HKSAR v. Rocha Ramirez Luisa Del Carmen

CACC000518/1999

CACC 518/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 518 OF 1999

(ON APPEAL FROM HCCC 39 OF 1999)

______________

______________

Coram: Hon Stuart-Moore VP, Leong JA and Wong JA

Date of Hearing: 27 June 2000

Date of Judgment: 17 July 2000

_______________

J U D G M E N T

_______________

Stuart-Moore VP (giving the judgment of the Court):

Introduction

1. On 21 September 1999, the Applicant, aged 34, was convicted of trafficking in a mixture containing almost 6 kgs of cocaine hydrochloride together with over half a kilogramme of cocaine (the drugs), following a trial before Beeson J and a jury. She now seeks leave to appeal against conviction.

Prosecution's case

2. The offence was alleged to have been committed by the Applicant on 26 September 1998 when she caused a suitcase containing the drugs to be brought into Hong Kong International Airport, at the end of a journey which had started in Bolivia. The prosecution's contention was that the Applicant had knowledge of the true contents of her suitcase.

3. The Applicant failed to collect her suitcase after she had cleared customs. Instead, she went straight to a hotel where she had a reservation, keeping the key to the padlock on the suitcase and her baggage identification tag.

4. Someone calling himself "Mr Lau" telephoned the airline and, as a result of this call, customs officers disguised as airline officials, delivered the suitcase to the Applicant's room in her hotel. She signed a form when she accepted delivery of it. Whilst the customs officers were present, the Applicant answered four telephone calls. She was instructed not to disclose to the caller that there were others in her room. However, during the last call, the Applicant revealed that she was not alone and the caller rang off.

5. The drugs inside the suitcase were found to have been sealed in tinfoil and packed into paper boxes giving them the appearance of being packets of coffee. In fact, some coffee had been packed inside the boxes to give added disguise to the drugs. There was also a coffee pot and there were four boxes of filter papers. On one of these boxes, the fingerprint of the Applicant was found.

6. On arrest, the Applicant maintained her right of silence.

Defence case

7. At trial, the Applicant admitted having had control over the suitcase from the start of her journey in La Paz. She said that she believed the packages in her case contained samples of coffee which were for her to deliver in Hong Kong. She had been requested to do this by someone she knew as Marco Fernandez and she stated that she would be paid US$300 for this service. When she reached Tokyo Airport, as a result of something which a Mexican male, who was a complete stranger to her, had said during her stopover in the airport, she found herself thinking that the suitcase might contain contraband. For this reason she went to her hotel in Hong Kong without taking her suitcase with her.

8. The Applicant testified that prior to the arrival of her suitcase at the hotel, a man called "Taby" had telephoned her and had persuaded her that there was nothing wrong with the contents of the suitcase. She then accepted delivery of the suitcase in the belief that it had been cleared through customs. She also said that Taby was responsible for the telephone calls the customs officials had seen her receiving while they were in her hotel room.

Grounds of appeal

9. Against this background, Mr Andrews, on the Applicant's behalf, has raised two grounds of appeal which can be dealt with together. He firstly submitted that the conviction should be viewed as unsafe and unsatisfactory having regard to the way in which the judge, during the summing up, directed the jury in respect of the Applicant's exercise of her right of silence. Mr Andrews alleged that the judge's directions amounted to an invitation to the jury to form an adverse opinion about the credibility of the Applicant's evidence as the result of the Applicant not having disclosed the totality of her defence at the first available opportunity. Mr Andrews submitted that this amounted to an impermissible attack on the credibility of the Applicant. As an extension of this argument, it was further alleged that the jury were misdirected that whilst they could not regard the Applicant with suspicion by reason of her exercising her right to silence, nevertheless the Applicant could effectively be regarded with suspicion because of a "partial" exercise of the right to silence, namely her failure to reveal material parts of her defence.

Trial judge's directions on "silence" and its effect on credibility

10. The way in which the judge addressed the Applicant's silence and its consequential effect on her credibility, when the Applicant was faced for the first time with an allegation that she had been a courier of drugs, was in these terms:

"Now, when somebody is arrested or suspected of a criminal offence or charged with one, they are entitled to say nothing at all when they are questioned by the police. So there was no obligation on the defendant to answer any questions of the Customs Officers in Room 1503 or to give any explanation of her presence at that point, and you cannot hold her silence against her or take that as any kind of suspicious behaviour pointing to guilt.

