HKSAR v. KO WAI LUN

CACC 131/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 131OF 2016

(ON APPEAL FROM HCCC NO. 422 OF 2015)

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J U D G M E N T

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Hon Lunn VP (giving the Judgment of the Court) :

1.  The applicant seeks leave to appeal against his conviction on 26 April 2016, after trial by Deputy High Court Judge Verina Bokhary and a jury, of one count of trafficking unlawfully, together with Hau Chun Hin and other persons unknown, on 10 August 2013 in a dangerous drug, namely 14.50 kilogrammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

The trial

2.  On 10 August 2013, police officers intercepted Hau Chun Hin (PW1) whilst he was walking in the direction of the taxi stand at the Hong Kong International Airport.  He had just returned by aeroplane to Hong Kong from Brazil via Beijing and Madrid, having flown to Sao Paulo, Brazil on 27 July 2013.  A search of a large brown travelling bag he was carrying revealed 12 plastic packets, each covered by a piece of carpet, which contained in total the cocaine the subject of the count on indictment.  Having pleaded guilty to unlawfully trafficking in the cocaine on 17 April 2014, he was called as a witness for the prosecution in the trial of the applicant.

The prosecution case

3.  It was an admitted fact that the applicant was arrested on 31 July 2015 by police officers for the offence for which he stood trial.  The applicant and Hau Chun Hin, who were both aged 18 years at the time of the arrest of the latter in August 2013, had been at school together.

4.  Hau Chun Hin was the only oral witness called on behalf of the prosecution.  In June 2013, he responded to a message posted on Facebook by the applicant of an offer of a reward of $30,000 available to a passport holder of at least 18 years of age.  In a subsequent telephone conversation with the applicant, which Hau Chun Hin initiated, the applicant informed him that the offer was available to a person who had to travel overseas to return to Hong Kong with some valuable property.  In response to his enquiry as to the nature of the property, the applicant said that he could not tell him.  Nevertheless, he told the applicant that he was prepared to do the job.  In response to the applicant’s request, he sent a copy of the photograph page of his passport, together with details of his address, to the applicant by Whatsapp.

5.  In a subsequent telephone conversation, the applicant informed him that he would be required to travel to Brazil.  Again, the applicant told him that he could not tell him what it was that he would be required to bring back to Hong Kong.  In early July 2013, when they met at a restaurant in Aberdeen, the applicant again declined to tell him what it was that he would be required to bring back to Hong Kong.  Then, on 26 July 2013, after interim contact between the two of them on Facebook, Whatsapp and Wechat, the applicant telephoned him and informed him that he would be going to Brazil the following day.  Also, the applicant provided him with a telephone number, telling him to call that number after he had travelled the following day to Yuen Long.

6.  On 27 July 2013, having travelled to Yuen Long and having made contact with a person on the telephone number with which he had been supplied, Hau Chun Hin met a man who introduced himself as ‘Sai Ming’.  The latter gave him an airline ticket to Brazil, US$4,000, a mobile telephone to use to make contact on arrival in Brazil and a hotel voucher, which he was instructed to present to a taxi driver on arrival, so as to be taken to the hotel.  Then, Sai Ming accompanied him to the airport, where he instructed him that on the return journey to Hong Kong he was to check‑in the luggage containing the valuables that he would be given in Brazil.

7.  On arrival in Sao Paulo, having been unable to contact Sai Ming with the telephone with which he had been provided, Hau Chun Hin telephoned the applicant, who instructed him to call Sai Ming.  He did so, and was given further instructions as to how to reach his hotel.  From the hotel, he made contact by Whatsapp and Wechat with both Sai Ming and the applicant.  The latter told him to wait at the hotel to be contacted.

8.  After several days, he was contacted by a Cantonese speaking Pakistani, who introduced himself as ‘Ah Man’.  On the latter’s instructions he moved to a second hotel.  There, on 7 August 2013 a large black man came to his room and delivered the piece of luggage with which he returned subsequently to Hong Kong.  Having opened the luggage, he noticed that it contained a kind of blanket.  Having informed the applicant in a message of what he had done, the latter told him not to unwrap the blanket, to delete all records of messages and to record the fact that he had done so on a screenshot which was to be sent to the applicant.  He did as he was instructed.

