HKSAR v. Lam Sze-nga, Josephine

FAMC No. 54 of 2005

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION 

MISCELLANEOUS PROCEEDINGS NO. 54 OF 2005 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 226 OF 2003)

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Between:

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DETERMINATION

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Mr Justice Bokhary PJ:

1.The accused was charged with trafficking in dangerous drugs, namely 0.77 kg. of ice.  She was convicted by the jury.  Deputy Judge M Poon sentenced her to 20 years’ imprisonment.  The Court of Appeal (Cheung and Tang JJA and A Cheung J) quashed the conviction and ordered a retrial.  Now the prosecution seeks leave to appeal to the Court of Final Appeal against the quashing of the conviction.  Such leave is sought under the “point of law of great and general importance” limb of s.32 of the Court’s statute.  This is how the prosecution has formulated the point which they ask us to certify and grant leave to pursue:

“Where an accused has made out of court statements which are ruled admissible but who maintains at trial that they were made as a result of improper police conduct, does a trial Judge err in law and act contrary to the principles stated in HKSAR v. LEE Fuk-hing (2004) 7 HKCFAR 600, in summing up to the jury on her failure to complain at the earliest available opportunity to her lawyer or to the authorities, without explaining to the jury the principles of the right of silence?”

Mr Zervos for the prosecution accepts that it is sufficient to ask the question whether the judge had erred without asking whether she had acted contrary to the principles stated in Lee’s case or any other case.  Accordingly we proceed on basis that the passage “and act contrary to the principles stated in HKSAR v. LEE Fuk-hing (2004) 7 HKCFAR 600,” comes out of the formulation.

2.The Court of Appeal’s view appears to be that a jury can be invited to use an accused’s failure to complain at an early stage against him or her, but only if they are told that he or she had a right to silence.  For the prosecution, it is contended that the jury can be invited to do so without being told that the accused had a right to silence.  It is arguably wrong to tell a jury that an accused had a right to silence but that, provided they bear it in mind that he or she had that right, they can use his or her exercise of it against him or her.  Of course that does not necessarily mean that the prosecution’s proposition is correct.  It may mean that an accused’s failure to complain at an early stage cannot be used against him or her at all, not even if accompanied by a direction that he or she had a right to silence.  That would not result in a reinstatement of the conviction.  But if it be the true position, then it had better be stated by the Court of Final Appeal as soon as possible and certainly before the retrial. 

3.This is a case for granting leave in order to have the relevant law sorted out for the purposes of this retrial and other trials.  We certify the involvement of a point of law of great and general importance, and grant the prosecution leave to appeal to the Court of Final Appeal.

Mr Kevin P. Zervos SC and Ms Fung Mei-ki, Mickey (of the Department of Justice) for the applicant

Mr Wong Man Kit SC and Mr Lawrence Hui (instructed by Messrs Paul W. Tse and assigned by the Legal Aid Department) for the respondent