HKSAR v. LAM SZE NGA, JOSEPHINE

FACC No. 11 of 2005

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 11 OF 2005 (CRIMINAL)

(ON APPEAL FROM CACC NO. 226 OF 2003)

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J U D G M E N T

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Mr Justice Bokhary PJ :

1.  I agree with the judgment of Sir Noel Power NPJ.

Mr Justice Chan PJ :

2.  I agree with the judgment of Sir Noel Power NPJ.

Mr Justice Ribeiro PJ :

3.  I agree with the judgment of Sir Noel Power NPJ.

Sir Noel Power NPJ :

4.  The respondent Josephine Lam was charged with one count of trafficking in a dangerous drug contrary to s.4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134.  The particulars of the offence were that she on 3 May 2002 at Room B, 2/F, No.22 Lok Kwan Road, Tai Kok Tsui, Kowloon, unlawfully trafficked in a dangerous drug namely 0.78kg of a crystalline solid containing 0.77kg of methamphetamine hydrochloride.

5.  On 19 May 2003 after trial before Deputy High Court Judge Poon and a jury, she was convicted and sentenced to imprisonment for 20 years.

The evidence at trial

6.  It was the prosecution case that the police, having kept the respondent’s home under observation from about 10 am on 3 May 2002, at some time after 8 pm entered the premises with a warrant and after search found the drugs the subject of the charge, an electronic scale and some resealable transparent plastic bags.  The respondent and a child were on the premises.  She was arrested and after caution said to a police officer “You people found (it) upon search.  Caught red-handed.  Nothing to say.”  The police officer post-recorded this statement and the respondent signed the post recording.  The respondent was then taken to Mongkok Police Station.  On the following day, she was video-interviewed at Cheung Sha Wan Police Station.  During this interview she admitted that she knew that the substance found was the drug known as “ice”.  She said that the drug and the bags were obtained from Ko Lo Wah and that she had purchased the electronic scale.  She said that Ko Lo Wah had told her how to pack the drugs and that after the drugs were sold she was to split the proceed with him in the ratio of 3 to 7.

7.  At trial, the respondent gave evidence and called one witness, a woman named Wah Nui.  She said that she had spent the day in question with the witness, her daughter and the witness’ boyfriend and that the party returned to her home at about 4 pm.  An hour later the witness and her boyfriend left but the daughter stayed with her.  She said that the police found no drugs in her home but had brought in the drugs in order to frame her.  She denied making any oral confession, and denied signing a post-record at her home.  She said that she signed the post-record at Mongkok Police Station after being told that if she was cooperative she would be a prosecution witness and would be granted bail.  She said that she signed without reading the statement and was not aware of its contents.  She said that the video recorded interview was not the truth and that she was coerced into making it.  She said that prior to the video-recording made on the afternoon of 4 May at Cheung Sha Wan Police Station, she was told to cooperate and told what answers should be given and that what she said therein was untrue and was said in consequence of coercion.  Under cross-examination she varied this by saying that some of the information had been supplied by the police and some, at the bidding of the police, she had thought up herself.  She said that she had been prepared to do so because the police had tricked her by saying that she would be a prosecution witness.  It was her evidence that at about 6 am on the morning of 4 May at Mongkok Police Station the respondent saw a lawyer who had been sent by her friend Wah Nui.  Her unchallenged evidence was as follows :

“The lawyer was surnamed Tang.  Then he asked me about the course of the arrest and also my rights.  Then I told him all that.  Then he said, ‘I have admitted orally that the things belonged to me.”  After that he said if (I) made further statement, it would be better if it was done in the presence of a lawyer.  After that he left a name-card to me and left.”  (emphasis supplied).

In the days following, the respondent, appeared before a remanding magistrate with a duty lawyer present but made no complaint about the promises and coercion to anyone.  Her first complaint was made on 2 September 2002, some 4 months later, by which time the respondent was an inmate of Tai Lam Women’s Prison.  She was cross-examined at some length as to this failure to complain and it was put to her that the 4 months gave “plenty of your time to figure out what story to cook up against the police”.  At trial the judge, after a voir dire hearing, admitted the confessional statements.

8.  She said that she had made no complaint initially because she was scared and confused and had trusted the police when they said that she would not be charged.  Given the way in which the matter was argued before the Court of Appeal it is important to set out in full the cross-examination of the respondent.  It is to be noted that the cross-examination of a conversation between the respondent and her solicitor was not challenged as she had, in chief, already given evidence of that conversation.  That cross-examination was as follows :

“Q : At what time on 4 May did you see your lawyer?

