HKSAR v.CHAN CHU LEUNG (陳柱良)

Press Summary (English)

Press Summary (Chinese)

FACC No. 12 of 2023

[2024] HKCFA 1

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 12 OF 2023 (CRIMINAL)

(ON APPEAL FROM CACC NO. 160 OF 2010)

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J U D G M E N T

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Chief Justice Cheung:

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

Mr Justice Ribeiro PJ:

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

Mr Justice Fok PJ:

A.  Introduction

3.  This appeal arises out of the appellant’s conviction before Mrs Justice V Bokhary (“the Judge”) sitting with a jury, on 23 April 2010, of one count of attempting to traffic in a dangerous drug, namely 6,605.68 grammes of cocaine. It raises an important question as to the scope of a criminal defendant’s right of silence in the context of later allegations of police impropriety. It also affords an opportunity for the Court of Final Appeal to consider a number of concerns expressed by the Court of Appeal about the right of silence in this jurisdiction.

A.1  The facts and the appellant’s conviction

4.  On 16 February 2009, 20 cartons of air cargo arrived in Hong Kong on a flight from Amsterdam. On examination, the police found 25 bags of powder, containing the cocaine the subject of the charge, in two of the cartons. Dummy bags of baking powder, dusted with fluorescent powder, were substituted for the bags of cocaine.

5.  With an airway bill given to him by one of the appellant’s co-accused, D2, at an address in Tuen Mun, a delivery driver collected the cargo from the airport and drove back to Tuen Mun where the appellant and D2 then put the cargo into larger cartons. The appellant and D2 then loaded the cargo, now in the larger cartons, onto another van which then drove to Granville Circuit in Tsim Sha Tsui. D2 travelled in the van with the cargo and the appellant drove a private car to Granville Circuit. Together with D2, the appellant moved the cartons into an address in Wing Hing Mansion, to which D2 had the key. About half an hour after their arrival, they were intercepted by police outside Room C in the building and apprehended after a struggle. They were taken into Room C where the cartons, including those containing the bags of dummy drugs were found. The appellant and D2 were then arrested. Two other co-accused (D3 and D4), alleged to have been lookouts outside the addresses in Tuen Mun and Granville Circuit, were also arrested.

6.  The appellant remained silent under caution. Traces of fluorescent powder were found on his nail clippings and his fingerprints were also identified on a box and on some adhesive tape that was found in Room C.

7.  The appellant’s case was that he did not know the cargo contained dangerous drugs. He testified at trial that he was asked to undertake a casual job to move some goods by a person called Ah Chu, whom he had come to know and for whom he had worked as a vehicle attendant on about 30 occasions. Ah Chu had asked him to find a friend to help, so the appellant had asked D2. Each of the appellant and D2 were to be paid $300 for their work in receiving and repacking the cargo in Tuen Mun and then moving it to the address in Granville Circuit. The appellant denied he and D2 struggled with the police and also that they had opened any boxes or bags in Tuen Mun or Room C. He said the police rushed in as they were leaving Room C.

8.  Since the nature of the cargo was not in issue and the appellant admitted he had received the cargo in Tuen Mun and repacked it and moved the cartons into Room C, the only issue at trial in respect of the appellant was one of knowledge, namely whether he knew he was dealing with dangerous drugs.

9.  The jury were persuaded that the appellant did have the requisite knowledge for the trafficking offence and convicted him by a majority verdict of 6 to 1. He was sentenced by the Judge, on 26 April 2010, to 25 years’ imprisonment.

A.2  The procedural history leading to this appeal

10.  On 6 May 2010, the appellant applied for leave to appeal against conviction but, after the refusal of legal aid, he filed a notice to abandon his appeal on 21 October 2010.

11.  After a lengthy interval, on 5 January 2017, the appellant applied for leave to treat his abandonment as a nullity. The single Justice of Appeal seized of the application considered there was no basis on which to list the matter before the court and the appellant was advised his only recourse was to petition the Chief Executive to refer the matter to the Court of Appeal under s.83P of the Criminal Procedure Ordinance (Cap.221) (“the CPO”). Accordingly, on 21 December 2018, the appellant applied to the Chief Executive under that section, as a result of which, on 14 January 2022, the Chief Executive referred the whole case to the Court of Appeal and it was therefore heard by the Court of Appeal as an appeal against conviction.[1]

12.  Before the Court of Appeal, the only ground of appeal relevant to this appeal was the contention that there were material irregularities arising from breaches by the prosecution of the appellant’s right of silence which were not cured by the Judge. Specifically, there were two respects (set out in more detail later in this judgment) in which it was alleged the appellant’s right of silence was infringed. First, in respect of the prosecution’s cross-examination of the appellant concerning the involvement of Ah Chu (referred to as the 1^st impugned cross-examination) and, secondly, in respect of the prosecution’s cross-examination of the appellant concerning the evidence of the fluorescent powder (referred to as the 2^nd impugned cross-examination).

13.  The Court of Appeal rejected this ground of appeal in respect of both impugned areas of cross-examination[2] and dismissed the appeal.

14.  In respect of the Ah Chu cross-examination, the Court of Appeal held that this was impermissible since it sought to make use of his exercise of the right of silence to challenge his credibility. However, the Court of Appeal held that the Judge’s directions, including a specific direction to ignore the impugned cross-examination in question, were sufficient to rectify the error so that no unfairness was caused to the appellant.

15.  In respect of the fluorescent powder cross-examination, the Court of Appeal held that the cross-examination in question, which concerned the lack of complaint about alleged police impropriety, did not infringe the appellant’s right of silence since there was not what the Court of Appeal called “a free-standing ‘right of no-complaint’ unrelated to the exercise of an accused’s right of silence”.[3] But if the cross-examination had infringed his right of silence, the Court of Appeal held that, by reason of the Judge’s directions to them about that right, the jury would not have taken the appellant’s lack of complaint against him and would not have engaged in an impermissible line of reasoning.

A.3  Leave to appeal to the CFA and the issues on this appeal

16.  The appellant applied to the Court of Appeal to certify that a point of law of great and general importance was involved in the appeal.[4] The Court of Appeal declined to so certify the point of law, on the basis that the question posed did not arise given the Judge’s directions about the right of silence. However, notwithstanding the refusal of a certificate, the Court of Appeal drew the attention of the Appeal Committee to a number of concerns about this area of the law.

17.  The Appeal Committee granted the appellant leave to appeal to the Court of Final Appeal[5] in respect of the following question, namely:

“When it is common ground that a defendant has maintained his pre-trial right to silence, is it permissible for the prosecution to question or make use of:

(a) the defendant’s pre-trial lack of or late complaint regarding police impropriety during the investigation giving rise to the charge?

(b) the defendant’s pre-trial lack of or late disclosure, whether in the form of a complaint or not, about a matter other than ‘the occurrence of an offence, the identity of the participants and the roles which they played’ but nonetheless addressing a piece of incriminating evidence?”

18.  Leave to appeal in respect of that question was confined to the appellant’s complaints arising out of the fluorescent powder cross-examination. Leave to appeal was also granted to the appellant on the substantial and grave injustice basis regarding the issue of whether any such infringement in respect of that cross-examination was cured by the Judge’s directions, so that this issue could be addressed in the event it was held that the appellant’s right of silence had been infringed.

