Cho Chak-bor and Others v. The Queen

CACC000761/1982

Headnote

Relevant pages of decision: p.10 et seq.

Dangerous Drugs - Conspiracy to manufacture and possession charges - Defendants at trial gave explanations of innocent presence at premises where the drugs were found - Comment by Judge on failure to give explanations at an earlier stage. R. v. Gilbert [1978] 66 Cr. App. Rep. shows how narrow is the permissible limit of such comment - Advice of Court of Appeal in R. v. Tune [1942-3] 29 Cr. App. Rep. 162 recommended (p.21).

BETWEEN

Coram: Hon McMullin, V.-P., Silke, J.A. and Penlington, J.

Date: 24th March 1983.

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JUDGMENT

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McMullin, V.-P. :

1. The applicants Cho Chak-bor, Chui Po, Mak Kam-tong, Chui Kat-cheung - at trial the first, second, third and fourth defendants respectively were tried in the High Court with four other men upon an indictment containing three counts. In the first count they were all charged with conspiracy to manufacture a dangerous drug contrary to common law, and s.6(1) and s.39 of the Dangerous Drugs Ordinance.

2. The 1st defendant, Cho Chak-bor, was additionally charged in the second count with possession of the dangerous drug referred to in the first court.

3. The 2nd defendant, Chui Po, was charged in the third count with possession of a quantity of salts of morphine found upon his person at the time of his arrest.

4. We are, however, concerned only with the first count. It is common ground that if the conspiracy remains unproved against the 1st defendant, the 2nd charge must go. The 2nd defendant has not appealed against his conviction on the 3rd charge.

5. The circumstances out of which these charges arose commenced with a police raid upon premises known as the Four Seas Rubber Manufactory situated on the 11th floor of the Superluck Building, Tsuen Wan.

6. On 26th November 1981 a police party, including a number of senior police officers, ascended in the lift of the Superluck Building to the 11th floor at about mid-night. When the lift doors opened, Cho Chak-bor, Chui Po and Mak Kam-tong - the 1st, 2nd and 3rd defendants - were seen standing in the lift lobby apparently waiting for the lift. The entrance to the Four Seas Rubber Manufactory opens off that lift lobby.

7. It was common ground that the let defendant, Cho, was the tenant of the Four Seas Rubber premises. He was a partner in the business, and, it would appear, was managing partner.

8. What happened when the lift doors opened becomes of importance in relation to legal submissions made in the course of the appeal.

9. Upon seeing the three defendants, one of the police officers, Inspector Jorge, asked the men what they were doing there but got no reply. A police sergeant in the party then made a similar enquiry. This time one of the three men said that they were going for a midnight snack. The sergeant could not remember which one had spoken but in giving evidence at the trial, the 2nd defendant admitted that it was he who had said those words.

10. The three defendants were detained at once and told to squat down in the lobby which they did. The police party then tried to gain entrance to the factory by knocking on the front door. This produced no result but one of their number told the court that he could see through cracks in the door and that he saw two men hurrying busily to and fro within the factory premises carrying something in their hands. These were later identified as the 6th defendant, Cho Chak-sum and the 8th defendant Cheung Nam-po.

11. The police then broke into the premises and conducted a search. The 6th and 8th defendants and the 7th defendant, Tsang Chin-wing, were found in an area which has been referred to throughout as the machine room. Chui Kat-cheung, the 5th defendant, was found in an area partitioned off from the rest of the factory premises and appropriated to managerial use. It consists of an outer and an inner portion, the inner portion being referred to as the manager's office. The 5th defendant was found in the manager's office, lying upon a row of chairs covered with coverlet of some description, apparently asleep. He was fully clothed.

12. The 4th defendant was found lying upon a mattress together with his small daughter aged 8 years, in the part of the factory premises immediately inside the main door which has been referred to as the long hall. There was some discrepancy in the evidence of the police officers as to whether the 4th defendant, when first observed, was sitting up holding his knees, or whether he was lying. down and apparently asleep.

13. In the machine room, the police discovered a large quantity of paraphernalia of the kind customarily associated with the manufacture of heroin. The apparatus had. been recently used and a quantity of a substance suspected to be heroin was discovered in the toilet where the 6th and 8th defendants at the time of the police arrival had been endeavouring to dispose of it. It is undisputed that the process of manufacture had been going on prior to the police arrival but the Government chemist's evidence showed that the substance produced was not heroin (i.e. salts of esters of morphine) but salts of morphine. It was established that there was wanting from the chemicals being used at the time one vital element - acetic anhydride - without which the endeavour to produce the marketable product had been from the outset abortive. The evidence was clear however that, apart from that, all the other equipment and chemicals found were of a kind fit and intended to be used for the purpose of producing heroin.

