HKSAR v. HUANG RUIFANG

CACC 106 /2022

[2024] HKCA 840

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 106 OF 2022

(ON APPEAL FROM HCCC NO 10 OF 2022)

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J U D G M E N T

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Hon Macrae VP:

1.  The Court is divided in its resolution of this appeal against conviction. In the interests of understanding the development of the argument and the differing views of the Court, the judgment of M Poon JA will come first, followed by the judgment of Zervos JA. It will then be necessary for me to give my own decision on the appeal.

2.  The Court has also taken the opportunity to raise the question of the guidelines for trafficking in very large quantities of dangerous drugs under HKSAR v Abdallah[1], given the recent decisions of this Court and their possible application to the applicant.

Hon M Poon JA:

3.  The applicant faced a single count of trafficking in a dangerous drug, namely 6,960 millilitres of a liquid containing 4,770 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134^[2]. She originally pleaded not guilty at her first trial before Deputy High Court Judge Lugar-Mawson and a jury but was convicted on 6 November 2018. On appeal, the conviction was quashed and an order for retrial made^[3]. The retrial took place before Mr Recorder Martin Hui, SC (“the judge”) and a jury.  The applicant was again found guilty on 12 July 2022 and sentenced to 27 years and 10 months’ imprisonment^[4].

4.  The applicant now seeks leave to appeal against conviction only.

5.  This appeal is concerned with whether there was a breach of section 54(1)(b) of the Criminal Procedure Ordinance, Cap 221 and whether a lies direction was called for in the circumstances of the evidence. The applicant further challenged the sufficiency of the judge’s direction should we find that a lies direction was appropriate.  It is therefore not necessary for us to deal with the facts in the same elaborate detail as they were dealt with by the trial judge in his summing-up but it is necessary to set them out briefly.

The prosecution case

6.  The applicant travelled from São Paulo to Johannesburg and landed at Hong Kong International Airport (“the Airport”), where she was found to be in possession of a brown suitcase containing four cylindrical cans.  A reagent test conducted on one of the cans had a positive result for cocaine.  The applicant was arrested but remained silent under caution.

7.  At a video-recorded interview, the applicant told Customs Officers that she was a courier of goods for others and had brought nine cans of Acai juice in two suitcases for the nephews of a person called “Ching Tse”.  She said that she had checked those cans and found them to be tightly sealed with no holes, cracks or gaps.  It did not occur to her that they would contain anything illegal.  Rather, her worries were that the large quantity of dried seafood she had brought would be liable to be taxed or confiscated^[5].

8.  Examination of the nine cylindrical cans revealed that they contained a total of 6,960 millilitres of a liquid containing 4,770 grammes of cocaine^[6], for which the street value was HK$3,830,310^[7].

The defence case

9.  The applicant elected not to give evidence.  Her case was that she had no knowledge of the dangerous drugs in the cans found in her suitcases, since the cans were tightly sealed.  However, she trusted her friend “Ching Tse”^[8].

Grounds of appeal against conviction and submissions

10.  Two grounds of appeal against conviction have been advanced on the applicant’s behalf:

(1)  By commenting on the applicant’s failure to give evidence in his closing speech, prosecuting counsel violated section 54(1)(b) of the Criminal Procedure Ordinance, Cap 221, which constituted a material irregularity in the course of the trial;

(2)  The judge erred in giving a lies direction and even if such a direction was appropriate, the judge failed adequately to deal with the prosecutor’s allegations of lies and their evidential effect on the inference of guilt.

11.  In respect of the first ground, Mr Andrew Bruce SC, on behalf of the applicant, complained of the following passage (“the offending passage”)^[9]:

“…

Now again, the defendant’s case: you will remember the defendant exercised her right not to give evidence, not to go to the witness-box. That’s her right. That’s fine. As I have said the burden is on me to prove the case. But I did not have the opportunity to cross-examine the defendant. I cannot ask her any questions. I did not because she elected not to give evidence and I am unable to test her credibility to test whether she is an honest person, to test about her reliability, whether what she says would be reliable. I have no such opportunity.

But in any event, of course she had chosen to speak up in the video­ recorded interview, but it is my position and it is my case that the defendant had not told you the truth and/or the whole truth about her story.”

12.  Mr Bruce conceded that the absolutist approach in R v Yu Yuk Kwong^[10] and R v Lam Ming Kwong^[11] no longer represents the law.  He submitted that the court has to look at the substance and context at the remarks in deciding whether the impugned passage was prohibited comment and whether any harm would have resulted^[12].  He argued that the comments were made emphatically after a “diatribe” alleging that the applicant had told lies and made up stories in her video-recorded interview.  Although it was said that she had a right not to give evidence, prosecuting counsel went on to elaborate on how her election had deprived him of the chance to test her credibility by cross-examination, implying that the applicant, by exercising her right not to give evidence, had something to hide and the whole truth had not been placed before the jury. Thus, the applicant’s choice of not giving evidence has been undermined.

13.  Mr Bruce further submitted that once prohibited comment is established, a conviction has to be quashed unless the situation was remedied by the judge giving the requisite directions, and the standard directions would not suffice.  He contended that, in the present case, the judge should have, but did not, take strong remedial measures to direct the jury that (a) there was no obligation on the applicant to submit herself to cross-examination; and (b), there was nothing sinister in the applicant’s choice of not submitting to cross-examination.

14.  The applicant relied on the case of R v Siebel & Waterman^[13]and submitted that once there was such an infringement, which was not cured by appropriate directions from the judge, the proviso can only be applied where the prohibited comment could not reasonably be supposed to have affected the result.  In the present case, it was submitted that absent any remedial directions by the judge, the problem created by the impugned passage was not ameliorated, which deprived the applicant of the right to a fair trial, thus constituting an irregularity, which militated against the application of the proviso.

15.  The second ground focused essentially on this part of the prosecution’s closing speech^[14]:

“We say the defendant has been lying and making up stories in the video­recorded interview. We say the defendant’s answers had many discrepancies. The answers don’t fit together. They do not tally. They are different, why, because she is lying.

The prosecution also says there are unusual circumstances, unreasonable explanations and it is very strange, very absurd.  The prosecution also says if somebody like the defendant says so and made up such a story, that person must not be telling the truth.  The prosecution says the defendant lied because she knew she had committed the crime of bringing in the drugs into Hong Kong and she has no innocent motive to lie.”

16.  The applicant contended that prosecuting counsel was wrong in classifying the following mere inconsistencies as lies.  It was pointed out to the jury that the applicant had given three versions in her video-recorded interview as to the amount she earned for bringing the suitcase^[15]:  $300, $500, and $250, as opposed to $1,500 revealed in her WeChat messages.  Prosecuting counsel went on to say:

“…versus a smaller figure that she had told the Customs officer when interviewed, is because the defendant wanted to suppress the matter as if it is not so important, as if it is something very simple, not valuable. The prosecution says the defendant lied about this because she knew the cans contained the cocaine. It is not an innocent lie.”^[16] (Emphasis added)

17.  Prosecuting counsel also drew to the jury’s attention that the evidence showed that the applicant was inconsistent as to whether she was in debt or not, and whether she was worried.  Whilst her WeChat messages showed that she owed a debt, she denied she was in debt in her video-recorded interview^[17].  Her WeChat messages showed that she could not sleep on the aeroplane and got thinner by three kilogrammes^[18], yet in her video-recorded interview she claimed that she was not worried^[19].

18.  Mr Bruce argued that these were not real inconsistencies or discrepancies, and as they could well be reconciled, they were much less of an incidence of lies and should not have attracted a lies direction.  Even if a lies direction was called for, the judge should have warned the jury that mere inconsistencies would not add up to lies, and only proven lies could be relied upon to find guilt.

19.  The applicant relied on the following passage in Yuen Kwai Choi v HKSAR^[20]:

“31. …There is, however, a natural tendency that if the jury consider that a witness is not telling the truth on one aspect of his evidence, they may not believe him in respect of other aspects. This tendency has a much greater impact on the criminal process when it is the accused who has testified in the witness box. If the jury consider that the accused is not telling the truth on one aspect of his case, there is a tendency that they may infer that he has lied because he is guilty of the charge before the court. This ‘impermissible process of reasoning’, though sometimes natural enough for a layman, is to be avoided if the accused is to have a fair trial.

…

36.  In view of the circumstances in which the criteria were set, a ‘full Lucas direction’ is not always necessary.  Kennedy LJ in R v Burge and Pegg [1996] 1 Cr App R 163 at p.173 summarised the circumstances in which a Lucas direction is usually required.  However, he added that ‘where there is no need for such a direction (as in the normal case where there is a straight conflict of evidence), it will add complexity and do more harm than good.’”

Respondent’s submission

20.  In respect of Ground 1, the respondent, whilst accepting that what was said by prosecuting counsel was a technical breach, relied on the case of R v L^[21] and submitted that the impugned remarks, when put in context, related to the weight to be attached to the version in the applicant’s video-recorded interview rather than a comment on her failing to testify.  Prosecuting counsel was merely suggesting that what the applicant said in her video-recorded interview could not be tested, which was later echoed by the judge in his directions to the jury on mixed statements^[22]. Therefore, Mr Wong contended that the impugned remarks were not material and the other directions in the summing-up had sufficiently safeguarded the applicant’s right not to give evidence.

21.  The respondent further submitted that a lies direction was appropriate in the circumstances of the present case.  Although the evidence relating to whether the applicant was in debt could be viewed as an inconsistency, the other two examples cited by the applicant demonstrated a direct conflict between what she said in her video-recorded interview and her WeChat messages with her friends, which should be regarded as independent objective evidence of lies.

22.  It was submitted that the prosecution had relied on the applicant’s lies in support of the prosecution case, since prosecuting counsel did refer to those two lies in his closing speech^[23] and went on to say that the reason for them was because she knew the cans contained cocaine. Defence counsel, for his part, stressed that there was no solid evidence that anything the applicant had said in her video-recorded interview was a “lie” on any significant matter and he told the jury that they could not use this evidence against her unless they were sure that they were “lies”^[24]. In any event, the respondent argued that the lies direction caused no prejudice to the defence case, and even placed the applicant in a better position.

Discussion

23.  Dealing first with Ground 2, whether a lies direction is appropriate in a certain case is fact-sensitive.  In Yuen Kwai Choi v HKSAR,  Chan PJ,giving the judgment of the Court, held:-

“38. Where there is a risk that the jury may regard lies told by an accused as probative of his guilt, as in the case where the prosecution address the jury on the basis that the accused has lied in what he said and that the lie is supportive of the prosecution’s case (eg in R v Mok Lun (unrep., Crim App No 502 of 1993); R v Ho Che Chung [1994] 2 HKC 148; R v Wai Wing Sang & Another [1992] 2 HKCLR 23), or where there is a danger that the jury may in any way misuse the lie, it is necessary to give a direction on lies. See R v Richens [1993] 4 All ER 877 at p.886 and the second paragraph of the conclusions in HKSAR v Mo Shiu Shing [1999] 2 HKLRD 155 at p.168.”

24.  In the present case, when prosecuting counsel addressed the jury on the discrepancies in the applicant’s evidence as to how much she would earn for delivering a suitcase, he said:

“Now, we say there is a difference in the prices for her service, maybe professional service, as to why she gave a higher amount to her friend before her arrest, before this matter came into light, versus a smaller figure that she had told the Customs officer when interviewed, is because the defendant wanted to suppress the matter as if it is not so important, as if it is something very simple, not valuable. The prosecution says the defendant lied about this because she knew the cans contained the cocaine. It is not an innocent lie.”^[25] (Emphasis added)

25.  In relation to the issue of whether the applicant was worried, prosecuting counsel said:

“… in the video-recorded interview … the defendant said she was not worried and she was not suspicious about the goods in the suitcases. However, in the WeChat correspondences the defendant said she was very worried. …

… this message was sent by the defendant on 6 April just before she was arrested. Basically, the defendant said that Ming Fai and the defendant got thinner by 3 kilogrammes. Counter 58, the defendant said she could not sleep on the plane. … Now again, what is the defendant worrying about? Why was she so worried? It would be because we say the defendant knew about the dangerous drugs.”^[26] (Emphasis added)

26.  It is clear that prosecuting counsel wanted to use the lies told by the applicant to establish or to assist the prosecution’s case against her and to strengthen the inference of guilt.  To guard against any impermissible process of reasoning by the jury equating lies with guilt, a lies direction was called for in the present case.  Furthermore, Yuen Kwai Choi provides the following guidance:

“38. … In considering whether a direction on lies should be given, particularly when the trial judge entertains a doubt as to what he should say to the jury in case he decides to give such a direction, he should first raise the matter with counsel and then give the direction unless it is clear that such a direction is not only unhelpful but may also mislead the jury.”

27.  The judge did exactly that.  Prosecuting counsel indicated to the court before he began his closing speech that “it is the prosecution’s case that the applicant is not telling the truth to the Customs officers and therefore she was lying and therefore there is no innocent motive or excuse and just because she is conscious of her guilt”^[27].  After a discussion, in response to the judge’s view that he might consider giving a lies direction, defence counsel said, “I definitely would ask for that direction”^[28].

28.  The judge gave the lies direction as follows^[29]:

“Now, let me give you some direction on the matters of lies. The prosecution alleges that the defendant told lies in her video-recorded interview. Now, the prosecution says that the inconsistent answers or incorrect answers are lies and that you are entitled to consider whether those lies support the case brought by the prosecution against the defendant. So I must now give you some direction as to how to approach the question of lies allegedly told by the defendant if you find that she has indeed told a lie or lies.

