HKSAR v. Mo Shiu Shing

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No.6
(Criminal)

HEADNOTE

Criminal law - evidence - evidential status of lies - guidelines on directions to be given to jury on lies - confusing for jury to be told the motive for a lie supporting prosecution case must be "a realisation (or consciousness) of guilt (and a fear of the truth)".

Evidence of 'flight' - recommended direction to the jury.

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No.6
(Criminal)

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Coram: Power, V.-P., Mayo and Stuart-Moore, JJ.A.

Date of Hearing: 22 October 1998

Date of Delivery of Judgment: 8 December 1998

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J U D G M E N T

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Stuart-Moore, J.A. (giving the judgment of the Court):

The Indictment

1. On 5th December 1997, the Applicant was convicted by a jury on three charges, following a trial before Stock J. He was sentenced on 9th December 1997 to a total period of 7 1/2 years' imprisonment. The Applicant now seeks leave out of time to appeal against conviction and sentence.

2. Although we failed to indicate our assent to this application being heard out of time, we can now indicate that we were content to give leave in this regard in view of the important nature of the argument to be advanced as to conviction.

3. The "indictment" contained four counts. All the offences were alleged to have occurred in a six-month period between September 1990 and March 1991. The three offences of which the Applicant was found guilty related to forgery of banknotes, contrary to section 70(1)(c) of the Crimes Ordinance, Cap.200 (Count 1), possession of forged banknotes, contrary to section 76(1) of the Crimes Ordinance (Count 2) and possession of implements for forgery, contrary to section 76A of the Crimes Ordinance (Count 4). In counts 2 and 4, Fong Mau-ching is named in the particulars as being jointly involved and Fong Mau-fong is likewise named in Count 2.

The prosecution's allegation

4. The general allegation was straightforward and was built upon the inferences to be drawn from certain primary facts. The prosecution alleged that the Applicant was engaged, with the other two named persons, in a joint enterprise to produce forged banknotes at the address referred to in count 2 with the aid of the implements listed in count 4. Fong Mau-fong was the Applicant's wife and Fong Mau-ching was her brother. The Applicant had lived at the flat referred to in count 2 with his wife for about four years before the alleged offences commenced. Police found forged currency there worth more than $1,000,000 at face value.

The defence case

5. The defence case was that if a factory for making forged currency was in existence, which was denied, this Applicant was not a party to it even if he might have known about some of the forgeries. This was in spite of the fact that some of the forged banknotes bore the Applicant's fingerprints and even though some of them were found in the briefcase alleged to be his.

6. As the judge rightly said when defining the central issue on count 1, the jury had to be satisfied that this Applicant was a knowing party to the manufacture or production of forged notes in the flat and, on counts 2 and 4, that he had control over the items referred to in the Particulars of those offences.

Trial of co-defendants in Applicant's absence

7. Obviously, it is readily apparent that the case against the Applicant was a formidable one. When the time came for his trial on 9th June 1993, the Applicant failed to appear.

8. The trial eventually proceeded against his two co-defendants. One of them, the Applicant's brother-in-law, pleaded guilty to two offences and the other, his wife, pleaded not guilty and was convicted on one count and acquitted on another. All of this was made known to the jury in the trial of the Applicant. Furthermore, after the Applicant had given evidence in his own defence, his wife and his brother-in-law were called on his behalf to state that he had no knowledge or part in any forgery operation at the flat shared by all of them at the time these allegations arose.

Grounds of appeal

9. It is against this background that Mr. Cheng, S.C. for the Applicant, has put before us four grounds of appeal having, at the outset, abandoned what was originally ground 3. The two most substantial grounds (1A and 1B) are concerned with what are submitted to have been fundamental misdirections regarding the approach to be taken by the jury on the issue of (A) lies told by the Applicant, and (B) the flight of the Applicant who absconded while on bail prior to his trial.

10. Whilst these two issues are fairly closely related, it is more convenient to deal with them separately in order to avoid confusion. The two remaining grounds (1 and 2) are related to ground 1B.

11. Dealing firstly with the direction given by the trial judge as to lies, ground 1A is in these terms:

"The judge erred in law in that he misdirected the jury on the issue of the Applicant's lies and by reason thereof he misdirected the jury on the burden of proof."

12. Mr. Cheng's arguments on this ground can be summarized as follows:

(1) Proof of guilt was by way of inference (or secondary fact) drawn from primary facts.

(2) Only when all primary facts had been established beyond reasonable doubt could the jury begin the process of drawing inferences from those primary facts.

(3) The judge effectively directed the jury that they could determine the issue of guilt, before determining the primary facts, when dealing with the approach the jury should take to the Applicant's lies. This impression was given because the jury was told, in terms, that they could use a lie to strengthen the inference of guilt but, before doing so, they would have to be satisfied the only reason the Applicant had lied was because he knew he was guilty of the particular offence.

(4) A primary fact which encompasses a consciousness of guilt either pre-judges the finding of secondary facts or takes matters so much out of their logical sequence that the jury is, in effect, misdirected as to the burden of proof.