14. The police investigation continued in the usual way. It appears that all the defendants including the 1st, 2nd and 3rd defendants were cautioned at some point shortly after their arrest. Nail and hair clippings were taken from each of them and their hands and feet were immediately protected by plastic covers and subsequently swabs were taken for the purpose of determining whether there were traces of any drugs upon them.

15. The 2nd defendant had been searched immediately after his arrest and was found to be in possession of a small cardboard package within which, in a sealed plastic bag wrapped in toilet paper, was found the dangerous drug described in the third count, viz., 20.72 grammes of a mixture containing 15.90 grammes of morphine base (salts of morphine).

16. The police investigation at the premises lasted for several hours and after that all 8 defendants were taken, hand-cuffed, to the Narcotics Bureau.

17. From the outset Cho Chak-sum (the 6th defendant) and Cheung Nam-po (the 8th defendant) admitted that they had been manufacturing dangerous drugs on the Four Seas premises. They were cautioned and charged at the Narcotics Bureau and made statements to that effect.

18. At the trial, the 6th and 8th defendants pleaded guilty to the conspiracy charge. The 6th defendant gave evidence specifically on behalf of his brother, the lst defendant, and the 8th defendant on behalf of the 7th defendant. The evidence of both, however, redounded to the benefit of all the other defendants inasmuch as the 6th and 8th claimed to have been solely responsible for what was going on in the premises that night.

19. The remaining defendants all denied being parties to any conspiracy. The 4th and 7th defendants were acquitted and the rest were convicted upon the conspiracy charge. The 1st, 2nd and 3rd defendants are the 1st, 2nd and 3rd applicants in this court and the 5th defendant becomes the 4th applicant.

20. After they were taken to Narcotics Bureau, clothing of the defendants was seized and later subjected to tests by the Government chemist. The case for the Crown against each defendant rested upon: a) the proven fact that dangerous drugs were being manufactured on the premises on the night of the 26th; b) the suspicious propinquity of each defendant to the scene of that operation; and c) the findings of the Government chemist following upon his examination of the paraphernalia seized at the factory and of the hair and nail clippings, the swabs and the clothing taken from the defendants. Some of these findings were negative. In addition, of course, the Crown had the advantage of the presumption created by s.52 of the Ordinance in respect of those persons who were actually found within the factory.

21. The evidence which was of crucial importance to the case was that of the Government chemist whose findings have not been disputed. These were as follows:

22. The hands, feet and slippers of the 6th and 8th defendants were contaminated with heroin base (salt of morphine) and in addition the 6th defendant's nail clippings were similarly contaminated.

23. There were traces of salts of esters of morphine (heroin) on the T-shirt and jeans of the 6th defendant and upon the shirt of the 8th defendant. The shoes of the 1st defendant were contaminated with heroin base and there were traces of heroin (salts of esters of morphine) on his shirt. The 2nd defendant's hands, jacket and trousers were contaminated with heroin base. The 3rd defendant's T-shirt bore traces of salts of esters of morphine (heroin). The 5th defendant's woollen pullover was contaminated by traces of salts of esters of morphine (heroin) and the 7th defendant's shoes and jacket showed traces of heroin base ( salts of morphine). Only the 4th defendant was found to be wholly free from any traces of these drugs. Traces of heroin were found on many of the utensils among the paraphernalia seized by the police which pointed to their having been used prior to this for the purpose of manufacturing heroin.

24. The jury were carefully instructed on the meaning of the formal differences affecting the prosecution's proof of its case against those within the factory premises as distinct from those who were arrested in the lobby. All of the defendants gave. evidence at the trial. It may be said that their stories were, broadly speaking, mutually consistent.

25. The 1st defendant told the court that he did not regularly visit the factory premises but that his brother, the 6th defendant, was the foreman in charge of that operation. It is not disputed that there was a legitimate rubber manufacturing business being conducted on the 11th floor of the Superluck Building. The 4th and 5th defendants were his employees.

26. The 1st defendant said that on the 26th November he had got in touch with the 3rd defendant and suggested that they get together for a session of gambling. The 3rd defendant was apparently unable to comply but suggested in his turn that they would meet later at night for a late night snack and this was agreed.

