HKSAR v. CHAN CHU LEUNG

CACC 160/2010

[2023] HKCA 453

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 160 OF 2010

(ON APPEAL FROM HCCC NO 263 OF 2009)

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J U D G M E N T

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Hon Macrae Acting CJHC (giving the Judgment of the Court):

1.  On 31 October 2022, this Court handed down its judgment dismissing the applicant’s appeal against his conviction. One of the grounds of appeal had concerned the applicant’s right of silence; whether it was infringed; and whether the judge had adequately dealt with the alleged infringement. It is from the Court’s answer to this ground of appeal that the applicant now applies for a Certificate to the Court of Final Appeal that there arises a point of law of great and general importance, namely:

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

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

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

2.  Although the application is now confined to one aspect of the evidence, it should be made clear that the argument on appeal was directed at two pieces of evidence, which both arose in the cross-examination of prosecuting counsel: namely, whether the applicant had told anyone about the existence of Ah Chu prior to giving evidence (“the Ah Chu point”); and whether the applicant had complained to anyone about being “framed up” by the police in respect of the fluorescent powder under his fingernails (“the fluorescent powder point”).

3.  In its judgment, the Court accepted that, while prosecuting counsel should not have cross-examined the applicant about the existence of Ah Chu and whether the applicant had mentioned Ah Chu to anyone before giving evidence[1], the judge had repeatedly emphasised in her instructions to the jury that[2]:

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

And later[3]:

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

4.  Following these directions, and another concerning the effect of the caution[4], the judge then came specifically to deal with the Ah Chu point when addressing the applicant’s evidence[5]:

“The 1^st accused gave evidence as DW1. Before dealing with any of his testimony, I direct you to ignore the part of the cross-examination which was on whether he ever told the police about the man he referred to as ‘Ah Chu’ and when he first mentioned Ah Chu to anybody.”

5.  Given the judge’s clear directions at [3] above, and the fact that those directions both came before the one at [4] above, the Court held in its judgment[6]:

“As noted above, having been repeatedly directed, the jury would have been left in no doubt that an accused has a right to remain silent and that, whenever he does so, no adverse inference could be drawn against him. This provides an important backdrop to the further direction given by the judge. Relevantly, the jury must have understood that they were being directed by the judge to ignore the cross-examination as to when Ah Chu was first mentioned because an accused has the right to remain silent at any time and because such silence is not to be taken against him in any way. In our view, the reasoning is so obvious and logical that no juror would have thought otherwise.”

6.  As we now understand it, the point of law said to be involved in our judgment no longer attaches to the Ah Chu point, which was in fact the principal of the two points of complaint at the appeal. The applicant argues that “the proposed point of law relates only to the ‘fluorescent powder evidence’ aspect under Ground 1 before the Court of Appeal” (our emphasis)[7]. However, we have seen fit to refer to these passages in the summing-up concerning the Ah Chu point for the emphasis that was clearly given by the judge to the right of silence, since it might seem somewhat artificial to separate and compartmentalize the two pieces of evidence in the way now sought. For, if one accepts that the jury were properly instructed as to the right of silence in respect of the Ah Chu point, then one might ask why the instruction should have been deficient in respect of the fluorescent powder point. It will be noted that the two directions, at [3] above, also came before the judge’s detailing of the fluorescent powder evidence[8]. No mention was in fact made by the judge in her summing-up of prosecuting counsel’s cross-examination on the fluorescent powder point.

7.  Given our view that the refined point now sought to be argued does not arise if one accepts, as the Court did, that the judge’s emphatic directions about the right of silence were sufficient to dispel any possible abrogation or diminution of that right in any circumstance, we would not be prepared to certify the point as one arising from our judgment.

8.  Nevertheless, we wish to draw to the attention of the Appeal Committee the concerns of the Court of Appeal about this area of the law. The alleged infringement of the right of silence represents one of the three most common grounds of appeal against conviction argued before the Court of Appeal in both the English and Chinese divisions of the Court[9]; complaints about directions on inferences and allegations of an unfair and unbalanced summing-up make up the remaining two. Indeed, the original perfected and amended perfected grounds of appeal in the present case included all of these three particular grounds of appeal.

