The Queen v. Sin Cheong Shing and Another

CACC000595/1983

[Counsel's comment on applicant's failure to give evidence: Yu Yuk Kwong v. The Queen [1979] H.K.L.R. 585 explained:- section 54 (1) (a) Criminal Procedure Ordinance).]

BETWEEN

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Coram: McMullin, V.-P., Silke, J.A. & Power, J.

Date: 28 March 1984

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JUDGMENT

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Silke, J.A.:

1. The applicant, SIN Cheong-shing, was tried together with YIM Kwok-keung on three counts of a multi-count indictment. These were the 5th count: robbery on the 7th May 1982 at 30 Baker Street; the 7th count: robbery on the 11th May 1982 at 50C Wing Hong Street and the 8th count: robbery on the 13th May 1982 at 57 Berwick Street, 7th floor, Kowloon.

2. On the 5th and 7th counts he was convicted of the alternative offence of handling stolen goods. On the 8th count he was convicted of robbery.

3. He now seeks leave to appeal against his conviction only upon the 8th count.

4. On the 13th May 1982 several men, stating themselves to be officers of the Criminal Investigation Department, went to the premises at 57 Berwick Street. The occupant, upon his return to that flat, was punched and handcuffed and the rest of the tenants were pushed into a cubicle, were tied up and also handcuffed.

5. Between the hours of 10:30 a.m. and 1:30 p.m. the premises were searched. There was taken a bank passbook in the name of one of the victims of the robbery, LI Pui, his identity card and his name chop.

6. At about 12:30 p.m. on the same day there appeared at the Chartered Bank in Waterloo Road a person bearing the passbook of LI Pui, his chop and his identity card. Miss Chan, a bank teller, had some doubts about the resemblance as between the face of the man and the face appearing on the identity card. Before any money was withdrawn on the strength of the passbook she sought the approval of her manager. This approval was given and a sum of $6,500 was taken from the account of LI Pui.

7. It was Miss Chan's evidence that she had a good look at the person who came to the bank and that 10 days later she identified him. upon an identification parade. The person she identified is the present applicant. She also identified him in the court of the trial.

8. The applicant did not give evidence.

9. The hearing of this appeal was adjourned on two occasions. Today Mr. Payne, who appears for the applicant in this Court, has argued one late ground - there were others upon which he was not asked to argue - relating to that which Counsel then appearing for the Crown saw fit to say in his closing address at the trial as to the applicant's failure to give evidence.

10. Mr. Payne has referred us two passages in that address. The first-which is clearly corrupt - reads as follows:

" And the law says this, that if a man in the defendant's position before the jury, he is entitled of his need to give an explanation. In :brief, if he explains to you in a way which you found perfectly satisfactory about innocently coming into possession of the property, well then you bear that in mind. If you accept what he says perhaps you would acquit him, if he satisfies you. If he gives you an explanation and he does not satisfy you then you bear that in mind as well. (sic)"

11. The second passage to-which we have been referred reads as follows :

" But above all, members of the jury, not only are you entitled to hear his explanation and to consider it, you are also entitled to consider the situation where he gives no explanation at all and you make what you will of that. So, there's the final part of those exhibits and you consider his position concerning their seizure by the police."

12. Mr. Pritchard, who appears for the Crown upon the hearing of this appeal, accepts that this should not have been said. In a succinct argument he has referred us to certain passages in the trial judge's summing-up which he says cures the error.

13. The first passage was at the start of the summing-up and it went:

"Members of the jury, we have now reached the final stage of this trial. Yesterday you heard speeches from learned counsel both for the Crown and for the defence, what they told you of course is not evidence, what they told you about the law is of course not the law. Now you take the law from me, and as far as evidence is concerned evidence is oral testimony given in this witness box, statements which have been agreed and read out by counsel, and also the various exhibits which have been produced and put before you. Nevertheless I have to ask you to pay careful attention to what counsel have told you and give such weight to the points which have been raised if you consider proper and appropriate."

14. Later the trial judge said:

" It is important that you bear in mind that the burden. rests on the Crown to prove the guilt of the accused beyond reasonable doubt. Now as it so happens in this case, the accused has not given evidence and has not called any witness, he does not have to do this because he does not have to prove anything; he does not have to prove that he is innocent, the Crown must prove that he is guilty.

He is perfectly entitled to sit where he is now, say nothing without giving any reason for it. You must not draw any inference against him because he has not given evidence, you must not say to yourselves: 'He has not given evidence, so he must be guilty.' You must not do that."

15. In normal circumstances there could be no quarrel with those particular directions. However, section 54(1)(b) of the Criminal Procedure Ordinance provides that,

"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."

16. In Yu Yuk-kwong & Others v. The Queen⁽¹⁾ in giving the judgment of the Court - and we accept that this was obiter - the Chief Justice said:

"A breach of this provision will result in a quashing of the conviction or, at the least in appropriate cases, in an order for a re-trial."

17. He went on at page 594:

"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."

18. Further down the page he said:

"The object of the section is to prevent counsel from inviting the jury to draw references adverse to the accused from his. failure to give evidence. No doubt the section is out of touch with reality. Any reasonable juror is likely in practice, to give weight to the fact that the accused has not given evidence. Whatever lawyers may say about the right of silence the juror will, we believe, be influenced by the absence of testimony from the defendant. The more so if the judge, as he is entitled to do himself comments on the failure of the accused to testify.

However, the law is clear and we have no choice but to apply it, as we might have had to do if we had been obliged to decide whether there had been an infringement of the section during this trial."

19. In this instant appeal there was clearly an infringement of the section. We accept Mr. Payne's point that it goes beyond that which the trial judge, had he been so minded, might have said. We do not think those passages of the summing-up referred to us by Mr. Pritchard to be of sufficiently corrective a nature as to take the sting out of Mr. Payne's complaint. That which Counsel appearing at the trial said to the jury was clearly sufficiently a comment upon the failure of the applicant to give evidence, in particular in circumstances where recent possession was part of the Crown's case, to bring into play that which was said in Yu Yuk Kwong⁽¹⁾.

20. We are, however, of the view that when the judgment in Yu Yuk Kwong⁽¹⁾ 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.

21. That having been said, we are in respectful agreement with that passage in the judgment in Yu ⁽¹⁾ - obiter or not. In the event this conviction could not stand. The application for leave to appeal was granted, the appeal allowed, conviction on the 8th count quashed and the sentence set aside. We said we would give our reasons later and this we now do.

22. We invited Counsel to address us on the question of a re-trial. Mr. Pritchard, very fairly, in the light of other circumstances such as the period which the applicant has already spent in prison and the possibility of an alternative verdict of handling where this matter to again come before a jury did not press for a re-trial. We made no order.

Representation:

I. Payne, Esq. instructed by Messrs. Yu, Tsang & Loong for applicant.

R. Pritchard, Esq. for Crown/Respondent.

(1) [1979] H.K.L.R. 585