LEE FUK HING v. HKSAR

FACC No. 7 of 2004

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 7 OF 2004 (CRIMINAL)

(ON APPEAL FROM CACC NO. 376 OF 2000)

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J U D G M E N T

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Mr Justice Bokhary PJ :

1.  At the conclusion of the hearing we allowed the appeal and quashed the conviction.  We then heard counsel on the question of a retrial.  Having done so, we refused a retrial.  I gave our reasons for such refusal.  They were not based on any insufficiency of evidence available against the appellant.  Rather they were based solely on the fact that the appellant has been in custody for nearly 5 years and has therefore already served about two-thirds of the sentence which he would serve with full remission which there was no basis for thinking that he would not receive.  In the light of that fact and in all the circumstances, we felt on balance that justice would be better served by refusing rather than ordering a retrial.  Accordingly the appellant was discharged.  We now hand down our reasons for quashing the conviction.  They are given by Mr Justice Mortimer NPJ.

Mr Justice Mortimer NPJ :

The background

2.  On 16 August 2000, the appellant was convicted before Deputy Judge To and a jury in the High Court for an offence of trafficking in dangerous drugs.  He was sentenced to 11 years’ imprisonment.

3.  His application for leave to appeal to the Court of Appeal (Leong CJHC, Woo and Yeung JJA) was dismissed on 26 June 2002.  Reasons were handed down on 11 July 2002.

4.  The application for leave to appeal to this Court was granted on 1 April 2004 on the grounds that it is reasonably arguable that substantial and grave injustice has been done.

The prosecution case

5.  On 14 January 2000, the appellant was driving a light goods vehicle along Nam Wan Road, Tai Po, New Territories.  He was intercepted by a number of police constables in another vehicle.  As soon as the police revealed who they were, the defendant leapt out of the vehicle as if to escape.  But he was caught and held by the police.  When the vehicle was searched, the police found two bags which contained heroin with a market value of $215,044.  The appellant was arrested and traces of heroin were found on his clothing.  He was an addict.

The defence case

6.  The appellant gave evidence.  In summary, he said that before he was arrested he had lent his vehicle to a person called Tsang Kei.  On the day of his arrest, Tsang Kei had returned the vehicle to him and the two of them went in it to Tai Po to inspect some “decoration work”.  Shortly before he was stopped by the police, Tsang Kei made some excuse and left the vehicle.  As the appellant was driving along the road, a vehicle rammed into the back of his vehicle causing him to stop.  Several men (whom he later discovered to be police constables) came up to his driving position, broke the window, dragged him out of the vehicle and severely beat him.  He was then handcuffed and hooded before being beaten again.

7.  The two bags containing the drugs had been left in the vehicle by Tsang Kei.  They were not the appellant’s property.  He did not know what they contained.

The Court of Appeal

8.  Three grounds of the appeal were argued in the application for leave :

(i)	That the trial judge misdirected the jury to the effect that police officers were less likely, or unlikely, to lie.
(ii)	That when making a comparison between the evidence of the defendant and the evidence of the prosecution the judge failed to direct the jury that even if the jury did not accept the evidence of the defendant, the prosecution still bore the burden of proof.
(iii)	That when the appellant was giving evidence the judge asked an inadmissible question of him which undermined his right of silence.

9.  The Court of Appeal dismissed the application.  On the first ground it held that the direction complained of was a proper invitation to consider the credibility of the police witnesses.

“The trial judge’s statement was no more than a direction to the jury to consider whether it was necessary for the police constable(s) to do those acts as alleged by the defendant; namely to direct them to consider whether the defendant’s evidence was credible or not.  Though the trial judge did mention that if the police constable(s) had in fact assaulted the defendant, those acts might bring prosecution on them and cause the loss of their job, that did not constitute a direction to the effect of telling the jury that the police officers were less likely to tell lies or fabricate evidence than other witnesses.  This Court disagrees that the judge’s directions were unbalanced and unfair to the defendant.  This Court is of the view that the first ground of appeal fails.”

10.  On the second ground the Court of Appeal held that the passages complained of did not amount to a misdirection.  It considered that the members of the jury were not invited to balance the evidence of the police and the appellant so that if they disbelieved the appellant and believed the prosecution evidence it would be open them to convict.  Further the judge properly directed the jury on the burden of proof early in the summing-up and reminded them of it later.  So they could not have been left in doubt upon the proper approach.

