should be disbelieved, perhaps as a recent invention, because it raises matters that were not put in cross-examination to other witnesses by that person’s counsel.[48]Such a direction will only be appropriate where the circumstances surrounding the failure to put the allegation to the witness raise a “prominent hypothesis” that the contradictory evidence is a recent invention or is otherwise a fabrication.[49] 

(10)  Such a direction is fraught with difficulty and should only be given with considerable care and circumspection and must be accompanied with an explanation that other inferences may be drawn on why a party failed to comply with the rule with examples of those inferences.[50]

The applicant’s submissions

50.  It is complained by the applicant that the judge wrongly directed the jury on the inferences that could be drawn from the failure of the counsel for the applicant to put aspects of the defence case to a prosecution witness.  As a consequence, it is argued that the judge’s remarks had serious implications in relation to the evidence of the applicant and its inconsistency with what his counsel had put to the prosecution witness.

51.  Mr McCoy submits that the credibility of the applicant was a key issue at his trial and this was emphasised by the judge in his summing-up to the jury.  He argues that in the impugned directions to the jury there was a clear invitation to them to treat the applicant’s credibility negatively in direct and unqualified terms because of his counsel’s lack of puttage, which amounted to a miscarriage of justice.  

52.  Mr McCoy elaborates his argument by contending that the judge by his comments was encouraging the jury to decide guilt on the basis that the applicant’s evidence must have contained a recent invention, because the same matter had not been put earlier by his counsel to a prosecution witness.  Relying on the observations in Manunta,[51]he argues that such an approach is “fraught with peril and should therefore be used only with much caution and circumspection”.[52]He points out, as explained by King CJ in Manunta, that there may be many explanations for the omission to put a matter to a witness and therefore the alternative innocent scenarios should have been expressly referred to by the judge.  He further points out that when the applicant was challenged about his evidence, he said he had instructed his counsel on the matter, which, as stated in Foley,[53]“was an important factor and deserved mention”.[54] However, we note that the applicant gave this response in relation to the second matter which was not the subject of the impugned directions from the judge.  The first matter was the subject of the directions, which the applicant denied was a fabrication by him.  The judge did not mention the applicant’s denial. 

53.  The invocation of the rule in Browne v Dunn arises because counsel has not put matters to a witness who is under challenge.  However, Mr McCoy stresses that the responsibility of the conduct of a case rests with counsel, and he refers to the observation of Gleeson CJ in Birks,[55]that there is a “wide discretion available to counsel as to the manner in which a trial may be conducted”.[56] He also refers to Gleeson CJ’s observation that it is an extreme measure for a judge to comment on the veracity of a witness’s evidence in relation to matters that were not put to another witness by his counsel.  He quotes the following comments of Gleeson CJ:

“It is one thing to remark upon the fact that a witness or a party appears to have been treated unfairly. It is quite another thing to comment that the evidence … of a person should be disbelieved, perhaps as a recent invention, because it raises matters that were not put in cross-examination, to other witnesses by that person’s counsel.”[57]

54.  Mr McCoy argues that if a judge is moved to direct a jury on the lack of puttage, it is a matter that requires care and circumspection. He relies on the case of Foley, where it was said that if a possible negative direction inviting the jury to draw an adverse inference from the lack of puttage is to be given, then the judge must inform the jury of other reasonable explanations, such as exercise of judgment, misunderstanding or error, as otherwise the jury are most unlikely to evaluate this matter fairly without trespassing into impermissible reasoning.[58]

55.  Mr McCoy submits that it follows that such a direction would amount to a material error, unless the judge very carefully identifies all the countervailing possibilities to the jury.  The point he makes is that the judge did not identify the countervailing possibilities and went further than he should have to the prejudice of the applicant.

56.  When the issue of the failure of puttage arises, Mr McCoy argues that a judge should be careful when directing a jury on the issue.  He refers to the joint judgment of Gummow, Kirby and Callinan JJ in MWJ,[59]in which it was stated that the judge should in general abstain from making findings about parties and witnesses in respect of whom there has been non-compliance with the rule in Browne v Dunn and that reliance on the rule can be “both misplaced and overstated”.[60]

57.  Mr McCoy emphasises that the rule in Browne v Dunn had to be necessarily considered having regard to the essential accusatory character of the criminal trial where an accused bears no burden of proof.  On this point, he argues that a jury will not necessarily take into account the other countervailing matters such as the discretion of trial counsel and the conduct of the defence case and hence the application of the rule requires considerable care and circumspection. 