'Lies' in general

13. It is only in very exceptional criminal trials where the jury will not at some stage have to concern themselves with deciding which witness or witnesses to believe in the course of their deliberations. Exceptions to the rule are usually where the outcome of the case is solely dependent upon what weight the jury attach to the conflicting evidence of genuine expert witnesses about facts which are essentially agreed. These cases apart, in the vast majority of trials where a criminal charge is disputed, there will usually be direct or implied allegations that witnesses have not spoken the truth or, more usually, the whole truth about the subject on which they have been called to testify.

14. As this is yet another case where criticism is being made of a judge's directions upon lies, we felt that it may be appropriate as well as helpful to go back to the fundamentals, where lies are concerned, before looking at some of the ways in which the appellate courts have approached this frequent topic of argument.

15. For present purposes, the relevant definition of a 'lie' in the New Shorter Oxford English Dictionary is "an intentional false statement; an untruth". Invariably, a jury is directed to the effect that it is their task to decide what evidence they accept and what evidence they reject. It is this process which will bring untruthful evidence, that a jury believes has been deliberately given to them, into sharp focus.

16. If it is a prosecution witness who has lied, the jury will obviously reject that evidence as being unworthy of belief and look elsewhere to see whether or not there is other evidence upon which reliance can be placed.

17. However, the position is not so straightforward when it is a defendant (and sometimes also a witness called on his behalf) who, in the opinion of the jury, has deliberately lied to them on some important aspect of the case. How should this affect their judgment of the case?

18. It is in an attempt to grapple with the answer to that question that the appellate courts have had much to say in modern times. They have recognised the potentially powerful impact that a material lie may have when it is given by or on behalf of a defendant after it has been exposed and laid bare for what it is. It is a natural reaction that it has been given from a consciousness of guilt to hide the truth in circumstances where, to have told the truth, would have been tantamount to admitting guilt.

19. It is this reaction, however reasonable it may appear, which the courts have anxiously attempted to moderate. Experience shows that people may lie for a multitude of 'innocent' reasons unconnected with guilt. Prime examples of this are found where, out of a misguided sense of loyalty persons accused of crime have attempted to cover up for others or have tried to strengthen what they perceive to be a weak, albeit genuine defence, by calling false evidence out of fear that their case may not stand up without additional support. In this last context, a jury is often left to ponder upon the evidence of alibi where much will depend on the outcome of their assessment.

20. Lies may obviously form an important part of the evidence in the mind of a jury. Unquestionably, a deliberate, material lie will form a part of the circumstantial evidence which goes towards making the whole of the picture that has been presented to the jury. However, unlike other forms of circumstantial evidence, no doubt as a safeguard against the incalculable uncertainty involved in placing sole or very substantial reliance upon the strength of a lie, the common law provides that lies cannot in themselves provide evidence of guilt. They require, in certain circumstances, careful and special handling precisely because of the danger that the jury may otherwise rely exclusively upon them as evidence of guilt.

21. In this last respect, lies are by no means unique in the sense that they form evidence requiring special treatment. For example, until the abolition of the statutory requirement for corroboration of accomplice evidence under the terms of section 60 of the Criminal Procedure Ordinance, Cap.221, this category of evidence (more often direct than circumstantial) required special directions to the jury. Identification forms another example of a category of evidence often requiring special treatment following the guidelines in R v Turnbull and others, (1976) 6 Cr.App.R. 132. Nevertheless, despite the obvious caution to be exercised over accomplice and identification evidence, the jury is permitted to convict without other evidence in support of its correctness.

22. A lie stands in a different category altogether. The evidence of a proved lie or an admitted lie that is material to the case has never in modern times been sufficient in itself to establish guilt. The courts have consistently maintained that the most in such circumstances that a lie can do, where the jury finds that no innocent explanation exists for the lie, is that it may lend support to the prosecution's case. This appears to be a longstanding rule which has developed out of an abundance of caution bearing in mind the very real dangers involved in convicting on the strength of a lie on its own.

23. In Wills' Principles of Circumstantial Evidence (Seventh, Combined English and Indian edition, 1936), the position is succinctly described at page 112 in this way:

"So natural and forcible is this rule of presumption, that the guilty are instinctively compelled to endeavour to evade its application, by giving some explanation or interpretation of adverse facts, consistent, if true, with innocence; but its force is commonly aggravated by the improbability, or absurdity even, of such explanations, or the inconsistency of them with admitted or incontrovertible facts. All such false, incredible, or contradictory statements, if disproved, or disbelieved, are not simply neutralized, but become of a substantive inculpatory effect. Even in such circumstances, however, guilt cannot be safely inferred, unless such a substratum of evidence, direct or circumstantial, has been laid as creates an independent prima facie case against the prisoner (Per Mr. Justice Littledale in Rex v. Clark, Warwick Summ. Ass. 1931)." (Emphasis added.)