11.  The third ground of appeal was also dismissed.  The reasons were that :

“Tsang Kei’s existence or otherwise must bear relevance to the credibility of the defendant’s evidence.  If Tsang Kei was truly in existence and the occurrence of events did happen as stated in the defendant’s evidence, then common sense dictates that the defendant would as soon as possible inform the police constable(s) that the offender was in fact another person whom he knew.  This Court’s view is that the trial judge’s question concerned the credibility of the defendant’s evidence, and had nothing to do with the defendant’s right to remain silent.  However, the judge’s question might give the jury the impression that the judge had not maintained an impartial stance in the trial, and thus when the judge later gave direction to the jury he had to direct them to forget the matter.”

This appeal

12.  The general issue before us is whether, on a view of his summing-up as a whole, the judge sufficiently and properly directed the jury to consider the evidence and decide the issues before them in a fair and impartial manner according to law.  And, if not, whether the failure amounted to a substantial and grave injustice.

13.  In support of this appeal the appellant advances the same grounds which were relied upon in the Court of Appeal.  It is convenient to address each of these grounds separately but they are relevant one to another. 

The first ground

14.  The passage complained of is at p.11 of the English translation :

“But I have to remind you of one thing, it is correct that the police constables were executing their public duty as they had received information and suspected that there were dangerous drugs hidden on board this vehicle; however, that information had not yet been confirmed.  Whether they would behave like robbers : board the vehicle and allowing no explanation to be offered, break his window(s), drag him out of the vehicle, beat (him) up severely, handcuff (him), put a hood on (him), and then inflict the beating again, this would be a matter for you yourselves to consider.  What was their purpose for doing that?  Whether such acts would in fact bring not only disciplinary actions against them, but they might even be prosecuted for criminal offence(s)?  In particular, if no dangerous drugs could be found there and then, their acts were no different from that of the robbers and would certainly bring prosecution (on themselves).  When you consider the question of credibility, you can also consider this point.”

15.  Mr Robert Pang (Ms Pauline Leung with him) for the appellant submits that, contrary to the reasoning of the Court of Appeal, properly regarded the passage does invite the jury to conclude that the police witnesses are less likely to fabricate evidence than others because of the possible consequences to them.  Also the jury were implicitly invited to approach the evidence of such witnesses differently from other witnesses.  That is to put them in a special and more credible category.  This he submits was a serious misdirection the impact of which was not remedied even when the whole summing-up is considered.

16.  Ms Mary Sin (Mr Derek Lai with her) for the respondent accepts that this direction is generally undesirable but that the judge did not put the witnesses “out of reach of the jury’s criticism” (HKSAR v. Lam San-yau Crim App 775/1997, unreported).  Viewing the summing-up as a whole the direction does not constitute a sufficient misdirection as to make the conviction unsafe.

Relevant authority

17.  For over 30 years directions similar to that given by the judge have been deprecated.  It is now trite law that such directions should not be given.  Such comments invite the jury to approach police witnesses as likely to be more credible than other witnesses at the outset of their deliberations.  Police witnesses are put into a special category of witness further out of the jury’s critical reach than others.  Whereas, juries must be invited to consider the reliability and credibility of all witnesses impartially and fairly.

18.  The first reported case of which we are aware in which a similar direction was held to be seriously objectionable is a decision of the Court of Appeal in England in R v. Culbertson (1970) 54 Cr App R 310.  The Recorder used these words :-

“If you have any real doubt about it, if you think it may be true, then acquit him.  You are not concerned with the consequences.  The fact that these two police officers would be finished and would be out of the police within a very short time is of no concern to you at all.”

19.  In HKSAR v. Leung Ka-yin (CACC 225/1999, unreported) the Court of Appeal reviewed or considered many of the earlier authorities including Culbertson; R v. Fisher [1983] Crim L R 486; R v. Wong Kim-wah and Anor [1993] 2 HKC 305; R v. Mok Wing-hung (Crim App 404/90); R v. Tam Chun-fai (Crim App 663/1993); HKSAR v. Lam San-yau (Crim App 775/1997); R v. Chiu Hung-wong (Crim App 161/1994); and R v. Wellwood-Kerr [1978] Crim L R 760.  From these authorities it discerned the following guidance :

“	(1)	that it is desirable for a judge not to mention the consequences of a witness, including a police witness, fabricating evidence, such as his being liable to be prosecuted for a criminal offence or a serious criminal offence, or liable to lose his job;
	(2)	that a trial judge must not indicate to the jury that the police as a category or otherwise are unlikely to fabricate evidence, or are more unlikely than other witnesses to fabricate evidence; and
	(3)	that words which may lead the jury to believe that the police are less likely to tell lies, or give any undue weight to police evidence, or not to consider defence allegations in an impartial manner must be avoided.”