Now, first of all, a lie cannot on its own prove a defendant’s guilt. It can at most be a factor in support of the prosecution’s case. But before it can be used to support the prosecution case there are two questions which you must ask yourself. First, you must decide whether the defendant in fact told lies, if you are not sure that she told lies, you must ignore this aspect about lies altogether. And this is a matter for you to decide whether she in fact told lies.

Now, if you are sure that the defendant did tell a lie or lies, then you have to consider the second question, why. Why did she tell lies? The mere fact that a defendant told a lie or a series of lies is not itself evidence of guilt. The defendant may lie for many reasons and there may possibly be innocent reasons in the sense that they do not give any indication of guilt. For example, there can be lies to bolster or support, or build up a true defence; there may be lies to protect someone else; there can be lies to conceal some disgraceful conduct other than the commission of the very offence alleged against her; or they can simply be said out of confusion or panic.

Now, members of the jury, if you think there may be innocent explanation for the defendant’s lies, then you should take no notice of this.  It is only if you are sure that she did not lie for an innocent reason that her lies can be regarded by you as evidence which support the prosecution case.”

29.  The applicant has complained that prosecuting counsel unjustly elevated mere inconsistencies, which were incapable of providing evidential support for inferring guilt, into lies.  However, in a lies direction, the jury is asked impartiality to decide, firstly, whether the defendant in fact told lies.  The judge repeated those facts which prosecuting counsel said were inconsistencies and lies^[30] and in giving a lies direction, the judge correctly told the jury that whether they were lies was a fact for the jury to find^[31].

30.  In respect of Ground 1, the applicant and respondent agreed that the impugned passage in the closing speech of prosecuting counsel was inappropriate and that section 54(l)(b) was breached.

31.  It is noted that the Court adopted an absolutist approach in Yu Yuk Kwong, prohibiting any mere reference by the prosecution to the fact that the defendant had not given evidence.  The Court stated that a breach of section 54(l)(b) would result in the quashing of the conviction or, at the least in appropriate cases, an order for a retrial.  However, the correct principle was restated in the case of R v Wong Wah Chiu^[32]:

“The principle appears to be that if an appellate court is satisfied, taking into account the circumstances in which the comment was made and its terms, the jury would not have been influenced thereby, the proviso can properly be applied and the conviction upheld.” (Emphasis added)

32.  A trial judge’s ability to correct the situation was recognized by the Court of Appeal in R v Sin Cheong-shing^[33]. The appellant in that case did not testify at trial, prosecuting counsel commented on his election and the jury were invited to “consider the situation where he gives no explanation at all and you make what you will of that”. On appeal, it was held that what the judge has said in his summing-up was not sufficient to rectify the breach^[34].

33.  In Ho Siu Hoi, supra, prosecuting counsel commented in her final speech to the jury on the applicant’s failure to give evidence.  Defence counsel announced that he was not asking for a retrial but requested the trial judge to correct the situation.  The Court of Appeal noted that nothing was said by prosecuting counsel which contradicted any of the judge’s later directions in the course of the summing-up and held:

“33. A similar situation to that which has arisen in this case occurred in R v Riley & Anor [1990] 91 Cr App R 208 where it was held that although the prosecutor should not have commented on the failure of the defendant to give evidence, whether favourably or not, the prosecutor’s words would not have done any harm. …

…

36. … there was nothing said by the prosecutor about the Applicant’s failure to testify which might have damaged the defence case…” (Emphasis added)

34.  Therefore, apart from looking at the terms and context in which the comments by prosecuting counsel were made, consideration must be given to whether the jury would have been influenced, or whether the comments would have done any harm.  In the present case, there had been detailed discussions between counsel and the judge about the appropriate directions to be given at the close of the prosecution’s case^[35].  A draft of what prosecuting counsel proposed to say in his closing speech was given to the judge as well as counsel for the defence, who voiced his concern about whether it was appropriate for prosecuting counsel to comment in his closing speech about the lack of opportunity to cross-examine the applicant in order to test her credibility and reliability^[36]:

“Mr Raffell: Because that implies a criticism of her for not giving evidence and she has got a perfect right not to give evidence and the implied criticism of her should not be allowed.

Court: Is it not something that I thought that we will be telling the jury in any event in the specimen direction…

Mr Raffell: Yes, well…

Court: … that all they can say is that her evidence is not tested that’s something I think words to that effect in the standard direction.

Mr Raffell: Well, actually, I think she was tested. She was questioned by the Customs officer…

Court: But not in court under oath.

Mr Raffell: Yes.

Court: Not in court. I think you know the difference…

Mr Raffell: Yes.

Court: … and the part that I am talking about in the standard direction. But I will leave it to Mr Hui to consider how he, if he wants to, rephrase it, but the point I think is Mr Hui is simply conveying the same message as advanced by the specimen direction.

Mr Raffell: Very well.”

35.  Reference was made to the case of R v L, supra.  The appellant there faced, among other charges, a rape charge but did not testify at trial, relying on his denial in a video-recorded interview.  Prosecuting counsel pointed out to the jury that whilst the complainant had given evidence on oath and was tested on cross-examination, the appellant’s video-recorded interview was not conducted under oath and he was not subjected to cross-examination.  The Court of Appeal ruled that the comments by prosecuting counsel only went to the weight to be given to the evidence of the complainant and were not a comment on the defendant’s right not to testify.  The respondent submitted in the case before us that, similarly, prosecuting counsel’s comments in the impugned passage were to attack the quality of the applicant’s version in the video-recorded interview and there was no suggestion of any inference of guilt deriving from the applicant’s decision not to give evidence. Accordingly, the jury would not have been influenced and, therefore, there was no miscarriage of justice.

36.  It is necessary to examine the impugned passage in the context in which it was made.  Prosecuting counsel divided his closing speech into different parts.  The impugned passage was made in Part 5^[37] when he commented about the defence case.  Preceding that, in Part 4, prosecuting counsel focused on the discrepancies in the applicant’s evidence and submitted that she was lying and making up stories^[38].  Viewed together and in its proper context, the impugned paragraph reinforced prosecuting counsel’s comment on the applicant’s lies.  It was emphasized that because of the applicant’s election not to give evidence, he had no opportunity to test her credibility and reliability.

37.  In the circumstances, it is incumbent upon an appellate court to examine whether any harm was done to the defence case and whether the judge’s summing-up provided a sufficient safeguard or remedy.

38.  Following the discussion between the judge and counsel in respect of the directions to be given, the jury returned to court^[39]. Defence counsel told the jury that the applicant elected not to give evidence and formally closed the defence case.  Immediately thereafter, the judge told the jury of the applicant’s right not to give evidence in unequivocal terms:

“Court: … so that marks the close of the defence case. We do not have evidence from the defendant herself or any witness called on her behalf. But as I reminded you time and again don’t take this adversely against the defendant. She has the perfect right to elect to remain silent and not to testify and not to call any witness on her behalf. It is always the duty of the prosecution to prove to your satisfaction so that you are sure of the case that prosecution brought against the defendant. …”^[40]

39.  Although the applicant did not give evidence, the exculpatory parts of the applicant’s video-recorded interview were summarized extensively as the defence case in the closing speech of defence counsel.  A table compiled by the defence was given to the jury setting out the entries or counters, to which defence counsel invited the jury to pay special attention^[41].

40.  At the start of the summing-up, the judge told the jury that the law was his area of responsibility and they must accept his directions of law and follow them^[42]; and that they might wish to take into account the arguments in counsel’s speeches but they were not bound to accept them^[43].  The trial judge again reminded the jury, at the conclusion of his summing-up, that the speeches and comments of counsel were only there to assist them in evaluating the evidence^[44].

41.  As to the defence put forward that the applicant had no knowledge of the drugs found inside the cans in her luggage, he stressed that the defence bore no burden of proving anything:

“…of course, if the account or the version given by the defendant is true, then she must be acquitted of the charge. But she must also be acquitted if her account may be true. Because it may be true, that means there is a doubt…”^[45]

42.  On the applicant’s election not to give evidence, he went on to direct:

“Now, the defendant has chosen not to give evidence. The defendant does not have to give evidence. She is entitled to sit in the dock and require the prosecution to prove its case. You must not assume that she is guilty because she has not given evidence. The fact that she has not given evidence proves nothing, one way or the other. It does nothing to establish her guilt. On the other hand, it means that there is no evidence from the defendant to undermine, contradict or explain the evidence before you by the prosecution. That said, it is still important, and I stress this, for you to bear in mind that the burden of proof is always on the prosecution. So you still have to decide whether, on the prosecution’s evidence, you are sure of the defendant’s guilt.”^[46] (Emphasis added)

43.  Of the mixed statements given by the applicant which had been relied on principally as her defence, the judge said:

“Now, the defendant’s out of court statement made under caution in the video interview to the Customs and Excise officers contains both incriminating parts and explanations. First, the prosecution had told you about, or mentioned about the lies they allege in the video interview. But the defence had told you what was said by the defendant in the video interview showed that she did not actually know about the drugs. You must consider the whole of the statement in deciding where the truth lies. You may feel that that the incriminating parts are likely to be true for why else would she have made them. You may feel that there is less weight to be attached to her explanations for they were not made on oath, have not been repeated on oath and have not been tested by cross-examination. So this is how you should approach the statements made by the defendant under caution in her video-recorded interview.”^[47] (Emphasis added)

44.  Later on, the trial judge told the jury that the defence relied principally on the defendant’s version given under caution in the video-recorded interview.  He reminded the jury of his earlier direction as to how they should approach an out-of-court statement given under caution by the applicant, who had not given evidence^[48].

45.  Whilst the italicized paragraph quoted in paragraph 42 bore many similarities with the impugned passage in prosecuting counsel’s closing speech, when they are viewed in the context of the judge’s various and emphatic directions, they are more comprehensive and comprehensible to the jury. 

46.  I am satisfied that although there was a breach of section 54(1)(b), the above directions sufficiently remedied the breach reducing it to immateriality and insignificance.

Proviso

47.  Section 83(1) of the Criminal Procedure Ordinance provides that:

“… that the Court of Appeal may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no miscarriage of justice has actually occurred.”

48.  Had the breach of section 54(1)(b)amounted to a material one, I consider that any potential harm or prejudice caused by prosecution counsel’s prohibited remarks were diffused by the judge’s directions in the summing-up so that any risk of impermissible reasoning would have been completely neutralised.  The jury would not have been influenced and thus there has been no miscarriage of justice.  I have separately assessed the evidence in this case, and am satisfied that a reasonable jury would inevitably have come to the same conclusion when properly directed, and undoubtedly convicted.  I might add that the fact that this was a retrial and the applicant has now been convicted by two different juries speaks for itself as to the strength of the evidence.

49.  It is for these reasons that I would unhesitatingly apply the proviso and decline to allow the applicant’s appeal against conviction.

Hon Zervos JA:

The prosecutor’s prohibited comment

50.  I have had the benefit of reading the judgment of M Poon JA, and agree with her reasoning on Ground 2, but, with respect, I am unable to accord with the dismissal of Ground 1.  I do not consider that in the present case, the breach of s.54(1)(b) of the Criminal Procedure Ordinance (Cap 221) was a relatively immaterial irregularity that the judge had appropriately remedied.

51.  The applicant did not testify at her trial but relied on her out-of-court statements that she was a courier of goods for others, mainly transporting parallel goods and sometimes dried seafood.  There were text messages that supported her story^[49]. She brought into Hong Kong from overseas, amongst other things, cans of juice for a friend, “Ching Tse”, whom she trusted and for whom she had previously transported goods.  The cans of juice were found to contain cocaine in liquid form.  She explained that she had checked the cans and found that they were tightly sealed with no holes, cracks or gaps, and had no knowledge that they contained a dangerous drug.  She said it did not occur to her that they contained anything illegal, and her only concern on her return to Hong Kong was that the large quantity of dry seafood she brought could be taxed or confiscated.

52.  The defence case was essentially based on the applicant’s out-of-court statements and text messages with others, including Ching Tse, and this was reflected in defence counsel’s closing speech to the jury.

53.  The prosecution alleged that the applicant lied in her video‑recorded interview because she was conscious of her guilt.  Near the end of the trial before the defence closed its case, the parties provided a copy of their closing speeches to the court.  There was a discussion about the necessity to give a lies direction to the jury and prosecuting counsel explained his case to the judge in the following exchange^[50]:

“MR HUI: Yes. I think in all fairness I should give a heads up to my learned friend and your Lordship. The defendant lied in the VRI about the reward. We have evidence in the WeChat saying how much she will be receiving and also the evidence in the VRI from her own mouth about how much she will be receiving.

COURT: It’s that independent evidence of a deliberate lie on her part with no innocent explanation at all.

MR HUI: My Lord, now, on that bit we may ask your Lordship to give a Lucas direction in Kwai Choi direction, the lies direction. So it will be a matter for the jury to think about is that an independent lie conscious guilt, no other innocent motive. It is not forgetfulness, something to that extent.

COURT: M’m.

MR HUI: But it is the prosecution’s case that she is not telling the truth or the whole truth to the Customs officers and therefore she was lying and therefore there is no innocent motive or excuse and just because she is conscious of her guilt.  That is the prosecution’s stance.”

54.  During this exchange, defence counsel responded to prosecuting counsel’s outline of his closing speech where he indicated he would comment on the applicant’s failure to give evidence.  He expressed his concern to the judge that it was inappropriate for prosecuting counsel to allege the applicant told lies in her video-recorded interview and also comment on her failure to give evidence^[51]:

“MR RAFFELL: Yes. The prosecution are saying she has lied …

COURT: All right.

