HKSAR v. LAM SZE NGA, JOSEPHINE

CACC 307/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 307 OF 2006

(ON APPEAL FROM HCCC 104 OF 2005)

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JUDGMENT

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Hon Yeung JA:

1.  I agree with the judgment of Yuen JA and would make an order in terms of para. 54 hereof.

Hon Yuen JA:

2.  This appeal raises an interesting question as to the ambit of the right of silence (which has an effect on the admissibility of evidence).  Stated briefly, the question is this - is a defendant protected by the right of silence only when he intended to avail himself of the right?  Or is he protected even though he kept silent for other reasons?

3.  On 24 July 2006 the Applicant was unanimously found by a jury to be guilty of the offence of trafficking in dangerous drugs, being 0.77 kg of the drug commonly known as “ice”.

4.  On 25 July 2006, Deputy Judge Barnes (as Barnes J then was) sentenced the Applicant to a term of imprisonment of 20 years.

5.  That trial was a re-trial, the Applicant having been convicted on 19 May 2003 by Deputy Judge M. Poon and a jury of the same offence.  Subsequently on 21 April 2005 this court (Cheung and Tang JJA and A. Cheung J) allowed the Applicant’s appeal but ordered a re-trial.  The prosecution’s appeal against that decision was dismissed by the Court of Final Appeal.  The Court of Final Appeal’s judgment is reported as HKSAR v Lam Sze Nga [2006] 2 HKLRD 244. 

Background

6.  The Applicant was the tenant and occupier of Room B, 2/F, 22 Lok Kwan Street, Tai Kok Tsui, Kowloon, Hong Kong.  On 3 May 2002, when the offence is alleged to have occurred, the Applicant had been renting the premises for about 1 month. 

Prosecution case

7.  The prosecution case was that on that evening, police entered the premises with a warrant and found within the premises a plastic bag containing the drugs.  There was also found within a drawer in the premises a set of electronic scales and some re-sealable plastic bags.  The Applicant was the only person in the premises, apart from a small child whom she was minding.  After caution, the Applicant is alleged to have said: “You people found [it] upon search.  Caught red-handed.  Nothing to say”.

Defence case

8.  The defence case was that after the premises were searched, the police found nothing suspicious.  Subsequently, police found the drugs outside the premises (said to be at the staircase), and an Inspector Lok said to the Applicant: “I know these drugs are not yours, and they belong to Ko Lo [Tall Guy] Wah.  If you do not cooperate, we cannot help you”.  However the Applicant said she did not know anything.  The police then planted the drugs found on the staircase inside her premises.  According to the Applicant, she did not make the admission alleged by the police.

Trial

9.  The Applicant gave evidence at the trial before Deputy Judge Barnes.  She gave evidence in chief that the drugs were planted but she did not say that she had made any complaints about being framed by the police.

Evidence about complaint

10.  The prosecutor cross-examined the Applicant on her allegation that she had been framed.  The Applicant said that she had been born and brought up in Hong Kong, that at the time of the incident she was 26 years old, that she had finished Form 5, that she had worked after finishing school, and that she had heard of the ICAC, although not the Complaints Against the Police Office.  She said that when the plainclothes officers first entered her premises, she told them she did not believe they were policemen and she was about to use her mobile phone to call the police to verify their identities when her mobile telephone was snatched from her.

11.  The Applicant admitted under cross-examination that she had not lodged a complaint about the planting of drugs to the duty officer at the police station.  When asked why not, she said she did not know she could do that (Appeal Bundle p.43 U-V). 

12.  The Applicant also admitted under cross-examination that she did not lodge a complaint to the magistrate before whom she was brought 2 days later (even though she was legally represented).

13.  When the prosecutor asked the Applicant when it was that she first lodged a complaint that the drugs had been planted, she said it was in September (4 months after the incident) when she wrote to the ICAC.  When asked why she had not done so between May and September, she said she was tired and that she only lodged the complaint when a cell-mate at Tai Lam Correctional Centre for Women asked why she did not complain (p.44 M).  She denied that the reason why she did not complain during the 4 months was that she had made up the story (p.44 R).  

14.  Later in cross-examination she said that between May and September when she was at Tai Lam she had told her mother about being framed, and that her mother did not say anything but just told her to be good inside (p.48 H-V).

15.  In re-examination, the Applicant said that her cell-mate had reminded her that she had a right to complain about 2 months after she entered Tai Lam (p.58 D) and that she wrote to the ICAC about 1 week later (p. 59 C).