The guidance provided by the Court of Appeal is correct. 

20.  The general principle is clear.  Since the earlier decisions it has been re-stated in the unusual case of Derek William Bentley (Deceased) [2001] 1 Cr App R 307 at 326 para.53 (Lord Bingham CJ) :-

“The courts have in recent years deprecated judicial comments which suggest that police officers will be professionally ruined if a defendant is acquitted (Culbertson (1970) 54 Cr App R 310) or which place police officers in a different position from other witnesses (Beycan [1990] Crim L R 185).”

And, with reference to the summing-up in Bentley’s case at 327 :

“It is, however, difficult to reconcile comments of that kind with the principles underlying jury trial.  The guilt of a defendant is to be judged by the jury as the tribunal of fact on all the evidence in the case.  That tribunal should make its collective judgment on the evidence in an open-minded and fair-minded way.  There is an obvious risk of injustice if a jury is invited to approach the evidence on the assumption that police officers, because they are police officers, are likely to be accurate and reliable witnesses and defendants, because they are defendants, likely to be inaccurate and unreliable.  This is the pitfall into which the trial judge, for all his vast experience and authority, fell.  In our judgment his direction on this matter cannot be supported.”

Yet, in spite of this weight of guidance, judges continue from time to time to direct juries in this objectionable way.  They must not.

21.  In the instant appeal the judge undoubtedly invited the jury to regard the police officers as likely to be more credible and reliable than other witnesses because of possible consequences to them.  It was a misdirection.

22.  Of course, this is not an end of the matter.  A misdirection does not necessarily render a conviction unsafe or unsatisfactory when considered with the effect of the summing-up as a whole.  In this trial, however, the credibility of the police was central to the jury’s consideration of the evidence.  The other directions and comments of the judge including those on the burden of proof did not remove the force of the objectionable passage.  In our judgment this misdirection rendered the conviction unsafe.

The second ground

23.  In this ground two passages in the summing-up are criticised :-

(a)    “However, why are there such significant discrepancies between the cases of the two parties?  You yourselves have to consider whose case is credible …  Therefore, it depends on the views that you will take on the witnesses of both parties, which party(’s evidence) are you satisfied with.”  (p.11 – 12 English translation)

(b)    “… Whether the defendant’s version is credible, or the version(s) of the police constable(s) is/are credible?  It is a decision that you yourselves have to make.” (p.17 English translation)

24.  There is one other short passage which is similar :-

“However, why are there such discrepancies between the cases of the two parties?  You yourselves have to consider whose case is credible.”

25.  The appellant submits that in these passages the jury was invited to decide the case on the basis of a selection between the credibility of the prosecution version and the defence version.  Further, that by directing the jury to approach their task in this way they were encouraged to apply the wrong standard and burden of proof.

26.  The jury’s fundamental task is to consider the credibility of witnesses.  In summarising the evidence a judge will invariably give directions and make comments upon the evidence and the witnesses to assist the jury in this task.  Depending upon the circumstances such comments may be justifiably robust.  Such directions cannot be considered in isolation from the general body of the summing-up.  But if the jury is invited to make a simple choice between the prosecution and defence versions there is a danger that even when faithfully applying proper directions on the burden and standard of proof they may be misled into wholly rejecting defence evidence which they may otherwise find to be possibly true or which they may otherwise find gives rise to a reasonable doubt.  Often this is a necessary process of thought before the jury can be sure of guilt on the prosecution evidence.

27.  This is why on credibility, the usual and proper direction is that when considering the evidence for the defence the jury should not only have regard to that which they are satisfied is true but also to those facts in the defence evidence which they find may be true.

28.  In HKSAR v. Wong Wai-man and others (No.2) [2003] 4 HKC 517 the Court of Appeal addressed the ‘common dilemma’ faced by juries :-

“as between the prosecution evidence and the defence’s, which should be believed and what is the proper approach?” 

The answer is given in an apt citation from Brennan J’s judgment in R v. Liberato (1985)159 CLR 507 at 515 :-

“When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question : who is to be believed?  But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving.  The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence.  The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue.” 

That statement was cited with approval by this Court in Sze Kwan Lung v. HKSAR [2004] 3 HKLRD 328 at 337 G-I.

29.  In the instant trial, having invited the jury to consider the credibility of the two versions and to choose between them, the judge did not, when directing upon the burden of proof or at any other time, give the usual and proper direction upon the approach to defence evidence were they to find that it may have been true.  The danger was that in faithfully following the judge’s directions upon the burden of proof they wholly rejected the defence evidence having preferred that of the prosecution without considering whether any of the defence evidence may have been true or whether the defence evidence gave rise to any reasonable doubt.