MR RAFFELL: … but they don’t point to any independent or solid evidence to support that. They simply say they don’t believe her and there is no solid evidence to say she is lying. Again, at 37, what my friend says in the first couple of lines, few lines, is fine. Then he says he did not have the opportunity to cross-examine her to test her credibility and reliability. He should not be saying that.

COURT: Why not? Is it not …

MR RAFFELL: Because that implies a criticism of her for not giving evidence and she has got a perfect right not to give evidence and the implied criticism of her should not be allowed.

COURT: Is it not something that I thought that we will be telling the jury in any event in the specimen direction …

MR RAFFELL: Yes, well …

COURT: … that all they can say is that her evidence is not tested that’s something I think words to that effect in the standard direction.

MR RAFFELL: Well, actually, I think she was tested. She was questioned by the Customs officer …

COURT: But not in court under oath.

MR RAFFELL: Yes.

COURT: Not in court. I think you know the difference …

MR RAFFELL: Yes.

COURT: … and the part that I am talking about in the standard direction. But I will leave it to Mr Hui to consider how he, if he wants to, rephrase it, but the point I think is Mr Hui is simply conveying the same message as advanced by the specimen direction.

MR RAFFELL: Very well.” (Emphasis added)

55.  The judge left the matter on the basis that prosecuting counsel’s proposed comments to the jury were or should be in the same terms of the standard specimen direction.  Immediately after this discussion, the jury returned to the courtroom and defence counsel formally closed the defence case, without the defence presenting any evidence.  The judge informed the jury that the applicant had been advised of her rights and elected not to give evidence or call any witnesses on her behalf^[52].  The judge also reiterated that the applicant had a perfect right to elect to remain silent and not to testify or call any witnesses and that this should not be treated adversely against her^[53].

56.  Prosecuting counsel proceeded to give his closing speech to the jury in which he made his impugned remarks.  He gave an overview of the burden and standard of proof, including that the applicant did not have to prove anything and need not give evidence.  However, he strongly attacked the defence case, accusing the applicant of lying and making up stories in her video-recorded interview.  He submitted that the applicant lied in her interview by comparing it with what she had said in her WeChat communications.  He contended she lied about the amounts of reward she received for transporting goods of $250, $300 and $500 compared with $1,500 as mentioned in her WeChat communications^[54]. In her interview, she denied she was in debt, but her WeChat messages showed she owed money^[55]. In her interview, she said she was not worried, but in her WeChat messages, she said she could not sleep on the plane and got thinner by three kilogrammes^[56]. He also questioned her explanations in the interview as being unreasonable or untrue^[57]. He submitted^[58]:

“… We say the defendant has been lying and making up stories in the video-recorded interview. We say the defendant’s answers had many discrepancies. The answers don’t fit together. They do not tally. They are different, why, because she is lying.

The prosecution also says there are unusual circumstances, unreasonable explanations and it is very strange, very absurd.  The prosecution also says if somebody like the defendant says so and make up such a story, that person must not be telling the truth.  The prosecution says the defendant lied because she knew she had committed the crime of bringing in the drugs into Hong Kong and she has no innocent motive to lie.”

57.  Having emphasised with the jury that the applicant was not telling the truth, prosecuting counsel then addressed the defence case by prefacing his submission with the following remarks^[59]:

“Now, again the defendant’s case: you will remember the defendant exercised her right not to give evidence, not to go to the witness-box. That’s her right. That’s fine. As I have said the burden is on me to prove the case. But I did not have the opportunity to cross-examine the defendant. I cannot ask her any questions. I did not because she elected not to give evidence and I am unable to test her credibility to test whether she is an honest person, to test about her reliability, whether what she says would be reliable. I have no such opportunity.

But in any event, of course she had chosen to speak up in the video-recorded interview, but it is my position and it is my case that the defendant had not told you the truth and/or the whole truth about her story.” (Emphasis added)

58.  The above bold italicised remarks constituted prohibited comment by a prosecutor under s.54(1)(b).  Immediately after the prosecutor made the impugned remarks, he set out ten points regarding “the defendant’s story or the defendant’s case.”  These points mainly alleged that the applicant made false and untrue statements in her video-recorded interview^[60].

59.  Defence counsel, in his closing speech, generally responded to the impugned remarks by stating that the applicant did not have to prove anything or put herself up for cross-examination^[61].

60.  It is clear that the prosecution wanted to use the applicant’s alleged lies to support the prosecution's case against her and to strengthen the inference of guilt.  As a result, the judge gave the jury a lies direction, and before he did, he told them that the prosecution alleged that the applicant’s “inconsistent answers or incorrect answers” were lies and that they were entitled to consider whether those lies supported the prosecution case against the applicant^[62].

61.  In addition to a lies direction, the judge gave the jury the following direction about the applicant’s “mixed” video-recorded interview^[63]:

“You must consider the whole of the statement in deciding where the truth lies. You may feel that the incriminating parts are likely to be true for why else would she have made them. You may feel that there is less weight to be attached to her explanations for they were not made on oath, have not been repeated on oath and have not been tested by cross-examination. So this is how you should approach the statements made by the defendant under caution in her video-recorded interview.”

62.  The judge also gave the jury the following direction concerning the applicant’s right of silence^[64]:

“Now, the defendant has chosen not to give evidence. The defendant does not have to give evidence. She is entitled to sit in the dock and require the prosecution to prove its case. You must not assume that she is guilty because she has not given evidence. The fact that she has not given evidence proves nothing, one way or the other. It does nothing to establish her guilt. On the other hand, it means there is no evidence from the defendant to undermine, contradict or explain the evidence before you by the prosecution. That said, it is still important, and I stress this, for you to bear in mind that the burden of proof is always on the prosecution. So you still have to decide whether, on the prosecution’s evidence, you are sure of the defendant’s guilt.”

63.  The judge did not deal directly with prosecuting counsel’s impugned remarks.  He made no reference to the matter and relied on the specimen direction regarding a defendant not giving evidence at trial, which he previously mentioned in the exchange with defence counsel.

The legal principles

64.  The issue to be resolved is whether the prosecutor’s comments were contrary to s.54(1)(b) and, if so, whether the judge’s standard directions ameliorated any harm caused by the comments to the applicant’s fair trial.  The invocation of the proviso is a separate consideration (applying a different test) that is applied if it is found the prosecutor’s comments were a material irregularity.  The test for the proviso is whether a reasonable jury, properly instructed, would on the evidence, without doubt, convict or would inevitably come to the same conclusion: Kulemesin v HKSAR^[65]. 

65.  The starting point in addressing this ground of appeal is s.54(1)(b) which reads^[66]:

“the failure of any person charged with an offence to give evidence shall not be made the subject of any comment by the prosecution;”

66.  The section protects a person’s right of silence.  Lord Mustill in R v Director of Serious Fraud Office, Ex parte Smith^[67]explained that the right of silence refers to a disparate group of immunities, which include^[68]:

“(6) A specific immunity (at least in certain circumstances, which it is unnecessary to explore), possessed by accused persons undergoing trial, from having adverse comment made on any failure (a) to answer questions before the trial, or (b) to give evidence at the trial.”

67.  Unlike in the United Kingdom where the law has changed to allow an adverse inference to be drawn from a defendant’s failure to disclose information and evidence in certain circumstances^[69], Hong Kong maintains a strict adherence to the concept of the right of silence.  This has been reinforced by the Court of Final Appeal in various decisions with the most recent, HKSAR v Chan Chu Leung^[70].

68.  The mischief to which the provision is directed, is not the “failure” to give evidence but the “comment” by the prosecution that a defendant did not give evidence when that is his or her right.

69.  In an early case addressing the prohibition under s.54(1)(b), the Court of Appeal in Yu Yuk Kwong and Others v R^[71] said that the provision prohibited even a mere reference by the prosecution to the fact that a defendant had not given evidence and that a breach of the section would result in a quashing of the conviction or, in appropriate cases, an order for a retrial^[72].  However, the Court of Appeal in R v Wong Wah Chiu^[73] disapproved the dicta in Yu Yuk Kwong, stating that the suggestion that a conviction must be quashed or a retrial ordered if there is any mention at all by the prosecutor of the failure by a defendant to give evidence, went further than the cases require.  The Court held that the principle appeared to be that if an appellate court was satisfied, taking into account the circumstances in which the comment was made and its terms, that the jury would not have been influenced, then the proviso could be properly applied, and the conviction upheld^[74].

70.  In R v Sin Cheong Shing^[75], the Court of Appeal emphasised that a trial judge had a corrective right to rectify a breach of this type^[76]:

“We are, however, of the view that when the judgment in Yu Yuk Kwong said that a breach of this provision ‘will result’ in the quashing of a conviction this expression should be read in the light of a trial judge’s corrective right. For it must be open to a trial judge to correct an error made by counsel in the course of an address. Whether an error is capable of rectification depends, of course, upon the circumstances of each individual case, as does the time when and the manner in which the correction is made.”

71.  In that case, the defendant did not testify, and prosecuting counsel told the jury that they were entitled to “consider the situation where he gives no explanation at all, and you make what you will of that.”  As a result, the trial judge, in his summing-up, tried to cure this error by instructing the jury that the defendant did not have to give evidence and that they should not find him guilty because he had not done so.  The Court held that the trial judge’s comments did not rectify the breach.

72.  In HKSAR v Ho Siu Hoi^[77], the Court of Appeal, following two English cases, looked at the harm caused and whether there was any need for correction:

“33. A similar situation to that which has arisen in this case occurred in R. v. Riley & Anor [1990] 91 Cr.App.R.208 where it was held that although the prosecutor should not have commented on the failure of the defendant to give evidence, whether favourably or not, the prosecutor’s words would not have done any harm. In a reference to R. v. Naudeer [1985] 80 Cr.App.R.9 the court went on (at p. 213) to say:

‘... That case makes clear that this Court is concerned to see whether the breach has been put right by the summing-up.  We respectfully accept that approach and it is perfectly apparent to us in the present case that it was put right.  In actual fact we do not think that the comment in the terms made by Mr. Bingham would have done any harm to Riley’s case, but in so far as any harm might have been done we think the assistant recorder took the right course in not mentioning what prosecution counsel had done, not criticising him for having done it to the jury; that would not have assisted Riley’s case.  The words he used were, it seems to us, entirely appropriate and made good any damage which might have been done.  …’”

73.  The Court concluded that there was nothing that required correction because the prosecutor’s comments did not suggest that an inference of guilt might arise from the defendant’s decision not to give evidence, and did not contradict any of the judge’s later directions in the course of the summing-up^[78].

74.  It is appropriate to examine how similar provisions in Australia have been considered and applied by the courts.

75.  In its recent decision of Day v The King (No.2)^[79], the New South Wales Court of Criminal Appeal examined the scope of section 20(2) of the Evidence Act, which expressly prohibits the prosecutor from commenting on the failure of the defendant to give evidence.  During the trial, the prosecutor made the following remarks in his closing address^[80]:

“And there’s no evidence before you in clear terms that it wasn’t the accused that drafted that email on 12 January 2009 at 3.48.

...

That’s what [the complainant] told you and you don’t have any evidence to the contrary in relation to that.”

76.  The Court of Appeal held that the above remarks were “an unmistakable allusion” to the fact that the applicant had not given evidence, since the only person who could have given such evidence was the applicant himself.  It was considered to be a clear departure from the prohibition under the section, which also had the effect of reversing the onus of proof.  The Court came to the view that the irregularity was beyond the redemption of the trial judge, such that the impropriety in the closing address and the accumulation of other less egregious factors gave rise to a miscarriage of justice.  The Court did not consider that the trial judge’s extensive directions had the effect of ameliorating the damage done by the prosecutor’s address.  The applicant’s conviction was quashed, and a retrial was ordered^[81].

77.  The Western Australian Court of Appeal took a similar approach in AJE v Western Australia^[82].  Regarding the failure of the accused to give evidence, the prosecutor made the following comment in his closing address^[83]:

“The accused as you’ve just heard has elected not to give evidence. That is his right. That is every accused person’s right. You shouldn’t use that decision against him in any way. I certainly as the prosecutor don’t ask you to. You mustn’t. He did take part in a police record of interview and the allegations were put to him, and you will recall his response. He declined to comment, as is his right. As is every accused person’s right. So you don’t have from him a version in which he admits the conduct and you don’t have from him a version in which he denies the conduct. You don’t have either of those things, but I suggest it leaves you in a position where, as I stated at the start of the trial, in any event you will have to look carefully at what [the complainant] has said.” (Emphasis added)

78.  Even though the prosecutor did not directly invite the jury to infer guilt, the Court of Appeal ruled that the prosecutor’s comment was prohibited under section 8(1)(c) of the Evidence Act 1906^[84]. The approach taken by the Court followed the judgments in Bataillard v The King^[85]and Siebel and Waterman v The Queen^[86]:

“The starting point is the statutory language of s 8(1)(c). It is in its terms a clear and absolute prohibition on the making of any comment by the prosecutor about the accused’s failure to give evidence. The words extend to implied as well as express comment: Bataillard v The King [1907] 4 CLR 1282 at 1291 (Isaacs J) and Siebel v The Queen [1992] 57 SASR 558 at 560; 59 A Crim R 105 at 107 (King CJ, with whom Bollen J agreed). What is prohibited is any comment on the failure to give evidence. As King CJ explained in Siebel, this means that a comment ‘whether … fair or unfair, balanced or unbalanced, favourable or unfavourable’ (at 562; 110) cannot be made by the prosecutor.”^[87]

The subsection speaks of a ‘comment’ by a prosecutor.  The state’s submissions invoke a distinction between a comment and a statement.  It has been held that words which refer to the fact that an accused person has not contradicted the prosecution evidence, or has failed to provide an alternative version of events, or has not given evidence is comment upon the failure of the accused person to give evidence and is thus prohibited: Siebel at 562: 109, followed in R v SG (2011) 109 SASR 491 at [102] (Peek J, with whom Doyle CJ and White JA agreed).  Express or implied reference to the fact that the accused had the opportunity to give evidence, and did not do so is comment prohibited by the statute: Bataillard at 1288, 1291. In this light ‘comment’ in s 8(1)(c) is used in a wide sense, and encompasses many things that might be seen as a statement of fact or law.”