A : Around 6 am or so.

Q : Earlier you recounted the conversation between your lawyer and you.  Concerning the sentence ‘I already admitted that those things belonged to me’, did you say so to your lawyer, or vice versa, or what?

A : My lawyer told me so.

Q : What did he say?

A : He said I had already admitted in my statement that those things belonged to me.

Q : Were you scared at that time?

A : At that time, (I was) very scared.

Q : You were scared because basically you had made no confession, right?

A : I did not make any confession.

Q : Did it occur to you to complain against the police’s fabrication of this piece of evidence?

A : I did make a complaint later when I was in Tai Lam.

Q : What I mean is, did it occur to you on 4 May that you should complain to the duty officer?

A : I did not know I could do so.  I really did not know my rights.

Q : Do you mean your lawyer did not explain to you the right to complain against the police?

A : He did not tell me this.

Q : Did you tell your lawyer that you did not make any confession at all?

A : He only told me that I had made a confession in my statement.

Q : I know.  You said this before and you were very scared upon hearing it, right?

A : Hm.

Q : Did you tell your lawyer that you did not make any confession at all and the evidence was only a fabrication?

A : I didn’t.

Q : Why not?

A : Because he explained it to me.

Q : What did he explain to you?

A : He said I had made a confession in my statement.

Q : And you did not know it before?

A : Did not know it before.

Q : So, there you are.  You were very scared.  You should have told your lawyer immediately, ‘These are simply fabrications.  I did not make any confession.’

A : Because he … because at that time, I really thought the police would not charge me.  Because the police told me I would not be charged.  And then, at that time I totally believed the police.  They said I would not be charged, so I signed whatever they told me to.  When … the lawyer told me, he said I had made a confession in the statement.

Q : That’s you knew at that moment the police had cheated you, right?

A :  Yes.  Yes.

Q : Right.  You knew the police had cheated you.  You were also very scared.  Why didn’t you say to your lawyer immediately at that time ‘I did not say it at all.  It is a fabrication by the police’?

A : At that time, I was confused already.  In fact, after saying that, he just gave me his name card and left.

Q : What you mean is the responsibility is yours.  You chose not to tell the lawyer that the statement he had on hand, that the one he read was a fabrication?

A : I don’t follow.

Q : That’s at that time, you had an opportunity to tell the lawyer that the evidence was a fabrication, yet you chose not to do so?

A : I didn’t do that.

Q : I put it to you that in fact, the police did not fabricate any evidence against you.

A : I disagree.

Q : You in fact made a confession to the police on the premises and later on the premises, you made a declaration on the post-record and signed in confirmation, agree or not?

A : Disagree.

The cross-examination later continued :

Q : … You did not make any complaint in the police station?

A : Right.

Q : After you were charged, the police took you to a magistracy for mention, right?  You were taken to a magistracy for mention for this matter?

A : Right.  Right.

Q : On several occasions, right?

A : Hm.

Q : Hm.  Did you have legal representation at that time?

A : A duty lawyer.

Q : Right.  You have never complained to a magistrate about any improper conduct of the police towards you?

A : Because I didn’t know my rights.  Because they did not ask me any question.

Q : It seems that you just said you had lodged a complaint when you were in Tai Lam.

A : I wrote a complaint letter to ICAC.  Yet without even seeing me, the ICAC officers told me that I should not have complained to them, I should instead approach the CAPO.  Then I lodged a complaint and the CAPO officers came and I told them, saying ‘I want to complain against them.  Because they framed me, alleging that the drug was found at my home.’  Secondly, I complained about Chung Sir’s coaching me how to give a statement.

Q : Finished? Hm.  The Tai Lam you mentioned is a prison for females?

A : Yes.

Q : You were remanded in custody at that time for this matter?

A : Yes.

Q : You said you had written a letter to ICAC.  When was it?

A : September 02.

Q : Yes.  The case happened in May, agree?

A : Agree.

Q : I put it to you that you only took action to lodge your first complaint in September.  You had 4 months, you took plenty of your time to figure out what story to cook up against the police.

A : I disagree.

Q : I put it to you that you voluntarily made the confession consisted of the three sentences on the premises.

A : Disagree.

Q :  You voluntarily wrote out the declaration and signed the post-record in the police’s notebook on the premises.

A : Disagree.