The exercise of that right to silence cannot amount to any kind of admission by the defendant, and it cannot be taken to reflect a guilty conscience. So she is under no obligation in Room 1503 to say anything or explain what she is doing, or give the explanation that she gave us in court.

However, in considering the credibility of the defendant and the credibility of her evidence, you are entitled to take into account the fact that the details about Marco Fernandez and the details about the previous contacts with 'TABY', for instance, were not revealed until a very late stage.

That is a matter that you can take into account in considering her credibility, but that is distinct from the right to silence that she enjoys at the beginning of the encounter with customs. Now, you will recall that she said in cross-examination that she did not mention to the Customs Officer who 'TABY' was, and that he had called before, and she had not mentioned why she had left the suitcase, and she had not mentioned her encounter with the Mexican man. And when she was asked whether she had told the Customs Officers about Marco, she declined to answer.

And although those matters do not point to any kind of suspicion in relation to her exercising her right to silence, they are matters that you can take into account in assessing the credibility of the account that she gave as to her reasons for being in Hong Kong with the suitcase." (Emphasis added)

11. This direction, which Mr Andrews has criticised, puts into context two earlier references which are not the subject of criticism, where the judge had referred to the Applicant's initial silence about material parts of her defence. Firstly, she said:

"So you have to be sure that when the defendant did the act of bringing the suitcase into Hong Kong that she did intend to bring in the drugs. And you can decide that intent by considering what she did or did not do and what she said or did not say, and you can look at her actions before, at the time of and after her arrival in Hong Kong on the same plane as the suitcase. All those things might shed light on her intention or her knowledge in respect of the drugs."

12. Secondly, the judge said:

"And the prosecution also suggests that there is the late explanation of how she came by the drugs and how she came to Hong Kong.

It was suggested yesterday to you by (defence counsel), in his address to you, that the prosecution had been remiss in not examining various matters. However, the prosecution would have been unable to examine the question of Marco Fernandez or 'TABY', because the defendant told us when she was cross-examined that she had not actually mentioned that to the Customs Officers either at the time or, apparently, later, and it was not until she came to give evidence in court that it was referred to."

13. There was, as Mr Andrews has correctly pointed out, no direct evidence of the Applicant's knowledge of the contents of her suitcase so that her credibility as a witness on the one crucial issue in the trial was likely to have been a vital factor in the jury's verdict.

14. In advancing his contention that the plain meaning and intent behind the judge's comment that the jury could "take into account (the Applicant's silence) in assessing the credibility of the account she gave (at trial) as to her reasons for being in Hong Kong with the suitcase", Mr Andrews sought to place reliance on what was said in Cho Chak-bor v The Queen [1983] HKLR 174 in which the Court of Appeal comprehensively dealt with the state of the law at that time, so far as it concerned comments made by a judge on the silence of a defendant. In particular, he relied on passages in the judgment of McMullin VP who said, at page 184:

"While the judge's comment in the present case stopped well short of suggesting that the reaction of the defendants when challenged might be an indication of guilt, he nevertheless did invite the jury to consider the defence case of each defendant in the light of the fact that each had put his story forward for the first time at the trial and to contrast this with the fact that each of them had had an opportunity to make that explanation to the police shortly after detection and arrest.

It is perhaps unfortunate that some of the case law has tended to elide the distinction between two situations which are at least conceptually not difficult to distinguish. Silence in the face of a challenge, or of accusatory questioning, which might be expected to elicit a response can afford positive evidence of guilt but only to the extent that the reaction of the defendant is to be interpreted as accepting in whole or in part the substance of the accusation. (Rex v Christie [1914] AC 545, per Lord Atkinson at p. 554 in a passage which receives emphatic endorsement by Lawton, LJ in Chandler [1976] 63 Cr App R 111). That is to say, the reaction of the defendant may constitute positive evidence against him.

Failure to disclose the defence before trial is a different matter. The reason for seeking to adduce such evidence could only be that it might tend to negative the truth of the story which is eventually produced in evidence. Its tendency would be to weaken the defence rather than to add to the strength of the prosecution case. The issue then would be credibility. On the cases, however, this form of attack on credibility is not permissible.