79.  The prohibition applies to both express and implied comments in Bataillard, and whether fair or unfair, balanced or unbalanced, favourable or unfavourable in Siebel.  The Court also emphasised the wide interpretation of “comment” as it may encompass things seen as a statement of fact or law.  Applied in the present case, the immediate attack on the applicant’s evidence in the video-recorded interview and the emphasis on prosecution’s inability to test the applicant’s credibility show the prosecutor’s implicit comments that her lack of credibility (and hence guilt) can be inferred from her lack of giving evidence in court.  As explained by the authorities, this is not allowed under the prohibition.

80.  In Challis v Western Australia^[88], the prosecutor, in his closing address, focussed on “the appellant’s failure to be “upfront” with the police in the search video and in the police interview”. The Court of Appeal was of the view that this statement was not caught by the prohibition under s.8(1)(c).  However, it was “the juxtaposition” of the statement “The accused didn’t have to give evidence” with “It has not been explained to you why he lied to the police about what happened to these seedlings”, that the Court considered “may have been perceived by the jury to be a comment on the failure of the appellant to give evidence on oath in his defence at trial.”^[89] The Court held that by making these remarks, the prosecution infringed the section, which resulted in a miscarriage of justice^[90], but invoked the proviso in the circumstances of the case^[91].

81.  The significance of this judgment to the present case, is the context in which the prohibited comment is made, particularly when it is in juxtaposition with allegations that the accused is lying and not telling the truth.

82.  Just as the jury would not consider the impugned remark in a vacuum, the context in which a remark was made and its potential connection or juxtaposition with what precedes or follows the remark would certainly affect whether s.54(1)(b) is contravened, for there is inherently a real danger that the jury might embark on an impermissible line of reasoning to convict.  Even if the comment was directed towards a defendant’s credibility but did not infer guilt directly, it will nonetheless infringe on the defendant’s right to silence.

83.  The approach by the Hong Kong and Australian courts on this issue highlights the enshrined status of the right to silence in preventing the jury from being swayed by any connotative remarks made by the prosecutor.

84.  I think it is important to emphasise the underlying purpose of the prohibition, which was succinctly summarised by Eichelbaum CJ in R v L ^[92], when addressing a similar provision in New Zealand^[93], as follows:

“The purpose of provisions such as s 366 has been described in various terms: to protect accused persons against the danger of having their right not to testify at trial presented in such a fashion as to suggest that their silence was a cloak for their guilt (McConnell v Beer and Queen (1968) 69 DLR (2d) 149, 155); to make the law as to freedom from coercion to give evidence real and complete (R v Ellis (1925) 37 CLR 147, 157); that the accused must be under no compulsion of any kind to give evidence as otherwise the capacity to give evidence would be a source of disadvantage to an accused (Bridge v R (1964) 118 CLR 600, per Barwick CJ at p 603); a proviso to the statutory right of an accused to give evidence on his own behalf, designed to prevent that right being turned to his disadvantage (Bridge v R, per Windeyer J at p 611). The common underlying theme is that the object is to prevent undermining the accused’s right not to testify, and to forestall coercion to do so. …” (Emphasis added)

85.  In that case, the appellant faced several sexual offences, including rape.  He did not give evidence, and the prosecution produced a videotaped interview in which he denied the allegations.  The complainant gave evidence under oath and was subject to cross-examination. The Court of Appeal was of the view that prosecuting counsel’s comments had done no more than point out that the videotaped interview of the appellant had not been conducted under oath nor had the appellant been cross-examined, whereas the complainant had given her account on oath and had been thoroughly cross-examined.  It was held that prosecuting counsel’s comments had been on the weight to be given to the evidence of the complainant and the videotaped interview rather than on the appellant refraining from going into the witness box^[94].

86.  Eichelbaum CJ adopted the statement of Isaacs J in Bataillard^[95] that whether there has been a breach of the statutory prohibition will depend in each case on the words used and the circumstances in which they are used^[96].

87.  However, there has been a lack of specific guidance as to the proper legal threshold of the prohibition, and thus, when the prosecution would, by commenting on or referring to the defendant’s failure to give evidence, encroach upon the defendant’s right to silence.

88.  In New South Wales, the provision prohibiting a prosecutor’s comment on the failure of a defendant to give evidence used to be section 407(2) of the Crimes Act, 1900, which stipulates that:

“The failure of an accused person or of the wife or husband, as the case may be, of an accused person to give evidence, shall not be made the subject of any comment by the judge or by counsel for the Crown.”

89.  In R v George^[97], the New South Wales Court of Criminal Appeal sets out the legal threshold for a prosecutor’s comment to infringe on the defendant’s right of silence.  In particular, Street CJ states the following, with reference to the case of R v Moir^[98]:

“The prohibition does not go to the making of a general comment ... The prohibition is against singling out the right to give evidence which was conferred statutorily upon accused persons, and the failure of an accused person to avail himself of that right to give evidence. The prohibition goes only to a comment which is directed, in a segregated or specific sense, to the failure of an accused person to avail himself of his right to give evidence.”

90.  Applying the test to the present case, the prosecutor pinpointed the alleged dishonesty of the applicant by “singling out” her lack of evidence at trial.  This was not a general comment that the defence’s case lacks evidence, but a specific attack on the consequence of the applicant not giving evidence at trial, further implying the loss of the applicant’s credibility.

Discussion

91.  The impugned remarks of prosecuting counsel breached s.54(1)(b) as they clearly amounted to comment on the failure of the applicant to give evidence.

92.  The prosecution case rested heavily on the allegations that the applicant had told lies in her video-recorded interview because she knew she was transporting a dangerous drug in the cans and that prosecuting counsel was unable to test her credibility and honesty because she did not go into the witness box.  When prosecuting counsel’s prohibited comments are considered in context, they conveyed the clear implication that the applicant did not give evidence in court because she was guilty of trafficking in dangerous drugs.  It was not a case of prosecuting counsel saying no more than to point out that the video-recorded interview of the applicant had not been conducted under oath and that she had not been cross-examined.  As observed by Eichelbaum CJ in R v L, statements must be confined within “narrow limits” if they were not to amount to a comment upon the accused refraining from giving evidence^[99]. I am of the view that prosecuting counsel’s comment in the present case crossed the line drawn by the statutory prohibition and exceeded permissible bounds.

93.  I am convinced that because of the nature and derision of these remarks, they would have had a lasting effect on the jurors. As stated by Mortimer VP, giving the judgment of the Court of Appeal, in HKSAR v Kwok Chi Wah ^[100], the breach of s.54(1)(b) may be “very serious if it takes place before a jury”, and less so if it is made before a judge alone, but should be “rectified at once” when such an elementary mistake is made^[101].  In that case, prosecuting counsel remarked several times in his closing address to a judge alone that the defendant did not give evidence and as such, there was no defence evidence, just allegations.  The Court considered that this was an irregularity, but the comments were “relatively restrained”, and the judge directed herself on the matter and had no effect upon her decision^[102].

94.  The applicant’s credibility was material, given that she was relying on what she had said in her out-of-court statements.  The prosecution was accusing her of lying in those statements because she was guilty of trafficking in dangerous drugs.  In these circumstances, prosecuting counsel’s remarks regarding the applicant’s failure to give evidence on oath were direct and trenchant.  In my view, it required the judge to immediately direct the jury in specific and emphatic terms regarding the inappropriateness of prosecuting counsel’s remarks and that they should ignore them.  If appropriate, it should also be repeated in the summing-up.

95.  The importance of out-of-court statements as part of the defence case, especially when the defendant chooses not to give evidence at trial, and the exculpatory parts are of substance, was addressed in R v Weetra^[103]:

“This was a case in which the accused did not give evidence. The only explanation which the jury had from the appellant in relation to the events charged against him was to be found in the out-of-court statements. That made their contents important, particularly as otherwise the Crown case may well have appeared to the jury to be strong. In that circumstances, it was appropriate for the jury to be told that the out-of-court statements were evidence for them to consider, that they could have regard to both the inculpatory as well as the exculpatory portions, and that it was for them to consider the weight to be attached to the statements. It was for the judge to decide whether to go further and to make the observation that the out-of-court statements differed from the evidence given in court in that they had not been made on oath and had not been tested by cross-examination.” (Emphasis added)

96.  As stated, even though it is a question of what weight, if any, a jury gives to out-of-court statements, such statements may be a major part of the defence case.  It is, hence, inappropriate for the prosecutor to usurp the judge’s task by going further to comment on the absence of evidence under oath, as a means to undermine the importance and credibility of the defendant’s out-of-court statements.  Indeed, a judge’s direction to the jury on a defendant not giving evidence and relying on his or her out-of-court statement is not the same or even comparable, as seen in this instance, with the prosecutor’s remarks that were tantamount to telling the jury that the applicant was not to be believed in her out-of-court statement because she elected not to give evidence.  A judge’s direction to the jury that a defendant has not given evidence means that there is no evidence from him to “undermine, contradict or explain” the evidence put before them by the prosecution (Specimen Direction 44.1^[104]) or when addressing the defendant’s mixed out-of-court statement that they may feel there is less weight to be attached to the exculpatory comments which were not made or repeated on oath and not tested by cross-examination (Specimen Direction 40.1^[105]).

97.  The prosecutor’s attack on the applicant’s out-of-court statements was a material transgression for two main reasons. First, a prosecutor is prohibited by statute from commenting on a defendant’s election not to give evidence, since it encroaches on the defendant’s right to silence.  Secondly, the prosecutor, by his remarks, has crossed the line, submitting to the jury that because the applicant has not given evidence, her explanation in her out-of-court statement was not honest.  He had “connected” the applicant’s election not to give evidence with the honesty and reliability of her explanation in her out-of-court statement.  The judge’s directions to the jury were carefully worded, with one only stating that there is no evidence on oath from the applicant to be considered in juxtaposition with evidence given on oath, and the other stating that a jury may feel there is “less weight” to be attached to the exculpatory parts of a mixed statement that has not been given evidence in court.

98.  Whilst, the prosecution is entitled to challenge the veracity of the defendant’s out-of-court statement, it is not allowed to suggest that it is not truthful because the defendant has not given his or her explanation on oath in court.

99.  This Court has previously remarked on the fundamental importance of prosecuting counsel, as a minister of justice, conducting himself fairly and carefully in his closing address to the jury. Prosecuting counsel should deliver his closing address with appropriate restraint and care, ensuring that the prosecution case is fairly and properly presented by focusing on the issues at trial: HKSAR v Nguyen Anh Nga (No 3)^[106].

100.  As noted, whether the prohibited comment was capable of rectification depended upon the circumstances of each individual case, as did the time when and the manner in which the correction was made.  A court would look at the harm done and the consequences of the prohibited comment.  In all likelihood, the prohibited comment will be beyond cure if it suggests that an inference of guilt might arise from the defendant’s election not to give evidence.

101.  When a judge comments on the failure of an accused to give evidence, it is usually because an accused has not given evidence or is relying on his out-of-court statements.  To this end, a judge is guided by the relevant specimen directions that appropriately consider an accused’s right of silence.

102.  In the present case, the judge, when directing the jury on the applicant’s election not to testify, reminded them that the applicant did not have to give evidence and that it was for the prosecution to prove its case.  He went on to explain that “it means that there is no evidence from the defendant to undermine, contradict or explain the evidence before you by the prosecution.”^[107] Similarly, when directing the jury on the mixed statements given by the applicant, the judge gave the standard direction in which he instructed the jury on the applicant’s explanations that, “You may feel that there is less weight to be attached to her explanations for they were not made on oath, have not been repeated on oath and have not been tested by cross-examination.”^[108]  It is important to note that the standard directions are carefully worded and structured so that they do not undermine the protections provided to an accused in the exercise of his or her right of silence.

103.  The question arises whether the judge’s directions satisfactorily diffused any potential harm or prejudice to the applicant’s fair trial by prosecuting counsel’s prohibited comment.  In my opinion, prosecuting counsel went considerably further by his remarks than the judge did in his standard and impartial directions.  Prosecuting counsel implied that the applicant avoided cross-examination because she was not telling the truth and was guilty of the offence.

104.  There is a clear distinction between a judge and a prosecutor commenting on the failure of an accused to give evidence.  A judge does so for a specific purpose according to legal principles and as an impartial adjudicator of the case.  A prosecutor would do so to prove his case, and in doing so there is a risk that he may overstep the mark.  This distinction was addressed by King CJ in Siebel and Waterman v The Queen^[109], where he said^[110]:

“It is important to distinguish cases which deal with the propriety of comments made by a trial judge upon the failure of an accused person to give evidence contradicting evidence for the prosecution or putting forward a version of events, and cases dealing with the prohibition against comment by the prosecution. In South Australia a trial judge is free to make any comment which he sees fit upon the failure of an accused person to give evidence, subject only to the limits imposed by fairness and the accused person’s right to a fair trial. Attention was called to my remarks in Byron(1988) 145 LSJS 141 at 144-145 as to the effect of the failure of an accused person to give evidence in certain circumstances and as to the scope of legitimate comment by the trial judge on that failure. I was there dealing, of course, with comment by the trial judge. What is permitted to the trial judge is not necessarily permitted to the prosecution, by reason of the statutory prohibition against any comment by the prosecution.”