58.  The care required from a judge when addressing the issue of lack of puttage was emphasised in R v MAP,[61]where Keane JA (as he then was), in giving the judgment of the Queensland Court of Appeal, considered that in the circumstances of that case the trial judge’s comment to the jury could have been understood as an invitation to them to draw an adverse inference against the appellant on a crucial issue because of the lack of puttage and therefore such an approach should not be applied “mechanically” where the circumstances suggest that it is not the only inference. 

59.  The care extends to ensure there is no infringement of legal professional privilege, which Mr McCoy notes was addressed in R v Leef.[62] In that case, the New Zealand Court of Appeal observed that there exists a real risk of infringing legal professional privilege when probing an accused about his instruction to counsel on a version he is propounding in evidence which had not been put to a relevant witness.  That may be so, but we would point out that if the lack of puttage was due to a mistake or error on the part of counsel, we do not see how disclosure of that fact would infringe legal professional privilege.  In fact, we consider that if and when such an issue arose, counsel would have a professional duty to inform the court of any fault on his part for the lack of puttage.

60.  Mr McCoy refers to a number of Australian authorities on this issue but mainly focuses on the decision of the Victorian Court of Appeal in R v Morrow,[63]which discussed the rule in Browne v Dunn in some detail in the concurring judgments of Nettle JA (as he then was) and Redlich JA.  Nettle JA strongly reinforced the position that the rule in Browne v Dunn did not apply to criminal proceedings in the same way or with the same consequences as it does in civil proceedings and therefore its application required considerable care and circumspection.[64] Redlich JA also emphasised that it is not always clear how far counsel must go in putting their case to avoid complaint that they may have not met the minimum obligations under the rule.  He considered that the circumstances would have to be “exceptional” before it would be necessary for a judge to instruct the jury that it was permissible to disbelieve an accused because of the lack of puttage.[65] He added:

“The trial judge simply informed the jury of a particular consequence of non-compliance. That consequence might arguably have followed, if, but only if, the jury, upon proper directions, had been satisfied that there was no reasonable explanation for the omissions which did not reflect upon the credibility of the applicant. No necessary directions were given that would have enable the jury to exclude all explanations other than afterthought by the applicant.”[66]

61.  A similar view was expressed by Simpson J, in giving the judgment of the New South Wales Court of Criminal Appeal, in RWB v R,[67]where it was held that a trial judge should exercise great caution in directions to a jury concerning the failure of an accused’s counsel in complying with the rule in Browne v Dunn and that in reality an adverse inference may be far from the only available inference and therefore it would be quite unfair to make such a suggestion to the jury. 

62.  Mr McCoy submits that the impugned directions in the present case were a serious misdirection in relation to the evaluation of the applicant’s evidence, which is the most important matter in a trial.  The judge did not provide the jury with any of the necessary safeguards as stipulated by the authorities, but instead encouraged them to misuse the matter against the applicant.

The respondent’s submissions

63.  Ms Anna Y K Lai, SC, with Mr Derek Wong, for the respondent, argues that whilst it was preferable that the judge should have given the direction suggested in Manunta and Birks, such an omission was not material and did not affect the safety of the applicant’s conviction in the circumstances of the case. 

64.  Ms Lai submits that where the jury is invited to draw an adverse inference, such as recent invention, against an accused based on his counsel’s failure of putting in cross-examination matters to which he later deposes, the jury should be assisted by reference to other possible causes for such an omission.  She argues that such an omission would not automatically render a conviction unsafe, because it would depend upon the circumstances of the case.  She gives an example where matters relied upon by the prosecution are peripheral or of little significance.  In such a case, the absence of a direction would not affect the validity or inevitability of the conviction. 

65.  Ms Lai makes the point that the appellate courts in the cases of Birks and Foley quashed the convictions because the prosecution relied heavily on the defence’s failure to put its case, and because the matters were of significance in the particular circumstances of the case. 