30.  The consequence is that the jury were seriously misdirected upon the proper approach to defence evidence.  Also, the nature of the misdirection and its possible impact upon the way in which the jury applied their instructions on the burden of proof were such that the mischief was not cured in the rest of the summing-up.

The third ground

31.  The central issue in the defence case was the appellant’s contention that the bags containing the heroin had been left in his vehicle by Tsang Kei.  If this was or may have been true his chances of an acquittal were greatly increased.

32.  The existence of Tsang Kei was first disclosed at trial.  The appellant had not mentioned Tsang Kei’s part in the case to the police either at the time of his arrest or at any other time.  The judge’s questions to the appellant which are challenged in this ground of appeal were as follows :-

“	J :	Have you mentioned to the police about this person Tsang Kei (transliteration)?
	A :	No.
	J :	Why?
	A :	I was very scared at the time, and (I) don’t trust this group of police.
	J :	What (was it you) did not want to?
	A :	Don’t trust this group of police.  Because from 12 in the morning when I was in hospital, I kept saying that I needed to drink methadone, no one took me to drink methadone even up to night-time.  And they kept on scaring me like this, and some people were playing good guys, so I don’t really trust either side.
	J :	It is not about whether you trust them or not, it is about (whether)  your name can be cleared, why didn’t (you) point that out to them or to their senior?
	A :	Even the most senior one Inspector Yip also threatened me on that day.”

33.  These questions were designed to elicit the fact that no mention had been made of Tsang Kei’s existence to the police and that the appellant’s defence was not disclosed until the trial.  The aim and possible effect was twofold.  First, to invite the jury to infer guilt from the appellant’s failure to tell the police about Tsang Kei.  Secondly, to damage the appellant’s credibility and undermine his defence as a recent invention.  These aims probably succeeded.

34.  The judge accepted counsel’s submission that the questions and answers were not admissible.  Consequently he directed the jury to ignore both questions and answers in this passage of his summing-up :

“There is something that I also need to remind you here.  At the time when the defendant had finished giving evidence yesterday, I asked him the question about the reason why he did not mention Tsang Kei to the police as soon as possible.  This morning, after hearing submissions by counsel for the prosecution, I accept the proposition by counsel for the prosecution that I should not have asked such a question.  So when you are deliberating on the verdict in this case, please forget or ignore this question and its answer.  This is a direction on law that I am giving you and you must abide by it.  Forget that question and that answer.”

35.  Contrary to the judge’s view at trial the Court of Appeal held that the questions and answers were admissible as relevant to the credibility of the appellant’s evidence and had nothing to do with his right of silence.

36.  Ms Sin, for the respondent, contends that the Court of Appeal correctly held that the questions and answers were admissible and that their finding in para.11 above was correct.  She relies in particular upon Dawson J’s minority judgment in Petty and Maiden (1991) 55 A Crim R 322 at 338 :

“The jury were not told that they might conclude from those circumstances that the applicant was guilty; they were told that they might take those circumstances into account in judging the weight to be given to the applicant’s explanation at the trial.

The right to silence is a convenient, if somewhat imprecise, expression, which conveys the traditional objection of the common law to any form of compulsory interrogation.  It embraces the absence of any obligation on the part of a person suspected of having committed a crime to answer questions by the police or other persons in authority.  The exercise of the right to silence cannot, of itself, amount to an admission of any kind or reflect a guilty conscience, and a trial judge should so instruct a jury where an accused has chosen not to answer questions whether at or before the trial. The trial judge should tell the jury that the accused was quite entitled to remain silent and that they should not infer guilt from the fact that he exercised his right to do so.

But that does not mean that the choice by an accused to exercise his right to silence can play no part in the processes by which a jury arrives at its verdict.  They may not say that he is guilty because he refused to answer questions; he had a right to do that.  But if the accused gives evidence or makes an unsworn statement, having previously refused to answer questions, the jury are entitled, in assessing the weight to be given to the evidence or the unsworn statement, to have regard to the fact that he is advancing his account for the first time at trial and that he did not avail himself of an earlier opportunity to tell his version of events.  Of course, there will frequently be a perfectly good reason why the accused chose to remain silent previously, which will mean that his silence is of no assistance in evaluating his evidence.  For instance, his solicitor may have been present when he was questioned and may have advised him not to answer any questions.  On the other hand, the explanation which he advances at trial may be so simple, straightforward and easily established at the time of questioning that his failure to advance it at the first opportunity casts doubt upon it when it is eventually given.  If the jury in those circumstances do not believe the explanation given by the accused and conclude that he is guilty, they do not infer guilt form the exercise by him of his right to silence.  But they may properly conclude that he is guilty because they disbelieve his explanation and the evidence called by the prosecution establishes his guilt beyond reasonable doubt in the absence of any explanation.”