105.  King CJ went on to explain that even if the trial judge commented on the accused’s failure to give evidence, it still needs to be assessed whether the prosecutor’s prohibited comment may have had an adverse or prejudicial effect^[111]:

“It cannot be said that the remarks of counsel for the prosecution could not have affected the outcome of the trial. This is not a case like Stuart(1959) 101 CLR 1 in which the irregularity is reduced to insignificance by the fact that the trial judge has covered much the same ground. In the present case the observations of the trial judge as to the failure to give evidence were much weaker and less pointed than those of counsel for the prosecution. …

Even where the trial judge does cover much the same ground as counsel for the prosecution it does not necessarily follow that the irregularity has been reduced to insignificance because the comments can be regarded as cumulative in effect. In Stuart at 10 the Court said:

‘It is not, of course, to be supposed that in every case a lawful comment by the trial judge on a failure to give evidence can have the practical effect of erasing or condoning a prior unlawful comment by the prosecution.  The latter can in no sense be treated as merged in the former.  In any ordinary case the lawful and the unlawful comment must be presumed to have been cumulative in effect, and the appropriate consequences must be visited upon the latter.         The circumstances of the present case are altogether exceptional.’”

106.  The question of whether the prosecutor’s comments would have done any harm requires an examination and appraisal of the prosecutor’s comments in the context and circumstances in which they were made, as well as the terms and effectiveness of any correction.  It is noteworthy that where a statement by a defendant contains both inculpatory and exculpatory material and the defendant does not give evidence, both the inculpatory and the exculpatory material are admissible evidence to be considered by the jury to determine where the truth lies.  The exculpatory part of an out-of-court statement is evidence before the jury to be considered in accordance with the appropriate and standard directions. 

107.  In the present case, nothing was said about prosecuting counsel’s impugned remarks, neither at the time they were made nor in the summing-up.  They remained uncorrected.  The issue is whether the judge, by his repeated emphasis that it was the applicant’s right not to testify and that it should not be held against her, appropriately dealt with prosecuting counsel’s impugned remarks and any risk of prejudice to the applicant’s right to a fair trial.

108.  It cannot be said that prosecuting counsel’s remarks could not have affected the outcome of the trial.  He expressly stated that by not testifying, the applicant could not be questioned or tested as to her credibility and honesty and that this supported the prosecution case, submitting that she was not telling the truth and this was emphasised in juxtaposition with the allegation that she had told lies in her video-recorded interview because she was guilty of the offence.  In my opinion, the prosecuting counsel’s comments were prejudicial to the applicant and were not put right in the summing-up, despite the judge’s best endeavours to address the issue by repeating the relevant specimen directions.  He did not directly address prosecuting counsel’s prohibited remarks, which required correction. Left unattended, they remained in the minds of the jury to the prejudice of the applicant.  As stated by King CJ in Siebel and Waterman^[112]:

“The rule prohibiting comment by the prosecution upon the failure of an accused person to give evidence is a basic rule for the conduct of a criminal trial. It confers upon an accused person a right to have a trial free of the prohibited comment. The infringement of such a right cannot be lightly overlooked. I think that where such an infringement has occurred, it is necessary for the court to be more than ordinarily vigilant to ensure that the proviso is only applied where the prohibited comment could not reasonably be supposed to have affected the result. I cannot reach that state of mind in the present case and I think that the convictions must be set aside.”

109.  In these circumstances, I cannot be satisfied that no substantial miscarriage of justice had occurred.

Proviso

110.  As for the application of the proviso, the prosecutor’s remarks, even though implied, were to the point and made it clear that the applicant was not telling the truth in her out-of-court statements because she did not say it in the witness box.  I am not satisfied that the various directions in the summing-up regarding the applicant’s mixed statement and right not to give evidence remedied the breach of the statutory prohibition by prosecuting counsel and ameliorated any adverse impact on the applicant’s right to a fair trial.  I am also not persuaded that the hypothetical reasonable jury, properly directed by an appropriate correction of prosecuting counsel’s remarks, would inevitably have convicted. 

111.  The prosecution case predominantly focused on the applicant’s alleged lies in her video-recorded interview and therefore, her credibility was clearly of crucial importance.  As stated by Chan PJ (as Chan NPJ then was) in Yuen Kwai Choi v HKSAR^[113], where credibility is an important issue, and the jury is left with an inadequate or incorrect direction on credibility, an appellate court would be reluctant to apply the proviso.  This was reinforced by Bokhary PJ (as Bokhary NPJ then was) in Kissel v HKSAR^[114], where he stated,

“The involvement of credibility does not preclude applying the proviso to affirm a jury’s verdict, but may render such a course especially difficult. Jurors do not give reasons. Where everything turns on credibility and the jury have been deprived of the opportunity to assess the accused person’s credibility under fair conditions, concluding that such deprivation was irrelevant to the result is naturally problematical.”

See also HKSAR v Chu Kar Keet^[115].

112.  The applicant’s text messages with others were open to interpretation, and her credibility was an important consideration in assessing the explanations she gave in her video-recorded interview.  There is the additional factor that the applicant was convicted by a majority of 6 to 1.  Whilst the view of the jury which had tried the case is a factor, albeit not conclusive, there was one juror who had doubts about the guilt of the applicant and had considered that her defence might be true.

Conclusion

113.  In my view, it is not an appropriate case for the application of the proviso.  I would, therefore, allow the applicant’s appeal against conviction, quash her conviction and order her retrial on a fresh indictment.

Hon Macrae VP:

114.  Given the division in the Court, it is necessary to state my own view on the matters raised by this appeal.  Since both Zervos JA and M Poon JA are agreed that Ground 2 is not made out, I respectfully agree with the reasoning of M Poon JA on that matter.  However, there is disagreement as to the merit of Ground 1 and its effect on the disposal of the appeal.

115.  To summarise the effect of that division, M Poon JA is of the view that while there was a breach of section 54(1)(b) of the Criminal Procedure Ordinance, Cap 221 (“the Ordinance”), it was not material, or not material enough, to imperil the fair trial of the applicant so as to warrant the conviction being set aside; furthermore, had it amounted to a material irregularity, she would have applied the proviso to section 83(1)(c) of the Ordinance.  Zervos JA, on the other hand, considers that the breach was a material irregularity, which was not sufficiently corrected by the judge and, since it cannot be said that it did not affect the outcome of the trial, the proviso should not be applied.

116.  I have come to the conclusion that prosecuting counsel’s “breach” of section 54(1)(b) of the Ordinance did not amount to a material irregularity; but even if it did, the proviso should be applied.  However, I should like to state my own reasoning on the matter.

117.  Any examination of this issue must start with the terms of the section itself, which are as follows:

“54. Competence of person charged in criminal cases

(1) Every person charged with an offence, whether charged solely or jointly with any other person, shall be a competent witness for the defence at every stage of the proceedings:

Provided as follows—

…

(b)  the failure of any person charged with an offence to give evidence shall not be made the subject of any comment by the prosecution …”

118.  The precise words of the section are themselves instructive and say much about the reason for the prohibition in the first place.  The section does not say that the prosecution must not state, mention, or refer to, the fact that the person charged with an offence did not give evidence: rather, the prohibition is on the prosecution making a comment on the failure of the person charged to give evidence.  It seems to me that commenting on someone’s failure to do something ordinarily carries with it a pejorative connotation that he did not do what he could or should have done; whereas merely referring to the fact that he did not do something does not necessarily carry the same implication.

119.  If it be argued that the distinction is without, or without much of, a difference, then we must examine why there is such a prohibition in the first place and whether what was said by prosecuting counsel in this case compromised that prohibition in such a way as to unsettle the safety of the verdict.  I readily accept that one must not be beguiled by the mere presentation of words because a good advocate can still convey the prohibited message by clothing it in fine or obscure language.  As Isaacs J put it in the early High Court of Australia authority of R v Battaillard^[116], in a passage referred to by King CJ in Siebel v Waterman^[117]:

“If, however, reference, direct or indirect, and either by express words or the most subtle allusion, and however much wrapped up, is made to the fact that the prisoner had the power or right to give evidence on oath, and yet failed to give, or in other words, ‘refrained from giving’, evidence on oath, there would be a contravention of the subsection now under consideration. The question whether the law has been so contravened must depend in each case on the words used and the circumstances in which they are used.” (Emphasis supplied)

120.  There seem to me to be three questions raised by the appeal on this ground: firstly, what is the purpose of the prohibition; secondly, was there a material contravention of the prohibition in the circumstances; and thirdly, if there was a material contravention of the prohibition, was the fairness of the trial compromised to such an extent that the application of the proviso is inappropriate?

The purpose of the prohibition

121.  Section 54(1)(b) is not an offence-creating provision: there is no penalty for its infraction.  However, what the actual purpose of the section is and how it may or may not impact on the fairness of a trial are issues which have caused difficulty of interpretation and application since its introduction in England and Wales by way of section 1(b) of the Criminal Evidence Act 1898, which was applied in Hong Kong legislation in 1899. 

122.  In New Zealand, where the relevant provision is section 366(1) of the Crimes Act 1961, the prohibition is stated as follows:

“366. Comment on failure to give evidence –

(1)  Where a person charged with an offence refrains from giving evidence as a witness, no person other than the person charged or his counsel or the Judge shall comment on that fact.”

Of this particular provision, Eichelbaum CJ (as the late Sir Thomas Eichelbaum NPJ then was) explained in R v L[118]:

“The purpose of provisions such as s 366 has been described in various terms: to protect accused persons against the danger of having their right not to testify at trial presented in such a fashion as to suggest that their silence was a cloak for their guilt (McConnell v Beer and Queen (1968) 69 DLR (2d) 149, 155); to make the law as to freedom from coercion to give evidence real and complete (R v Ellis (1925) 37 CLR 147, 157); that the accused must be under no compulsion of any kind to give evidence as otherwise the capacity to give evidence would be a source of disadvantage to an accused (Bridge v R (1964) 118 CLR 600, per Barwick CJ at p 603); a proviso to the statutory right of an accused to give evidence on his own behalf, designed to prevent that right being turned to his disadvantage (Bridge v R, per Windeyer J at p 611). The common underlying theme is that the object is to prevent undermining the accused’s right not to testify, and to forestall coercion to do so. In this country the right of an accused not to be compelled to be a witness is embodied in s 25(d) of the New Zealand Bill of Rights Act 1990.”

Although the terms of the New Zealand section are slightly different from the Hong Kong section, in all of the instances described by Eichelbaum CJ, it is the purpose and effect of the comment that is looked to, in order to determine whether it can be said to undermine the right of silence, whether by design or implication.

123.  In one of the early cases from England and Wales following the enactment of the new provision, namely R v Dickman[119], in which the appellant had been sentenced to death for murder, prosecuting counsel had commented to the jury on the failure of the appellant to call his wife to speak to the stains on her husband’s coat.  At the time, the prohibition on comment extended to an accused’s spouse as well, as it did in the kindred Hong Kong provision until 2003.  The trial judge had subsequently directed the jury to dismiss the comment from their minds.  Nevertheless, the argument of leading counsel for the appellant at the appeal, which is echoed in the appeal before us, is summarised in the report as[120]:

“No one can say with certainty what the effect on the individual minds of the jury might have been. The statutory prohibition is absolute in its terms.”

Of this submission, Lord Alverstone LCJ, giving the judgment of the Court of Criminal Appeal, held[121]:

“It was an accidental slip such as must often occur and its effect, if any, was removed before the verdict was given.”

124.  The appeal was dismissed, notwithstanding the very grave consequences for the appellant.  From this early decision, we can perhaps divine three things, which are as applicable to trials and appeals today as they were 125 years ago: firstly, unintentional breaches of the prohibition did (and do) occur; secondly, the infraction of the prohibition can be remedied by necessary direction in the summing-up; thirdly, it is the effect of the infraction, which determines the outcome on appeal.

125.  The dichotomy between the prohibition of making a comment on the failure of a defendant to give evidence and merely stating the fact that he did not do so is illustrated in the developing jurisprudence of the Hong Kong courts over the past 45 years.  In 1979, for example, Roberts CJ, giving the judgment of the Court in R v Yu Yuk Kwong & Others[122], held of section 54(1)[123]:

“A breach of this provision will result in a quashing of the conviction or, at least in appropriate cases, in an order for a retrial.

There was some argument as to whether ‘comment’ means ‘refer to’ or ‘mention’, or whether it implies some measure of criticism.

We are inclined to the view that the section forbids even a mere reference by the prosecution to the fact that the defendant (or his wife) has not given evidence.  Thus a comment that ‘the defence has given no evidence on this matter’ must be taken to infer that the defendant has failed to give evidence and so to amount to an infringement of the section.”

