Chau Chi-hung v. The Queen

CACC000515/1982

Conviction of possession of dangerous drugs for unlawful trafficking founded on presumption - Judge relied substantially on appellant's silence when ownership was investigated by police - Co-accused admitted full ownership.

Held:

Judge wrong in relying on appellant's silence when considering whether presumption rebutted on balance of probability - should not do so even if discharging function as judge of fact. Appeal allowed - conviction quashed.

Coram: McMullin, V.-P., Li & Silke, JJ.A.

Date: 12 November 1982

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JUDGMENT

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Li, J.A.:

1. CHAU Chi-hung and CHEUNG Tsang-kit were jointly charged with the offence of possession of a dangerous drug for the purposes of unlawful trafficking. Chau was convicted after trial - his co-accused pleaded guilty - and now appeals by leave against that conviction. He has abandoned his appeal against sentence.

2. At about 8 p.m. on the 11th December 1981 a police surveillance party was at the New World Centre in Salisbury Road. They saw two males, who were waiting there, being picked up by a car and getting into the rear seats of that car.

3. The car started to drive off but was stopped. The appellant was the owner driver of it and his co-accused was the front seat passenger.

4. The vehicle was searched, all the occupants having got out and the appellant, according to his own uncontradicted evidence, was handcuffed to a railing nearby.

5. The search produced a plastic bag from the front passenger side in front of that seat. This bag contained two packets of suspected dangerous drugs.

6. At that time the sergeant in charge asked the four men to whom the packets belonged. None of them replied.

7. P.C. 13997, the searcher, says that he also asked the same question and again there was no reply. He then cautioned the appellant - we do not know the form the caution took - and nothing was said by the appellant.

8. The appellant in evidence said that he denied ownership at this time. He also said that he denied it later in the police station. There was thus a conflict as between the prosecution and the appellant's evidence.

9. The party was brought back to the Tsim Sha Tsui Police Station where a further search was carried out and this search produced from under the front passenger seat a brown packet. This contained a poly-thene bag of suspected drugs. The searcher, P.C. 2858, reminded all four men that they were under caution but none of them made a reply. I do note however that P.C. 13997 did say, when it was put to him that the appellant denied ownership of the goods,

"He did not say that at the scene although he did say it at the police station."

10. The appellant gave evidence of an innocent association with his co-accused and the other two males - who disappeared out of the picture at an early stage. He denied any knowledge of the contents of the plastic bag carried by his co-accused. He says he did say, when the drugs were found, that he did not know who the owner was. He goes on to say that he was not cautioned until after the search at the police station and that at that time his co-accused said all the drugs belonged to him (the co-accused).

11. The appellant says that he was asked to make a statement the following day in which he repeated his denials. This statement was not produced in evidence.

12. CHEUNG Tsang-kit, who gave evidence on behalf of the appellant, supported this. He denied that it was only after a further quantity of drugs was found at his home that he admitted that all the drugs were his.

13. The trial judge found, and quite properly, that the presumption of possession was raised as against the appellant and, again quite properly, held that the issue before the court was whether on the evidence as a whole this presumption had been rebutted on the balance of probabilities.

14. In his consideration of this issue he said that:

"The reactions of the accused at the time the drugs were found, not only at the scene of the arrest but also at the police station, are significant and were the subject of conflicting versions ."

15. He then considered the evidence on this point and came to the conclusion -

"Having heard the evidence I had no hesitation in accepting the version put forward by the police witnesses."

16. His well set out Reasons for Verdict then went on, and it is of this passage that Mr. O'Reilly Mayne makes his sole complaint, -

"I considered it highly unlikely that a person innocent of the fact that a packet of drugs were being carried in his vehicle would remain silent particularly when a direct question was asked as to the ownership of the packet. I also believed that it was not until the co-accused's home was later searched and further drugs were found that he finally made an admission that all the drugs were his. It must have been clear to the co-accused at that time that he was in a hopeless position and I believe that the accused then protested his innocence placing the blame entirely on his co-accused."