37.  This distinction between the exercise by an accused of his right of silence leading to an inference of guilt and the failure of an accused to advance to the police an explanation later relied upon at trial being relevant to his credibility was accepted by the Court of Appeal in England in R v. Ryan (1964) 50 Cr App R 144.  After considering some of the earlier and conflicting authorities Melford Stevenson J (giving the judgment to the court) said at 148 :

“It is, we think, clear as a result of those authorities that it is wrong to say to a jury ‘Because the accused exercised what is undoubtedly his right, the privilege of remaining silent, you may draw an inference of guilt’; it is quite a different matter to say ‘This accused, as he was entitled to do, has not advanced at any earlier stage the explanation that has been offered to you today; you, the jury, may take that into account when you are assessing the weight that you think it right to attribute to the explanation.’  In the view of this court, there is a clear dividing line between those two courses …”

38.  The earlier authorities may be difficult to reconcile on the second principle but there has never been doubt upon the first.  In R v. Naylor (1932) 23 Cr App R 177 at 180, the Court of Appeal ruled on a direction, the nub of which was :

“Surely if he is an innocent man one would think he would give some explanation of where he was, and what he was doing at the particular time, and would make his defence then and there.  But he says nothing.”

in these terms :

“When one looks at the words of the formula (the caution) which must be deliberately framed, it is quite obvious that they were intended to convey and do convey to the prisoner the belief that he is not obliged to say anything unless he desires to do so. Now if those words are really to be construed in this sense, that, having heard them, an accused person remains silent at his peril and may find it a strong point against him at his trial that he did not say anything after being told he was not obliged to say anything, one can only think that this form of words is most unfortunate and misleading.  We think that these words mean what they say and that an accused person is quite entitled to say : ‘I do not wish to say anything except that I am innocent.’”

39.  In the present case when the Court of Appeal found that the judge’s questions and answers related only to the appellant’s credibility they were in error.  The form of the questions clearly raises also an inference of guilt.  Note the judge’s words in the last question “… it is about (whether) your name can be cleared …”.

The two principles in Ryan’s case

40.  The above error (if not rectified) would itself be sufficient to determine this ground of appeal in favour of the appellant but the question remains whether it would have been permissible for the judge to ask questions of this nature if it had been made clear that the only use to which the jury could put them would be to diminish the credibility of the defence.

41.  This relates to the second principle in Ryan.  On this the earlier cases are difficult to reconcile.  The distinction between the two appears in R v. Littleboy (1934) 24 Cr App R 192 where it was held not to be a misdirection for a judge to say that failure to disclose an alibi in time to afford an opportunity of it being tested was something to be borne in mind with the reference to the value of the defence.  It was noted that this failure was not treated as evidence against the appellant but only an observation on the defence put forward at trial.

42.  The various directions given by judges in R v. Leckey (1944) 29 Cr App R 128; R v. Davis (1959) 43 Cr App R 215; and R v. Hoare (1966) 50 Cr App R 166 were all misdirections which invited the jury to infer guilt from an earlier failure to disclose the defence or answer questions.  Littleboy and Hoare were both cases in which an alibi defence was advanced and such cases are now subject to s.65D of the Criminal Procedure Ordinance, Cap. 221.  These cases are authority on the first principle only.

43.  Of course, if a person tried for a crime has made a statement to the police (after caution or otherwise) that statement can be the subject of fair, relevant cross examination and comment at trial as to its meaning and consistence with the defence advanced.  R v. Gerard (1948) 32 Cr App R 132 to which reference is made in later authorities is an example of such a decision.