126.  By 1983, however, the Court had retreated from this rather absolute position.  Roberts CJ, again giving the judgment of the Court in R v Wong Wah Chiu & Others, referred to the above passage in Yu Yuk Kwong & Others, but held:

“It is to be noted that that passage was obiter because the convictions had already been quashed by the court on other grounds. Insofar as that passage may suggest that a conviction must be quashed or a retrial ordered if there is any mention at all by the prosecutor of the failure by a defendant or his wife to give evidence, this seems to us to go further than the cases require. It is only necessary to refer to R v Dickman (1910) 5 Cr App R 135 and to R v Hunger [1969] Crim LR 262. In each of those cases, the prosecutor referred inadvertently to the failure of the defendant’s wife to give any evidence. In both cases, the appeals against conviction were dismissed, the appellate court being satisfied that there had been no miscarriage of justice.

The principle appears to be that if an appellate court is satisfied, taking into account the circumstances in which the comment was made and its terms, the jury would not have been influenced thereby, the proviso can properly be applied and the conviction upheld.”

127.  However, three months later, an entirely different division of the Court in R v Lam Ming Kwong & Others[124] applied Yu Yuk Kwong & Others, without any reference to the decision in Wong Wah Chiu & Others three months earlier.  It is noteworthy that in Lam Ming Kwong & Others all prosecuting counsel had said in his address to the jury at trial was[125]:

“Well, I choose my words with care. We heard from one defendant and that is the second defendant”.

Nevertheless, of this somewhat innocuous remark, the Court held that[126]:

“…by innuendo, prosecuting counsel practically told the jury that the first, third, and fourth applicants did not elect to give evidence. In short, counsel commented on their silence. This is precisely what he was not entitled to do. Section 54(1) of the Criminal Procedure Ordinance (Cap 221) is specific”.

128.  In 1984, in R v Sin Cheong Shing & Another[127], yet another entirely different division of the Court, also agreed with the above passage from Yu Yuk Kwong & Others, but again did not refer to the decision in Wong Wah Chiu & Others.  However, it should be noted that prosecuting counsel in Sin Cheong Shing & Another had told the jury that the defendant had given no explanation at all and invited them to “make what you will of that”[128]. Effectively, he had invited the jury to draw an inference from the defendant’s silence.  The Court found this comment to be a clear infringement of the section, but that it was open to the judge to correct counsel’s error, holding that[129]:

“…whether an error is capable of rectification depends, of course, upon the circumstances of each individual case, as does the time when and the manner in which the correction is made”.

129.  Some 30 years later, in HKSAR v Ho Siu Hoi[130], the Court had to consider remarks by prosecuting counsel to the following effect[131]:

“You don’t have the benefit of hearing his explanation either in an interview to the ICAC or in evidence, but you mustn’t hold that against him, that’s his right. But it does mean that the fact that he signed these false documents is unexplained.”

A little later, prosecuting counsel continued[132]:

“But there is evidence that he knew what was going on, and without explanation you may think that the irresistible inference is that in signing the documents, so many documents, documents which on the face of them were dishonest, that he was dishonest…by your standards and that he knew it.”

130.  The Court did not refer to the earlier decisions from this jurisdiction set out above, but held[133]:

“31. This submission highlights the difficulty in which Mr Lok found himself on this ground. What trial counsel for the prosecution had done, plainly intending no unfairness to the Applicant, was to pre-empt what the jury was, in any event, bound to be told by the judge about the Applicant’s right to remain silent. In the passage from the summing up to which we have already referred, they were in fact duly told this.

32. Furthermore, in these proceedings, when Mr Lok was invited to say what additional words the judge might have used to ameliorate the position, he suggested that the judge should have informed the jury that it was not proper for prosecuting counsel to comment on the absence of an explanation from the Applicant. The judge should then, Mr Lok suggested, have departed from the standard directions, which cover the failure of a defendant to testify, by confining himself to informing the jury that the defendant was entitled to ‘sit back to see whether the prosecution could prove its case against him’.

33. A similar situation to that which has arisen in this case occurred in R v Riley & Anor (1990) 91 Cr App R 208 where it was held that although the prosecutor should not have commented on the failure of the defendant to give evidence, whether favourably or not, the prosecutor’s words would not have done any harm. In a reference to R v Naudeer (1985) 80 Cr App R 9 the court went on (at p. 213) to say:

‘.... That case makes clear that this Court is concerned to see whether the breach has been put right by the summing-up. We respectfully accept that approach and it is perfectly apparent to us in the present case that it was put right. In actual fact we do not think that the comment in the terms made by Mr Bingham would have done any harm to Riley’s case, but in so far as any harm might have been done we think the assistant recorder took the right course in not mentioning what prosecution counsel had done, not criticising him for having done it to the jury; that would not have assisted Riley’s case. The words he used were, it seems to us, entirely appropriate and made good any damage which might have been done. ......’

34. In our opinion, the same considerations applied in the present case. Nowhere in the comments of the prosecutor was it suggested that an inference of guilt might arise from the Applicant’s decision not to give evidence. Equally, nothing was said by her which contradicted any of the judge’s later directions in the course of the summing up. There was, therefore, nothing which required correction and there was no purpose to be served by castigating the prosecutor for what is accepted was her inadvertent breaching of the terms of section 54(1)(b). All that such a course could have achieved would have been to highlight the very passages in the prosecutor’s speech a week earlier to which Mr Lok now takes such strong exception. The prosecutor’s speech had lasted over an hour and the impugned passages, which we have set out already, were very brief.

35. We have not, of course, overlooked the particular emphasis placed by Mr Lok on the prosecutor’s use of the phrase: ‘without explanation, you may think that the irresistible inference is .... that (the Applicant) was dishonest ....’. Standing alone, we consider that this took the argument little further forward. Prosecuting counsel had made a perfectly valid point that nowhere, in the evidence produced during a trial which extended over about 50 days, had any explanation been forthcoming from any source which might have provided an honest reason for the Applicant’s actions.

36. The fact that the Applicant had chosen not to give evidence was, of course, known to the jury and for the prosecutor to state it, albeit contrary to the provisions of section 54(1)(b), was to state the obvious. However, in our view, there was nothing said by the prosecutor about the Applicant’s failure to testify which might have damaged the defence case and there was, therefore, nothing which the judge could or should have said, either immediately after the speech for the prosecution or later in his summing up, which might have been beneficial to the Applicant on the point.

37.  The correct course, in our opinion, was that which the judge adopted, namely, by providing the standard direction given to juries in cases where the defendant has chosen not to testify.  In a separate direction, the judge dealt with the approach to be adopted towards inferences which might have arisen from the evidence.  Neither of these directions in themselves was the subject of any real criticism.”

131.  If I may sum up the position, so far as this jurisdiction is concerned, the high watermark of the Court’s attitude to a breach by prosecuting counsel of section 54(1)(b) must be Yu Yuk Kwong & Others and Lam Ming Kwong & Others, with the latter representing an absolute prohibition on mentioning, even by implication, the fact that a defendant has not given evidence.  In neither case was the application of the proviso considered appropriate to such an infringement of section 54(1)(b) of the Ordinance. 

132.  The case of Wong Wah Chiu & Others represented a retreat from the strictness of the absolute position, allowing the Court to examine the circumstances in which the comment was made and its terms, in order to determine whether the proviso could properly be applied.  Thirty years later, in Ho Siu Hoi, the Court also looked to the purpose and effect of the comment by prosecuting counsel, bearing in mind the standard directions which the judge was bound to give as part of his summing-up.

133.  When one examines the early cases from more than 40 years ago, it is important to remember the context in which juries were being directed in those days.  There were in the early 1980’s no standardised specimen directions as we have them today: judges were required to use their experience, fairness and understanding of what they were or were not supposed to say in a particular case from decided cases, both in England and Wales (and in particular, the Privy Council) and in Hong Kong, when directing juries.  Indeed, it was not until 1987 in the United Kingdom that the Judicial Studies Board (and later, its successor, the Judicial College) provided formal written guidance to judges when summing up cases in the Crown Court[134]. 

134.  In 1988, a Judicial Studies Board was set up in Hong Kong and, although I have been unable to identify the exact year when the first set of Specimen Directions in Jury Trials appeared in this jurisdiction, it was at a time when Sir TL Yang was Chief Justice, and sometime between 1993 and 1996.  I say that because in R v Man Bing Chou[135]in March 1993, Silke VP, on behalf of the Court, was critical of the “wide circulation” of the specimen directions from the Judicial Studies Board of the United Kingdom, “many of which”, he said, “do not reflect either the law or the practice in Hong Kong”[136]. However, by December 1997, we can see reference by the Court in HKSAR v Chan Hing Chi[137] to Hong Kong’s own specimen directions, which had by then been promulgated by the Hong Kong Judicial Studies Board.

135.  Accordingly, the context of trials and appeals was very different by the time Ho Siu Hoi came to be decided in 2003, which is made apparent in the Court’s judgment by its reference to certain standard judicial directions when answering a complaint about an infringement of section 54(1)(b) of the Ordinance.  Juries are now routinely given a panoply of directions, most of them designed to protect defendants, as well as the fairness and integrity of trials.  Many of these directions have been refined several times over the years.  By way of example, the judge in the present case, gave the jury the following direction about the appellant’s “mixed” video-recorded interview[138]:

“You must consider the whole of the statement in deciding where the truth lies. You may feel that the incriminating parts are likely to be true for why else would she have made them. You may feel that there is less weight to be attached to her explanations for they were not made on oath, have not been repeated on oath and have not been tested by cross-examination. So this is how you should approach the statements made by the defendant under caution in her video-recorded interview.”

136.  This formulation derives from the 1981 Court of Appeal decision in England and Wales in R v Duncan[139], but it had been questioned by successive courts in that jurisdiction.  It is noteworthy that one of the authorities expressing a different view was the Privy Council decision in Leung Kam-kwok v R[140] in 1984, a case which had emanated from Hong Kong.  The controversy was not settled until the House of Lords decision in R v Sharp[141] in 1987, which endorsed the Duncan formulation.  When the Crown sought to challenge the correctness of Sharp in R v Aziz & Others[142] in 1995, the House of Lords reaffirmed the correctness of both Sharp and Duncan.  The decisions in Sharp and Aziz (as well as Duncan) have been followed in Hong Kong since at least the decision in HKSAR v Kong Siu Ming & Others[143] in 2000.  The direction now forms the basis of Specimen Direction 113D of the Specimen Directions in Jury Trials, Vol 2, at 113-5, promulgated by the Hong Kong Judicial Institute.

137.  By way of another example, the judge gave the jury the following direction concerning the appellant’s right of silence[144]:

“Now, the defendant has chosen not to give evidence. The defendant does not have to give evidence. She is entitled to sit in the dock and require the prosecution to prove its case. You must not assume that she is guilty because she has not given evidence. The fact that she has not given evidence proves nothing, one way or the other. It does nothing to establish her guilt. On the other hand, it means there is no evidence from the defendant to undermine, contradict or explain the evidence before you by the prosecution. That said, it is still important, and I stress this, for you to bear in mind that the burden of proof is always on the prosecution. So you still have to decide whether, on the prosecution’s evidence, you are sure of the defendant’s guilt.”

138.  This direction (the last two sentences apart) are derived from the formulation used as a specimen direction by the Judicial Studies Board of the United Kingdom, which was expressly approved by the English Court in R v Martinez-Tobon[145] in 1993 and endorsed by the Court of Final Appeal in Li Defan & Another v HKSAR[146]in 2002, although it was already recommended for use by the Hong Kong Judicial Studies Board.  It currently forms Specimen Direction 44 of the Specimen Directions in Jury Trials, Vol 1, promulgated by the Hong Kong Judicial Institute.

139.  The point of referring to these directions and their provenance – and there were other relevant specimen directions dealing with such matters as the burden and standard of proof, inferences, lies (in a video-recorded interview) and circumstantial evidence – is to emphasise that the context of a summing-up in a jury trial today is very different from that which obtained in 1983 and 1984, and which I can recall from my own practice in Hong Kong in those years. Unlike 40 years ago, we now have a comprehensive set of specimen directions, which are available to all judges of the High Court, as well as practitioners, and which are routinely deployed, where relevant and appropriate, in any jury trial today.  Therefore, when complaint about prosecuting counsel’s breach of section 54(1)(b) of the Ordinance is made, together with criticism that the judge did not directly engage counsel to correct the breach, either immediately or in his summing-up, one must bear in mind that the jury will now be receiving from a judge, as a matter of course, a set of approved standard specimen directions, which did not even exist in their current form 40 years ago.

140.  Accordingly, if one poses the question, ‘Did the judge correct prosecuting counsel’s infringement of section 54(1)(b) of the Ordinance (assuming it to have been an infringement)?’, one cannot ignore the fact, when answering that question, that the jury were specifically directed by the judge in emphatic terms in accordance with a standard specimen direction that they must not assume that the defendant was guilty because she did not give evidence; that such failure to give evidence proved nothing one way of the other; and that it did nothing to establish her guilt. 

141.  With respect to Zervos JA, who considers the matter was not effectively remedied by the judge, I find it unrealistic to believe that prosecuting counsel’s infringement of section 54(1)(b) of the Ordinance (assuming it to have been one) could have somehow overridden the judge’s clear and explicit directions about the applicant’s right not to give evidence; particularly where prosecuting counsel himself had acknowledged that the appellant was properly exercising that right. 

142.  I accept that the judge could have interrupted and corrected prosecuting counsel’s speech to the jury then and there, or specifically registered his disagreement or disapproval with what prosecuting counsel had said later in his summing-up, but I wonder again how realistic it would have been to “castigate” prosecuting counsel (to borrow the Court’s terminology in Ho Siu Hoi) in front of the jury for the assumed infraction, when the judge was about to tell the jury, as he was required to do under Specimen Direction 44, that while the applicant had every right not to give evidence, it did mean that there was no evidence from her to undermine, contradict or explain the prosecution evidence.  It might seem somewhat baffling for a jury to be told that prosecuting counsel should not have “commented” on the fact that the applicant did not give evidence, only for the judge to then proceed to do exactly that, within the terms of the above Specimen Direction.  In my judgment, the best way of dealing with the infringement (assuming it to have been one) was to give emphatic directions to the jury, in accordance with the specimen directions, that they must not use her decision not to give evidence against her in any way.  And that is what the judge did.