The common sense of the matter and the difficulty which common sense confronts in the law as it stands, is well expressed in Cross (4th Ed. p. 492):

'The distinction between treating the accused's pre-trial silence as something which may support an inference of guilt and as something which may reduce the weight of the defence is, like the analogous distinction between treating the accused's failure to give evidence as the basis of an inference of guilt and as a proper subject of comment, a difficult one. Of course the jury must be told that the accused has a perfect right to remain silent and that they must on no account draw a direct inference of guilt from the fact that he exercised it. Furthermore, the circumstances of a particular case may be such that it would be wrong to infer guilt indirectly from the belatedness of the defence, but common sense suggests that there may also be occasions on which a legitimate line of reasoning would be that the belatedness of the defence shows that it is bogus, and that the absence of a credible answer to the prosecution's case warrants an inference that the case is unanswerable. Yet it is tolerably clear that, under the present law a direction which canvassed the possibility of such reasoning, even though clearly stating that the decision whether to employ it was for the jury, would be upset.'

That was a statement of the law in England as the writer saw it in 1974. In the latest edition this opinion is strengthened by reference to Gilbert where it is said that 'the judge should generally make no comment on the accused's pre-trial silence when charged or questioned by someone in authority.' (5th Edition p. 542). Nor has it been overtaken either by subsequent case law or statutory reform, whether in England or in Hong Kong. Such reform is presently under consideration both in Hong Kong and, so we understand, in England.

The right to comment critically, either upon silence in the strict sense or else upon silence in the sense of failure to disclose a defence, despite a timely opportunity for doing so, is, one would think, a right apt for the advancement of justice without any appreciable danger to Woolmington's 'golden thread'.

This is an area littered with nice distinctions and forensic misgivings; unsuitable terrain for reclamation by judicial decision as the court in Gilbert [1978] 66 Cr App R 237 recognized. Moreover, this very ground has to a limited extent already been admirably tidied by the legislation relating to alibi evidence which was introduced in England in 1967 and in Hong Kong in 1971.

How much may a judge safely say? The court in Gilbert would go no further than saying 'In our view it may not be a misdirection to say simply "this defence was first put forward at this trial"'. To some minds this might seem to differ from what the trial judge said to the jury in the present case only by its economy of emphasis. And even that comment, though neutral in form, might be scanned for adverse overtones within the context of a given case. We can therefore do no better than repeat the advice given by Humphreys, J., delivering the judgment of the Court of Appeal in Tune [1942- 43] 29 Cr App R at p. 165:

'It is probably better, where a person has been charged with a criminal offence after having been cautioned and has either made no answer at all, or has made some observation which in itself is not in the nature of an explanation of the charge, that the presiding judge should say nothing about it beyond telling the jury exactly what was said or not said on that occasion, because many observations of different sorts by learned judges have from time to time been made the subject of appeal to the court. If nothing is said by way of comment by the presiding judge, no point can be raised.'

We would add that this advice is applicable also in cases where silence - or a non-explanatory statement - occurs before charge or caution." (Emphasis added)

15. Applying what was said in Cho Chak-bor to the present case, Mr Andrews submitted that the most the trial judge was permitted to do, was to remind the jury of the fact that the Applicant had given her defence for the first time when she went into the witness box. By going further than this, the judge had materially misdirected the jury.

Respondent's reply

16. Mr Chapman, on behalf of the Respondent, placed emphasis on the judge's direction to the jury that they could not draw an inference of guilt from the Applicant's exercise of her right to silence. This was set out by the judge in the clearest terms when she directed the jury that the Applicant's silence could not be held against her and that this could not be taken as "any kind of suspicious behaviour pointing to guilt". In that context, he submitted the judge had explained the relevance of the Applicant's silence as having been related only to the credibility of the Applicant's first account of events during her trial, when the Applicant gave her reasons for being in Hong Kong with the suitcase. Putting this another way, it was plain, Mr Chapman submitted, that the jury were not being invited to infer guilt from the Applicant's silence. Equally, the jury were never told that the Applicant's failure to disclose her defence raised any kind of suspicion and the carefully chosen words of the judge reveal that the jury were told the opposite.

17. Mr Chapman argued that the judge's directions were specifically confined to the approach the jury should take to the Applicant's credibility as a witness without having transgressed the common law rule that no comment, adverse to the Applicant, could be made as to her right of silence.