44.  The dividing line between the two principles in Ryan has caused concern not only on the intellectual level but also on a practical one.  In R v. Sullivan (1967) 51 Cr App R 102 at 105, Salmon LJ (as Lord Salmon then was) touched upon the point.  Giving the judgment to the court he said :

“The difficulty, however, lies in this.  It has been established by a long line of authority culminating in Davis (1959) 43 Cr App R 215, that a judge is not entitled in any circumstances to suggest to a jury, when a man refuses to answer any questions after having been cautioned, that, if he were innocent, it is likely that he would have answered the questions.  What a judge may say to a jury when a man refuses to answer is, perhaps, not so plain.  There are cases in which the comment in the summing-up upon an accused’s silence is clearly unfair; Leckey (1943) 29 Cr App R 128; [1944] KB 80 was such a case and so was Naylor (1932) 23 Cr App R 177; [1933] 1 KB 685.  There are other cases, however, and this is one of them, in which the circumstances are such that it does not appear that there is any unfairness involved in the comment.  The line dividing what may be said and what may not be said is a very fine one, and it is perhaps doubtful whether in a case like the present it would be even perceptible to the members of any ordinary jury.” (Emphasis added)

45.  Giving the judgment of the New Zealand Court of Appeal in R v. Coombs [1983] NZLR 748 at 752 Cooke J (as Lord Cooke of Thorndon then was) considered R v. Gilbert (1978) 66 Cr App R 237 and the two principles.  He observed “We respectfully agree that the distinction is often too fine to be of practical value in a jury trial.”

46.  Professor Cross in ‘The Evidence Report : Sense or Nonsense’ [1973] Crim L R 329 at 333 was concerned about the advice given to a trial judge in Ryan and the distinction between the two principles.  He favoured the committee’s recommendations as they would “spare the judge from talking gibberish to the jury”.  He continued at 333 :

“I regard this as gibberish because precisely what the second line of reasoning which is canvassed permits is the drawing of an inference of guilt.  The stages of the argument are (i) the defence was belated; (ii) the jury may (not must) consider it entirely false on that account; (iii) in that event, the prosecutor’s case being in effect unanswered, the jury may (not must) infer that the accused is guilty.  I am therefore not surprised that Lord Salmon should once have spoken of the dividing line proposed by the above quotation as one which would perhaps not ‘be even perceptible to the members of an ordinary jury’.”

47.  In England the point was considered by the Court of Appeal (Viscount Dilhorne, Lord Scarman and Jupp J) in Gilbert’s case (referred to in para. 45 above).  Having considered the earlier authorities which could not all be reconciled, the court said at 244 :-

“There are a large number of reported cases arising from comments made at trials on the failure of the accused to disclose the defence put forward at the trial when questioned by the police or at an earlier stage of the proceedings.  It is, as Lord Parker CJ said in Hoare (1966) 50 Cr App R 166, 169; [1966] 1WLR 762, 765, not possible to reconcile all of them.  It is in our opinion now clearly established by decisions of the Court of Appeal and of the Court of Criminal Appeal that to invite a jury to form an adverse opinion against an accused on account of his exercise of his right of silence is a misdirection (see Gerard (1948) 32 Cr App R 132; [1948] 1 All ER 205, per Humphreys J at pp. 134 and 206 of the respective reports; Davis (1959) 43 Cr App R 215, per Lord Goddard CJ at p.218 and Hoare (supra)).

In Ryan (1964) 50 Cr App R 144, it appears that a number of cases were cited but not Gerard (supra) and Davis (supra).  In the light of the authorities cited to it, the Court held (1964) 50 Cr App R 144, 148 that it was wrong to say to a jury ‘Because the accused exercised what is undoubtedly his right, the privilege of remaining silent, you may draw an inference of guilt.’  That Court, however, went on to say ‘… it is quite a different matter to say, “This accused, as he was entitled to do, has not advanced at any earlier stage the explanation that has been offered to you today : you, the jury, may take that into account when you are assessing the weight that you think it right to attribute to the explanation”.’  That Court felt that there was a clear dividing line between those two courses.

We have to confess that we are unable to perceive that that is the case.  The second of the statements quoted seems to us an invitation to the jury to draw an inference adverse to the accused on account of his exercise of the right of silence, though in a more oblique fashion than in Davis (supra).  It is perhaps unfortunate that this decision was not brought to the attention of the Court in the later case of Hoare (supra) and we do not find it possible to reconcile it with Gerard (supra), Davis (supra) and Hoare (supra).”

48.  Although the court held it a misdirection to invite a jury to form an adverse inference upon the reliability of a defence first raised at trial on the grounds that it has not been disclosed previously to the prosecution or the police it recognized that the state of authority was unsatisfactory. 