66.  Ms Lai notes that in Manunta the convictions were upheld on appeal despite the absence of the warnings as mentioned by the Court of Appeal.  In that case, the judge directed the jury that three aspects of the evidence of the accused and his witness were inconsistent with the cross-examination of prosecution witnesses, which might have some bearing on the jury’s consideration of the accused’s case.  The jury was directed on the adverse inference of recent invention that might be drawn by the jury.  The trial judge made it clear to the jury that a failure to comply with the rule did not compel them to a conclusion on an issue of fact and the prosecution was still obliged to prove the ingredients of the charge.  Notwithstanding the absence of warnings to the jury, the Court of Appeal upheld the convictions on the basis that the points raised with the jury based upon the failure to cross-examine, did not possess much weight and that the judge fairly explained to the jury that their weight was a matter for them. 

67.  In a similar case of RWB,[68]the Court of Appeal dismissed the appeal against conviction after assessing the practical effect of what was said by the judge which ought not to have been made, had minimal significance to the case and no miscarriage of justice resulted.[69]

68.  Ms Lai submits that the two matters that were not put to Wong in cross-examination were relatively minor and only the second matter was briefly mentioned by the prosecution counsel in his closing address.  She notes that the second matter was described as a “convenient explanation” by Mr Kelly and was not referred to as a recent invention by the applicant.  She further notes that the judge made only one reference to “some factual scenario” which was not put to Wong and that the judge directed the jury that if they found it affected their assessment of the applicant’s credibility, it was up to them whether it was confined to that particular version of the facts or his overall credibility.  She stressed that the judge left the matter open for the jury’s consideration, without expressing a view, telling them twice that it was a matter entirely for them.

69.  Ms Lai points out that Mr Davies raised no objection at the conclusion of Mr Kelly’s closing address and made no mention of the two matters during his closing address.  She adds that Mr Davies also took no issue with the judge’s direction.

70.  In order to correctly focus these submissions, we need to point out that the issue in this appeal is whether the judge’s directions exceeded proper bounds.  It does not rest on whether the two matters were insignificant or whether it was left for the jury to decide how to assess them.  It is a question of whether in the circumstances of the case the judge’s invitation to the jury to consider the failure to put the first matter to Wong as going to his credibility as a witness was inappropriate and, if so, whether the irregularity was material, thereby rendering the conviction unsafe.

71.  It is acknowledged by Ms Lai that it would have been preferable had the judge given the warnings in accordance with Manunta but having not done so, did not result in a miscarriage of justice.  She states that given the nature and insignificance of the matters it was highly unlikely the jury would have placed much weight on them in determining the credibility of the applicant.  She refers to the applicant’s statements in his video-recorded interview[70]and the photographs sent by Wong to the applicant on his mobile telephone.[71] She adds that on this basis, there is justification to invoke the proviso, if this Court were of the view that there was a material misdirection.

The application of the rule in Browne v Dunn

72.  It is complained by the applicant that the judge erred in his application of the rule in Browne v Dunn because in his directions to the jury he instructed them that the failure to put to Wong a conversation the applicant claimed in his evidence he had with him was a matter that they could take into account in relation to the applicant’s credibility. 

73.  The question arises whether there was in fact a failure to comply with the rule in Browne v Dunn and whether the judge erred in directing the jury that the failure enabled them to reach an adverse view of the applicant’s credibility.

74.  The rule rests upon notions of fairness by putting an obligation on a party to confront a witness whose evidence is to be contradicted by other evidence or to be otherwise challenged.  It is designed to give the witness and the party calling that witness an opportunity to meet that challenge and to facilitate the tribunal of fact’s assessment of the reliability and accuracy of the witness.

75.  As pointed out by Redlich JA in Morrow, any relaxation of the obligation to comply with this rule increases the risk of injustice to the witness and the party calling that witness and diminishes the tribunal’s capacity to assess the merits of the issue.[72]

76.  The extent to which counsel must go in putting their case to avoid complaint that they have not complied with the rule will depend upon the nature of the case and the relevance and significance of the evidence to a witness or witnesses who are under challenge.

77.  Redlich JA in Morrow[73]explained that where detail in support of an allegation is known to the cross-examiner and is to be the subject of evidence, sufficient detail must be put to the witness so that it can be said that the witness was given an adequate opportunity to respond, not only to the allegation but to its essential features which may include the time, place and circumstances of the occurrence.  To this end, a cross-examiner must not only disclose that evidence of a witness is to be challenged but also how it is to be challenged.

78.  Another aspect of the rule which serves an equally important purpose, is to enhance the tribunal of fact’s capacity in assessing the merit of the allegation.