9.  On 8 August 2013, having been provided with an e-ticket by Ah Man, the applicant travelled back to Hong Kong by the same route, but in reverse.  On 10 August 2013, on his arrival in Hong Kong, he contacted the applicant by telephone, who told him to await further instructions.  Having retrieved his checked‑in luggage, he received a telephone call, in which he was instructed to take a taxi to a place called Fung Ying Seen Koon.  As he waited to take a taxi to that place, he was arrested.

10.  Hau Chun Hin said that he had contacted the police in January 2015 to inform them that he could provide them with information that would enable them to arrest others and that he had done so in the hope that he would secure a remission in his own sentence.

11.  In cross-examination, Hau Chun Hin admitted that he had lied to the police in interviews and in witness statements.  He had done so because he was frightened and he hoped that there might be a chance of pleading not guilty.  He denied that the applicant had told him that the valuable property that he was to bring back to Hong Kong was diamonds, ivory or gemstones.  He reaffirmed his evidence that the applicant had told him not to unwrap the blankets, to delete all records of messages and to send a screenshot to him to confirm that he had done so.  Further, he denied that he had fabricated his evidence in order to get the maximum discount from his own sentence of imprisonment.

The defence case

12.  The applicant gave evidence in the defence case.  He said that he had no knowledge of what was inside the luggage which was brought from Brazil to Hong Kong by Hau Chun Hin.  His role was that of an intermediary only between Hau Chun Hin and Jason Cheung.  In June2013,PoonHangSiuintroducedhimtoJasonCheung.  Atthe end of June or early July 2013, by coincidence he met Jason Cheung in apubinMindenAvenue.  JasonCheungofferedhimajobofbringingbacktoHongKongvaluableproperty,suchasdiamonds,ivoryandgemstones, from overseas.  The reward would be $40,000.  Jason Cheung answered in the negative his enquiry as to whether the valuable property was dangerous drugs.  Having been told by the applicant that his passport had expired, Jason Cheung told him that he would pay a referral fee of $10,000 to the applicant, if he was able to introduce someone who could do the job.

13.  The applicant said that as a result of that conversation he had postedamessageonFacebookinwhichhesaid:“Anybodywants to earn money, $30,000?　Age 18 or above.  Must be a passport holder.  Anyone interested, contact me.”  He said that Hau Chun Hin responded with his own message and that thereafter they spoke by telephone.  He told him that the job was to bring valuable property, such as “diamonds, precious stones and ivory” back to Hong Kong.  Also, he told him that the job required the person to have a passport.  Subsequently, Hau Chun Hin confirmed that his passport was valid.

14.  The applicant adduced into evidence a record of Facebook messages, and an English translation, passing between him and Jason Cheung, inter-alia, on 17 July 2013.[1]  The applicant pointed to exchanges between them on and between 03:12 and 03:29 hours that day.  In response to his message to Jason Cheung, in effect, that he proposed recruiting a person for the job by posting a message on Facebook, Jason Cheung responded “So high‑profile.”  Then, the following exchange ensued, in which the applicant said that he was described as ‘Ko Ryan’:[2]

“ Ko Ryan

You said it explicitly that it is not DD why worry.

Jason Cheung

Ha ha

Ko Ryan

generally what is it

Jason Cheung

Valuables  Must find someone trustworthy If not then in deep shit Ha ha ha”

15.  The applicant testified that thereafter he had acted merely as a middleman or communicator between Jason Cheung and Hau Chun Hin.  Having obtained a copy of the photograph page of the latter’s passport and details of his address, he had passed on the information to Jason Cheung.  On 26 July 2013, he had passed on the message he received from Jason Cheung that the applicant was to travel to Brazil the following day, together with the telephone number which was provided to him by Jason Cheung.  Whilst Hau Chun Hin was in Brazil he had casual conversations with him.  When the former told him of the delivery to him of the luggage and the fact that he had opened it and seen some rugs inside, he had told him not to tamper with the contents.  He did not tell him not to unwrap them.  Similarly, he did not tell him to delete records of their messages.