Consideration of authorities

18. There is no question in our minds that the judge's directions in the present case went nowhere near as far as the directions given to the jury in Cho Chak-bor and Others (above), where the trial judge's repeated directions in that case had the effect of inviting the jury to form an adverse opinion about the three defendants by reason of their failure to reveal their defence at the earliest opportunity.

19. In The Queen v Hung Wai-hung (1990) 1 HKLR 431 where the applicant had made no response on his arrest for a drugs offence, but at trial he had sought to lay the blame on a named individual, the judge had invited the jury (at p. 434E) to consider whether:

".... an innocent person who finds himself in that situation would be very eager to tell the police that 'Well, this bag doesn't belong to me. It's not mine. It's Hui Wah's. I am delivering it to Hui Wah.' It's very simple, isn't it?"

20. Although the judge in Hung Wai-hung went on to remind the jury of the applicant's "constitutional right not to say anything", the court held (at p. 439) that the directions had crossed "the fine dividing line between what is, and what is not, fair comment on the applicant's failure to disclose his defence".

21. In Hung Wai-hung (above), the court considered at p. 438 the New Zealand case of R v Coombs (1983) NZLR 748 where Cooke J. (as he then was) made the following observations at pp. 751-752:

"As New Zealand case law stands, there are three relevant principles. First, in general a suspect has a right to silence under interrogation by police or other law enforcement officers, whether before or after caution. This is elementary. Secondly, while a judge may properly comment upon the fact that an explanation has been given for the first time at the trial, such observations have to be made with care and fairness to the accused in all the circumstances of the case: R. v. Ryan [1973] 2 NZLR 611, 615. Thirdly, while occasionally the accused's silence when confronted with an allegation may amount to evidence of acceptance of it by him, this is exceptional - and especially so when the allegation has been made by or in the presence of a police officer or other investigating authority: R. v Duffy [1979] 2 NZLR 432.

The Privy Council and English authorities which have influenced the evolution of those principles in New Zealand need not be cited again here, but it is noteworthy that the dividing line between what is fair comment and what is not has been recognised to be a fine one: see 11 Halsbury's Laws of England (4th ed.) para 299; Archbold's Pleading, Evidence and Practice in Criminal Cases (41st ed., 1982) 4-430. In some cases, both in England and in New Zealand, it has been said that there is a clear distinction between drawing an inference of guilt from silence and taking prior silence into account as diminishing the weight of any explanation given by the accused for the first time in evidence at the trial. In R. v. Gilbert (1977) 66 Cr App R 237, 244, Viscount Dilhorne, delivering the judgment of a Court of Appeal of which Lord Scarman was also a member, saw no clear dividing line, as in each situation the jury are being invited to draw an inference adverse to the accused on account of his exercise of the right to silence. We respectfully agree that the distinction is often too fine to be of practical value in a jury trial. When the accused has made no prior statement, comment on the belatedness of an explanation advanced for the first time at the trial will usually not be fair unless his right to silence is also clearly explained and the jury are warned not to draw an inference of guilt from silence."

22. In England, the position has generally been transformed by the provisions of section 34 of the Criminal Justice and Public Order Act, 1994. This is set out in Archhold 2000 at paragraph 15-395. It is a specific provision to deal with the "effect of accused's failure to mention facts when questioned or charged". It is to be noticed also that in the English code of practice for the interviewing of suspects (Archbold 2000 at para. 15-234) the caution given by a police officer is in these terms:

"You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence."

23. Hong Kong has no equivalent statutory provision to enable a jury to draw adverse conclusions from the fact that a defendant has failed to disclose his defence at an opportunity when he might have been expected to do so prior to trial. However, we consider that common sense dictates that, whether or not the judge has fully and fairly explained to the jury that no adverse inference can be drawn from the defendant's exercise of the right to silence in itself, nevertheless the fact that the defence has only emerged at trial for the first time is something which any sensible jury would be unlikely to ignore when deciding what weight they should give to the explanation. As to this, in a decision of the High Court of Australia, Dawson J in Petty & Maiden (1991) 55 A Crim R 322 at p. 338 had this to say:

"The right to silence is a convenient, if somewhat imprecise, expression, which conveys the traditional objection of the common law to any form of compulsory interrogation. It embraces the absence of any obligation on the part of a person suspected of having committed a crime to answer questions by the police or other persons in authority. The exercise of the right to silence cannot, of itself, amount to an admission of any kind or reflect a guilty conscience, and a trial judge should so instruct a jury where an accused has chosen not to answer questions whether at or before the trial. The trial judge should tell the jury that the accused was quite entitled to remain silent and that they should not infer guilt from the fact that he exercised his right to do so.