Q : You also provided the information in the vide-interview voluntarily.

A : Disagree.

Q : The confession is true.  Everything mentioned in the video-interview, apart from the date of taking the drug ‘ice’ which may be slightly imprecise, is more or less the truth.

A : Disagree.

Q : Your Ladyship.  Finally I put it to you that whenever your evidence differed from that of the police, they were telling the truth and you were lying.

A : Disagree.” (Emphasis supplied)

The direction to the jury

9.  Deputy Judge Poon when she came to direct the jury about this evidence said :

“You will still remember that, no matter it was on 4 May in the police station after seeing her lawyer, or appearing in the Magistracy for mention later, the defendant did not make any complaint about the alleged improper and unfair conduct of the police towards her.  She even indicated that she did not tell the lawyer who went to the police station to visit her that ‘the police “frame me”.  None of the drug was mine.  It was not found inside the premises’.  She only complained for the first time several months later.  Her explanation was that she was scared and confused at that time.  And also that she did not know her rights.  That’s why she did not complain at the earliest time available.  It is entirely up to you whether to accept her explanation or not.” (Emphasis supplied)

It is to be noted that nowhere in the cross-examination was mention made of the advice given to the respondent at 6 am on the morning of 4 May that it would be better to make no further statement unless in the presence of a lawyer.  Nor did the judge advert to this admonition in the above passage in her summing-up.  This advice to her, which was to avail herself of her right to silence, was given at a time when she would have had little or no chance to make complaint to the duty officer and well before any appearance before a magistrate.  At trial there was no objection to the cross-examination detailed above nor was the judge asked to give any further direction.  No submission was made to the judge that the right to silence played any part in the defence case.  It was quite otherwise when the matter came before the court of appeal.

The hearing before the Court of Appeal

10.  Before the Court of Appeal three grounds were argued.  We need concern ourselves only with the first which was that the trial judge erred in allowing the prosecution to cross-examine the respondent on “failure to disclose her defence” to either the police or the magistrate’s court and erred in directing the jury that she had “failed to disclose her defence” as this violates the respondent’s right to remain silent.  The respondent relied upon Lee Fuk Hing v. HKSAR (2004) 7 HKCFAR 600 where this Court held that as a defendant is given the right to remain silent by law and that, as he has usually been reminded of this right by caution, it is unfair and inappropriate that the exercise of this right be held against him at trial.  Lee Fuk Hing’s case, involved a defendant who, for the first time at trial, suggested the existence of another man who, at the time of his arrest, had escaped unnoticed and to whom the drugs found in his car belonged.  It was argued that he had, as was his right, remained silent as to his defence until trial.  This case squarely involved a defendant remaining silent as to a matter which was to be his defence at trial.  It was common ground that he had availed himself of his right to silence.

11.  Before the Court of Appeal, Counsel for the HKSAR contended :

(i) that the right to remain silent is only as to matters which might be prejudicial to an accused and has no application to the failure to make a complaint about improper conduct by the police;

(ii) that the cross-examination and the judge’s direction were proper as they went only to matters of credit and not to the central issue of guilt or innocence; 

(iii) that the matter fell within what has been characterized as “the exception” referred to by this Court in Lee Fuk Hing’s case at p.622 G-I which is as follows :

“… 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.”

12.  As can be seen from what is set out above the case argued on behalf of the respondent was in marked contrast to that argued by counsel for the HKSAR.  The respondent seems to have proceeded upon the basis that the cross-examination of the respondent had been about her “failure to disclose her defence” and that the trial judge had erred in so far as she had, in effect, directed the jury that she had failed “to disclose her defence”.  The submission was that this violated the respondent’s right to remain silent.

13.  Counsel for the HKSAR, on the other hand, submitted that the respondent’s right to silence was not in issue either in cross-examination or in the judge’s direction as both were dealing with her failure to make complaint about improper conduct by the police and that this went only to credit.

14.  The Court of Appeal, inter alia, made the following findings :

“Regarding Deputy Judge Poon’s direction to the jury, we do not think that it was only concerned with the confession of the Appellant and not her substantial defence.  Looking at the direction as a whole, Deputy Judge Poon was referring to the Appellant’s allegation and defence, not merely her confession.  The Appellant alleged that the police had planted the drug on her.  In her direction, Deputy Judge Poon mentioned ‘the police “framed me”.  None of the dangerous drug was mine.  It was not found on the premises’.  This certainly touched upon the substantial defence of the appellant.”