19.  Leave to appeal was refused in relation to the appellant’s complaints concerning the Ah Chu cross-examination and the Judge’s direction in respect of that cross-examination.

B.  The impugned cross-examination and the Judge’s directions

20.  In order to put the discussion that follows into proper context, it will be helpful to set out the two impugned areas of cross-examination and the Judge’s directions in relation to the right of silence.

B.1  The appellant’s exercise of his right of silence

21.  First, it is important to note that, unlike other cases to which reference will later be made, there is no issue in the present case as to whether the appellant availed himself of his right of silence upon arrest. The Judge described the circumstances of his arrest in her directions to the jury as follows (with references to the 1^st accused being to the appellant):

“Members of the jury, I will now remind you briefly of the testimony of the two police officers who told you that they had struggled with the 1^st and 2^nd accused, and of the four police officers who arrested and cautioned the four accused.

By ‘caution’, I mean, of course, telling the accused person in effect that he was not obliged to say anything but that anything he chose to say would be taken down in writing and may be given in evidence.

…

I now deal with the evidence of DSPC Lok about the 1^st accused, of DSPC Yeung about the 3^rd accused, and DSPC Tsang about the 4^th accused. DSPC Lok testified that he cautioned the 1^st accused upon arrest and that the 1^st accused replied: ‘I understand. I do not want to say.’. DSPC Lok also testified that he conducted two video-recorded interviews of the 1^st accused and that the 1^st accused elected in both interviews not to say anything.”

On that evidence, the appellant expressly asserted that he did not wish to say anything when, having been cautioned, he was arrested and later when interviewed. He therefore plainly exercised his right of silence, although he need not have expressly said this in order for the right of silence to apply. An accused person who remains silent, simply not responding to questions without expressly asserting or invoking the right, is equally entitled to the benefits of the right of silence. This is the case whether he has been cautioned or not and, subject to the question of law raised in this appeal, whether he stays silent in the face of questioning or simply declines to say anything.

B.2  The Ah Chu cross-examination

22.  The impugned cross-examination concerning Ah Chu was contained in this portion of the appellant’s testimony at trial:

“Mr Iu: Let’s move on, then. Did you ever tell the police that it was Mr Chu who got you into all this trouble?

A: No.

Mr Iu: Was today the first time you mentioned Mr Chu to people -- to anybody, particularly in the court of law?

A: Yes.

Mr Iu: Didn’t you think it would help your cause if you were to tell the police earlier?

Mr Yuen: Sorry, my lady, there is a point of law which I wish to…

Court: All right. Members of the jury, can you leave the court.

…

(Jury absent)

Mr Yuen: But it seems my learned friend is trying to ask some questions in cross-examination to create the picture that by not giving the police the explanation about Ah Chu, then this account of Ah Chu must not be a credible one. I think that is the sort of effect which my learned friend is trying to establish through this line of questioning, and so I would object to that.

Mr Iu: I am not trying to challenge his right of silence. Definitely, with…

Court: But I think that you have now established, Mr Iu, have you not, that this is the first time he has mentioned Ah Chu?

Mr Iu: Right.

Court: You are entitled to make whatever comment you wish to…

Mr Iu: Yes, of course. All right. I’ll move on then.

Court: …in your speech.”

23.  In its closing speech, the prosecution invited the jury to reject the evidence of Ah Chu’s involvement as “a recent fabrication”.

B.3  The Judge’s specific direction concerning Ah Chu

24.  In addition to her general directions on the right of silence (set out below), the specific direction given by the Judge to disregard the Ah Chu cross-examination was as follows:

“… Before dealing with any of [D1’s] testimony, I direct you to ignore the part of the cross-examination which was on whether he ever told the police about the man he referred to as ‘Ah Chu’ and when he first mentioned Ah Chu to anybody.”

B.4  The fluorescent powder cross-examination

25.  The impugned cross-examination concerning the fluorescent powder was contained in this portion of the appellant’s testimony at trial:

“Q: Secondly, there are no contact -- no contact, no evidence of contact with florescent [sic passim] powder from your hand? What was found was only the traces of florescent powder was found from your fingernail clippings? You follow that so far?

A: Yes.

Q: That was the gist, is it not, witness, that you had contact -- you had opened the only packet that had been opened, K20 -- or 20K, you had opened that packet so that your fingernails would have traces of florescent powder?

A: I did not.

Q: You see, you see, the evidence that you just described about coming into contact with a white paper bag doesn’t explain the presence of florescent powder in your fingernails? Do you understand?

A: I understand.

Q: So how do you explain the presence of florescent powder in your nails?

A: No.

Q: You can’t explain it?

COURT: Sorry, can you speak up? We can’t hear you.

A: I just gave my own explanation on that.

Q: Your hand coming into contact with the bag?

A: I do not know how he caused that stuff to come onto my hand.

Q: So, again, 503 would be telling lies about that? He would be a liar?

A: I dare not to say that.

Q: Well, he fabricated, he tried to fabricate contact evidence against you?

A: Yes.

Q: In the presence of his superior officers, including the chief inspector? Literally in front of everybody?

A: I do not know whether that CIP was present or not, but there were a lot of people inside the room at that time.

Q: That’s right. I would have thought that if it were to be done, it would have been done discretely.

COURT: What is your question? Is that a comment or what?

Q: Can you think of any reason why you would be singled out to be fabricated against and not your friend?

A: I do not know why he did that.

Q: I put it to you nothing of that sort ever happened?

A: I disagree.

Q: If it had, you would have told your lawyer and made a complaint immediately?

A: At that time, I did not know what’s the florescent powder, and I did not know by doing that it caused me to have some florescent powder on me.

Q: Because up to that time, even when you saw your lawyer, you didn’t know that dummies had been used, those dummies had been dusted?

A: I did not know what was inside. I did not open the boxes.

Q: Do you accept that you had plenty -- you had seen your lawyers, you had plenty of opportunities to complain through your lawyer to either the police or to court or to CAPO or to all relevant authorities, if anybody had done anything improper against you? But you had done none of those?

A: That’s right.”

26.  Although the prosecution did not make any comment on the appellant’s failure to complain about the alleged fabrication of evidence against him by the police officer in question (who was PW9), it will be apparent from the concluding portion of the above extract that the questions were designed to make the point that, if the allegation were true, the appellant would have told his lawyer and made a complaint to various third parties immediately but that he had not done that. Hence, the suggestion was put to the appellant that nothing of the sort had ever happened, to which he gave a bare denial in response.

B.5  The Judge’s general directions concerning the right of silence

27.  In her summing up, the Judge directed the jury as follows:

“In so far as on any occasion when any accused chose to remain silent when arrested, cautioned or questioned by the police, whether upon arrest, when interviewed, or at any other time, such silence would have been in the exercise of a right to silence and such silence is not to be taken against the accused concerned in any way whatsoever. Where an accused chooses to speak to the police, then what he says can be taken into account, subject to my directions.

…

Members of the jury, in respect of all the accused, I remind you of my directions on the right to silence. Silence is not to be taken against any accused in any way whatsoever. They have a right to silence.”