24. In the commentary to this passage, the text helpfully sets out the following note:

"In criminal cases, as a rule, it is for the prosecution to prove their case and an accused person should not be convicted merely because he has told lies in his defence. In cases of circumstantial evidence, however, where facts are put forward on behalf of the prosecution which unless explained justify an inference of guilt being drawn against the accused it is both lawful and proper for the Court to consider the explanation of these facts which the accused puts forward in his defence."

25. In reality, the basic approach to lies, and their status as evidence, has not changed. However, it is apparent that in more recent times, the directions given to juries have taken on a more prominent role as the probable result of the extent of learned opinion emerging from the courts since the decision in Lucas (below) to which, together with other frequently cited cases, we shall shortly turn.

26. As a result, the whole topic of lies may have been made to seem unduly complex. Fundamentally, it has remained a simple and straightforward issue. In our opinion, perhaps the best way of looking upon lies is that while they may be indicative of guilt they can never alone be probative of it.

Leading decisions on 'lies'

27. Before coming to the way in which the judge directed the jury about the approach they should have towards lies, we consider it may be useful briefly to trace the general development of the law from a number of leading cases decided in the Court of Appeal here and in England on the subject of how lies told by a defendant should be treated by the jury.

28. There have been several important decisions in recent years which have focused upon the directions which should be given by judges in trials where some direction as to lies is appropriate. Although this court, in R v Chong Chak-on, (1995) 2 HKCLR 226 [and (1996) 1 HKC 152], undertook a similar review, that case may have still left unresolved the central point which has been raised in this appeal, namely, that for a judge to direct the jury that before a lie can support the prosecution's case they must be satisfied it was told from a consciousness of guilt. The complaint is that this might appear to the jury to be a direction that they can determine guilt before they have reached conclusions about the primary facts.

29. The origin of the standard direction normally given to a jury on this topic is to be found in R v Lucas, (1981) 1 QB 720 [and (1981) 73 Cr App R 159], which was a case where the prosecution (at a time when corroboration of accomplice evidence was required) had sought to use lies as corroboration of accomplice evidence. Quoting the well-known words of Lord Lane C.J. from Lucas (at p.724), when giving the judgment in Chong Chak-on (at p.232), Power Ag.C.J. cited the following passage:

"To be capable of amounting to corroboration the lie told out of court must first of all be deliberate. Secondly it must relate to a material issue. Thirdly the motive for the lie must be a realization of guilt and a fear of the truth. The jury should in appropriate cases be reminded that people sometimes lie, for example, in an attempt to bolster up a just cause, or out of shame or out of a wish to conceal disgraceful behaviour from their family. Fourthly the statement must be clearly shown to be a lie by evidence other than that of the accomplice who is to be corroborated, that is to say by admission or by evidence from an independent witness.

As a matter of good sense it is difficult to see why, subject to the same safeguards, lies proved to have been told in court by a defendant should not equally be capable of providing corroboration."

30. Power, Ag.C.J. continued, in delivering the judgment of this court, to say:

"Four requirements are there set out. The fourth requirement, proof by admission or by independent evidence, was necessary as the court was dealing with lies as corroboration and corroboration consists of facts established by evidence. We are satisfied that Lord Lane was not, when he postulated the four requirements, formulating a mantra to be chanted to a jury each time it is suggested that the lies told by a defendant might be used to support other evidence of guilt.

It is true that appellate courts have frequently used the expression "a Lucas direction" but we are satisfied that this term, properly understood, refers not to a set formula reciting the words used by Lord Lane in Lucas but to a direction given in accordance with the facts of the particular case adopting such requirements in Lucas as are applicable thereto."

31. However, whilst Lucas may have been the origin of the standard direction given on lies where such is called for, the importance of a careful direction as to the jury's approach to lies had much earlier been emphasized by Lord Devlin in Broadhurst v R, (1964) AC 441, which, again for ease of reference, is referred to in Chong Chak-on, at page 231:

"It is very important that the jury should be carefully directed upon the effect of a conclusion, if they reach it, that the accused is lying. There is a natural tendency for a jury to think that if an accused is lying, it must be because he is guilty, and accordingly to convict him without more ado. It is the duty of the judge to make it clear to them that this is not so. Save in one respect, a case in which an accused gives untruthful evidence is no different from one in which he gives no evidence at all. In either case the burden remains on the prosecution to prove the guilt of the accused. But if upon the proved facts two inferences may be drawn about the accused's conduct or state of mind, his untruthfulness is a factor which the jury can properly take into account as strengthening the inference of guilt. What strength it adds depends, of course, on all the circumstances and especially on whether there are reasons other than guilt that might account for untruthfulness."

32. Following this citation, Power Ag.C.J. went on to say:

"This makes it clear that a jury must be told that lies do not prove guilt, but that, depending upon the circumstances and, especially, upon whether there were reasons other than guilt which might account for them, lies could be taken into account as strengthening the inference of guilt. The jury must, of course, be directed in the light of the facts of the instant case and the directions are best couched in common sense terms which they can readily understand."