“A defendant’s right of silence is of great importance.  It is an essential pillar of Hong Kong’s criminal laws system.  Even if the exception in Lee Fuk Hing arises and allows the jury to take into account the explanation a defendant made on his failure to disclose his confession earlier, the judge is first of all required to explain clearly to the jury the fundamental principles of the right of silence and to remind them that they cannot draw any adverse inference against the defendant on this ground, or find him guilty by reason of his failure to disclose his defence at any early stage.  Only after the judge has explained such matters can he proceed to tell the jury that as the defendant has made a confession, they can use the evidence (i.e. the defendant’s explanation on his failure to disclose the confession earlier) to determine how much weight be given to his explanation about the confession.  Such a practice can ensure that the jury are aware of the importance of a defendant’s right of silence, preventing the jury from finding a defendant guilty merely because he did not disclose earlier, regardless of the circumstances, that he had made a confession.”

“On one hand, she told the jury the Appellant had not disclosed her defence earlier, namely the police planted the drug on her.  On the other hand, she did not remind the jury the Appellant had the right to remain silent and that they could not draw any adverse inference against her or find her guilty by virtue of her failure to disclose her defence earlier.  Deputy Judge Poon also failed to remind the jury that the direction she gave was only concerned with the confession of the Appellant.”

15.  Finally the court said :

“Deputy Judge Poon told the jury that they have to decide on their own whether or not to accept the Appellant’s explanation.  We are of the view that this would mislead the jury into thinking that the Appellant was under a duty to explain why she did not disclose her substantial defence earlier.”

16.  The conclusion of the court was :

“We are of the view that the direction given by Deputy Judge Poon failed to make the jury understand that the Appellant has a right of silence.  There is a serious error in her direction which rendered the verdict of the jury unsafe and unsatisfactory.”

The point of law

17.  On 3 October 2005 the Court of Final Appeal gave leave to appeal certifying the following point of law :

“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?”

The hearing before the Court of Final Appeal

18.  It is common ground that the respondent was given the usual warning that she was entitled to remain silent but that anything which she did say would be taken down and might be given an evidence.  The warning is given because of the long standing privilege against self-incrimination in English law.  It was described by Lord Griffiths in Lam Chi-ming v. The Queen [1991] 2 AC 212 at 222C as follows :

“But it is surely just as reprehensible to use improper means to force a man to give information that will reveal he has knowledge that will ensure his conviction as it is to force him to make a full confession.  In either case a man is being forced into a course of action that will result in his conviction : he is being forced to incriminate himself.  The privilege against self-incrimination is deep rooted in English law and it would make a grave inroad upon it if the police were to believe that if they improperly extracted admissions from an accused which were subsequently shown to be true they could use those admissions against the accused for the purpose of obtaining a conviction.  It is better by far to allow a few guilty men to escape conviction than to compromise the standards of a free society.”

19.  The appellant contends before this Court that the Court of Appeal erred in deciding that :

“(i) Where the Respondent 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, for the trial judge to make comments in her summing up on the failure by the Respondent to complain at the earliest available opportunity to her lawyer or to the authorities is an infringement of her right of silence, in that the comment touched upon the Respondent’s substantial defence.

(ii) The trial judge is required in the summing up to explain to the jury the fundamental principles of the right of silence and to remind them that they cannot draw any adverse inference against the Respondent on this ground or find her guilty by reason of her failure to disclose her defence at an early stage, and at the same time, to tell the jury that the Respondent has made a confession, and they can use the evidence (that is, the Respondent’s explanation on her failure to disclose the defence earlier) to determine how much weight be given to her explanation about the confession.”

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

21.  Almost without exception the cases to which this Court has been referred involve trials in which there has been no issue as to the defendant’s silence (i.e. as to his having availed himself of the right of silence) up until the time of trial.  Petty v. The Queen, Maiden v. The Queen (1991) 173 CLR 95 very well exemplify the situation.  Mason CJ, Deane, Toohey and McHugh JJ held at p.99 :

“An incident of that right of silence is that no adverse inference can be drawn against an accused person by reason of his or her failure to answer such questions or to provide such information.  To draw such an adverse inference would be to erode the right of silence or to render it valueless.”

And later :

“That incident of the right of silence means that, in a criminal trial, it should not be suggested, either by evidence led by the Crown or by questions asked or comments made by the trial judge or the Crown Prosecutor, that an accused’s exercise of the right of silence may provide a basis for inferring a consciousness of guilt.”