C.  The right of silence

28.  The right of silence is generally asserted by a refusal to answer questions, although as noted above an accused person who remains silent, whether in the face of questioning or not, is equally entitled to the benefits of the right of silence. The right of silence at common law, however, “does not denote any single right, but rather refers to a disparate group of immunities, which differ in nature, origin, incidence and importance, and also as to the extent to which they have already been encroached upon by statute”. [6]

29.  In R v Director of Serious Fraud Office, Ex p Smith, Lord Mustill identified the following different immunities comprised within the expression “the right of silence”:

“(1) A general immunity, possessed by all persons and bodies, from being compelled on pain of punishment to answer questions posed by other persons or bodies.

(2) A general immunity, possessed by all persons and bodies, from being compelled on pain of punishment to answer questions the answers to which may incriminate them.

(3) A specific immunity, possessed by all persons under suspicion of criminal responsibility whilst being interviewed by police officers or others in similar positions of authority, from being compelled on pain of punishment to answer questions of any kind.

(4) A specific immunity, possessed by accused persons undergoing trial, from being compelled to give evidence, and from being compelled to answer questions put to them in the dock.

(5) A specific immunity, possessed by persons who have been charged with a criminal offence, from having questions material to the offence addressed to them by police officers or persons in a similar position of authority.

(6) A specific immunity (at least in certain circumstances, which it is unnecessary to explore), possessed by accused persons undergoing trial, from having adverse comment made on any failure (a) to answer questions before the trial, or (b) to give evidence at the trial.”

30.  There is clearly some overlap between these categories of immunity. The overlap is reflected in Lord Mustill’s description of the common purpose of the immunities as being “concerned with the protection of citizens against the abuse of powers by those investigating crimes”[7] but he emphasised the different motives which give rise to the diverse immunities. These motives are, in summary: first, the assertion of personal liberty and privacy; second, a reaction against the abuses of judicial interrogation; third, the instinct that it would be contrary to fair play to put the accused in a position where he was exposed to punishment regardless of whether he answered or refused to answer; and fourth, the desire to minimise the risk of an accused being convicted on the strength of an untrue extra-judicial confession.[8]

31.  Closely connected with these motives underlying the right of silence are the two important principles that an accused has a right against self-incrimination[9] and also, of course, that the burden of proof in a criminal matter, save for limited statutory exceptions, rests entirely on the prosecution.[10]  Ultimately, the right of silence is a facet of an accused person’s right to a fair trial.

32.  In this jurisdiction, the Court of Final Appeal has previously considered the right of silence in Lee Fuk Hing v HKSAR,[11] which was considered in HKSAR v Lam Sze Nga[12] and followed in HKSAR v Ata Asaf.[13]

33.  As recognised in those decisions, the right of silence protects a criminal suspect or defendant in two important respects in which his silence might be sought to be used against him. First, it protects him against the suggestion that it is to be inferred that, because he failed or refused to say something earlier, he must be guilty of the offence charged (this use to infer guilt is sometimes referred to as “guilt use”). Secondly, it protects him against the suggestion that, because he failed or refused to say something earlier, his later explanation or testimony is not to be believed (this use is sometimes referred to as “credibility use”).

34.  In England and Wales, prior to the introduction of the Criminal Justice and Public Order Act 1994 (the provisions of which, amongst other things, permit a court or jury, in certain circumstances, to rely on an accused’s failure to mention something he might reasonably be expected to mention in order to draw such inferences as may be proper), there was a difference of judicial view as to whether it was permissible to make adverse comment on an accused person’s failure to answer questions before the trial for the purpose of impeaching his credibility.[14]

35.  The question of whether there was a meaningful distinction between comments made in respect of an accused’s silence to infer guilt as opposed to use to undermine credibility was considered and the distinction was rejected in this Court’s decision in Lee Fuk Hing. In so deciding, the Court of Final Appeal rejected the minority judgment of Dawson J in the High Court of Australia in Petty & Anor v R,[15] and instead approved and applied the approach of the majority judgments in that case.[16]

36.  The Court held (at [55]):

“We agree with the reasoning of the majority in Petty & Another v R (1991) 55 A Crim R 322. We recognize that it is a matter of ordinary experience that a failure to put forward an innocent explanation when given an opportunity to do so may support an inference that any later explanation is false but as to the nice distinction drawn in R v Littleboy [1934] 2 KB 408 and later R v Ryan (1966) 50 Cr App R 144 there is doubt as to whether there is a real distinction between using silence to infer guilt and using it to attack the weight of an account given at trial but not earlier. Even if there is such a distinction, it is one which would be difficult for a jury to understand or apply. There is a right to silence. And in consequence of this right, suspected persons in Hong Kong should be - and routinely are - given a caution informing them in unqualified terms that they need not speak. In the whole of these circumstances, it is inappropriate in Hong Kong to use a person’s silence against him in any way.”

37.  On the appeal following the re-trial ordered by this Court in HKSAR v Lam Sze Nga,[17] the Court of Appeal, bound as it was by Lee Fuk Hing, held that the right of silence precluded questioning even if restricted to testing credibility.[18]  More recently, in 2016, the prohibition on the use of an accused’s silence to impeach his credibility was also recognised, applying Lee Fuk Hing, in this Court’s decision in HKSAR v Ata Asaf.[19]

38.  The issue of whether the statement of principle in the above citation from Lee Fuk Hing at [55] is subject to qualification in respect of complaints of police impropriety is squarely raised in the question of law posed in this appeal.

D.  The Court of Appeal’s reasoning in relation to the fluorescent powder cross-examination

39.  In its reasoning in respect of the fluorescent powder cross-examination, the Court of Appeal analysed the Court of Final Appeal’s decision in HKSAR v Lam Sze Nga,[20] and the Court of Appeal’s consideration of the further appeal in the same case following the re-trial ordered by the Court of Final Appeal.[21]

40.  The Court of Appeal thought there was an important distinction between this case, where the defence was one of lack of knowledge, and that in Lam Sze Nga, where the defence was that she never made any admission and that the drugs had been planted by the police.

41.  It held that:

“(1) the right of silence, insofar as confessional statements are concerned, is the right of an accused ‘to remain silent when questioned or asked to supply information by any person in authority about the occurrence of an offence, the identity of the participants and the roles which they played’;

(2) the right of silence is not only concerned with the confession of an accused but also the pre-trial non-disclosure of the defence case; and

(3) where the right of silence is said to have been exercised by an accused but disputed by the prosecution, cross-examination concerning the lack of complaint or the delay in making a complaint about improper police conduct is permissible but the judge has to give proper directions to the jury about the right of silence.”[22]

42.  As already noted, the Court of Appeal observed that there did not appear to be “a free-standing ‘right of no-complaint’ unrelated to the exercise of an accused’s right of silence” and considered it material that the fluorescent powder on the appellant’s nail clippings and the appellant’s fingerprints on one of the paper boxes as well as on the adhesive side of a tape were detailed in the Admitted Facts. It stated that:

“… when examined in context, the suggested fabrication of the fluorescent powder evidence was effectively the appellant’s attempt to deal with one aspect of the prosecution evidence: it did not relate to his defence, in general terms, about his lack of knowledge”.[23]