16.  On his return to Hong Kong Hau Chun Hin telephoned him and, in response, he had contacted Jason Cheung, who had given him a telephone number for the former to call.  He passed on that telephone number to Hau Chun Hin.  He did not know that the luggage that Hau Chun Hin brought back to Hong Kong contained dangerous drugs.  He believed Jason Cheung’s denial that the ‘valuables’ were dangerous drugs.  He believed Jason Cheung’s statement that it would be other ‘valuables’.  He would not have allowed Hau Chun Hin to accept the offer if he had known that the ‘valuables’ were dangerous drugs.

Grounds of appeal against conviction

17.  In the grounds of appeal against conviction, Mr Raymond Yu and Mr Bache Sit submitted that the judge had erred in failing to direct the jury that the applicant had “no duty to reveal his defence, in whole or in part, and/or any potential defence exhibits before trial.”  It was contended that the error arose from the fact that counsel for the prosecution, Mr Nicholas Adams, had cross‑examined the applicant on the fact that it was at the trial itself for the first time that he had revealed the fact of a “Whatsapp conversation with PW1, the accomplice, prior to trial.” 　That error was corrected in the Amended Perfected Grounds of Appeal against Conviction, which the Court granted the applicant leave to file at the commencement of the oral hearing. 

18.  In their written submissions, it was asserted that the relevant conversation was “…his Facebook conversation with Jason Cheung”, not the conversation with Hau Chun Hin.  Objection was taken to cross‑examination of the applicant, in which he agreed that he had never told the police about Jason Cheung and that the first time the Facebook record “emerged” was in his evidence during the trial.  Similarly, in the context that the applicant testified that he knew of the arrest of Hau Chun Hin on 11 or 12 August 2013, objection was taken to cross‑examination of the applicant that nevertheless, in the period August, September and October 2013, he had not contacted Hau Chun Hin or his family to inform them “Look, I know something about this”.  It was suggested to the applicant that he did not do so “because you knew you were involved.”  The applicant enjoyed a right to silence.  It is wrong to use a person’s silence against him in any way.[3]  The use of a person’s exercise of the right of silence is impermissible.[4]

19.  It was acknowledged on behalf of the applicant that, in cross‑examination of the applicant, Mr Adams had conceded that following the applicant’s arrest by police officers on 31 July 2015, at which time he had been cautioned, the applicant was under no obligation to tell “erred in failing to direct the jury on inferential reasoning in the context of the evidence and the arguments presented in this case.” any police officer, prosecution or the court about the conversation that he had with Jason Cheung or to disclose the existence of the Facebook record.

20.  In the amended grounds of appeal, it was also contended that the judge had erred in “failing to direct the jury on inferential reasoning in the context of the evidence and the arguments presented in this case.”

The respondent’s submissions

21.  In the respondent’s written submissions, Mr Derek Lai conceded that the cross-examination of the applicant in respect of the Facebook record was “inadmissible material.”  In his oral submissions, Mr Lai submitted that whilst that was an irregularity it was not a material irregularity.  However, he submitted that Mr Adams had rectified his error in his subsequent cross‑examination in which he acknowledged that after his arrest the applicant was not obliged to disclose the Facebook record to anybody.  Further, he contended that, although Mr Adams had made reference in his closing speech to the Facebook record of the applicant’s conversation with Jason Cheung, he had not levelled any attack on the applicant’s credibility by reference to his failure to reveal his Facebook record prior to the trial.  On the contrary, he suggested to the jury that although the document “…came quite late in the day in the case”, nevertheless the jury should not speculate about that “…because he’s allowed to sit there and say nothing.  There is no rule in Hong Kong that he has to tell his defence beforehand.” [5]

22.  Mr Lai suggested that the fact that the judge gave the jury no direction in respect of the “inadmissible material” occurred because the judge had chosen not to draw attention to the issue.  That, he said, was consistent with the observations of Mortimer NPJ in his judgment in the Court of Final Appeal in HKSAR v Lee Fuk Hing,[6] in which he had observed:

“ 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.”

23.  Mr Lai reminded the Court that the Court of Final Appeal had echoed those sentiments in the judgment of Fok PJ in HKSAR v Ata Asaf. [7]  In the result, he submitted that in all the circumstances the judge had been entitled to form the view that “The less said the better.”  Mr Lai acknowledged that, in so far as he was aware, there was no discussion between the judge and counsel as to whether or not there had been an irregularity and, if so, how it was to be resolved.