The above citations have reference to the situation where there is no contest that a defendant had availed himself of the right of silence.  The position in the case of Maiden was, however, more complex as he had made a statement to the police which was in conflict with the evidence which he gave at trial.  In this regard the judges held at p.102 :

“What makes the present case different is the fact that Maiden’s conduct constituted not an exercise of the right of silence but an adherence, up to the time of trial, to an allegation that Petty had murdered White.  It was the making and implied maintenance of that admittedly false allegation of murder by another which the jury was entitled to take into account in determining whether the defence advanced on the trial was spurious.”

Again, however, there was no issue about the making of the statement.  In the present case there is such an issue.  I am satisfied that, if the respondent had maintained silence, as it is submitted she, in effect, did, she would be entitled to the protection indicated in the first two passages above.  Was it not then an issue for the jury whether or not she had done so?

The matters raised for resolution by this court can be dealt with under 2 heads :

(i) Was the judge right to allow the cross-examination of the respondent which questioned the delay in making complaint and, to a lesser extent, her delay in revealing her defence?

22.  Before dealing with this I repeat, in fairness to the trial judge, that no objection was taken to this cross-examination and there was no suggestion at trial that the respondent was relying upon her right to silence.  These matters were raised for the first time on appeal.  It was only then that it was suggested that the respondent was entitled to be treated as a defendant who had, in effect, maintained silence until her complaint on 2 September 2002.  It is the respondent’s first submission, and it must, I am satisfied, be correct, that if the jury considered that the evidence of the respondent as to coercion and promises was or might be true then they must proceed upon the basis that she had, in effect, maintained silence until 2 September.  One cannot, involuntarily, waive a right.

23.  At trial it was the prosecution contention that the respondent had been cooperative throughout the initial stages of the investigation and had admitted her possession of the drugs and her intention to deal in them.

24.  It was the respondent’s contention that she had made no such admissions, had unknowingly signed confessional statements and taken part in a video-interview because of promises and coercion and that she had, because she was frightened and confused, made no complaint about those matters for some four months.

25.  The confessional statements were before the jury.  The prosecution relied upon them contending that they were truthful and freely given and that at no time had she refused to cooperate and to answer questions.  The defence contended that the statements were untrue and that the signatures and admissions were obtained by coercion and promises.

26.  The issue was squarely drawn.  Whether or not she had, in effect, remained silent was, I am satisfied, a live issue for the decision of the jury.  This was not the usual “right of silence” case where it is common ground that the accused has remained silent.  In such cases the issue is not whether the defendant remained silent but, rather, what the consequence is of his having done so.

27.  It was, in the circumstances, quite proper for the judge to allow cross-examination of the respondent challenging her claim that she had, in effect, said nothing.  This applies equally to questions directed towards her suggested failure to reveal her defence as it does to those directed towards her suggested failure to complain about coercion.  Such cross-examination would properly assist the jury to determine whether she had, in fact, availed herself of the right of silence. 

(ii) What direction, if any, should have been given the jury about the claimed right of silence?

28.  As regards the respondent’s failure to complain the judge simply told the jury that it was “entirely up to” them whether they accepted that explanation or not.  She gave no direction as to the approach they should adopt if they thought that the respondent’s evidence was true or that it might be true.  It was incumbent upon 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 that 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.

29.  Given the above the judge was right to allow the cross-examination but was wrong to have left the consideration of the explanation “entirely up to” the jury without further direction.

30.  Although the above approach is not on all fours with that of the Court of Appeal, it reaches the same conclusion which is that the judge erred when she failed to give that further direction.

31.  Before leaving this matter I feel it appropriate to refer to a passage in the cross-examination of the respondent as this matter has given some concern to this Court.  The passage is as follows :

“Q : Did the version you tell your lawyer the true version or the version that the police asked you to tell?

 A: I only told him that the things were put at my place for taking photos.”

This passage was not referred to at trial or before the Court of Appeal and was, indeed, only adverted to by the Court itself in the hearing before us.  Whether it is of real moment is not clear but it is a matter which may be of significance in the retrial.

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

33.  I would dismiss the appeal, so that the order of the Court of Appeal for retrial stands.

Lord Woolf NPJ :

34.  I agree with the judgment of Sir Noel Power NPJ.

Mr Justice Bokhary PJ :

35.  The Court unanimously dismisses the prosecution’s appeal, so that the conviction remains quashed and the order for retrial stands.