Ground of appeal

16.  The crux of the case lay in whether the drugs had been found in the Applicant’s premises or whether they had been planted there by the police.  The Applicant has advanced only 1 ground of appeal, which I understand to be that regarding the Applicant’s inactivity between incident and complaint, the judge failed to warn the jury that the Applicant had the right of silence and that they should not use the inactivity against her or make an inference of guilt.  Absent such a warning, the jury would be misled into thinking that the Applicant had an obligation to explain why she had not complained earlier, thereby infringing her right of silence.

17.  It is common ground that an accused person has a right of silence.  It is also common ground that as far as the Applicant’s alleged confession was concerned, the judge had given a clear warning to the jury that if they found that she had not made that statement, they should not use that fact (that she had not made a statement) against her or infer guilt. 

18.  What is in issue is how the judge should have dealt with the evidence of the lack of complaint to the authorities for 4 months. 

Directions to jury in respect of evidence about complaint

19.  In respect of the issue of complaint, the judge’s directions may be translated as follows (p.20 K-V):

“Well, concerning complaints.  The Defendant has admitted saying, she was being framed, you know her first complaint was not until 4 months later (September), she said the first complaint was to the ICAC, Independent Commission Against Corruption, she explained that initially after she was remanded she was very tired, she did not immediately complain, later there was a cell-mate, that is a woman convict in the same cell, said .. That is, she told the woman cell-mate about the incident, and that person said: ‘Wah, you can complain to the Independent Commission Against Corruption, complain to the ICAC”, so she ... because she did not know the address, she said, do you remember?  She said she did not know the address, so she posted the complaint letter to her mother, asking her mother to help her post it, eventually, according to her, after the complaint, the ICAC said ... not ICAC, the circumstances you are talking about, must be the Complaints Against the Police Office, so it was transferred to the Complaints Against the Police Office, she has denied that her complaint was so late because she had made it up, you remember the prosecution saying: ‘If it’s true, why wouldn’t you have complained earlier, why did you take all of 4 months?  Because you had to make up the story, to get you off the hook, and it was only then that you complained’, and she did not admit it, she did not admit that was the case.  You would also have noticed the Defendant admitting that she was born and bred in Hong Kong, she was not a person who had recently come from the mainland who was not familiar with the situation in Hong Kong, she said she was born and bred in Hong Kong, why did she not complain until September, do you think what she said was credible, was reliable?  This is for you to consider and decide.  In particular you may consider because Mr Tam the prosecutor had cross-examined her saying ‘[when] the policeman entered and showed you his warrant card, you knew to say ‘hey, I do not know if you are a policeman, I have to report to the police’‘, even though eventually the mobile phone was snatched by the policeman, but was she such an ignorant person, ignorant of her own rights, at least had the right to say, you show me a card, must I believe you?  You might not be the police, [she] knew enough to think of phoning the police to clarify it, to verify and confirm that this was a policeman.  A person who knew how to do this, and on the other hand did not complain until a few months later, to what extent do you think she in fact knew her own rights?  You have to consider and decide”. 

20.  Mr Isaac Tam, SGC, accepts that the judge did not direct the jury on the right to silence when dealing with the evidence on the matter of complaints.  But he says the judge did not need to, because at no time did the defence suggest at trial that the right of silence had any part to play in this aspect of the case.  This leads to the heart of the arguments in this appeal. 

Discussion

21.  The right of silence has been the subject of decision by the Court of Final Appeal in Lee Fuk Hing v HKSAR [2004] 7 HKCFAR 600 and Lam Sze Nga (in which Lee Fuk Hing was considered).  As these judgments have been subjected to some rather refined analyses before us (certainly by Mr Tam and perhaps to a lesser extent by Mr Luk), it is necessary to consider them in some detail

Lee Fuk Hing

-  Facts

22.  In Lee Fuk Hing, the defendant was driving a van when it was intercepted by police.  Dangerous drugs were found in some bags in the van.  At the time of arrest the defendant was cautioned and he said nothing.

23.  It was not until the trial that the defendant said for the first time that he had previously lent the van to Tsang Kei, that Tsang Kei had left the bags containing the drugs in the van and that Tsang Kei had been in the van with him but had left shortly before police stopped it. 