43.  The Court of Appeal concluded:

“Adopting the words in Petty & Maiden, this matter was not ‘about the occurrence of an offence, the identity of the participants and the roles which they played’. Instead, the 2^nd impugned cross-examination only related to one piece of the undisputed evidence at trial which the appellant sought to address. We find that it did not touch upon the appellant’s right of silence and accordingly, the cross-examination was permissible. Similar to testing whether an accused’s suggestion of feeling unwell might be true by asking if he had consulted a doctor, the appellant’s suggestion that the fluorescent powder evidence might have been fabricated could be tested in the present case by asking if the appellant had made a complaint as to the suggested police impropriety. As noted above, it is not our understanding that there is an independent and separate ‘right of no complaint’ of an accused which could not be touched upon in cross-examination irrespective of the context in which such a lack of complaint arises.”[24]

44.  The “words in Petty & Maiden” to which the Court of Appeal was adverting in the passage cited above are those in the joint majority judgment of Mason CJ, Deane, Toohey and McHugh JJ in Petty & Anor v R (supra.) at p.99 where they said:

“A person who believes on reasonable grounds that he or she is suspected of having been a party to an offence is entitled to remain silent when questioned or asked to supply information by any person in authority about the occurrence of an offence, the identity of the participants and the roles which they played.”[25]

45.  It is that reasoning which has given rise to the question of law posed in this appeal, to which it is now convenient to turn.

E.  Addressing the question of law posed

E.1  The parties’ respective cases

46.  The appellant’s case is that both parts of the question of law posed should be answered in the negative. It is contended that an accused’s right of silence means he is entitled not to say “anything, including making a complaint about police impropriety during the investigation giving rise to the charge, or in any way disclosing part of his defence case which addresses a piece of incriminating evidence”.[26] This submission is advanced in relation also to evidence which may not be “about the occurrence of an offence, the identity of the participants and the roles which they played” because it is contended that it is consistent with the unqualified caution in this jurisdiction, respects liberty and privacy and the privilege against self-incrimination, and maintains the principle of the burden of proof resting on the prosecution and not the accused.

47.  The respondent’s case is that the answers to the two parts of the question of law posed depend on the identity of the person before whom silence is exercised. If that person is one in a position of authority, “i.e., who has authority or control over the defendant or over the prosecution against him”, then the answers to both parts of the question are in the negative. But if the person is not one in a position of authority, then the answers to both parts of the question are in the affirmative.[27]

48.  It should be noted that, although the respondent supports the decision of the Court of Appeal in respect of whether the appellant’s right of silence was engaged in respect of the fluorescent powder cross-examination, there is a difference of emphasis underlying the contentions advanced by the respondent. Whereas the Court of Appeal emphasised the nature of the questioning, and concluded that the fluorescent powder cross-examination was not “about the occurrence of an offence, the identity of the participants and the roles which they played”, the respondent’s submissions focus instead on the identity of the party before whom the accused remains silent being a person in authority. Thus, the respondent submits that:

“Where silence is maintained in relation to other parties who are not persons in authority, for instance, family members and friends of the defendant, the doctor providing medical treatment, the judicial officers not involving [sic] in the trial, or independent units or bodies monitoring the LEAs [law enforcement agencies] (such as the CAPO and the Independent Police Complaints Council), the right to silence is not engaged.”[28]

E.2  Was the appellant’s right of silence infringed?

49.  The Court of Appeal’s reasoning, leading it to conclude that the appellant’s right of silence was not infringed by the fluorescent powder cross-examination, is set out above.

50.  The Court of Appeal considered the decision of the Court of Final Appeal in Lam Sze Nga and the Court of Appeal’s further decision in that case following the re-trial ordered by the Court of Final Appeal in light of counsel for the appellant’s reliance on that case as authority for the proposition that there was a free-standing right of non-complaint as part of the right of silence.[29]

51.  It is important to note, however, that the question of law posed in Lam Sze Nga was directed to a wholly different issue to that involved in this appeal. There, the certified point of law was:

“Where an accused has made out of court statements which are ruled admissible but who maintains at trial that they were made as a result of improper police conduct, does a trial judge err in law in summing up to the jury on her failure to complain at the earliest available opportunity to her lawyer or to the authorities, without explaining to the jury the principles of the right of silence?”[30]

52.  To that question, Sir Noel Power NPJ, delivering the main judgment of the Court of Final Appeal, with which the other judges agreed, said:

“I would answer the certified point of law in the following way. A right of silence claimed by the defendant but disputed by the prosecution becomes an issue for the jury’s decision and a trial judge would err in law if he failed to direct the jury as to the effect of the exercise of that right if they were to decide that issue in the defendant’s favour.”[31]

53.  It was for that reason that, on the appeal following the re-trial, the Court of Appeal articulated the applicable approach in the following manner, namely:

“In the context of the argument before the Court of Final Appeal (which focussed on the confession statements), the order of approach would be as follows:

(1) Did the police coerce her into making the statements?

(2) If Yes, then the statements were not voluntary and (since one could not involuntarily waive a right) she had maintained her right of silence - in which case her evidence in cross-examination on the delay in complaining should not be taken into account and adverse inferences could not be drawn.

(3) If No (and before giving this answer, the jury would have been entitled to take into account for this limited use evidence on the delay in complaint), then the statements were voluntary and she had thereby waived her right of silence. (Presumably in that situation, adverse inferences could be drawn from all the evidence).”[32]

54.  Where, therefore, the voluntariness of a confession statement is disputed, notwithstanding the right of silence, cross-examination and comment is permitted on, for example, allegations of police misconduct exercised in order to extract an involuntary confession. This may entail suggestions being put to the accused that, because of his failure to raise a complaint about police misconduct until much later, that complaint is not credible. Such suggestions are permissible in the context of determining the admissibility of an alleged confession (“… for this limited use …”). If it is determined the confession was made voluntarily, then there is no question of any right of silence having been exercised by the accused and what he said will be admissible. On the other hand, if it is determined the confession was not made voluntarily, then it will be inadmissible and the accused will be treated as having exercised a right of silence and having said nothing. In a trial before a judge alone, this will not cause any difficulty of application. In a trial before a jury, the judge will have to direct the jury to disregard anything said by the accused in their presence if it is determined that the right of silence was exercised.

55.  This approach, deriving from the Court of Final Appeal’s decision in Lam Sze Nga, maintains the accused’s right of silence in a meaningful way. But, in my view, it does not, with respect, provide a basis for permitting inroads to the right of silence to challenge a late complaint of police misconduct as a matter of principle for more general purposes as the appellant suggests in the present case.[33]

56.  The present case is not, in any event, a case involving any question of whether the right of silence was exercised. Here, the appellant clearly and expressly had maintained his right of silence after being cautioned, as set out above in Section B.1. The appellant did so in response to the standard caution in this jurisdiction administered to him upon his arrest which is as follows:

“You are not obliged to say anything unless you wish to do so but what you say may be put into writing and given in evidence.”

The caution instructs an arrested person that he need not say anything unless he wishes to and warns him that, should he do so, it may be put into writing and given in evidence. The context of the warning is clearly intended, as a matter of fairness, to prevent the accused from involuntarily saying something potentially incriminating that might then be used by the prosecution against him.

