HKSAR v. Posso Vergara Cristhian Enrique

CACC 373/2018

[2022] HKCA 690

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 373 OF 2018

(ON APPEAL FROM HCCC NO 88 OF 2018)

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Before:  Hon Macrae VP, Zervos and A Pang JJA in Court

Dates of Written Submissions: 6 and 30 April 2022 (Applicant) and 26 April 2022 (Respondent)

Date of Decision: 16 May 2022

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D E C I S I O N

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Hon Zervos JA (giving the Decision of the Court):

1.On 2 March 2022, the applicant filed a notice of motion applying to this Court for a certificate to the Court of Final Appeal on the basis that the decision of this Court on 11 February 2022, dismissing his appeal against conviction for trafficking in a dangerous drug involved the following point of law of great and general importance:

“Is the Right of Silence direction part and parcel of the compulsory standard directions on law that a trial judge must give to the jury during the Summing-up?”

2.It is contended by the applicant that the Right of Silence direction in terms of Specimen Direction 45 is “mandatory” and needs to be given by the trial judge to the jury “irrespective to (sic) the circumstances of the case.”

3.We have addressed this application on the papers without the need for an oral hearing.

4.The point of law which is said to be involved in our decision, was not in fact advanced in the ground of appeal we had to address, which read as follows:

“The learned judge failed to direct the jury that the Applicant was entitled to remain silent prior to and upon arrest, and that no adverse inference could be drawn against him for remaining silent.”

5.The argument in support of this ground was that in the circumstances of the case the judge failed to give a direction in terms of Specimen Direction 45.  It was not argued that Specimen Direction 45 was mandatory and should be given no matter the circumstances of the case.

6.The specimen directions are issued by the Hong Kong Judicial Institute for the use of judges as a guide only which may require to be suitably adapted to the individual case.  Whether a direction should be given in terms of Specimen Direction 45 will depend upon the particular circumstances of the case, including the nature of the evidence and what is in issue at trial, and the contents of the judge’s summing-up to the jury taken as a whole.

7.In the present case, the applicant’s right of silence was not used against him at trial; and the jury by the evidence would have understood he had a right of silence and by the judge’s summing-up that the prosecution had to prove its case against him and that he did not have to prove his innocence.  We found in the circumstances of the case, there was no risk that the jury would have adversely used against the applicant his lack of response upon being cautioned at the time of his arrest.  Furthermore, the applicant at trial claimed he had not exercised his right of silence but had said to the customs officer that the drugs had nothing to do with him and he had not done anything wrong.

8.We are not persuaded that the point of law of great and general importance as submitted by the applicant was involved in our decision. 

9.For the above reasons, we refuse to grant a certificate on the point of law advanced by the applicant.

Mr Derek Lau, SADPP (Ag) of the Department of Justice, for the respondent

The applicant in person