33. It is now well-established that there are certain categories of cases where a 'lies' direction is required. In R v Burge & Pegg, (1996) 1 Cr App R 163, guidance was given by the English Court of Appeal as to when a direction of some kind should be given. This judgment makes it abundantly plain that such a direction is not required in every case even if the jury might conclude that the defendant had told lies. At page 172E Kennedy L.J. said:

".... the direction on lies ... comes into play where the prosecution say, or the judge envisages that the jury may say, that the lie is evidence against the accused; in effect, using it as an implied admission of guilt .... quite distinct from the run of the mill case in which the defence case is contradicted by the evidence of prosecution witnesses in such a way as to make it necessary for the prosecution to say that insofar as the two sides are in conflict, the defendant's account is untrue and indeed deliberately and knowingly false."

34. The court went on to identify four main categories of case where it considered directions on lies to be appropriate having found a tendency, in common with what this court has also experienced for "one appeal after another to assert that there has been no direction, or an inadequate direction, as to lies". Kennedy L.J. went on, at page 173, to say:

"...it may be helpful if we conclude by summarising the circumstances in which, in our judgment, a Lucas direction is usually required. There are four such circumstances but they may overlap:

1. Where the defence relies on an alibi.

2. Where the judge considers it desirable or necessary to suggest that the jury should look for support or corroboration of one piece of evidence from other evidence in the case, and amongst that other evidence draws attention to lies told, or allegedly told, by the defendant.

3. Where the prosecution seek to show that something said, either in or out of the court, in relation to a separate and distinct issue was a lie, and to rely on that lie as evidence of guilt in relation to the charge which is sought to be proved.

4. Where although the prosecution have not adopted the approach to which we have just referred, the judge reasonably envisages that there is a real danger that the jury may do so.

If a Lucas direction is given where there is no need for such a direction (as in the normal case where there is a straight conflict of evidence), it will add complexity and do more harm than good. Therefore, in our judgment, a judge would be wise always, before speeches and summing-up in circumstance number four, and perhaps also in other circumstances, to consider with counsel whether, in the instant case, such a direction is in fact required, and, if so, how it should be formulated. If the matter is dealt with in that way, this court will be very slow to interfere with the exercise of the judge's discretion. Further, the judge should, of course, be assisted by counsel in identifying cases where a direction is called for. In particular, this court is unlikely to be persuaded, in cases allegedly falling under number four above, that there was a real danger that the jury would treat a particular lie as evidence of guilt if defence counsel at the trial has not alerted the judge to that danger and asked him to consider whether a direction should be given to meet it. The direction should, if given, so far as possible, be tailored to the circumstances of the case, but it will normally be sufficient if it makes the two basic points:

1. that the lie must be admitted or proved beyond reasonable doubt, and;

2. that the mere fact that the defendant lied is not in itself evidence of guilt since defendants may lie for innocent reasons, so only if the jury is sure that the defendant did not lie for an innocent reason can a lie support the prosecution case."

35. Another case of importance, which is referred to in the Applicant's list of authorities, is R v Ng Chi-wai & Another, Criminal Appeal 346 of 1996 (unreported). Mortimer J.A. pointed out at page 5 of the judgment that:

"The circumstances in which a proven and material lie can support the prosecution case are rare. As this Court has said on many previous occasions allegations of lying arise in almost every criminal case. Those allegations almost always relate to credibility and not proof of guilt. It is important to recognize that lying in a general way is not proof of guilt. Lying is relevant only to credibility. If there is the danger that the jury will be misled into thinking that lying goes to proof of guilt, the usual warning that accused persons may lie for reasons other than guilt and such lies do not prove guilt is necessary. Where there is a clear factual issue on guilt for the jury's consideration, a direction that a lie may support the prosecution case will hardly ever be appropriate.

The rare circumstances in which a direction that a lie may support the prosecution case may be appropriate are as follows:

(1) Where the accused relies upon an alibi;

(2) Where the judge concludes that it is necessary or desirable for the jury to look for support for some piece of evidence, and that support includes a material lie upon which the prosecution properly relies because it has been proved or admitted."

36. The court in Chong Chak-on (above) identified one even rarer category of case where a lie had been of the utmost materiality but where a direction to the jury that it may "strengthen other evidence going to guilt" was not in terms appropriate as the jury could properly be told that the lie destroyed the exculpatory evidence. This is worthy of mention in the present context, if only for the purposes of completion and, at page 235, Power Ag. C.J. said:

"... as was pointed out in Dehar (1969) N.Z.L.R. 763 at 765B:

'How far a direction is necessary will depend upon circumstances. There may be cases, as for instance, R. v. Dunster, an appeal (unreported) that came before this court in April 1967, where the rejection of the explanation given by the accused almost necessarily leaves the jury with no choice but to convict as a matter of logic.'