49.  In England the point has since been clarified by statute.  An accused person’s right of silence, in circumstances where he may have been expected to make an explanation or raise his defence, was restricted by s.34 of the Criminal Justice and Public Order Act 1994.  This provides that in certain circumstances and a limited way the prosecution may rely at trial upon an accused person’s failure to mention to the police a fact which he could reasonably have been expected to mention.  But, such a failure may only be relied upon if it occurs after the accused has been cautioned and told specifically that a failure to mention such a fact may harm his defence at trial.  In R v. Bowden [1999] 2 Cr App R 176 at 181 Lord Bingham CJ categorized the provision in s.34 and associated sections of the act as restricting “rights recognised at common law as appropriate to protect defendants against the risk of injustice …”

Australian authority

50.  The High Court of Australia considered the dividing line between the two principles in Ryan’s case in Petty and Maiden.  Dawson J, in a carefully reasoned judgment, was firmly of the view that the second principle was good law.  Following the passages we have cited in para.36, he considered the English, New Zealand and Australian authorities and expressed his disagreement with the decision in Gilbert’s case as follows :

“But it is wrong to say that no inference adverse to the accused can be drawn on account of his exercise of the right to silence, if to conclude that what an accused says at trial is less likely to be true because he did not say it previously amounts to drawing such an adverse inference.  That is a reasoning process which is permissible consistently with the existence of the right to silence.  It has never been suggested, so far as I am aware, that a jury cannot reject the evidence of an accused because it is given for the first time at trial.  That can only be done by taking into account previous silence on the part of the accused.  If it is not possible to take the accused’s silence into account, then it would follow ineluctably, in my view, that the jury could not reject the accused’s story because it was told for the first time at trial.  That has never been the law and would be an affront to common sense.  What cannot be drawn from the exercise of the right to silence is an inference of guilt : that the accused in maintaining his silence admitted his guilt or displayed a sufficient consciousness of guilt to establish it.  But that is a different thing.”

51.  He thought the English authorities exhibited “a certain ambivalence” but that in Australia and New Zealand the position was clear.  He relied in particular upon the decision in McNamara [1987] VR 855.  A decision which was in accord with Ryan.

52.  Priestley JA, the judge below, had drawn the distinction but the majority of the court in Petty and Maiden roundly rejected it together with Dawson J’s conclusion.  Mason CJ, Deane, Toohey and McHugh JJ reviewed the authorities and having acknowledged a “significant body” to support the existence of the distinction made reference to Gilbert’s case.  They observed :

“We acknowledge that there is a theoretical distinction between the two modes of making use of the accused’s earlier silence.  However, we doubt that it is a distinction which would be observed in practice by a jury, even if they understand it.  And, what is of more importance, the denial of the credibility of that late defence or explanation by reason of the accused’s earlier silence is just another way of drawing an adverse inference (albeit less strong than an inference of guilt) against the accused by reason of his or her exercise of the right of silence.  Such an erosion of the fundamental right should not be permitted.  Indeed, in a case where the positive matter of explanation or defence constitutes the real issue of the trial, to direct the jury that it was open to them to draw an adverse inference about its genuineness from the fact that the accused had not previously raised it would be to convert the right to remain silent into a source of entrapment.  Accordingly, the distinction is, in our view, unsound.”

53.   Brennan J also thought the distinction invalid.  Having agreed with Lord Diplock’s statement in R v. Hall [1971] 1 WLR 298 at 301 G that “The caution merely serves to remind the accused of a right which he already possesses at common law.”  He said at 329 :

“Where a jury might have had regard to an accused’s earlier silence in evaluating evidence given by him at the trial, recognition of the right of silence precludes the jury from taking that silence into account.  It is not open to attack exculpatory evidence of an accused as a recent fabrication merely because the accused was silent on occasions when he had a right to be silent.  The right of silence would be infringed if evidence of silence were admissible to impugn exculpatory evidence or out-of-court statements by an accused.”

54.  Gaudron J having recognised at 344 that :

“As a matter of ordinary experience, the failure to advance an innocent explanation when an opportunity arises may, of itself, support an inference that no such explanation is available.  So too, as a matter of ordinary experience, it may support an inference that a subsequent explanation is false.  And, of course, an inference to the same effect may be drawn if different explanations are given on different occasions.”

referred to the authorities and then said at 346 :

“The distinction which the cases assert between silence as, on the one hand, a matter bearing on the weight to be given to an explanation and as, on the other hand, a matter not founding an inference of guilt, will not withstand scrutiny.  A direction that the failure to raise an explanation before trial may be taken into account in assessing its weight really amounts to a direction that an inference of guilt may be drawn from that failure, the steps involved being those identified by Professor Cross …”

And later, having considered Gilbert’s case, she stated :

“Although ordinary experience allows that an inference may be drawn to the effect that an explanation is false simply because it was not given when an earlier opportunity arose, that reasoning process has no place in a criminal trial.  It is fundamental to our system of criminal justice that it is for the prosecution to establish guilt beyond reasonable doubt.  The corollary of that – and it is equally fundamental – is that, insanity and statutory exceptions apart, it is never for an accused person to prove his innocence : see Woolmington v. DPP [1935] AC 462; (1935) 25 Cr App R 72.  Therein lies an important aspect of the right to silence, which right also encompasses the privilege against incrimination.”