A consideration of the submissions

24.  In the course of his evidence-in-chief, the applicant testified about and adduced into evidence a record of the Facebook messages that he had exchanged with Jason Cheung, inter-alia, on 17 July 2013.  In cross‑examination, the applicant said that he had learnt of the arrest of Hau Chun Hin “roughly on 11 or 12 August 2013.”  Then, there ensued the following exchange in cross‑examination:[8]

“ Q. Yes. All right. And did you do anything about that?

…

A. Right after that, I tried pursuing the matter with Jason, however, I could not reach him.

Q. Have you ever tried to pursue with Jason after that first time?

….

A. All along I did.

Q. How many times? What do you mean by all along?

A. Even up till now.

Q. Right. And did you ever tell the police then about Jason?

A. No.

Q. All right. What’s the reason for that?

A. Because I haven’t been able to reach Jason; and, secondly, without a legal advice, I mean to be certain about it, so I don’t want to reveal to the police for the time being.

Q. For the time being. I am not going to ask you about any conversation you had with your lawyers, I just ask you, when was the first time you had contact with lawyers?

A. It should be September 2015.

Q. Right. This Facebook record you’ve produced today, in fact it emerged yesterday, isn’t that right, in court the first time?

A. Right.

Q. And do you accept that this Facebook record was never presented to the police or prosecution or any court official before yesterday?

A. I agree in this regard.

Q. Right. I am talking about defence Exhibit No 2. Right. Now, you say that you feel sad and bad about the fact of what happened to PW1.

A. Yes.

Q. Have you ever communicated with him in any way either through yourself or through a lawyer that you also were set up and you felt sorry about it?

…

A.   No.”

25.  In the context of the applicant’s confirmation that he had learnt from the newspapers of the arrest of Hau Chun Hin on 11 or 12 August 2013, the following exchange ensued:[9]

“ Q. Right. And you decided not to come forward, did you, and reveal, look, you were set up and therefore your friend had been set up?

A.   Because initially I did not know which court he would appear; I did not know which court, which place.  I did not know the procedures of how to be a witness.  I knew nothing about all these at that time.”

26.  After the intervening lunchbreak, the following exchange ensued:[10]

“ Q. Now, you were arrested in connection with this case on 31 July 2015.

A. Yes.

Q. Right. Now, let me say this to you that I accept that after that date, you are not obliged to tell any police officer, prosecution or the court about this exhibit D2, understand?

A. (Answer not interpreted).

Q. Right?

A. Yes.

….

Q. All right. All right. Now, but the fact remains that you knew your old childhood friend, boyhood friend, was arrested on 11 or 12 August 2013, yes?

A. Yes.

Q. And you say today that you feel sad and bad about that.

A. Yes.

Q. And you say you understand that he’s blaming you who asked him to go.

A. Right.

Q. Right. And then in fact you are saying you understand that he is aggrieved at being kind of set up.

A. Yes.

Q. Yes. Did you feel like that in the few months after you found out that he had been arrested?

A. I did.

Q. Yes. Let’s just deal with the month of August, September and October 2013, no later months than those. Right? Two and a half months; those few months. Right? You didn’t ring his family or write a letter to him or his family, did you?

A. I did not.

Q. Why not?

A. Because I didn’t have his family members’ telephone numbers.

Q. You knew where they lived.

A. Yes.

Q. You could have found out the telephone number.

…..

A. I did try, I did try finding, but I did not manage to do it.

Q. Well, anything stopping you from walking around to their place in the month of August 2013?

A. August, well, nothing.

Q. No. Nor September or October 2013, let’s just deal -- leave it at that. Yes?

A.   Neither.”

27.  It was in that context, that Mr Adams suggested to the applicant:[11]

“ Q.   All right. I suggest to you that you didn’t go around and say, “Look, I know something about this” to his family members because you knew you were involved.