As Silke, V.-P. said in The Queen v. Man Bing Chou (Cr. App. No. 383 of 1990) (see (1993) 2 HKCLR 71), referring to lies of this kind (at p.78, lines 39-45 and p.79, lines 1-5):

'The judge directed the jury that the statement in which the applicant admitted starting the fire was an important part of the Crown case. If they rejected the innocent explanation - accident - then they were left with an admission that he had started the fire which without else was an admission of guilt. The lies, if established, removed the innocent explanation. They were not lies peripheral to the central issue. Lies in such circumstances do not prove guilt but, once the jury is satisfied that they are lies thereby removing an innocent explanation of the act which constituted the offence, a finding of guilt will almost certainly follow.

These were, as we have said, not lies as to peripheral matters, as were the lies in Tam Chung Shing. While it was wrong to say that they were evidence going to proof of guilt it would not have been wrong to have told the jury that if they were sure that the applicant had lied when giving the innocent explanation that he had accidentally started the fire then they were entitled, if they accepted his admission that he did start it, to be satisfied as to guilt.'"

37. In this kind of situation, in reality the jury is being asked by the prosecution simply to reject the exculpatory part of an explanation given by a defendant. Here, the lie does not go merely to credibility for if it is shown to be a lie, all that is left is an inculpatory statement of involvement.

Justified criticism of phrase "motive for the lie must be a realization of guilt and a fear of the truth"

38. The phrase used by Lord Lane in Lucas, that the "motive for the lie must be a realization of guilt and a fear of the truth", is at the very heart of what is criticized in this appeal.

39. Mr. Cheng has argued that it really cannot be right, or that at the least it is confusing, for a jury to be invited to conclude that a lie has been told from a 'consciousness of guilt'. This, he says, is because there is a danger the jury may conclude that the defendant is guilty on the strength of the lie before they have concluded what the primary facts are, on which the allegation is built. In other words, Mr. Cheng submits, if the lie is being used to support the prosecution's case, it is like putting the cart before the horse for the jury to decide that the defendant had been motivated by a realization of guilt before deciding the primary facts.

40. There is some force to this argument and we think that it is significant that when Lord Taylor C.J. gave the judgment in R v Goodway, (1994) 98 Cr App R 11, he omitted any reference to the lie being made from a "consciousness of guilt". What Lord Taylor said at page 15 of the judgment is again set out in Chong Chak-on (above) at page 234 line 9. Removing the emphasis which was applied to certain phrases by the Court of Appeal in that case, and replacing it with the emphasis which is relevant to the present case, the passage reads:

"It is well established that where lies told by the defendant are relied on by the Crown, or may be relied upon by the jury as corroboration, where that is required, or as support for identification evidence, the judge should give a direction along the lines indicated in Lucas. That is to the effect that the lie must be deliberate and must relate to a material issue. The jury must be satisfied that there is no innocent motive for the lie and should be reminded that people sometimes lie, for example, in an attempt to bolster up a just cause, or out of shame, or out of a wish to conceal disgraceful behaviour. In regard to corroboration, the lie must be established by evidence other than that of the witness who is to be corroborated."

41. There is only a fine distinction between the phraseology chosen by Lord Lane and that chosen by Lord Taylor. However, Lord Taylor's expression "no innocent motive for the lie" has the appearance of having been a conscious and deliberate departure from the way Lord Lane expressed the motive for the lie as being made from "a realization of guilt and a fear of the truth". We wonder, with great respect, whether Lord Lane intended his words literally to be conveyed to the jury because after this he immediately went on to say (as set out in the earlier citation from Lucas):

"The jury should in appropriate cases be reminded that people sometimes lie, for example, in an attempt to bolster up a just cause ....." (Emphasis added.)

42. In any event, when dealing with this passage in Chong Chak-on (above), Power Ag.C.J. said at page 235 that the use of the phrase "the motive of the lie must be a realization of guilt and a fear of the truth ... in terms, is, we are satisfied, as likely to confuse a jury as to assist it".

43. The possible confusion arises from the danger that the jury may fall into the trap of hearing that a lie can support the prosecution's case if it was told from a consciousness of guilt, and wrongly applying this in the jury-room later as a legitimate route by which to find the defendant guilty. Accordingly, in the context of directing the jury on their approach to lies, we consider that it is preferable that judges should adopt Lord Taylor's phrase "no innocent motive for the lie", or a suitably adapted phrase along the same lines to meet the circumstances of the case in hand, as one of the factors that must be established before the lie can be used as supporting the prosecution's case.