57.  Since the appellant was unequivocally advised he was not obliged to say anything when he was arrested and cautioned and expressly availed himself of his right of silence upon being so cautioned, cases like Lam Sze Nga, which are concerned with cross-examination aimed at resolving a dispute as to whether that right had actually been exercised, are distinguishable.

58.  In Lam Sze Nga, the defendant alleged that the police planted the drugs found on the staircase inside her premises and framed her for trafficking. The Court of Appeal thought the present case was distinguishable from Lam Sze Nga because, here, “the appellant’s defence at trial was one of lack of knowledge: it was not a case of the police moving the drugs to Room C and framing-up the appellant”, whereas in Lam Sze Nga “the defendant’s case was that she had never made any admission and also that the drugs were planted by the police”.[34]

59.  I am, respectfully, unable to accept the distinction made by the Court of Appeal in the context of the appellant’s exercise of his right of silence (and, in fairness to him, counsel for the respondent on this appeal[35] acknowledged that he would have difficulties in supporting the Court of Appeal’s reasoning in this regard since he accepted the allegation of fabrication of evidence went to the crux of the matter). The case against the appellant was that he was guilty of attempted trafficking, knowing that what he was attempting to traffic was dangerous drugs. Part of the inculpatory evidence against him, on the issue of knowledge, was the evidence of traces of fluorescent powder on his nail clippings and the presence of his fingerprints on a box and on some adhesive tape found in Room C. These physically linked the appellant to the dummy drugs and, it was suggested by the prosecution, made it less believable that he did not know the nature of the goods he had attempted to transport to Room C. The fluorescent powder cross-examination was therefore closely connected to that part of the inculpatory evidence against him and the appellant’s evidence, which was for the jury to weigh, was that that inculpatory evidence against him had been planted on him by a police officer. To that extent, the appellant’s case was squarely one of being framed by the police for the offence charged.

60.  The Court of Appeal, developing its reasoning from the above distinction, said:

“Therefore, when examined in context, the suggested fabrication of the fluorescent powder evidence was effectively the appellant’s attempt to deal with one aspect of the prosecution evidence: it did not relate to his defence, in general terms, about his lack of knowledge; nor, in more particular terms, about the alleged involvement of Ah Chu, for even if he did touch the bag, his defence that it was a bag arranged to be conveyed there by Ah Chu, the contents of which he had no knowledge, remained intact.

Adopting the words in Petty & Maiden, this matter was not ‘about the occurrence of an offence, the identity of the participants and the roles which they played’. Instead, the 2^nd impugned cross-examination only related to one piece of the undisputed evidence at trial which the appellant sought to address. We find that it did not touch upon the appellant’s right of silence and accordingly, the cross-examination was permissible. Similar to testing whether an accused’s suggestion of feeling unwell might be true by asking if he had consulted a doctor, the appellant’s suggestion that the fluorescent powder evidence might have been fabricated could be tested in the present case by asking if the appellant had made a complaint as to the suggested police impropriety. As noted above, it is not our understanding that there is an independent and separate ‘right of no complaint’ of an accused which could not be touched upon in cross-examination irrespective of the context in which such a lack of complaint arises.”[36]

61.  This theme is repeated in the CA Certification Judgment where Macrae Acting CJHC described the failure to make complaint against the conduct of the law enforcement authority as being “not ordinarily concerned with the non-disclosure of a defence other than perhaps in a very attenuated sense.”[37]

62.  Whilst there may be some cases in which there is a less direct connection between failure to complain about police misconduct and the substantive defence to a criminal charge, I disagree, with respect, with the suggestion that the allegation of the fabrication of the fluorescent powder evidence did not relate to the appellant’s defence, or did so only in a “very attenuated sense”, in this case. The presence of the fluorescent powder on his finger nails was direct physical evidence linking him to the packages of drugs in the cargo and could be relied on to undermine his denial of knowledge of the nature of the cargo. As such, the allegation that this physical evidence was planted on him formed a central plank in his defence that he did not have the guilty knowledge alleged and it was clearly at least related to the occurrence of the offence and the role played by the appellant. It is true that defence counsel at trial tried to suggest that the presence of the physical evidence, even if not planted, did not support the prosecution case and instead supported the defence case of lack of knowledge but his submissions in this regard may fairly be regarded as an exercise in forensic advocacy.

63.  In this regard, since it was directly related to the appellant’s defence, the fluorescent powder cross-examination is of a similar nature to the impugned cross-examination and closing remarks of the prosecution in HKSAR v Ata Asaf, contrary to the respondent’s submission that that case is distinguishable from the present case.

64.  As the Court of Final Appeal held, in Lee Fuk Hing:

“… It is unfair for a person to have the right to remain silent, and usually to have been reminded of this right through the caution, and then for his silence to be put against him at trial. There are comments in some of the authorities to which we have referred which suggest that in some circumstances a trial judge may fairly inform the jury that an explanation has been made for the first time at trial provided that the judge also makes it clear that an accused has the right to remain silent and make no explanation in answer to police questions. With respect such a direction is also objectionable. It gives rise to an adverse inference against the accused.”[38]

65.  On the law as stated in this Court’s judgment in Lee Fuk Hing, unless qualified, he was entitled to remain silent in respect of the allegation of the fluorescent powder having been planted on him and it was not open to the prosecution to attack the credibility of that evidence by reason of his exercise of that right of silence.

E.3  Is the principle in Lee Fuk Hing qualified?

66.  The respondent seeks to support its case on the question of law posed by reliance on a number of authorities. In my view, these are distinguishable from the circumstances of the present case and do not support a dilution of the principle stated in Lee Fuk Hing, concerning the right of silence of an accused after he has been arrested and cautioned, in respect of a failure to complain of police misconduct to persons not in authority.

67.  In Parkes v R,[39] a case of murder by stabbing, the Privy Council did not consider that there was any infringement of the defendant’s right of silence when the victim’s mother, on finding the victim injured, accused the defendant, who did not reply but instead tried to stab the mother when she sought to detain him. It was held that an adverse inference might be drawn from the defendant’s reactions to the accusations, including his silence. However, the defendant was not under arrest, had not been cautioned and was not detained by any law enforcement authority. As the Privy Council stressed, the mother’s accusation to the defendant was a spontaneous charge from a person speaking “on even terms” which it was reasonable to expect the defendant to immediately deny if untrue. It held that the trial judge was entitled to instruct the jury to take into account his reaction to the accusations, including his silence, along with other evidence in deciding whether he had committed the act with which he was charged.

68.  In R v Chan Kung Ling,[40] the defendant was a police officer subdued by two civilians after a robbery but who did not protest to them or the police constable who arrived on the scene shortly thereafter that he was a police officer giving chase to the real culprit. Notwithstanding the prosecution’s concession to the contrary, the Court of Appeal held that it would be wrong to hold that the right of silence extended to such situations. There was in that case no questioning by the two civilians or the police constable, there was no caution administered and the defendant had not been told that any accusation had been made against him.