A.   I absolutely disagree.”  [Italics added.]

28.  In Lee Fuk Hing v HKSAR, the judge embarked on a series of questions of the defendant eliciting that his defence, that he had lent the vehicle in which he was driving when he was intercepted by police officers and dangerous drugs found in the vehicle to a third person who had been in the vehicle shortly before it was intercepted, was not disclosed until the trial.  Further, he was questioned as to why that was the case.  In response to the intervention of counsel for the prosecution, the judge directed the jury to ignore both the questions and answers.  However, he gave no explanation for those directions, in particular he did not direct the jury that the defendant enjoyed the right of silence.  In his judgment, Mortimer NPJ said:[12]

“ 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 the circumstances, it is inappropriate in Hong Kong to use a person’s silence against him in any way.

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.”

29.  In the result, Mortimer NPJ said of the judge’s questioning of the defendant and his testimony:[13]

“ … 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 the law.”

30.  Of the judge’s attempts to rectify his error, Mortimer NPJ said:[14]

“ 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 explanations 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.

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 he ought to have been 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”.”

31.  In HKSAR v Ata Asaf the appellant was intercepted by police officers in the street and found to be in possession of just over 12 grammes of Ice.  The issue at trial was whether or not he was possessed of the Ice for the purpose of unlawful trafficking.  It was his defence that he possessed the dangerous drugs for self‑consumption at his home.  Of the fact that no apparatus for the consumption of dangerous drugs had been found in a search of his home by police officers, the appellant testified that he had a hookah, which was stored below an air conditioner unit outside the premises searched by the police officers.

32.  In cross-examination, the appellant, who was present at the time of the search, accepted that he had not informed the police officers of the whereabouts of the hookah, explaining that he had not done so “Because they did not ask me.”  In face of the suggestion that his account was completely untrue and that there was no equipment at his home, the appellant said “It’s true and equipment was there.”  Of the appellant’s evidence that he had left home earlier with $7,000, with which he purchased the Ice, counsel for the prosecution suggested in his closing speech that that claim had been made for the “first‑time” in his evidence.

33.  In the judgment of the Court of Final Appeal, Fok PJ noted that the judge had reminded the jury that the appellant had “nothing to say” when questioned by the police, but directed them that his exercise of his right of silence was not to be held against him in any way whatsoever.  Although the judge had given the jury the standard direction, Fok PJ noted that the direction was couched in terms of a response to having been questioned by the police and did not extend:[15]

“ …to the search of his home or to an occasion when he might have volunteered some relevant information, viz that his drug-taking equipment was in fact outside the window.” [Italics added.]

34.  Fok PJ noted that the judge had directed the jury:[16]

“ You are also to wholly ignore the cross‑examination suggesting, by reference to his previous convictions, that the accused was dishonest. He has previous convictions, but they do not help the prosecution prove trafficking against him. The cross‑examination directed to his not having told the police where he kept his drug-taking equipment does not help the prosecution since the prosecution does not dispute that the accused did consume drugs.”

35.  Fok PJ said that there was an immediately apparent contrast between the two directions: in the former, the jury was directed to “wholly ignore” the appellant’s previous convictions, whereas of the latter direction the jury may well have reasoned that the evidence of the appellant’s failure to mention the whereabouts of the hookah “though properly to be taken into account, did not help the prosecution.” [17]

36.  Finally, Fok PJ said:[18]

“ A further reason the judge’s standard direction on the right to silence did not remedy the error constituted by the admission of the evidence concerning the drug-taking equipment is that, although she addressed that specific evidence in her summing up, she made no mention at all of the inadmissible evidence introduced in prosecuting counsel’s speech that it was only during his testimony the day before that the appellant had claimed he went out that day with $7,000. By not referring to and directing the jury to ignore the comment that the appellant had not previously mentioned going out with the money, the jury might well have reasoned that counsel’s remark was a proper one for them to take into account. If it was proper to take that remark into account, then the same comment could, they might have reasoned, also apply to the failure previously to mention the drug-taking equipment.”

37.  It is to be noted that in the applicant’s trial no objection was made by his counsel, Mr Albert Luk, to the cross-examination of the applicant in respect of his failure, following the arrest of Hau Chun Hin to tell either him or his family that he knew something about the case or of his failure to tell the police about Jason Cheung or to present the Facebook records “to the police or prosecution or any court official before yesterday.”  Also, it is apparent from the audio recording of proceedings that the matter was not raised by the judge with counsel at or around the time of the relevant cross-examination.