-  The Q&A

24.  When the defendant gave this evidence, the judge asked him why he did not tell the police about Tsang Kei.  The defendant’s answer was that he was scared at the time and that he did not trust the group of policemen who had intercepted him, one of whom had threatened him.  I pause to note that these questions and answers related to the time soon after arrest when the defendant had been cautioned.  (For convenience I shall refer to this series of questions and answers as “the Q&A”). 

25.  Subsequently however, after counsel’s submissions that the Q&A were not admissible, the judge directed the jury to ignore the Q&A.  In the event, the jury convicted the defendant. 

-  Court of Appeal’s approach

26.  The defendant appealed to the Court of Appeal.  One of the grounds of appeal was that the Q&A undermined the defendant’s right of silence. This court (Leong CJHC, Woo and Yeung JJA) however held that the Q&A were admissible as relevant to the credibility of the defendant’s evidence, and had nothing to do with his right of silence.  The appeal was dismissed. 

-  Court of Final Appeal

27.  The defendant then appealed to the Court of Final Appeal.  The main judgment was given by Mortimer NPJ.  It was held that the aim and possible effect of the Q&A were two-fold (§33):

(1) to invite the jury to infer guilt from the Defendant’s failure to tell the police about Tsang Kei (which I shall for convenience call “the Guilt Use”), and

(2)  to damage the defendant’s credibility (“the Credibility Use”).

28.  The Court of Appeal was in error in holding that the Q&A related only to the Credibility Use. Since the Q&A also related to the Guilt Use, the jury was in effect permitted to infer guilt from the defendant’s silence and that was in breach of his right of silence. 

29.  Mortimer NPJ referred to R v Naylor (1932) 23 Cr App Rep 177 in which the English Court of Appeal was asked to rule on the trial judge’s  direction to the effect that an innocent person would give an explanation and advance his defence without hesitation.  The Court of Appeal in Naylor held (at p.180) :

“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 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’.”

-  Right of silence extends to failure to make exculpatory statement

30.  So understood, the right of silence was not simply the defendant’s right not to submit to compulsory interrogation which may lead to him having to make inculpatory statements.  The right of silence also extended to protect him from inferences of guilt from his failure to make exculpatory statements.  (I pause here to note that in 1994, sections 34-37 of the Criminal Justice and Public Order Act were enacted in respect of inferences that may be drawn from a defendant’s silence.  Section 34 provides that the prosecution may now rely on a defendant’s failure when questioned or charged to mention facts relied on in his defence, provided he has been cautioned and warned of the consequences of his failure). 

- Q&A not permissible even if expressly restricted to testing credibility

31.  Returning to the position in Hong Kong, having held in Lee Fuk Hing that the Q&A infringed the defendant’s right of silence, Mortimer NPJ went on to consider whether the Q&A would have been permissible if it had been made clear to the jury that their only use was for the Credibility Use (§40). 

32.  The English Court of Appeal had held in R v Ryan (1966) 50 Cr App R. 144 that it was acceptable to draw a dividing line between the Guilt Use and the Credibility Use.

33.  However in the later case of R v Gilbert (1978) 66 Cr App R. 237, the English Court of Appeal held that the drawing of that distinction by the court in Ryan was not in line with previous cases and that it was “unable to perceive” that there was such a clear dividing line.  It was also held in New Zealand in R v Coombs [1983] NZLR 748 that that dividing line was too fine to be of practical value in a jury trial.

34.  The majority of the High Court of Australia also held in Petty & another v R (1991) 55 A Crim Rep 322 that whilst there was a theoretical distinction, it doubted that it was a distinction which would be observed in practice by a jury, even if they understood it.  More importantly, the distinction was unsound because the Credibility Use was simply another way of drawing an adverse inference (albeit less strong than an inference of guilt) from a defendant’s exercise of his right of silence.

35.  In Lee Fuk Hing, Mortimer NPJ quoted in particular Gaudron J’s judgment in Petty which recognized that as a matter of ordinary experience a failure to put forward an innocent explanation when given the opportunity may support an inference that any later explanation is false, but that reasoning process had no place in a criminal trial where it is for the prosecution to establish guilt and not for the accused to prove innocence, of which the right to silence formed an important aspect (§54).

36.  In the result in Lee Fuk Hing, Mortimer NPJ doubted the existence of the dividing line advanced in Ryan (which I have called the distinction between Guilt Use and Credibility Use).  He also held that even if it did exist, it would be difficult for a jury to understand or apply it.  He held (§55-56):

“55. ... 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. ...”       