79.  There can be serious consequences as a result of not complying with the rule, particularly where a forensic choice has been made to abstain from challenging the witness.  On the other hand, if the rule is “misplaced and overstated”, it can be the instrument of unfairness, resulting in an unfair trial.  It needs to be established that the rule applies, that there has been a breach of the rule, and that such breach should be addressed by an appropriate measure or measures, depending on the circumstances of the case.

The failure to cross-examine Wong

80.  It is necessary to examine the matters that were not put to Wong and the significance of them in the context of the case as a whole.  It would appear we are only concerned with the first matter for that alone was the subject of the impugned directions to the jury. 

81.  The alleged breach of the rule in Browne v Dunn emerged during examination-in-chief of the applicant.  Mr Davies specifically asked the applicant about his detention in Lai Chi Kok in relation to his contact with Wong and what Wong said to him about the case.  The applicant said that he had contact with Wong who told him that Wong and Lin had been arrested by the police and beaten up.  As the police could not arrest “Ah Yeung” because he was not in Hong Kong, they instructed Wong to replace his role with the applicant. 

82.  The judge gave a direction on hearsay immediately following the applicant’s evidence but Mr Kelly also raised an objection on the basis that this aspect of his evidence had not been put to Wong.  His complaint was that Wong had not been given an opportunity either to accept or deny it.  Mr Kelly also said at the time that he did not think there was anything that they could do about the matter.  The judge seemed to agree as he said that it was up to counsel to handle the matter.  Mr Davies in response said that he did not think there was much he could say as he was bound by his instructions.

83.  Quite what Mr Davies meant is unclear.  Although it would seem that Mr Davies had instructions about the matter, but other than that we do not know why it was not put to Wong.  If Mr Davies had omitted to put the matter to Wong because of a mistake or error on his part, he should have informed the court accordingly.

84.  It was a significant omission not to put the conversation to Wong because accompanying this matter were the other conversations and the three notes purportedly written by Wong and sent to the applicant, in which Wong demanded from the applicant a payment of $20,000 for living expenses in prison and a payment of $500,000 to him and Lin not to frame him. The notes were shown to Wong in cross-examination and he said they were not in his handwriting and he had no knowledge of them.  He also denied discussing such demands with the applicant.  It may be argued that the conversation that was not put to Wong was part of the same theme of Wong giving false evidence against the applicant.  However, one was on the basis that the police forced Wong to frame the applicant, while the other was that Wong was extorting money from the applicant not to frame him. 

85.  When the applicant was cross-examined about the first matter, he agreed it had not been put to Wong but denied it was a fabrication.

86.  Neither counsel made a point about this matter in their closing addresses to the jury.

87.  The judge summarised the evidence of the applicant on these matters to the jury as follows:

“ When he was detained in Lai Chi Kok, he had contact with Wong. Wong told him that police officer had asked him to replace him in the role of Yeung. When he was taken to the court he met Wong again, Wong told him that he was going to plead guilty and asked him to give some money to him. Wong said that three to four times.

Wong also passed notes to him on three occasions. The notes are D1 to D3. You have a copy of them and you will read it carefully. The first note, D1, was given to him in the first week of August. Wong asked him to give him a reply; he did not give a reply. D2, Wong gave him on 10 August. At that time they were not able to talk in detail. Wong just handed the note to him and asked him to read it and give him a reply as soon as possible. He did not reply.

D3, he received on 23 April 2016. This time, Wong demanded $500,000 for each person. And he was told to go to the 8^th floor for discussion. He did meet Wong on the 8^th floor. Wong told him he has not yet pleaded guilty, but he might plead guilty at later time. As long as the defendant will give him the amount, they will not become prosecution witness. The defendant replied Wong he was not going to give him any money.

Now, D1 to D3, words were written on the form which can only be obtained through the welfare officer in Lai Chi Kok. The purpose of the form was to request to make telephone calls.

…

Now, when he was in custody before Wong gave him the third note – the third demand note, the two of them had met for around 10 times. Amongst these 10 times Wong had made demand of him for around five times. On that five demands, that five demands were made face-to-face. Wong demand him to give him some money, but did not specify the amount. At the last time, he asked for $500,000 each to him and Lin. This, Wong had said to him face-to-face. The defendant had responded that he was not going to pay him any money. This final meeting between Wong and the defendant was on the 8^th floor around 23 or 24 April 2016. For the four previous occasions, only a demand for money had been made, no amount were specified. But the basis of demand was roughly same; that is, not to testify against the defendant. The first such meeting was on 7 or 8 August.