Conclusions to be drawn on approach to lies

44. We have taken time in which to consider the various cases referred to in this judgment in some depth. We have also taken the opportunity to consult with a number of other members of the Court of Appeal in order to seek a broad platform of approval for what is set out in this judgment as to when a 'lies' direction should be given and as to an appropriate formula to be used when it is given. We have reached the following conclusions:

(1) In a large number of cases, where an allegation has simply been made against the defendant that he has been lying, this subject can be dealt with by the judge directing the jury in terms that this is an issue which relates solely to credibility, that is, that it is for the jury to decide whose evidence they believe. In such circumstances, no more needs to be said. [See: R v Ng Chi-wai (above)]

(2) Where there is a danger that the jury may believe that lying goes to proof of guilt, usually because the prosecutor has alleged that the defendant has lied and has addressed the jury upon the basis that the lie is supportive of the prosecution's case, a twofold warning should be given to the effect that:

(a) lies can never prove guilt in themselves; and

(b) that persons may lie for reasons other than guilt.

This last direction will need to be accompanied by the possible 'innocent' reasons that are usually given as examples in a standard direction as to why a person facing an allegation of crime might lie. [See: Burge and Pegg (above)].

(3) If, following discussion with counsel before the summing up and keeping in mind the guidance in Burge and Pegg (above) and Ng Chi-wai (above), it appears to the judge to be necessary for the jury to be directed in full upon lies, the judge will need to give a direction along the general lines we now propose. This will need to be adapted to the particular circumstances of each individual case, but it should be remembered that this is not a complex issue and the directions should be kept as simple as possible. We suggest the following formula which closely follows the Specimen Direction prepared by the English Judicial Studies Board:

"It is alleged (admitted) that the defendant lied to the police (or X) in saying (that ....) and you are entitled to consider whether this supports the case brought against him by the prosecution. In this regard you should consider two questions:

1. You must decide whether the defendant did in fact tell (these) lies. If you are not sure he did, ignore the matter altogether. If you are sure, then next consider:

2. Why did the defendant lie? The mere fact that a defendant tells a lie is not in itself evidence of guilt. A defendant may lie for many reasons, and they may possibly be 'innocent' ones in the sense that they do not give any indication of guilt, for example lies to bolster a true defence, to protect somebody else, to conceal some disgraceful conduct (other than) (short of) the commission of the offence, or out of panic or confusion.

If you think that there is, or may be, an innocent explanation for his lies then you should take no notice of them. It is only if you are sure that he did not lie for an 'innocent' reason that his lies can be regarded by you as evidence which supports the prosecution's case." (Emphasis supplied.)

45. We emphasize again what Mortimer J.A. said in Ng Chi-wai. The circumstances in which a direction that a lie may support the prosecution's case will be rare but may be appropriate where (1) a defendant has relied upon an alibi and (2) the judge concludes that it is necessary or desirable for the jury to look for support for some piece of evidence, and that support includes a material lie upon which the prosecution properly relies because it has been proved or admitted.

46. Lastly on this topic, if the lie is being used as corroborative evidence in the strict sense (e.g. in a trial of a sexual offence) it must, of course, be evidence that comes from a source which is independent of the evidence it is being used to corroborate.

Trial Judge's directions to the jury

47. In the light of these conclusions, we can now turn to the "lies" direction given by Stock J. at page 17 in the summing up, he directed the jury as follows:

"I wish now to say something to you about the question of lies. I am not, in saying this, suggesting to you that you should find that the defendant has, in fact, lied to you. But it is, of course, the prosecution contention that in his evidence before you, the defendant has lied. In particular, they suggest that he has lied to you about how he came to have his finger and palm prints on various forged bank notes, and that he has lied to you, for example, when he denies that the briefcase was his.

I want to say something to you about how you should approach the question of lies, should you find that the defendant has lied to you. Should you find that the defendant has lied, do not convict him simply because you find he has told you lies. And I say that for this reason. People sometimes lie for reasons other than that they are guilty. Sometimes they lie to bolster or embellish a true defence. Sometimes they lie because they think that the real story, even a story in their favour, does not sound compelling or is unlikely to be believed, so they think they had better make up a better story, or a less complex story. Sometimes people lie because they are protecting somebody else, or because they fear somebody, or because they can't properly recall what has happened and they think they have to make something up, or out of panic, or because it is easier to deny that something was said or done than to attempt an explanation of why something was said or done - all sorts of reasons of that kind.

So if you do find that the defendant has lied and that the lie or lies has been for the kind of reason which I have suggested, then pay no attention to the lie or lies. What you should then do is just disregard the evidence which you find untruthful, put it to one side, and concentrate on the remainder or the evidence. Concentrate on that evidence which the prosecution has satisfied you is true, and on that part of the defence evidence or the defence case which you think is true of may be true.

A lie can never, in itself, prove a defendant's guilt. It is not, in itself, evidence of guilt. What it can sometimes do is to strengthen the inference of guilt when taken together with all the other evidence which drives to a single inference. But you can only ever use a lie to strengthen the prosecution case if you are sure that the statement is a lie, and only then if it satisfies a number of conditions. First of all, it must be a relevant or material lie. So if somebody comes before you and tells a lie about his age, well, that's not very relevant, is it? And you must be satisfied - you would have to be satisfied it was a deliberate lie, as opposed to an accidental one. And, thirdly, before you could use a lie to strengthen the inference of guilt, you would have to be satisfied the only reason the person lied was because he knew he was guilty of the particular offence. In other words, that there was no possibility of the lie being told for one of the innocent or understandable reasons which I have itemized, or reasons of that kind." (Emphasis added.)