9.  The judgment of the Court of Final Appeal in Lee Fuk Hing v HKSAR[10] is the leading authority in this jurisdiction on the right of silence, but is often interpreted by counsel for both defendants and appellants as establishing a ‘red card’ for judges and appellate courts whenever there is a perceived infringement of the right. In other words, once the right is perceived to have been infringed, the argument generally runs that steps must immediately be taken to salvage, or if necessary abort, the trial or, if such steps are not taken and there is a conviction, an appeal must be allowed, since the right is not only absolute and fundamental to Hong Kong’s system of justice but no court can ever know how the jury may have used such inadmissible evidence. The submission is often presented in radical and uncompromising terms, and invariably relies on the following statement from the judgment in Lee Fuk Hing[11]:

“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”.

We note that these very words, stressing the unqualified nature of the right and the impropriety of using a person’s silence against him in any circumstances, have again been emphasised by the applicant in his present submission for a Certificate[12].

10.  In fact, during the course of his submissions on behalf of the applicant at the appeal, the Court was moved to ask Mr Khattak if he was advocating a ‘red card’ approach by the Court. He said he was not but, with respect, that was plainly implicit in his argument. We do not think the Court of Final Appeal was advocating such an approach, given its view that the remedy in some cases might be “[s]ometimes the less said the better”[13]; and the fact that the three grounds of appeal argued before it were taken as being cumulative[14]. Nevertheless, we accept there are occasions when a judge should rectify the problem in suitably full and explanatory terms, without which “the jury would have difficulty in putting the point, and its effect on the appellant’s credibility, out of mind”[15]. Indeed, it was the applicant’s submission in the present case that, despite the judge’s emphatic directions, the jury could never dispel this matter from their minds.

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

12.  There may be a conceptual difference between a defendant not being compelled to disclose his defence, which is customarily protected, and not making a complaint against the conduct of the law enforcement authority, which is not ordinarily concerned with the non-disclosure of a defence other than perhaps in a very attenuated sense. As McHugh J reminded us in the High Court of Australia decision of RPS v The Queen[16]:

“The right to silence derives from the privilege against self-incrimination. That privilege is one of the bulwarks of liberty.”

13.  While juries will understand the right of a defendant not to incriminate himself or not to disclose his defence when interviewed, it may be much less understandable why he did not complain to a magistrate or to CAPO about ill-treatment in an interview, or why he did not complain that law enforcement authorities had planted, for example, his DNA or fingerprints on exhibits; a complaint which does not involve being forced to make admissions, or necessarily to disclose a defence.

14.  Lee Fuk Hing was applied in HKSAR v Lam Sze Nga[17] where the Court of Final Appeal said[18]:

“Counsel for the respondent (the original defendant in this case) submits that no question 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.” (Our emphasis)

Although this passage is actually a recitation of the respondent’s argument in that appeal, reliance is often placed upon this statement for the all-embracing and far-reaching proposition that no defendant can ever be asked anything at all as to why he made no complaint about, for example, forced or fabricated evidence. Indeed, the applicant in the present case appears to be making the same point[19].

15.  This leads to a third concern, which is the extent to which the right of silence is, or has been, or may be qualified almost 20 years on from the decision in Lee Fuk Hing. Although the Court in Lee Fuk Hing referred to an unqualified right of silence, for which it was “inappropriate in Hong Kong to use a person’s silence against him in any way”, counsel for the respondent, Mr Lai, has relied upon the recent decision of the Privy Council in Sexius v Attorney General of Saint Lucia[20] for the proposition that[21]:

“There is no universal or absolute right to silence. What is often described as the right of silence comprises a number of different rules, most of which are qualified.”

Assuming, as we believe it is from what follows in the judgment, that this is a statement of the Board rather than a recitation of the applicant’s argument before it, Mr Lai has argued that the impugned cross-examination in the present case was not concerned with any of the well-known immunities identified by Lord Mustill in R v Director of Serious Fraud Office, Ex p Smith[22]. He would no doubt argue that any consideration of this issue should require a careful examination of these immunities.

16.  Sexius was not argued before us at the appeal, nor was Director of Serious Fraud Office, Ex p Smith, and we accept the caution of Mr Khattak that the Board was there concerned with a statutory provision in Saint Lucia requiring the filing of a defence statement, which Hong Kong does not have. Hong Kong is, of course, one of the few remaining jurisdictions in the common law world where the right of silence has not been affected by statute. Nevertheless, while we were of the view that the judge’s directions to the jury were appropriate to ensure the fair trial of the applicant, the present case, which was originally referred to the Court of Appeal by the Chief Executive, does present an opportunity for the Court to clarify the law for modern conditions in Hong Kong, so that judges, prosecutors, defence counsel and defendants themselves will know exactly where they stand on such a recurring but important issue.