The notes, D1 and D3, were handed to him by Wong personally. After having received the first note, he did make a complaint to a senior correctional services officer in Lai Chi Kok. But the officer told him, ‘It was your own business. We will not handle it.’ After that, he had not made any further complaint about these notes.

In the message, D2, ‘Cheung Chai’ was written. He said Cheung Chai is a friend of Wong. He said despite having received the second note, he had made no further complaint. It was so because of the first response of the CSD officer. ‘I did not pay much more further attention and did not give any reply to Wong.’ He agreed that he could have asked the police to come and investigate, but he did not do that.

In D3, ‘Nick(?)’ was written.  He asked Nick was a friend of Wong and him, whom he called to -- who he came  to know inside Lai Chi Kok.”

88.  The transcript of Wong’s evidence was not included in the appeal bundle, however, the judge summarised Wong’s evidence on the matters of the conversations with the applicant in Lai Chi Kok and he noted as follows:

“ The defendant told you what Wong Hui had said to him when they were both in custody. Wong denied that he had done what the defendant alleged. Who you are to believe is a matter for you. If you find this aspect of the defendant’s evidence is true, or may be true, then you must take it into account in your assessment of the credibility of Wong and consider the case on the basis that what the defendant said Wong had done has taken place.

Such conduct of Wong, if you found it did take place, does not necessarily mean that the testimony of Wong against the defendant is not true. A greedy witness may still tell the truth in court. However, if what is alleged by the defendant against Wong had happened, or might have happened, this is a matter you must consider very carefully when you are to assess the credibility of Wong.

…

When in Lai Chi Kok, the defendant and him were kept in different cells, but they did meet during visiting hours. When they met, he just said ‘hi’ to the defendant. He had not said to the defendant that if the defendant was to pay him he would not testify against him. And he had not written any note or handed any note to the defendant.

 He said, ‘Why did I want money?  I only want to tell the truth what I am to get the money for.  I took the risk of coming here, of course, I want to tell the truth.’”

89.  There was a breach of the rule in Browne v Dunn in relation to the first matter which the judge sought to address in his directions to the jury.  The question is whether he did so correctly.

The practical effect of the judge’s directions

90.  This is not the type of case where the subject of the lack of puttage concerned a relatively minor matter of significance or where the judge’s comments have been limited to the failure to put the matter to a relevant witness.  It is therefore necessary to examine the judge’s directions and the practical effect of them.

91.  The judge, in summing-up the matter, referred to it rather obliquely as “some factual scenario”, which he further described as “something which the defendant alleged Wong Hui had said to the defendant.”  He directed the jury that because the matter had not been put to the relevant witness for him to respond (a reference to Wong), it was a matter that they were entitled to take into account in their assessment of the credibility of the applicant.  He then invited the jury to consider whether it was an indication that the applicant was “making up a false story”.  He finally told them that if they found the omission of not putting the “factual scenario” affected their assessment of the applicant’s credibility, it was up to them to decide whether it was confined to what the applicant said or went to his overall credibility.

92.  There was no mention by the judge that the applicant had acknowledged it had been omitted but denied it was a fabrication.

93.  It was open to the judge to direct the jury that they could take into account the lack of puttage in assessing the weight to be attached to the applicant’s evidence on this matter.

94.  However, this did not mean that it was generally appropriate for the judge to make a comment to the effect that an adverse inference as to credibility may be drawn against the applicant.  It is well recognised that the rule in Browne v Dunn does not apply to criminal proceedings in the same way or with the same consequences as it does in civil proceedings, and therefore its application in criminal proceedings requires considerable “care and circumspection”.

95.  It is important to note that there are remedial measures available to a trial court so as to minimise any unfairness that may result from the lack of puttage.  A trial court should explore the reason for the omission and if it turns out to be the fault of counsel, and not the accused, then comment should be limited to the potential disadvantage to the witness or to the prosecution case from the omission, but noting that it was not the fault of the accused but rather of counsel.  It is also available to a trial court to grant permission for the witness to be recalled for cross-examination on the contradictory evidence, to exclude the contradictory evidence, or to admit the contradictory evidence on the basis that the weight to be given to it may be affected by the fact that the witness, who may have been able to explain the contradiction, was not questioned about the evidence.