38.  Further, it is to be noted that, although Mr Adams acknowledged that after the applicant’s arrest on 31 July 2015 he was not obliged to “tell any police officer, prosecution or the court” about either the Facebook record or the conversation with Jason Cheung, the acknowledgement received no judicial clarifying endorsement by a direction to the jury either then or in the summing up.  However, the clear terms of Mr Adams’s concession did not extend to the applicant’s alleged failure to make any disclosure to Hau Chun Hin or his family.  More importantly, nowhere did Mr Adams state that the applicant had a right of silence, in respect of disclosing to any and all parties, matters that went to his deep involvement in the circumstances that led eventually to the arrest of Hau Chun Hin.  Moreover, he did not have any obligation of disclosure either prior to or following his arrest.

39.  Clearly, the blunt inference that the prosecution invited the jury to draw from the applicant’s failure to inform Hau Chun Hin or his family that he knew something about the circumstances in which the former had been arrested was because “you knew you were involved”.  Obviously, as Mr Lai acknowledged in his oral submissions, the ‘involvement’ was in the unlawful drug trafficking.  Not only did he have no such obligation of disclosure, but more importantly he enjoyed a right of silence in respect of those matters.  The cross‑examination in this respect was wholly impermissible.  It was a material breach of the applicant’s right of silence and to a fair trial according to law.

40.  In her summing up, far from directing the jury to ignore the questions and answers relating to the applicant’s failure to disclose those matters to Hau Chun Hin or his family or his failure to tell the police about Jason Cheung or produce the Facebook record to the named authorities, the judge directed the jury to “consider the whole of the cross‑examination of the accused by prosecuting counsel”.[19]

41.  In reminding the jury of the cross-examination of the applicant, the judge said:[20]

“ … As to the accused’s evidence that he felt sad and bad about what had happened to Mr Hau, there was cross-examination of why the accused did not contact Mr Hau or his family after Mr Hau’s arrest. Prosecution counsel’s point being that he did not make such contact because he knew that he was involved. In this connection, prosecuting counsel asked the accused if there was anything to stop him from walking over to where Mr Hau’s family lived and the accused accepted there was nothing to stop him from doing so.” [Italics added.]

42.  The judge gave the jury no directions whatsoever in respect of the questions asked of the applicant in cross-examination as to his failure to inform the police about Jason Cheung or of the existence of the Facebook record.  Similarly, she did not give the jury the standard direction in respect of the applicant’s right of silence. Clearly, such directions were required.  The jury ought to have been directed to ignore those questions and answers and an explanation given to them that the evidence was inadmissible because the questions were asked in breach of his right of silence.

43.  At the conclusion of the summing up, in response to the judge’s enquiry if they had any matters to raise, both counsel responded in the negative.  It does not appear that there was any discussion between the judge and counsel, in prospect of the summing up or indeed in prospect of the closing speeches, as to any particular directions to be given in the summing up.  Given that in his cross-examination of the applicant, to which reference has been made earlier, it is clear that Mr Adams was acknowledging that he had gone too far in criticising the applicant for not having disclosed to the police the existence of Jason Cheung or the Facebook record of his conversation with Jason Cheung, it is most surprising that no discussion whatsoever was held between the judge and counsel as to how the matter was to be addressed.

44.  With respect, in failing to direct the jury to ignore the impugned questions and answers, indeed in reminding the jury of some of that material, the judge compounded the breach of the applicant’s right of silence and his right to a fair trial.  The judge ought to have directed the jury to ignore those questions and answers and given the same explanation set out earlier.

Conclusion

45.  In those circumstances, treating the hearing of the application for leave to appeal against conviction as the hearing of the appeal, we allow the appeal and quash the conviction.

Orders

46.  Sensibly, Mr Yu did not resist the respondent’s application for an order of retrial.  Accordingly, we ordered that the applicant be retried on the same count on a fresh indictment to be filed with the Court within 14 days hereof.  Further, we ordered that the matter come before the Listing Judge for the fixing of trial dates, which hearing is to be expedited, within 28 days hereof.  We refused the application for bail and remanded the applicant in custody pending his retrial.  Finally, there being no opposition to the application, we ordered that the applicant is to have his costs of the appeal, to be taxed if not agreed.