- Result: Evidence of Q&A not admissible

37.  Consequently, Mortimer NPJ held that the Q&A were not admissible.  Irrespective of whether the Q&A were relied on by the prosecution for the Guilt Use or the Credibility Use, they (the  Q&A) invited the jury to draw an adverse inference against the defendant because he had been silent, and that was in breach of his right to silence (§58).

If Lee Fuk Hing is applied to present case

38.  Pausing there, the Applicant has argued that if we applied the rationale of Lee Fuk Hing to the present case, then it would also not be open to the prosecution to rely on the Applicant’s silence in the 4 months between incident and complaint for any purpose (whether for the Guilt Use or the Credibility Use).  Since the defendant in Lee Fuk Hing could adduce evidence of a defence only on the first day of trial without adverse comment, then a fortiori the Applicant could not be criticized for her period of silence before speaking up in support of her defence, which was done long before trial.  And given the ruling of inadmissibility in Lee Fuk Hing, the judge should not have allowed the prosecutor to cross-examine the Applicant at all as to her period of inactivity, let alone allow the jury to consider the evidence with only the directions set out in para. 19 above. 

Lam Sze Nga

39.  However, Mr Tam for the prosecution has argued that Lee Fuk Hing has now to be read in light of the Court of Final Appeal’s judgment in Lam Sze Nga which he says has confined the ratio of Lee Fuk Hing to only those cases where the defendant’s silence or inactivity was a result of his having intentionally availed himself of the right of silence.

- Confession statements

40.  Before I discuss the judgment of the Court of Final Appeal in Lam Sze Nga, I should point out that at the first trial before Deputy Judge Poon, the Applicant’s post-recorded cautioned statement and a statement made at a video interview had been ruled admissible.  (At the retrial before Deputy Judge Barnes, the post-record and video interview statements were ruled not admissible but she ruled that the alleged oral confession statement was admissible).  In those statements, the Applicant had confessed to having been caught red-handed and that she had been packaging the drugs at the premises.  At the trial before Deputy Judge Poon, the Applicant denied those statements, saying they were fabricated by the police and that she signed the statements as the result of coercion.

- Evidence of lawyer’s advice

41.  It should be noted at this point that the Applicant gave evidence that she was visited by a lawyer instructed by a friend very soon after her arrest (and before she appeared before the remanding magistrate), and the lawyer had told her her rights and that if she were to make a further statement, it would be better if it was done in the presence of a lawyer.  She was not cross-examined on this aspect of her evidence. 

- Cross-examination

42.  The Applicant was cross-examined as to why she had not complained about the police’s fabrication of the confessions and coercion, whether to her lawyer or to the remanding magistrate.  The Applicant said she was scared and confused and that she did not know that she had the right to complain.  (I pause here to note that the Applicant did not mention the advice given by the lawyer that she should not make any further statement without a lawyer being present).  Deputy Judge Poon directed the jury that it was “entirely up to them” whether to accept the explanation given by the Applicant.

- Point of law for CFA

43.  The admission of her statements at the first trial explains the point of law that was placed before the Court of Final Appeal, which was in these terms:

“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?”

- CFA: Had the defendant availed herself of the right of silence?

44.  The judgment of the Court of Final Appeal was given by Sir Noel Power NPJ.  Power NPJ noted that all the previous cases discussed involving the right of silence (including Lee Fuk Hing and Petty) were ones where it was common ground that the defendant had availed himself of the right of silence (§21).  The issue in those cases was simply whether that right prevailed to the extent of preventing the prosecution adducing evidence (usually by cross-examination) that might lead to adverse inferences being drawn against the defendant, whether for the Guilt Use or the Credibility Use.  And as we have seen, the Court of Final Appeal held in Lee Fuk Hing that that sort of evidence was not admissible, whether for the Guilt Use or for the Credibility Use. 

45.  In Lam Sze Nga however, that Court held that where it was not common ground that the defendant had availed himself of the right of silence, that issue had to be decided first - and for the purposes of deciding that issue, it was permissible for the prosecution to cross-examine the defendant as “such cross-examination would properly assist the jury to determine whether she had, in fact, availed herself of the right of silence” (§27).

46.  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). 

In other words, where questions on the delay in complaining would not have been admissible for the Guilt Use or the Credibility Use, they would be admissible for what, for want of a better term, one might call “the Availment Use”. 

47.  However the judge should have gone on to direct the jury that if they found in the Applicant’s favour on the issue of coercion (i.e. step 2 above), they should then treat her as if she had maintained her right of silence, in which case adverse inferences could not be drawn, whether for the Guilt Use or the Credibility Use (§28).