143.  I have spoken of an assumed infringement of section 54(1)(b), which brings me to the second issue I raised, namely, whether there was, in the circumstances, a material infringement of the section at all. To answer this question, we need to examine what prosecuting counsel said and meant when he addressed the jury.

144.  In a carefully structured closing address to the jury, prosecuting counsel divided his remarks into six sections.  The first was what he termed his “introduction”[147], while the second concerned “legal principles”[148].  The third part of his speech dealt with an overview of the evidence in the case[149], while the fourth part concerned an overview of the defence case[150]. The fifth part of prosecuting counsel’s speech was an analysis of the defence case, while the sixth and final part concerned the inferences, which he suggested should be drawn from the evidence and circumstances in the case.

145.  The reference to the applicant not giving evidence came in two places: the second and the fifth parts of prosecuting counsel’s speech.  In the second part, under “legal principles”, prosecuting counsel dealt with the burden and standard of proof.  He said[151]:

“Now, remember suspicion is not enough. If you only suspect that the defendant had committed the crime that is not enough. You must give the benefit of the doubt to the defendant and you must acquit her. As the learned judge also said, the defendant needs not prove her innocence. She needs not prove anything. She needed not to give evidence. She needed not call any defence witnesses and she only exercised her right not to give evidence and not to call any defence witnesses and no adverse inference can be drawn against her. The burden is all along on me, on the prosecution, but the fact remains the defendant did not give evidence.”

146.  Although, in a strict sense, prosecuting counsel did refer to the fact that the applicant did not give evidence, the context and emphasis of the point he was making was that the burden of proving the case against the appellant was and remained on the prosecution throughout: the applicant was not required to prove anything and no adverse inference could be drawn against her for exercising her right not to give evidence.  The jury would have been well aware that the applicant did not give evidence and that they must not hold that against her in any way; indeed, the judge had already told them, immediately following her election[152]:

“Thank you. All right, so that marks the close of the defence case. We do not have evidence from the defendant herself or any witness called on her behalf. But as I reminded you time and again don’t take this adversely against the defendant. She has the perfect right to elect to remain silent and not to testify and not to call any witnesses on her behalf. It is always the duty of the prosecution to prove to your satisfaction so that you are sure of the case that the prosecution brought against the defendant. Yes, Mr Hui, you are ready to commence your closing speech, right.” (Emphasis supplied)

Prosecuting counsel immediately thereafter began his closing address and a few minutes later came the passage in prosecuting counsel’s address, about which complaint is made.  However, as a matter of context and chronology, the impugned passage was wedged between two emphatic directions from the judge himself that the jury must not hold her decision not to give evidence against her in any way.  Accordingly, I see no prejudice whatsoever from defence counsel stating, in a factual way that was advantageous to her, exactly what the judge was bound to tell the jury, and which he had already told the jury.

147.  The fifth part of prosecuting counsel’s speech concerned the analysis of the defence case.  In this regard, he told the jury[153]:

“Now, again the defendant’s case: you will remember the defendant exercised her right not to give evidence, not to go to the witness-box. That’s her right. That’s fine. As I have said the burden is on me to prove the case. But I did not have the opportunity to cross-examine the defendant. I cannot ask her any questions. I did not because she elected not to give evidence and I am unable to test her credibility to test whether she is an honest person, to test about her reliability, whether what she says would be reliable. I have no such opportunity.

But in any event, of course she had chosen to speak up in the video-recorded interview, but it is my position and it is my case that the defendant had not told you the truth and/or the whole truth about her story.”

The point prosecuting counsel was making here, as a preface to ten points he was going on to advance, was that since the burden remained on the prosecution throughout the case, he had not had the opportunity, in discharging that burden, of cross-examining her about her case, although she had given a story in her video-recorded interview, which he did not accept.  Nevertheless, in making his point, he acknowledged that the appellant was exercising her “right not to give evidence, not to go into the witness-box.  That’s her right.  That’s fine”[154].

148.  I do not see, in either this passage or the previous one, any comment, certainly not a pejorative one, on the applicant’s failure to give evidence.  Nor was prosecuting counsel inviting the jury to infer anything or draw any evidential value from the exercise of her right. His point was that, in discharging the burden that was upon him, he was not able to test the veracity of her story put forward in her video-recorded interview, which he then went on to dissect in many of the ten points that followed.  That the applicant did not give evidence would have been obvious to the jury, and her right not to give evidence, which did nothing to establish her guilt, was in any event about to be reinforced by the judge in his summing-up (as it had already been made clear by the judge immediately following her election).

149.  It is significant to note that, although the applicant did not give oral evidence at trial, defence counsel, in his speech to the jury, relied extensively on what the applicant had said under caution in a video-recorded interview with Customs officers (lasting 1 hour 40 minutes) and in the WeChat exchanges on her telephone.  Indeed, he produced a handout containing some 40 relevant entries in the video-recorded interview (Exhibit D1), of which he told the jury[155]:

“These are the most strongest (sic) and most relevant strongest pieces of evidence that you have got to consider your verdict.

In my respectful submission, when I have gone through this with you, you will perhaps doubt or even think she could not be guilty or whatever you think, but I say to you these will cast doubt on the prosecution case.”

Defence counsel then spent the next seven pages of transcript going through various entries in the video-recorded interview and dovetailing some of the answers with the WeChat messages.

150.  Although prosecuting counsel was not to know how defence counsel would address the jury, he could reasonably have anticipated the reliance that would be placed on the video-recorded interview, the voluntariness of which the parties had agreed by way of Admitted Fact evidence[156], yet he had not, of course, had the opportunity to test the applicant’s answers in evidence.  It seems to me that this was the context for his remark, “it is my position and it is my case that the defendant had not told you the truth and/or the whole truth about her story”[157].

151.  I have concluded that there was in fact no material infringement of section 54(1)(b) of the Ordinance, since in my view what prosecuting counsel said did not amount to comment on the applicant’s failure to give evidence.  With respect to the judgment of King CJ in Siebel & Waterman, I prefer the reasoning on this point of Prior J, who nevertheless ultimately agreed with the result of the appeal[158]:

“I maintain my concurrence with what Jacobs ACJ said in the passage cited by the Chief Justice from McAndrew (1990) 157 LSJS 466 at 467. I do not share the Chief Justice’s view that reference to a failure to dispute evidence or to put forward an alternative version of the facts is ‘necessarily a comment on [an accused’s] failure to give evidence’. A reference or statement is one thing, a comment another.

Thin ice separates ‘comment’ from a permissible reference or statement.  In McAndrew’s case the prosecutor spoke of the accused not being bound to give evidence.  That bare reference was not a comment in breach of s 18.  A mere reference to a right to give evidence may not constitute a comment on the failure of an accused to give evidence either.”

152.  Having said that, I would nevertheless echo Prior J’s final remarks[159]:

“The dangers of sliding from a general comment, bare or mere references, to prohibited comments must be acknowledged. Prosecutors in this State should be very wary of skating successfully on the thin ice left between references or statements and prohibited comment.”

153.  Before departing from Siebel & Waterman, it is worth observing that prosecuting counsel’s comments in that case went way beyond the remarks made by counsel in the case before us.  In Siebel & Waterman, prosecuting counsel had said in his final address[160]:

“Neither accused in this trial has given evidence. They are under no obligation to do so. But in assessing the weight to be given to their evidence, or to the matters led in evidence from various witnesses in this court, in assessing the weight of the Crown witnesses you might know that it was not contradicted by any evidence in this court. The accused, of course, were not bound to give evidence and his Honour will tell you that and you should not infer any guilt simply because they failed, or declined to give evidence. But in assessing the weight to be attached to the evidence of the various Crown witnesses, you can take into account the fact that their evidence was uncontradicted. You might think that where someone is confronted with evidence against them leading to an inference; and in this case the inference, the Crown say, is that they were not acting in self‑defence; they exceeded that bounds. But if that inference is unanswered, uncontradicted, and if that inference leads you to the conclusion that they have committed an offence, a failure on the part of the accused to contradict or explain that evidence, that inference may, in appropriate circumstances, justly and reasonably be taken into account so as to confirm that inference – the inference, I repeat, they were not acting in self-defence.

I just reiterate that you are not to assume guilt because of the failure to give evidence.  But bear those matters in mind; the evidence from the Crown stands uncontradicted in this court.”

154.  Clearly, there was nothing unintentional about prosecuting counsel’s remark in Siebel & Waterman: this was plainly forbidden comment, which effectively invited the jury to treat the defendant’s silence as confirmation of an inference of guilt.  It is important to note that King CJ in his judgment further considered that prosecuting counsel’s comments were not corrected by the judge in his summing-up.  He held[161]:

“I do not think that the effect of the remarks of counsel for the prosecution can be regarded as weakened to any degree at all by what was said by the trial judge.”

That cannot be said to be the position in the case before us.  However, had I formed the view that it was prosecuting counsel’s intention to use the applicant’s failure to give evidence to advance the prosecution’s case in some way, or had that been the necessary implication of his remarks, and the judge had failed to spell out the terms of Specimen Direction 44, I might have come to a different view as to the materiality of what he said.

155.  I come, finally, to the third question which I posed at the outset: on the assumption that there was a material contravention of section 54(1)(b), was the fairness of the trial compromised to such an extent that the application of the proviso was inappropriate?  I shall proceed to answer this question, on the assumption that I am wrong in my response to the previous question and that there was a material irregularity in the infringement of the section.

156.  I cannot conceive that the jury would have been remotely persuaded or influenced that prosecuting counsel’s comment should somehow be weighed in the balance against the applicant, when the judge had already told them, immediately following her election not to give evidence, “…as I reminded you time and again don’t take this adversely against the defendant.  She has the perfect right to elect to remain silent…”[162]; and when he was to formally direct them, in clear and emphatic terms, that the burden of proof was “always on the prosecution”[163]; that she had every right not to give evidence[164]; and that they “must not assume that she is guilty because she has not given evidence.  The fact that she has not given evidence proves nothing, one way or the other.  It does nothing to establish her guilt”[165].

157.  As for prosecuting counsel’s submission that in fulfilling his burden he was not able to test her case in cross-examination, the judge was to give the jury the rather more pointed direction that, “there is no evidence from the defendant to undermine, contradict or explain the evidence before you by the prosecution”[166]. Later, in addressing the video-recorded interview, which was effectively the applicant’s case, the judge directed the jury that they “may feel that there is less weight to be attached to her explanations for they were not made on oath, have not been repeated on oath and have not been tested in cross-examination”[167].  I would add that it seems curious to me to talk of the WeChat messages, for example, supporting the applicant’s story when no one, least of all the applicant herself, has ever spoken to the meaning of the messages in evidence[168].

158.  As Bokhary PJ (as he then was) said in Kissel v HKSAR[169]:

“The proviso is an instrument of justice.”

In my judgment, it would be a manifest injustice if the applicant’s conviction for smuggling 4.77 kilogrammes of cocaine narcotic worth HK$3.83 million into Hong Kong were to be set aside, despite very strong evidence of her guilt, on the basis solely of prosecuting counsel’s impugned remarks, which can have had no impact whatsoever on the verdict.  To hold otherwise would be to retreat to an absolutist position and ignore all the developments in the law and criminal practice of the past 40 years; although, as I have observed, even the Court in Wong Wah Chiu acknowledged in 1983 that, “if an appellate court is satisfied, taking into account the circumstances in which the comment was made and its terms, the jury would not have been influenced thereby, the proviso can properly be applied and the conviction upheld”.

159.  Like the Court in Ho Siu Hoi, I do not believe the remarks of prosecuting counsel in the present case amounted to a material irregularity.  However, even if I were wrong in my conclusion, I would unhesitatingly have applied the proviso.  In my judgment, Ground 1 is not made out and the appeal should be dismissed.

The Court:

160.  The application for leave to appeal against conviction is therefore granted (on Ground 1 only) but, by a majority, the appeal is dismissed.

161.  There is, however, a further matter we would like to raise.  This was, as has been pointed out, the second trial of the applicant.  At her first trial, she was sentenced to 28 years and 4 months’ imprisonment.  At the trial giving rise to this appeal, she was sentenced to 27 years and 10 months’ imprisonment. The quantity of cocaine narcotic was 4,770 grammes, which fell within the guideline range of 26 to 30 years’ imprisonment for between 4,000 and 15,000 grammes as set out in Abdallah[170].  On a strict arithmetical application of guideline to quantity, leaving aside any aggravating features, 4,770 grammes of cocaine would have merited 26 years and 3 months’ imprisonment.

162.  We have become concerned, while this Court is still seized of this appeal, that since the applicant was sentenced on 12 July 2022, there have been three important decisions of this Court, which may have an impact on the applicant’s sentence.  The three decisions stem from the Court’s earlier decision in HKSAR v Herry Jane Yusuph[171], which shifted this Court’s approach, albeit slightly but significantly, in relation to sentencing for trafficking in dangerous drugs.  The three cases concerned are HKSAR v Lee Ming Ho[172]; HKSAR v Raman Kapusamy[173]; and HKSAR v HKSAR v Sum Ka Wa[174].  Indeed, all four of the above cases, including Herry Jane Yusuph, were heard after the applicant was first convicted of this offence in November 2018.