48. We have little doubt that a full 'lies' direction was justified in the context of the present case. It should be said, however, that even if a full lies direction is not strictly necessary, a suitably adapted full direction, where lies have been made an issue by the prosecution, will not support a valid ground of complaint. In R v Sharp, (1993) 3 All ER 225, which was not referred to in argument, it was said in the course of the judgment delivered by Stuart-Smith L.J. at page 230 that:

"Save in these cases where lies are relied upon as corroboration ...... or as confirmation of identification evidence ....., it is not as a matter of law incumbent upon a judge to give a direction as to the significance of lies told by the accused. Such a direction is however now commonly given ....."

49. In the matter presently before us, whilst the judge can in no sense be criticized for effectively having followed the phraseology in Lord Lane's formula taken from Lucas, we regard the judge's direction to the jury "you would have to be satisfied the only reason the person lied was because he knew he was guilty of the particular offence" to have been in language more likely to confuse than if Lord Taylor's more moderate phrase "no innocent motive for the lie" had been used. However, immediately after the direction chosen by the trial judge appear the words:

"In other words, that there was no possibility of the lie being told for one of the innocent or understandable reasons which I have itemised, or reasons of that kind."

50. The thrust of Mr. Cheng's argument is that, as this case depended upon proof of guilt based upon inferences drawn from primary facts which themselves had to be established beyond reasonable doubt, the judge was allowing the jury to consider lies out of their logical sequence. This, it is submitted, means that there was a danger, when the jury looked to see which primary facts, if any, had been established, to the required criminal standard, they might have carried out their task having prejudged the Applicant as having lied out of a consciousness of guilt.

51. Mr. Saw, S.C. for the Respondent, argued with great persuasion that Stock J.'s direction was not only correct but was supported by long-established authority.

52. We are satisfied that the judge's directions on lies were, when the whole passage is read, meticulously fair and, subject to the qualification we have already made, in accordance with the law as it stands. The jury had been carefully instructed as to the burden and standard of proof. Following this, and with extreme care, the jury were directed as to the finding of primary facts from which inferences might be drawn. Both these directions were given before the judge turned his attention to lies. In particular, the judge had, in terms, instructed the jury when dealing with lies that the Applicant could not be convicted simply because he had told lies and that a lie could never itself prove guilt.

53. The law in this regard is well settled but, for the avoidance of any confusion on the part of a jury as to the evidential status of lies, we would commend in future that the guidelines suggested earlier in this judgment are followed.

54. This ground of appeal must fail.

Evidence of 'flight'

55. Similar points to those in ground 1A are made by Mr. Cheng Huan in ground 1B, where it is submitted that the judge erred in his directions to the jury when dealing with the fact that the Applicant had absconded for a number of years before giving himself up to the authorities long after his trial was due to have commenced.

56. The Applicant gave evidence at his trial to the effect that about 2 years after his arrest he absconded. He said he had made clear to the police that he was not involved in the case but everyday he had been required to report to the police. This had the result that he could not conduct his business and he spent all his savings. He had hoped for a long time that the charges would be dropped against him and, when he discovered that they would not be, he became scared that if he turned up in court he would be detained.

57. In R v Chan Kwok-keung and Another, (1990) 1 HKLR 359, where the evidence of flight and concealment was used as potential corroboration of accomplice evidence, the Privy Council, in the opinion delivered by Lord Ackner, said at page 363:

"In order for flight to be capable of amounting to an admission of guilt there must be some evidence which establishes a nexus between the conduct of the accused, his flight or concealment and the offence in question. In this case the prosecution produced no evidence to establish that either of the appellants had been hiding away or otherwise behaving in an unusual manner in this period of nearly ten months. There was therefore no material which could have justified the jury inferring that the only reasonable explanation for the appellants stowing away on the ship from Hong Kong to Macau was that they were on the run, because they knew they might be arrested and charged with this murder. There could have been a variety of other reasons for their having stowed away nearly ten months after the murder."

58. In the present case, there was a clear nexus between the offences with which the Applicant was charged and his flight to the mainland.

59. The Applicant had given, as his explanation for having fled, his fear that he might be wrongfully convicted. On any view, legally or logically, the evidence of flight could not in itself provide any basis to show that he was guilty. That had to be established by other means but clearly the jury required direction on their approach to this aspect of the case.

60. We are of the opinion that while the evidence was plainly admissible, it was nevertheless of limited value. It was certainly evidence that was consistent with guilt but was not immediately capable of amounting to an admission of guilt. It might have been otherwise if the Applicant had given, as his reason for going to the mainland, a story that could be disproved. If, for example, he had said in evidence that he stayed with a sick relative on the mainland who it could be proved had been living in Hong Kong throughout the material time, this could then be more obviously demonstrated to be evidence supportive of the prosecution's case.