But that does not mean that the choice by an accused to exercise his right to silence can play no part in the processes by which a jury arrives at its verdict. They may not say that he is guilty because he refused to answer questions; he had a right to do that. But if the accused gives evidence or makes an unsworn statement, having previously refused to answer questions, the jury are entitled, in assessing the weight to be given to the evidence or the unsworn statement, to have regard to the fact that he is advancing his account for the first time at trial and that he did not avail himself of an earlier opportunity to tell his version of events. Of course, there will frequently be a perfectly good reason why the accused chose to remain silent previously, which will mean that his silence is of no assistance in evaluating his evidence. For instance, his solicitor may have been present when he was questioned and may have advised him not to answer any questions. On the other hand, the explanation which he advances at trial may be so simple, straightforward and easily established at the time of questioning that his failure to advance it at the first opportunity casts doubt upon it when it is eventually given. If the jury in those circumstances do not believe the explanation given by the accused and conclude that he is guilty, they do not infer guilt from the exercise by him of his right to silence. But they may properly conclude that he is guilty because they disbelieve his explanation and the evidence called by the prosecution establishes his guilt beyond reasonable doubt in the absence of any explanation.

A similar reasoning process is to be seen in the application of the doctrine of recent possession. Under that doctrine, the recent possession of stolen goods so calls for an explanation that the failure of an accused to provide one when given an opportunity to do so will found an inference that the possession was not innocent and that the accused was guilty either of stealing the goods or of receiving them knowing them to have been stolen. In Bruce (1987) 61 ALJR 603 this Court said:

'Where an accused person is in possession of property which is recently stolen, the jury is entitled to infer as a matter of fact, in the absence of any reasonable explanation, guilty knowledge on the part of the accused. Such an inference will be drawn from the unexplained fact of possession of such property and not from any admission of guilt arising from the failure to proffer an explanation. It is the possession of recently stolen property in the absence of explanation or explanatory circumstances, which enables the inference to be drawn. Thus the absence of any reasonable explanation must not itself be explicable in a manner consistent with innocence.'

Of course, the doctrine of recent possession allows an explanation to be given at trial, but, as in any other case, it may be disbelieved because it is given then for the first time, notwithstanding that the failure to give it earlier was in the exercise of the right to silence.

It is important to recognise that, when an accused who has refused to answer questions subsequently gives exculpatory evidence, it is not the right to silence which is in issue but the truth or falsity of the evidence. It is in the evaluation of that evidence that the refusal to answer questions previously may be a relevant circumstance. Thus in Ryan (1964) 50 Cr App R 144 at 148, Melford Stevenson J, having considered the authorities, delivered the judgment of the Court of Criminal Appeal saying:

'It is, we think, clear as a result of those authorities that it is wrong to say to a jury "Because the accused exercised what is undoubtedly his right, the privilege of remaining silent, you may draw an inference of guilt"; it is quite a different matter to say "This accused, as he was entitled to do, has not advanced at any earlier stage the explanation that has been offered to you today; you, the jury, may take that into account when you are assessing the weight that you think it right to attribute to the explanation".'

Professor Cross has described that passage as gibberish, alleging that it says on the one hand that a jury cannot draw an inference of guilt from the accused's exercise of his right to silence and that on the other hand it says that the jury may do just that: 'The Evidence Report: Sense or Nonsense' [1973] Crim LR 329 at 333. Properly understood, the passage says no such thing. It is one thing to draw an inference of guilt from the mere exercise of the right to silence. It is quite another thing to say that, if an accused who has previously maintained his silence gives evidence, the jury may take his previous silence, if they consider it to be relevant, into account in assessing the weight which they give to that evidence. In short, the exercise of the right to silence cannot of itself provide evidence of guilt; that must be established by other evidence. But the previous silence of the accused may be taken into account in assessing the credibility of evidence given by the accused at trial.

Nevertheless, in Gilbert (1977) 66 Cr App R 237 at 244, the Court of Appeal said, referring to the passage from the judgment of the Court of Criminal Appeal in Ryan which I have set out above:

'That Court felt that there was a clear dividing line between those two courses.