163.  In Lee Ming Ho, this Court reconsidered aspects of Abdallah, decided more than 15 years ago, concerning the supplementary guidelines for aggravating factors, although the guidelines for the different quantities of dangerous drugs themselves were left intact.  We would now like to take the opportunity to reconsider the appropriateness of the Abdallah guidelines themselves.  This case, falling as it does within the third classification in Abdallah, namely 26 to 30 years’ imprisonment for trafficking between 4,000 and 15,000 grammes of narcotic, presents us with that opportunity; particularly since the Court is now comprised of three judges rather than two and is representative of both divisions of the Court of Appeal.

164.  We would like to hear full argument as to the correctness of the guidelines in Abdallah, for which we shall grant the applicant an appeal aid certificate in respect of sentence.  The appeal will be set down for hearing within the next 6 months, during which time we would invite the applicant to file an application for leave to appeal against her sentence. We shall not require an affirmation as to why the applicant is making an application for leave to appeal against sentence out of time, because the Court has called for the matter to be considered of its own motion.  We shall in due course give directions for the filing of written arguments.  Should the respondent (or for that matter the applicant) wish to adduce evidence, for example, as to prevalence and seizures of cocaine and heroin as at today and over the course of the last 15 years, and the correctness of the current ranges and starting points set out in the Abdallah guidelines, they will no doubt do so in accordance with the rules for calling fresh evidence.

165.  We should reassure the applicant that our decision will not disadvantage her in any way: indeed, it is possible that it may be to her advantage in respect of sentence, depending on how we resolve the issue.  We wish to ensure that guidelines, which are now 15 years old, are both realistic and consistent with the Court’s recent comprehensive approach to sentencing in cases of trafficking in dangerous drugs, as expressed in the four authorities referred to above.

[1]   HKSAR v Abdallah [2009] 2 HKLRD 437.

[2]   Appeal Bundle (“AB”), p 1.

[3]   HKSAR v HUANG Ruifang [2022] 1 HKLRD 1090.

[4]   AB, p 95.

[5]   AB, pp 61T-63D.

[6]   AB, pp 28-29.

[7]   AB, p 29.

[8]   AB, pp 73M-74M.

[9]   AB, p 124H-N.

[10]   [1979] HKLR 585.

[11]   [1983] 1 HKC 139.

[12]   HKSAR v Ho Siu Hoi, CACC 336/2002, Unrep, [33].

[13]   (1992) 59 A Crim R 105.

[14]   AB, pp 123R-124C.

[15]   AB, p 125R.

[16]   AB, p 126H-K.

[17]   AB, p 125D-l.

[18]   AB, p 134G-H.

[19]   AB, p 134C-D.

[20]   (2003) 6 HKCFAR 113 at [31] and [36].

[21]   [1996] 1 NZLR 53 at page 55, lines 33-43.

[22]   AB, p 46H-Q.

[23]   AB, p 126J, p 134C-N.

[24]   AB, p 150D.

[25]   AB, p 126G-K.

[26]   AB, p 134C-D, 134G-K.

[27]   AB, p 117I-K.

[28]   AB, p 119R-S.

[29]   AB, pp 45J to 46G.

[30]   AB, p 80-83.

[31]   AB, p 45Q-S.

[32]   [1983] 1 HKC 131 at page 137D.

[33]   [1984] HKC 131.

[34]   Sin Cheong-shing.

[35]   AB, pp 106-120.

[36]   AB, pp 115S-116M.

[37]   AB, p 124D.

[38]   AB, pp 123Q-124C.

[39]   AB, p 120G.

[40]   AB, pp 120R-121A.

[41]   AB, p 73M-P.

[42]   AB, p 31K-M.

[43]   AB, p32F-G.

[44]   AB, p 88K-M.

[45]   AB, p 33J-L.

[46]   AB, p 42J-Q.

[47]   AB, p 46I-Q.

[48]   AB, p 73M-T.

[49]   AB, pp 158Q-160C and 163Q-172T.

[50]   AB, p 117B-K.

[51]   AB, pp115P-116M.

[52]   AB, p 120N-Q.

[53]   AB, p 120R-U.

[54]   AB, pp 117B-U and125N-126K.

[55]   AB, p 125D-M.

[56]   AB, p 134C-Q.

[57]   AB, pp 130D-131U.

[58]   AB, pp 123R-124C.

[59]   AB, p 124H-N.

[60]   AB, pp 124N-135G.

[61]   AB, p 140P-R.

[62]   AB, pp 45J-46G.

[63]   AB, p 46M-Q.

[64]   AB, p 42J-Q.

[65]   Kulemesin v HKSAR (2013) 16 HKCFAR 195, 234, at [121].

[66]   Section 54(1)(b) previously read, “the failure of any person charged with an offence, or of the wife or husband as the case may be of the person so charged, to give evidence shall not be made the subject of any comment by the prosecution.” Pursuant to section 3 of the Evidence (Miscellaneous Amendment) Ordinance, 2003, the section was amended by repealing “or of the wife or husband as the case may be of the person socharged.”

[67]   R v Director of Serious Fraud Office, Ex parte Smith [1993] AC 1.

[68]   Ibid., 31A-B.

[69]   See s.6A of the Criminal Procedure and Investigations Act 1996 and as a consequence the equivalent provision of s.54(1)(b) was repealed.

[70]   HKSAR v Chan Chu Leung [2024] HKCFA 1.  See also Lee Fuk Hing v HKSAR (2004) 7 HKCFAR600; HKSAR v Ata Asaf (2016) 19 HKCFAR 225.

[71]   Yu Yuk Kwong and Others v R [1979] HKLR585 (Roberts CJ, Leonard and Li JJ).

[72]   Ibid.,594.

[73]   R v Wong Wah Chiu and Ors [1983] 1 HKC131 (Roberts CJ, Cons and Barker JJA).

[74]   Ibid.,137B-D.

[75]   R v Sin Cheong Shing and Anor [1984] HKC 131 (McMullin VP, Silke JA and Power J).

[76]   Ibid., 134F-G, at [20].

[77]   HKSAR v Ho Siu Hoi, Unrep., CACC 336/2002, 31 October2003 (Stuart-Moore Ag CJHC, Beeson and Tong JJ).

[78]   Ibid., at[36].

[79]   Day v The King (No.2) [2023] NSWCCA 312 (Simpson AJA, Lonergan and Dhanji JJ).

[80]   Ibid., at [22] and [23].

[81]   Ibid., at [85]-[89].

[82]   AJE v Western Australia (2012) 225 A Crim R 242, at [30] (Pullin, Mazza JJA, Beech J).

[83]   Ibid., at [25].

[84]   Section 8(1)(c) reads:

“(1)     Except as in this Act it is otherwise provided, every person charged with an offence shall be a competent but not compatible witness at every stage of the proceedings whether the person so charged is charged solely or jointly with any other person: Provided as follows –

…

(c)    the failure of any person charged with an offence to give evidence shall not be made the subject of any comment by the prosecution.”

[85]   Bataillard v The King [1907] 4 CLR 1282.

[86]   Siebel and Waterman v The Queen [1992] 59 A Crim R 105 (King CJ, Bollen and Prior JJ).

[87]   AJE v Western Australia,248, at [30]-[31].

[88]   Challis v Western Australia (2014)237 A Crim R 283 (McLure P, Buss and Mazza JJA).

[89]   Ibid., at [44].

[90]   Ibid., at[97].

[91]   Ibid., at [102].

[92]   R v L [1996] 1 NZLR 53, 54 lines40-50 (Eichelbaum CJ, Hardie Boys and Thorp JJ).

[93]   Section 366(1) of the Crimes Act1961.

[94]   R v L, 56 lines25-53.

[95]   Bataillard,1291.

[96]   Cited with approval in R v L, 56 lines10-24.

[97]   R v George [1981] 4 A Crim R 12, 14 lines25-32 (Street CJ, Begg and Hunt JJ).

[98]   R v Moir (1912) 12 SR (N.S.W.)111.

[99]   R v L, 56 lines34-53.

[100] HKSAR v Kwok Chi Wah [1999] 1 HKLRD481 (Mortimer VP, Leong and Stuart-Moore JJA).

[101] Ibid.,490D-E.

[102] Ibid., 489J-490G.

[103] R v Weetra (2010) 108 SASR 232, at [18] (Anderson, White and Peek JJ).

[104] SpecimenDirection44:DefendantWhoHasNotGivenEvidence

“The defendant does not have to give evidence.  He is entitled to sit in the dock and require the prosecution to prove its case.  You must not assume that he is guilty because he has not given evidence.  The fact that he has not been given evidence proves nothing, one way or the other.  It does nothing to establish his guilt.  On the other hand, it means that there is no evidence from the defendant to undermine, contradict or explain the evidence put before you by the prosecution. [However, you still have to decide whether, on the prosecution’s evidence, you are sure of the defendant’s guilt.]”

[105] Specimen Direction 40: Defendant’s Mixed Statement

“The defendant’s statement to the police contains both incriminating parts and [excuses] [explanations].  You must consider the whole of the statement in deciding where the truth lies.  You may feel that the incriminating parts are likely to be true – for why else would he have made them?  You may feel that there is less weight to be attached to his [excuses] [explanations], for they were not made on oath, have not been repeated on oath, and have not been tested by crossexamination.”

[106]   HKSAR v Nguyen Anh Nga (No 3) [2019] 1 HKLRD 861, at [35].

[107]   AB, p 42J-Q.

[108]   AB, p 46I-Q.

[109]   Siebel and Waterman v The Queen (1992) 59 A Crim R105.

[110]   Ibid.,109.

[111]   Ibid.,110-111.

[112]   Ibid., 111.

[113]   Yuen Kwai Choi v HKSAR (2003) 6 HKCFAR 113, at [55].

[114]   Kissel v HKSAR (2010) 13 HKCFAR 27, at [263].

[115]   HKSAR v Chu Kar Keet [2022] 2 HKLRD 1178, at [118]-[120].

[116]   R v Battaillard (1907) 4 CLR 1282, at 1291.

[117]   Siebel v Waterman (1992) 59 A Crim R 105, at 107.

[118]   R v L [1996] 1 NZLR 53, 54.

[119]   R v Dickman (1910) 5 Cr App R 135.

[120]   Ibid., at 141.

[121]   Ibid., at 147.

[122]   R v Yu Yuk Kwong & Others [1979] HKLR 585.

[123]   Ibid., at 594.

[124]   R v Lam Ming Kwong & Others [1983] 1 HKC 139.

[125]   Ibid., at 140I.

[126]   Ibid., at 141A-B.

[127]   R v Sin Cheong Shing & Another [1984] HKC 131.

[128]   Ibid., at 132I.

[129]   Ibid., at 134F-G.

[130]   HKSAR v Ho Siu Hoi (Unrep., CACC 336/2002, 31 October 2003).

[131]   Ibid., at [26].

[132]   Ibid.

[133]   Ibid., at [31]-[37].

[134]   The first Specimen Directions to the Jury appeared in England and Wales in 1987; they were 43 pages long and accompanied by a 5-page guide for structuring a summing-up.  They replaced the practice at the time, which were informal notes provided by senior judges.  See the Foreword to The Crown Court Compendium Part 1 by Lord Thomas of Cwmgiedd, LCJ.

[135]   R v Man Bing Chou (Unrep., Crim App No 383 of 1990, 30 March 1993).

[136]   Ibid., at p11.

[137]   HKSAR v Chan Hing Chi [1998] 1 HKLRD 184, at 189C.

[138]   AB, p 46M-Q.

[139]   R v Duncan (1981) 73 Cr App R 359, at 365.

[140]   Leung Kam-kwok v R (1985) 81 Cr App R 83.

[141]   R v Sharp (1988) 86 Cr App R 274, at 281.

[142]   R v Aziz & Others [1995] 2 Cr App R 478.

[143]   HKSAR v Kong Siu Ming & Others [2000] 2 HKLRD 449, at 454.

[144]   AB, p 42J-Q.

[145]   R v Martinez-Tobon [1994] 1 WLR 388, at 394, 397.

[146]   Li Defan v HKSAR (2002) 5 HKCFAR 320, at [15], [29].

[147]   AB, p 122A.

[148]   AB, p 122B.

[149]   AB, p 122J.

[150]   AB, p 123Q.

[151]   AB, p 122E-I.

[152]   AB, pp 120R-121A.

[153]   AB, p 124H-N.

[154]   AB, p 124H-I.

[155]   AB, pp 163S-164B.

[156]   AB, p 15, at [23].

[157]   AB, p 124M-N.

[158]   Siebel & Waterman, at 111-112.

[159]   Ibid., at 112.

[160]   Ibid., at 106-107.

[161]   Ibid., at 111.

[162]   AB, p 120R-S.

[163]   AB, p 42P.

[164]   AB, p 42J-K.

[165]   AB, p 42K-N.

[166]   AB, p 42N-O.

[167]   AB, p 46N-P.

[168]   The position may be contrasted with the applicant’s first trial, in which she explained the WeChat messages in evidence: HKSAR v Huang Ruifang [2022] 1 HKLRD 1090.

[169]   Kissel v HKSAR (2010) 13 HKCFAR 27, at [267].

[170]   HKSAR v Abdallah [2009] 2 HKLRD 437.

[171]   HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.

[172]   HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186.

[173]   HKSAR v Raman Kapusamy [2024] 2 HKLRD 955.

[174]   HKSAR v Sum Ka Wa (Unrep., CACC 144/2033, 8 August 2024).