Trial Judge's directions on 'flight'

61. The directions which the jury were given are to be found at page 19F in the summing up:

"In relation to his absconding - not turning up - I say to you much the same as I have just told you about lies. There are many possible motives, are there not, for human conduct? People might flee because they suddenly panic, or because they fear that, even though they are innocent, things just look very bad for them and they can't bear the thought of imprisonment. Or, people might flee because they just can't face things as they are; they can't see a trial through; pressures have become too much; for the waiting for a trial can, I am sure you will appreciate, bear enormous pressure on people day after day. Or, of course, it may be that some people flee because there is, in fact, a consciousness of guilt.

If that sort of innocent reason that I have referred to is the reason which may have prevailed in this case, then just put aside this fact that this defendant absconded. Just ignore it when you are coming to consider whether he is guilty of these matters and concentrate on the rest of the evidence that you find proved. And, as with lies, the mere fact that somebody has absconded cannot, on its own, prove his guilt. It can, if you exclude all the innocent motives to which I have referred, it can be part of the list of primary facts from which inferences may, together with all the other inferences, be drawn, but only if you are sure that the only reason he was fleeing was because he was conscious of his guilt of the offence you are considering...." (Emphasis added.)

62. Clearly, the judge had to give some direction to the jury as to how to approach this evidence of flight on the part of the Applicant. We have no hesitation in finding that the direction given to the jury was, in terms of its overall effect, not open to serious criticism if set into the full context of what was said.

63. For the same reasons that we have given in regard to lies, in our opinion the directions relating to fleeing from a consciousness of guilt were potentially misleading. That being said, these misdirections are preceded by a warning that people may flee for a variety of reasons even though they are innocent of the charges they face. Specifically, following the first reference to a consciousness of guilt, the judge went on to say that the mere fact that somebody had absconded could not, on its own, prove his guilt and he invited the jury to put aside the fact of the Applicant having absconded altogether if he did so for "innocent motives".

64. The judge in our opinion, despite the qualification we have made, had dealt with the topic with the utmost fairness, indicating in the clearest terms that evidence of flight could only be used inferentially against the Applicant if he had no innocent explanation for fleeing. As a matter of plain logic and common sense that must be so and, later in the summing up, the judge reminded the jury about what the Applicant had said in evidence by way of innocent explanation for absconding.

65. We emphasise, as we have also done in relation to lies, that the expression that a person may be motivated by a "consciousness of guilt" is more likely to confuse than to assist. In the light of this, we strongly recommend, that, where it is necessary and appropriate to direct upon 'flight' because the prosecution has attached proper significance to it, that, the jury is told this may be supportive of the prosecution's case if it has been proved that no innocent reason existed to run away. In some respects, stated in this way, the direction is doing no more than stating the obvious.

66. Again, this ground of appeal must fail.

Remaining grounds of appeal

67. Grounds 1 and 2, which can be read together, are that the judge erred in law in that he wrongly questioned Fong Mau-ching (DW2), one of the alleged accomplices who was called on the Applicant's behalf, as to why it took so long for him to plead guilty. It is submitted that DW2's motives for absconding, and evidence about DW2's consciousness of guilt when he did so, were irrelevant as the jury were not considering DW2's, but the Applicant's, reasons for absconding. Accordingly, it is argued that the trial judge failed to direct the jury that the evidence given by DW2 on these points was entirely irrelevant.

68. The passage of which complaint is made is at page 204D, which reads:

"Court: You pleaded guilty to certain offences of possession of forged notes and implements and you did so in 1995 and you were arrested in 1991. Can you tell me - can you help us as to why it took so long for that to occur? In other words, why were you not tried before that?

A: The trial was to begin in April'93, yet I did not appear in court because, first of all, I was afraid that I might be locked up behind bars; secondly, I took some advice of my friends, the advice was that I should hide away, so I did, for one or two years and then I took some other friend's advice, which was, well, if one has done the wrong, one has to take the blame. So one day I surrendered. I gave in. I had a very hard and difficult life during that period of hiding."

69. It is quite obvious that the judge was seeking clarification as to why DW2's trial had taken so long to be heard. The answer from the witness was fuller than it needed to be. Whilst we agree that the judge could have directed the jury that DW2's motivation for lying low so long was comparatively unimportant, there was no reason why the jury should not have heard this evidence. In our opinion, there was no requirement upon the judge to give a direction that this evidence was irrelevant. Such was the care taken in the summing up that the jury could have been in no doubt that it was the state of mind of the Applicant, and not that of DW2, which they had to concentrate upon.

70. These grounds must also fail.

71. Leave to appeal is refused so far as conviction is concerned and the application is dismissed.

Representation:

Mr. D.G. Saw, S.C., S.A.D.P.P., and Miss Vivian Chan, G.C. for D.P.P./Respondent

Mr. Cheng Huan, S.C. and Mr. Christopher Grounds instructed by Messrs. M.F. Ko & Co. for Applicant.