69.  There is a material difference between a defendant being placed in a situation where a response might reasonably have been expected as part of the sequence of events surrounding the commission of the underlying offence (or what might be termed the res gestae[41]), as in Parkes v R or R v Chan Kung Ling, and the present situation in which it is contended that the appellant should have made subsequent complaint of police wrongdoing to third parties not in authority. Apart from the obvious difference that the appellant had been cautioned in unqualified terms, for him to have raised a complaint about the alleged police misconduct in the present case before the magistrate or investigative bodies monitoring police conduct, such as the Complaints Against Police Office (“CAPO”), may have been apprehended by the appellant or his legal representatives as risking disclosure of his defence to the prosecution prior to trial.

70.  Whether or not the right of silence is not engaged in circumstances such as those in Parkes v R and in R v Chan Kung Ling, a point which is unnecessary for the Court to determine in this appeal, these cases do not, in my view, apply in the present case where the appellant had been arrested by the police and cautioned that he need not say anything. In those circumstances, his right of silence was engaged and he was entitled, as instructed by the form of his caution, not to say anything.

71.  In this context, it is important to note the absence of any general obligation on a defendant in criminal proceedings in Hong Kong to disclose the nature of his defence to a criminal charge. Save for the statutory obligations to give an alibi notice or notice of expert evidence, pursuant to sections 65D and 65DA of the CPO, a defendant is not obliged, whether on arraignment, at committal proceedings or at any other time prior to trial, to give advance notice to the prosecution of his case.

72.  On the other hand, Practice Direction 9.3[42] requires a Case Management Questionnaire (“CMQ”) to be filed to identify the issues between the parties in criminal proceedings in the High Court.[43]  Amongst other matters, this asks if there will be any expert evidence or alibi evidence,[44] whether there are preliminary questions of law[45] and whether there will be challenges to the admissibility of any admission/confession or other evidence.[46]  The parties are required to disclose the number of witnesses they will call and the length of their cases.[47]  The defence is also asked to summarise all the issues under dispute.[48]  Given the unqualified terms of the caution in this jurisdiction and the absence of any reminder of the right of silence in the CMQ, these broad questions (and in particular the broad Q(4)(ii)) could, on their face, be taken to suggest that a defendant is obliged to answer them notwithstanding his right of silence. In order to be consistent with the right of silence, the CMQ should be construed as entitling a defendant, subject to the statutory obligations referred to in the preceding paragraph, to respond by stating simply that he puts the prosecution to strict proof, thereby maintaining his right of silence: see, in this context, Sexius v Attorney General of Saint Lucia[49] at [36].

73.  The absence, in Hong Kong, of an obligation to give pre-trial notice of a defence is in contrast to other jurisdictions where there is a statutory obligation to provide a defence statement before trial. In Sexius v Attorney General of Saint Lucia (supra) the Privy Council considered the constitutionality of the relevant statutory requirements in Saint Lucia to file a defence statement. The Privy Council noted that it was concerned with the defendant’s claim to a right to pre-trial silence in respect of the giving of advance notice of any defence and issues to be raised at trial[50] and the discussion in that case of the nature of the right of silence must, therefore, be understood in its proper context. The case is not an authority supporting a general dilution of the right of silence at common law.

74.  There are other jurisdictions, such as England and Wales, where statutory inroads have been made to the right of silence of an arrested person. Sections 34 to 37 of the Criminal Justice and Public Order Act 1994 permit inferences to be drawn, in certain specified circumstances, where an accused fails to mention facts when questioned or charged, or where he fails to testify at trial or refused to answer any question, or where he fails to account for objects, substances or marks found when he is arrested or fails to account for his presence at a particular place. The form of caution has, accordingly, been modified in England and Wales to the following form:

“You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in Court. Anything you do say may be given in evidence.”[51]

75.  Similarly, in New South Wales, legislation now permits the drawing of unfavourable inferences where, during official questioning, a defendant fails or refuses to mention a fact that he could reasonably have been expected to mention in the circumstances and that he relies on in his defence.[52] This provision is conditional, with one of the conditions being the giving of a special caution warning him along the lines of the caution now in use in England and Wales (see above).

76.  The respondent’s reliance on the Canadian Supreme Court cases of R v Hebert and R v Broyles does not assist in the present context. In R v Hebert,[53] the Supreme Court of Canada considered the question of whether a statement made by a person in detention to an undercover police officer violated his right of silence under the Canadian Charter of Rights and Freedoms. In the subsequent case of R v Broyles,[54] the Supreme Court of Canada considered whether the use of a taped conversation between a defendant in custody and his friend who visited him at the request of the police violated his right of silence. In those cases, the issue was essentially one of voluntariness of the statements in question and whether any right of silence was being exercised by the defendant.

77.  The High Court of Australia’s decision in Ready v Brown[55] does not take the matter any further. In that case, a civil claim for damages for assault, wrongful arrest and false imprisonment, cross-examination concerning the plaintiff’s lack of complaint was held not to be relevant to the underlying issues in the case. This does not offer any relevant assistance to the scope of any right of silence in a criminal context.

78.  The cases cited by the respondent do not, therefore, suggest there is a principle that cross-examination concerning an allegation of police misconduct is permissible when the questioning relates to the lack of complaint, after an accused is cautioned that he need not say anything. In any event, the distinction sought to be drawn by the respondent between those persons in authority over the defendant and the prosecution against him and those persons not in authority is not supported by the cases cited. On the contrary, the statement of principle in Lee Fuk Hing (at [55]) is that, given the right of silence in this jurisdiction and the unqualified terms of the caution given to suspects, it is inappropriate in Hong Kong to use a person’s silence against him in any way. The respondent’s submission that adverse inferences should be permitted in respect of a failure to complain of police misconduct to persons not in authority over a defendant and his prosecution would be a material and, in my view, unjustified dilution of this principle.

E.4  The Court of Appeal’s concerns

79.  It is convenient now to address the concerns raised by the Court of Appeal when refusing to certify a question of law for this Court’s consideration. These are legitimate concerns.

80.  First, pointing out that the alleged infringement of the right of silence represents one of the three most common grounds of appeal against conviction in the Court of Appeal,[56] the Court of Appeal indicated that Lee Fuk Hing:

“… is often interpreted by counsel for both defendants and appellants as establishing a ‘red card’ for judges and appellate courts whenever there is a perceived infringement of the right. In other words, once the right is perceived to have been infringed, the argument generally runs that steps must immediately be taken to salvage, or if necessary abort, the trial or, if such steps are not taken and there is a conviction, an appeal must be allowed, since the right is not only absolute and fundamental to Hong Kong’s system of justice but no court can ever know how the jury may have used such inadmissible evidence. The submission is often presented in radical and uncompromising terms, and invariably relies on the following statement from the judgment in Lee Fuk Hing:

‘There is a right to silence. And in consequence of this right, suspected persons in Hong Kong should be – and routinely are – given a caution informing them in unqualified terms that they need not speak. In the whole of these circumstances, it is inappropriate in Hong Kong to use a person’s silence against him in any way’.”[57]

81.  It is not suggested in the Court of Final Appeal’s judgment in Lee Fuk Hing that the infringement of the right of silence must inevitably have the consequences described by the Court of Appeal. Indeed, this is recognised in Lee Fuk Hing where the Court of Final Appeal said:

“When an error is made the judge must decide whether he can correct the error in such a way that the trial can proceed fairly. Sometimes the less said the better. On other occasions careful explanation may be necessary but it has to be borne in mind that lengthy directions may highlight the problem rather than diminish it. The judge will usually seek the assistance of counsel upon the nature of the directions he proposes.”[58]

82.  That passage explicitly recognises that there may be occasions when it is not necessary to take the steps described by the Court of Appeal. It may be the rare or less common case in which it is right not to say anything at all to correct the introduction of material that might lead the jury to adopt an impermissible line of reasoning, but it is clear that Lee Fuk Hing does not stand as authority for the wide proposition it is said to have sometimes been taken to establish and it should not be so understood. The right of silence, as a facet of the right to a fair trial, is not absolute: Secretary for Justice v Latker.[59]

83.  More usually, where the right of silence has been infringed and a jury may be left with the impression that a failure to mention something helpful to his case may be used to draw adverse inferences, whether as to guilt or credibility, it will be necessary for the judge to give specific directions to cure any unfairness that would arise from the admission of the infringing material. The Judge’s directions in the present case concerning Ah Chu provide a good example of this. The Ah Chu cross-examination should not have been permitted (and, contrary to the Judge’s view initially expressed to counsel, comment on the evidence would not have been appropriate). Having been introduced, the Judge’s directions were rightly held by the Court of Appeal to have rectified the error. The fact that the Judge’s specific direction in respect of the Ah Chu cross-examination was rightly held to be sufficient to cure any prejudice to the appellant caused by the introduction of that evidence and the comment on it by prosecuting counsel in his closing speech demonstrates that infringement of the right of silence is not necessarily fatal to the fairness of the trial process.

84.  It should also be noted, in the context of the Court of Appeal’s “red card” concern, that the Court of Final Appeal’s decision in Lee Fuk Hing included the reminder that:

“… of course, if an accused person makes a statement to the police (under caution or otherwise) which is inconsistent with his defence which can be fairly criticized on other grounds it is open to the prosecution to cross examine and comment upon that statement and its relevance to the defence. The judge may also invite the jury to draw relevant and fair inferences even if they are adverse to the accused.”[60]

85.  The Court of Appeal’s second concern was about the consistency of approach in courts in Hong Kong. It was noted that:

“… a steady number of cases that come before the Court of Appeal have shown that the issue of the right of silence, where a defendant has made no complaint about any ill-treatment or improper conduct by a law enforcement authority during or after arrest or interview, is not being dealt with consistently by judges and magistrates in the various jurisdictions of our court system, or even in the same jurisdiction of the court system; and any restraint or prohibition on questioning defendants as to why, for example, they did not complain to a magistrate or to a relevant authority, such as the Complaints Against Police Office (‘CAPO’), about any ill-treatment or improper conduct, including fabrication of evidence, is being honoured more in the breach than the observance. This is perhaps not surprising since it must be acknowledged to be an obvious and logical question to ask a defendant who claims to have been ill-treated or to have had evidence fabricated against him why he did not complain, or take any action about, such conduct. And even if a defendant does complain months after his arrest, the obvious question is why he did not do it earlier.”[61]

86.  The Court of Appeal raised the question of whether, conceptually, there might be a difference between a defendant not being compelled to disclose his defence and not making a complaint against the conduct of a law enforcement authority, “which is not ordinarily concerned with the non-disclosure of a defence other than perhaps in a very attenuated sense.”[62] With respect, it is difficult to see what lines are being sought to be drawn here. Depending on the facts and the nature of the cross-examination or comment, any infringement in this type of situation may be more readily cured by an appropriate direction.

87.  Thus, where it can be demonstrated that the lack of complaint relates to a matter substantively connected to the defence, such as the fabrication of evidence supporting the charge against him, as in this case, it is consistent with principle to recognise the defendant’s right of silence in this regard subject to any deficiencies being cured by appropriate directions.

88.  The Court of Appeal cited a passage from the Court of Final Appeal’s judgment in Lam Sze Nga in which the respondent’s argument in that case was recited, to this effect:

“… that no questions as to the delay in making complaint should have been permitted as the right to silence allows a person charged to remain silent about all matters pertaining to the charge, whatever their nature, and that, as the respondent had established by her evidence that she had, in effect, exercised that right, a clear direction should have been given to the jury that no adverse inference arising from her silence could be drawn against her.” [63]

89.  The Court of Appeal criticised reliance on this passage “for the all-embracing and far-reaching proposition that no defendant can ever be asked anything at all as to why he made no complaint about, for example, forced or fabricated evidence.”[64]

90.  Where the right of silence has not been invoked, of course, there is no such proposition of law and a defendant can certainly then be asked about his failure to complain about such matters. However, where a defendant has, under caution, exercised his right of silence, it would be an unusual case if allegations about forced or fabricated evidence against him in respect of the criminal charge for which he was cautioned were not sufficiently closely related to the alleged offence and his defence to merit any failure to complain being protected from adverse comment by reason of the right of silence.

91.  That is not to say that there is a free-standing right of non-complaint, as the appellant suggests in the present case.[65] Lam Sze Nga, which the appellant relies upon as the source of this alleged right, is addressed above. It is not authority for the existence of a separate right of non-complaint. Instead, it is authority explaining how the right of silence is recognised and given effect to in the case of a disputed exercise of the right of silence and an allegedly involuntary confession. Where the right of silence is determined to have been exercised, so that an alleged confession must be disregarded, the prohibition on the drawing of adverse inferences against a defendant, whether as to his guilt or his credibility, from his failure or refusal to mention something, including making complaint about police impropriety, is simply a consequence of giving effect to his right of silence. Cases such as HKSAR v Lau Man Hong[66] and HKSAR v Ip Tsz Yau,[67] cited by the appellant as instances of the application of a supposed right of non-complaint, are properly to be understood on this basis.

92.  Any inconsistency of approach in courts in Hong Kong, as adverted to by the Court of Appeal, would therefore appear to result from a failure to apply the principles laid own in Lee Fuk Hing, as explained in this judgment.

93.  The Court of Appeal’s third concern was to question “the extent to which the right of silence is, or has been, or may be qualified almost 20 years on from the decision in Lee Fuk Hing.”  Reference was made to the citation by counsel then appearing for the respondent of the Privy Council’s decision in Sexius v Attorney General of Saint Lucia[68] and to the categories of immunities identified by Lord Mustill in R v Director of Serious Fraud Office, Ex p Smith,[69] with none of which, it was contended, the present case was concerned.[70]

94.  As already noted above, Sexius is a case concerning a jurisdiction, Saint Lucia, where there were statutory requirements to file a defence statement. The Court of Appeal recognised this distinction from the position in Hong Kong, where there is no similar requirement, but suggested that:

“… the present case, which was originally referred to the Court of Appeal by the Chief Executive, does present an opportunity for the Court to clarify the law for modern conditions in Hong Kong, so that judges, prosecutors, defence counsel and defendants themselves will know exactly where they stand on such a recurring but important issue.”[71]

95.  Whilst concern on the part of the Court of Appeal arising from the number of appeals involving allegations of breach of a defendant’s right of silence is readily understandable, this itself is not a sufficient reason to dilute the principles stated in Lee Fuk Hing. That decision reflects the unqualified form of caution in Hong Kong. If a suspect is told he does not need to say anything, he should not be criticised for doing just that. The categories of immunities identified by Lord Mustill in R v Director of Serious Fraud Office, Ex p Smith are not determinative of the question of law raised in this appeal and are not expressed as an exhaustive list of immunities. The law of Hong Kong, as stated in Lee Fuk Hing, recognises the right of silence beyond the answering of questions to the failure to put forward an innocent explanation when given an opportunity to do so.