The Hong Kong position

55.  We agree with the reasoning of the majority in Petty and Maiden.  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 Littleboy and later Ryan 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.

56.  A person’s right against self incrimination (his right of silence) would otherwise become a possible source of entrapment.  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.

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

58.  Contrary to Ms Sin’s submissions and the judgment of the Court of Appeal the questions and answers complained of were inadmissible.  They invited the jury to form an adverse inference against the accused because he had not disclosed his defence earlier to the police.  They raised inferences not only of guilt but also that the defence lacked credibility.  It was a serious breach of the accused’s right of silence and to a fair trial according to law.

Was the judge’s error rectified?

59.  The judge attempted to rectify his error simply by directing the jury to ignore and forget the questions and the answers.  (See the passage we have quoted.)  But did he succeed?

60.  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.

61.  Here, the judge chose to simply direct the jury to forget and ignore the inadmissible evidence.  But, without some explanation that the appellant was under no obligation of any kind to say anything to the police and therefore the suggestion that he ought to have informed them of Tsang Kei was both wrong and wholly unfair, the jury would have difficulty in putting the point, and its effect on the appellant’s credibility, out of mind.  No good reason for them to do so was offered.  Our conclusion is that there is a danger that the accused’s exercise of his right of silence became a “source of entrapment”.  It impinged on the reliability of the appellant’s evidence which was central of his defence.  There is every reason to think that the judge did not succeed in correcting his error.

62.  The respondent’s submission that the Court of Appeal’s decision that judge’s question had nothing to do with the right of silence is wrong.  It seeks to revive the second line of reasoning in R v. Ryan which was an unjust restriction of an accused’s Common Law right of silence.

63.  The introduction into evidence of the inadmissible questions and answers was both an error of law and a material irregularity which render the appellant’s conviction unsafe. 

The approach of this Court

64.  The respondent rightly submits that this Court does not review a decision of the Court of Appeal in a criminal case in order to determine whether the conviction which it upheld is “safe and satisfactory”.  That is the task of the Court of Appeal which this Court will not undertake afresh.

65.  Here an appellant’s task is more difficult.  As pointed out by Mr Justice Bokhary PJ in So Yiu-fung v. HKSAR (1999) 2 HKCFAR 539 at 543 F-G the appellant must show that :

“there has been to the appellant’s disadvantage a departure from accepted norms which departure is so serious as to constitute a substantial and grave injustice.”

Conclusion

66.  We accept that a summing-up can rarely if ever be perfect.  It must be adequate, balanced and fair.  It is appropriate to note parts of the summing-up in which the judge fairly and firmly summarised parts of the police evidence which were open to criticism.  But viewed as a whole the summing-up fell below the standard required.

67.  The three grounds of appeal relied upon and made out are cumulative.  In each the judge is said to have directed or invited the jury to consider the evidence in the case in a manner which was less than fair and unprejudiced.  A judge’s task when summing-up includes directing the jury on the relevant law, identifying the issues to be decided and summarising the relevant evidence.  In summarising the evidence he is entitled to comment upon it to assist the jury.  These comments in appropriate circumstances may be robust but they must always be fair and the judge must always direct the jury to consider the evidence in a fair balanced and impartial manner.  However serious the offence charged, however unlikely the defence advanced, the fundamental right of an accused person is to receive a fair trial.  It is the judge’s task to ensure that such a trial is achieved.

68.  In this trial the judge unfairly and by implication categorised the police witnesses as more likely to tell the truth and less likely to lie than others.  He invited the jury to determine between the prosecution version and the defence version of the evidence on credibility without giving the usual and proper direction for the approach if the jury concluded that the defence version may have been true.  This risked an erroneous application of the burden of proof.  Finally, the judge introduced inadmissible questions and answers which tended unfairly to damage the appellant’s credibility and undermine his defence and he did not succeed in rectifying his error.

69.  This is a case in which the appellant did not have the fair trial to which he was entitled.  It was seriously unfair amounting to substantial and grave injustice.

70.  For these reasons we allowed the appeal and quashed the conviction.  We did not order a retrial for the reasons already given by Mr Justice Bokhary PJ.