17. He found that the presumption had not been rebutted.

18. The ground of appeal is simply that "The learned judge erred in substantially relying upon the appellant's silence upon arrest and under caution in concluding that the appellant was guilty of the counts (sic) laid in the indictment".

19. It is Mr. Mayne's submission on this that silence in the circumstances here, where immediately upon arrest the appellant, hand-cuffed to a railing, was not on equal terms with the constable, silence after a caution to the effect that the appellant was not obliged to say anything any way and silence in the police station after being reminded of that caution was not such as to be indicative of guilt. Therefore in deciding that the appellant had failed to rebut the presumption, the judge basing himself substantially upon the silence, as he found it, of the appellant, was in error.

20. Learned counsel for the Crown contends that the judge was not really relying upon the appellant's silence to found the conviction. The judge was resolving the conflict in evidence between the prosecution witnesses and the defence witnesses. Having done that and found that he could not rely upon the defence evidence, he found that the presumption had not been rebutted. Thus he founded his conviction upon the presumption.

21. Crown Counsel argues alternatively that even if the judge were taking into consideration that the appellant remained silent, he was discharging the function of a jury. In his view if an accused person remaining silent when questioned by a police officer, it is open to the jury to take into consideration such silence and to disbelieve the evidence of the accused and convict him. The district judge in his capacity as a judge of fact was in fact discharging his duty of the jury. He was entitled to take accused's silence into consideration.

22. We find it difficult to accept Crown Counsel's argument. Our attention has been drawn to the case of YEUNG Kam-shun v. R.⁽¹⁾ in which the law on this point was considered. In the course of the judgment, this court cited the case of Hall v. Reginam⁽²⁾ , in which Lord Diplock said:

"It is a clear and widely known principle of the common law in Jamaica, as in England, that a person is entitled to refrain from answering a question put to him for the purpose of discovering whether he has committed a criminal offence. A fortiori he is under no obligation to comment when he is informed that someone else has accused him of an offence. It may be that in very exceptional circumstances an inference may be drawn from a failure to give an explanation or a disclaimer put in their Lordship's view silence alone on being informed by a police officer that someone else has made an accusation against him cannot give rise to an inference that the person to whom this information is communicated accepts the truth of the accusation.''

23. While Hall⁽²⁾ was decided on a somewhat different point the principles are the same.

24. In his Reasons for Verdict, the learned trial judge said that the reactions of the accused at the time when the drugs were found were "significant". He went on to say that he considered it "highly unlikely that a person innocent of the fact that a packet of drugs was being carried in his vehicle would remain silent particularly when a direct question was asked as to the ownership of the packet." This is precisely what he should not do even when he tried to resolve the conflict of evidence on the question of credibility, namely to take into consideration the silence of the appellant.

25. In the case of a jury trial, the court of appeal has no way to find out what operated in the mind of the jury. One point is clear. As a matter of law, the trial judge is not permitted to make adverse comment on the silence of the accused save in exceptional circumstances. The fact that an accused remained silent should be kept away from the jury's mind. The trial judge should have told the jury that the fact that the accused remain silent did not indicate either guilt or innocence.

26. Having regard to the evidence and the reasons for verdict, we have come to the conclusion that the trial judge, when considering whether the presumption had been rebutted on the balance of probability, allowed himself to place substantial reliance on the fact that the appellant remained silent. This is precisely what he should not have done whether he was discharging his function as a judge of law directing the jury or discharging the function of the jury as a judge of fact.

27. For these reasons, we find that owing to this defect, the conviction cannot be sustained. The conviction is, therefore, quashed. The sentence is set aside and the appellant discharged.

(1)    CA No. 882 of 1981

(2)    (1971) 1 All E.R. 322

Representation:

Mr. O'Reilly Mayne, Q.C. and Mr. R. Whitehead (Howell & Lo) for appellant

Mr. F. Wong (Crown) for respondent