96.  Even if a defendant only discloses a complaint of impropriety about law enforcement personnel during his oral testimony, without previously indicating the complaint in the course of cross-examination of prosecution witnesses, he should not be cross-examined on why he did not complain previously. However, if it becomes clear that the defendant is about to make the complaint for the first time in his oral testimony, the judge should indicate to the parties that the law enforcement personnel, whether previously a prosecution witness or not, against whom the complaint is made may be called (or recalled) to testify in relation to the allegations forming the complaint of impropriety if the defendant proceeds to make the complaint of impropriety without previously having put such a case to the witness concerned. In the present case, it was put to the police officers involved in the appellant’s arrest that the fluorescent powder had been planted on the appellant’s fingers. This was denied by them and so the matter became one for the jury. That no comment could be made about the fact the appellant had not previously complained to any third party about the alleged police misconduct is an incident of the appellant’s exercise of his right of silence.

97.  If and insofar as there should be any change to the law relating to the right of silence as explained in Lee Fuk Hing, in my view, that is a matter for legislation. As noted in Secretary for Justice v Latker (supra) at [138], qualification of the right of silence (and of the privilege against self-incrimination) is not rare. In that case, sections 63 and 64 of the Road Traffic Ordinance (Cap.374) were at issue.[72] They require the registered owner of a motor vehicle to disclose the identity of the driver of the vehicle. Similarly, reference has been made above to the requirement on a defendant charged with a criminal offence to serve an alibi notice in advance of trial.

E.5  Answering the question of law

98.  I would therefore answer the question of law posed in the Appeal Committee’s grant of leave to appeal in the negative. If, upon arrest, a defendant has availed himself of his right of silence and has not waived that right thereafter, it is not permissible for the prosecution to question or make use of the defendant’s pre-trial lack of, or late, disclosure or complaint regarding police impropriety during the investigation giving rise to the charge. This will also be the case if the matter concerns a piece of incriminating evidence rather than (assuming such a distinction may meaningfully be made) the occurrence of the offence, the identity of the participants and the roles which they played.

F.  Whether any irregularity cured by Judge’s directions

99.  Applying the law as set out in the answer to the question of law posed, the fluorescent powder cross-examination was objectionable as infringing the appellant’s right of silence. It therefore risked rendering the appellant’s trial unfair. And if it did, it remains to determine if any unfairness was cured by the Judge’s directions.  As has been said before, when an issue arises over whether a trial has been fair, the entire process must be looked at in order to determine if such fairness has been achieved: see, HKSAR v Lee Ming Tee;[73] Lam Siu Po v Commissioner of Police;[74] and HKSAR v Leung Chun Kit Brandon.[75]

100.  The fluorescent powder cross-examination is set out above in Section B.4. The questions towards the end of that section of cross-examination clearly sought to lay the ground for inviting the jury to draw an inference that the appellant’s evidence about how the fluorescent powder came to be found on his fingers was not to be believed because he had not previously complained about this. The way the questions were asked was somewhat indirect since it was put that he “would have told [his] lawyer and made a complaint immediately”. Assuming he would have, he might have been advised not to raise a complaint and to wait until trial to assert the impropriety. This leads to the observation that the form of the questions risked a further objection in that they sought to inquire as to what passed between the appellant and his lawyer, a line of inquiry that would, if persisted in, have trespassed on legal professional privilege.

101.  The line of cross-examination that the appellant had not raised any complaint about the police planting evidence on him is similar to the Ah Chu cross-examination and to prosecuting counsel’s suggestion in his closing speech that Ah Chu’s involvement was “a recent fabrication”. However, in contrast, as already noted, prosecuting counsel did not make any submissions of recent fabrication in relation to the failure to complain about the alleged planting of evidence in his closing speech. Instead, prosecuting counsel submitted the allegation of planting was not believable because of other factors including: the absence of the appellant’s fingerprints on the bag said to have been pressed against the appellant’s hand; the absence of any need for PW9 to plant incriminating evidence on the appellant given that he was caught red handed emerging from Room C in any event; and the unlikelihood of PW9 singling out the appellant for this treatment, and not his co-accused D2, and also doing what was alleged in front of everyone present including his superiors.

102.  Counsel for the appellant at trial did not complain about the fluorescent powder cross-examination. In his closing speech, he suggested that the presence of fluorescent powder on the appellant’s fingers was evidence in support of his lack of knowledge of the nature of the drugs. The argument seems to be that, had the appellant known the packets in the cartons contained dangerous drugs, he would not have needed to touch them to ascertain what was inside them. That argument is somewhat speculative but the important point to note is that defence counsel did not in fact advert to the allegation of fabrication of evidence against the appellant. Had the Judge given a specific direction in relation to the fluorescent powder cross-examination, there is risk this might have confused the jury as to how they should weigh that part of defence counsel’s speech.

103.  In the circumstances, although the fluorescent powder cross-examination was objectionable and infringed the appellant’s right of silence, that infringement was relatively minor in the context of the trial as a whole and given the way the questions were put to the appellant.

104.  As against this, the Judge’s general directions to the jury (set out in Section B.5 above) reminded them that the appellant’s silence could not be taken against him “in any way whatsoever”. The directions related to the appellant’s remaining silent “when arrested, cautioned or questioned by the police, whether upon arrest, when interviewed, or at any other time”. Although these directions were more general than the specific direction in respect of the Ah Chu cross-examination, the latter was appropriate because of the emphasis placed on the Ah Chu evidence by prosecuting counsel. This may be contrasted with the lack of any reliance on the fluorescent powder cross-examination by prosecuting counsel. There was, in these circumstances, no material risk that the jury would have embarked on an impermissible line of reasoning that it was open to them to reject the appellant’s explanation of how the fluorescent powder came to be found on his fingers because his failure to complain rendered that evidence incredible.

105.  Given the relative insignificance of the irregularity constituted by the fluorescent powder cross-examination and the Judge’s reminder to the jury that the appellant was entitled to remain silent, I am satisfied, as the Court of Appeal was, that the Judge’s directions cured any unfairness thereby caused to the appellant.

G.  Disposition of appeal

106.  For the reasons set out above, therefore, I would answer the question of law posed as in Section E.5 above and dismiss the appeal.

Mr Justice Lam PJ:

107.  I agree with the judgment of Mr Justice Fok PJ.

Mr Justice Gleeson NPJ:

108.  I agree with the judgment of Mr Justice Fok PJ.

Chief Justice Cheung:

109.  Accordingly, for the reasons set out above, the appeal is unanimously dismissed.