96.  At no time does it appear was there any further discussion about the lack of puttage either at the time when it arose, or prior to, during or after the judge’s summing-up to the jury.  Of particular relevance was the fact that there was no discussion about recalling Wong to be cross-examined and questioned about the contradictory evidence.  Nor was there any discussion about the directions the judge was to give to the jury on this aspect of the applicant’s evidence.

97.  The rule in Browne v Dunn requires flexibility in its application and care and circumspection in the measures employed to address any breach.  As noted by King CJ in Manunta “whether such matters should be brought to the attention of the jury and the manner in which that should be done are matters for decision by the trial judge in the atmosphere of the trial.”[74]

98.  It was not clear why the first matter was not put to Wong.  No explanation was given by counsel for the lack of puttage, other than he was bound by his instructions.  The jury were invited to take into account the lack of puttage in order to determine whether it was a fabrication by the applicant which also reflected on his overall credibility. This was an extreme measure that was not justified in the circumstances of the case.

99.  In the present case, it is accepted by the respondent that it would have been desirable for the judge to have given the warnings suggested in Manunta and Birks.  Generally, when the rule is applied it is desirable that these warnings should be given, or at the very least, careful consideration be given to whether such are required in the circumstances of the case.

100.  The judge not only gave what appeared to be significant prominence to the first matter, the subject of the failure on the part of the counsel to cross-examine, but went further and directed that the matter could have been a recent invention and fabrication by the applicant.

101.  We are of the view that the directions exceeded proper bounds.  They invited the jury to consider the failure by the applicant’s counsel to put the conversation to Wong in order to determine whether the conversation was a fabrication and whether it went to the applicant’s overall credibility.  There were other inferences of an innocent nature that could have been drawn because of the failure to put the conversation to Wong, of which the applicant was not given the benefit in the judge’s directions to the jury.  It has therefore resulted in a misdirection to the jury and this constitutes, in the words of section 83(1) of the Criminal Procedure Ordinance, an “irregularity” in the course of the trial”.  But, that, on its own is not sufficient for this Court to allow the appeal.

102.  To succeed as a ground of appeal the irregularity must be, again to use, the language of section 83, “material”.  To be “material” the irregularity must be so significant or substantial that it would have been capable of affecting the result of the trial.  We are satisfied that the misdirection by the judge was a material irregularity in the course of the trial.

The proviso

103.  The question now arises whether the misdirection calls for the quashing of the conviction.

104.  The proviso in section 83(1) of the Criminal Procedure Ordinance, Cap 221, operates to prevent an appeal succeeding and a conviction from being quashed where the court considers that no miscarriage of justice has actually occurred.  The question that the court has to ask itself is whether a reasonable jury, properly instructed, would on the evidence, without doubt convict or would inevitably come to the same conclusion.[75]   

105.  In the case of a misdirection, it is not simply a matter of making an assessment of the evidence in the case against the applicant to determine whether a conviction is inevitable, but rather, whether the misdirection may have significantly and unfairly influenced the jury in its decision and brought about a different result.  This goes to the issue as to whether the applicant had a fair trial and whether the conviction is safe and satisfactory.

106.  It is rightly pointed out by Mr McCoy that the credibility of the applicant was a critical feature at trial.  The judge’s remarks exceeded what was appropriate in the circumstances and invited the jury to consider making an adverse finding as to the applicant’s credibility because of the failure of counsel to put the first matter to Wong.  The judge’s directions created a real possibility of the jury engaging in impermissible reasoning to a conclusion of guilt, and this real possibility is what renders the conviction unsafe and which prevents us from concluding that no miscarriage of justice has actually occurred.   

107.  It is for these reasons that this is not a case where the proviso should be applied. 

Conclusion

108.  For the reasons set out above, we grant the applicant leave to appeal against his conviction, treating the leave hearing as the appeal, we allow the appeal, and accordingly quash the conviction.

109.  We have received submissions from the parties on the issue of retrial as provided under s 83E(1) of the Criminal Procedure Ordinance, Cap 221.

110.  A retrial may be ordered if it appears to this Court that the “interests of justice” so require such an order.  Taking into account the seriousness of the offence, the evidence for the prosecution and defence, and the matters in issue between the parties, we are of the view that it is in the interests of justice to order a retrial of the appellant.

111.  We order that the appellant be retried on a fresh indictment which should be filed within 14 days and the case listed before the Listing Judge for the fixing of trial within 28 days.  We remand the appellant in custody pending his retrial.