We have to confess that we are unable to perceive that that is the case. The second of the statements quoted seems to us an invitation to the jury to draw an inference adverse to the accused on account of his exercise of the right of silence . . .'

But it is wrong to say that no inference adverse to the accused can be drawn on account of his exercise of the right to silence, if to conclude that what an accused says at trial is less likely to be true because he did not say it previously amounts to drawing such an adverse inference. That is a reasoning process which is permissible consistently with the existence of the right to silence. It has never been suggested, so far as I am aware, that a jury cannot reject the evidence of an accused because it is given for the first time at trial. That can only be done by taking into account previous silence on the part of the accused. If it is not possible to take the accused's silence into account, then it would follow ineluctably, in my view, that the jury could not reject the accused's story because it was told for the first time at trial. That has never been the law and would be an affront to common sense. What cannot be drawn from the exercise of the right to silence is an inference of guilt: that the accused in maintaining his silence admitted his guilt or displayed a sufficient consciousness of guilt to establish it. But that is a different thing." (Emphasis added)

24. These passages taken from Dawson J's judgment in Petty & Maiden were obiter. In a majority judgment of the court (at p. 324) the High Court commented on the approach taken by the Court of Appeal in New South Wales before giving their conclusion in these terms:

"In the present case, Priestley JA expressed the view that there is a 'significant distinction' between inferring a consciousness of guilt from silence and denying credibility to a late defence or explanation by reason of earlier silence. His Honour suggested that in the first case there can be inferred an admission by reason of the consciousness of guilt whereas in the second case rejection of the defence or explanation has no evidentiary value in itself, though its effect may be to leave the prosecution case unanswered, or at least not answered by that defence or explanation. We acknowledge that there is a theoretical distinction between the two modes of making use of the accused's earlier silence. However, we doubt that it is a distinction which would be observed in practice by a jury, even if they understand it. And, what is of more importance, the denial of the credibility of that late defence or explanation by reason of the accused's earlier silence is just another way of drawing an adverse inference (albeit less strong than an inference of guilt) against the accused by reason of his or her exercise of the right of silence. Such an erosion of the fundamental right should not be permitted. Indeed, in a case where the positive matter of explanation or defence constitutes the real issue of the trial, to direct the jury that it was open to them to draw an adverse inference about its genuineness from the fact that the accused had not previously raised it would be to convert the right to remain silent into a source of entrapment. Accordingly, the distinction is, in our view, unsound." (Emphasis added)

Conclusion

25. Whilst common sense might dictate that the failure on the part of a defendant to reveal a defence at an opportune moment prior to trial is something to be weighed in the scales when determining how much weight to attach to a defence first raised at trial, it seems that common law precedent is generally opposed to permitting the judge making any comment which invites the jury to use this feature of the evidence in this way.

26. In the present case, the judge directed the jury that they could use the Applicant's silence on material aspects of her defence as factors they could "take into account in assessing the credibility of the account that she gave (in evidence at her trial)". This, it seems to us, was inviting the jury to take an adverse opinion of the Applicant's evidence.

27. That a judge may not comment, even to the limited extent to be found in the present case, seems to us to be far from satisfactory. The jury was entitled to know that the Applicant had remained silent after her arrest and they would inevitably have drawn their own conclusions about the story she told for the first time in her evidence at trial. All the judge had sought to do was to limit the extent to which the jury could deploy the evidence about the Applicant's silence, by restricting their consideration of it to the sole issue of credibility. To that extent, while having every sympathy for the judge's motives in directing the jury in this way, we have reluctantly come to the conclusion, in the absence of legislation permitting such a direction, that the judge went further than she was permitted to go and thereby misdirected the jury. However, we are satisfied that no miscarriage of justice has actually occurred as the result of this misdirection. We have borne in mind that this was a case based upon strong circumstantial evidence and, putting aside the misdirection, we are satisfied the jury would inevitably have come to the same conclusion.

28. Accordingly, we shall grant leave to appeal but, as we consider this is a proper case for the application of the proviso to section 83(1) of the Criminal Procedure Ordinance, Cap. 221, and treating the hearing as the appeal, we dismiss the appeal.

Representation:

Mr P.S. Chapman, SADPP, of the Department of Justice, for the Respondent.

Mr R.C. Andrews, instructed by Legal Aid Department, for the Applicant.