48.  I then return to the prosecution’s argument in the present appeal, which is that the Court of Final Appeal has thereby narrowed the application of Lee Fuk Hing.  Mr Tam argues that it is only where a defendant is availing himself of the right to silence that Lee Fuk Hing applies to prohibit the drawing of adverse inferences.  And since the Applicant said (at the retrial) that she did not speak up during the 4 months only because she was tired and had only been motivated to complain by a cell-mate (and did not say that it was because she had the right of silence), she had not availed herself of that right.  It follows, so the prosecution argues, that the judge did not need to give a direction to the jury on the right of silence. 

49.  With respect to Mr Tam, I do not think it can be as simple as that.  Whilst that argument may have the attraction of simple logic, I think it is another instance where that has no place in a criminal trial where there is an imbalance in favour of the defendant.   First, it must be noted that at the first trial, when the Applicant was cross-examined on the reasons for her inactivity,  she did not claim that one of the reasons was because she had been told by the lawyer of her rights.  This was noted by Power NPJ (§9) but the Court of Final Appeal did not use this as a “short-cut” to determine (in the prosecution’s favour) the admissibility of the evidence.  If a right of silence only applies if there was evidence that a defendant intended to exercise it, then the Court of Final Appeal would presumably have made that clear.  And yet at §28, Power NPJ said:

“It was incumbent on the judge, I am satisfied, once the issue had been squarely raised in cross-examination and adverted to in her direction, to tell the jury that if they were satisfied that the respondent had no knowledge of the statement she had signed and that she had been coerced and tricked into giving the video interview, or if they considered that they might be true, they must treat her as though, prior to 2 September 2002, she had said nothing and that no adverse inference could be drawn against her for so doing”.       

50.  More importantly, the right of silence (even as applied to exculpatory explanations as in Lee Fuk Hing) is a fundamental right which an accused person enjoys under the common law whether he knows it or not.  If he did not know of it or did not understand it or was too frightened to even think about his position, then it must follow that he would not have intended to exercise it.  And yet, if the prosecution’s argument is correct, the ignorant or confused or frightened defendant who was honest enough to say that he did not speak up for those reasons would not enjoy the protection of the right of silence because he had not intentionally availed himself of it.   

51.  With respect to Mr Tam, his reading of Lam Sze Nga over-stretched the judgment.  It seems to me that on a fair reading, all that Power NPJ said was that the Availment Use applies where there is evidence (albeit disputed) that the defendant has waived his right of silence e.g. by making a voluntary statement.

52.  The issue in our appeal concerns the cross-examination about the Applicant’s silence for the 4 months between incident and complaint regarding her defence that the drugs had been planted.  If that was all the relevant evidence, then it could not be suggested that the Applicant had waived her right of silence and as this court is bound by Lee Fuk Hing, it would have to hold that the cross-examination concerning the Applicant’s silence during the 4 months before her complaint to the ICAC was inadmissible, even though she had given other reasons for maintaining her silence.

53.  However, although the post-record and video interview were ruled not admissible, there remains the evidence that she had said after caution at the time of her arrest: “You people found [it] upon search.  Caught red-handed.  Nothing to say”.  Now if the jury found in the prosecution’s favour on this piece of evidence, then that might be regarded as a waiver of her right of silence, in which case cross-examination about the complaint would be permitted.  However the jury should also be directed that if they found in the Applicant’s favour (that is that she did not say those words) , then they should then treat her as if she had maintained her right of silence, in which case adverse inferences could not be drawn from the delay in complaining, whether for the Guilt Use or the Credibility Use.    

54.  To answer the question posed in para. 2, I would say that the Applicant is protected by the right of silence even if she had not intended to avail herself of the right, as long as she had not waived it.  In the present appeal, since the judge did not give the direction I have referred to in the previous paragraph, I would give leave to appeal, treat the application for leave as the appeal proper, allow the appeal and set aside the conviction.  I do not consider that the proviso should be applied as the judge had used in her directions to the jury words to the effect that the jury should apply to both prosecution and defence witnesses the “same fair standards”, words which the Court of Final Appeal has held in Law Chung Ki v HKSAR [2005] 4 HKLRD 499, §15, to be inappropriate as it conveys the wrong approach to defence evidence.  Counsel will be heard on any other submissions.

(After hearing counsel): Re-trial ordered.

Hon. Fung J:

55.  I agree.