27. At this time the 1st defendant was in arrears with the instalments upon his hire-purchase motor car. He had been dunned by the hire-purchase company and given the 27th as a deadline for paying the arrears. He had the money with him on the 26th after he had spoken to the 3rd defendant but went alone to a mahjong school where he lost some of that money gambling. At that school he met the 2nd defendant who had formerly been an employee of his in another mahjong school. The 2nd defendant also suggested a late night meal when the gambling was finished.

28. They went together to Mongkok where they picked up the 3rd defendant and all three went to the Manor Restaurant the time being about 11:30 p.m. However, the first defendant did not find certain friends whom he expected to be there and he decided to go to the Four Seas Factory in order to get his cheque book for the purpose of paying the hire purchase arrears.

29. Together, he and the 2nd and 3rd defendants went to Tsuen Wan and went up the lift to the rubber factory where the lst defendant knocked upon the door without any response, although he had expected the 4th and 5th defendants to be within. He then decided to go doom stairs, where he would find a telephone in order to phone up the office so that the door would be opened. At this point the police arrived in the lift.

30. The testimony of the 2nd and 3rd defendants was to the same general effect.

31. The 2nd defendant, however, had been found in possession of a quantity of morphine base and he explained this by saying that he had been an addict since 1980. He had this quantity of 20.72 grammes of the mixture in his possession for his own consumption. He had purchased it earlier the same day for about $450 and it was intended to last him for about 12 days. He had not realized that it was morphine base (i.e. the same substance as that detected within the factory) and had not checked the contents of the polythene bag in which the drug had been contained when it was sold to him. There vas evidence that it would be unusual to consume morphine base which is the purer substance which is normally transformed into saleable heroin for consumption and sold to addicts.

32. The 4th defendant told the court that he had been an employee of the Four Seas Rubber Manufactory since 1979. He had separated from his wife and he and his eight-year old daughter were living on the factory premises. He used to collect her from school at about 5:30 p.m. in the evening. they would then buy food and go back to the factory where he would cook in the general office for himself and the child and also for the 5th defendant. He said that he and the 5th defendant - and presumably the child - were having an evening meal sometime after 7 p.m. when he saw the 6th and 8th defendants come into the general office each of them carrying a cardboard carton which they left inside the door. After supper he washed the dishes and he was told by one of them to go to bed early that night. He watched television until about 8:35 p.m. and then he went to the toilet and immediately after that he went to bed and slept. He said that he never saw the contents of the cartons or any of the other equipment discovered by the police. He also said that the 6th and 8th defendants had watched television with him. He did not hear the police knocking but after the entry he was wakened and told to remain where he was, lying upon his mattress.

33. The 5th defendant said that he had come to Hong Kong illegally about six months before the police raid. He had acquired a bogus identity card and had taken work with the Four Seas factory. He too lived on the premises. His account of the events of the evening of the 26th November was very similar to that given by the 4th defendant. He usually slept upon a folding bed in the outer part of the management area of the factory outside the manager's office. On this night however, although he had previously been forbidden to use the manager's office, he was told by the 6th defendant to sleep there and that was why he had forsaken his usual sleeping place. He explained the fact that he had gone to sleep fully dressed by saying that he was very tired and he wanted to save time in getting dressed in the morning.

34. The 7th defendant claimed to share with the 8th defendant, a long-time friend, a passion for motor cycling. He was due to take his test on the 9th October but was in need of the money to pay for it. For that reason, upon the 25th November, he got in touch With the 8th defendant and asked for $300 by way of loan. Between then and the evening of the following day there took place a series of somewhat complicated arrangements between the two men involving the suggestion that the 7th defendant could take the 8th defendant's wrist watch Which he could pawn and which, together with $100 which the 8th defendant proposed to give him, would cover the necessary fee. At about 10:30 p.m. that night, the 7th defendant phoned the 8th defendant at the factory from Tsuen Wan. They met at a pre-arranged place in Tsuen Wan and then a further suggestion was made by the 8th defendant who said that he expected to get some money later that evening and so would be able to give the $300 to the 7th defendant.

35. The latter was unwilling to hang around waiting in Tsuen wan for the 8th defendant to finish his work and so he accompanied him back to the factory. He was led into the outer office by the 8th defendant who left the office but returned shortly afterwards to say that the other person - presumably the 6th defendant was annoyed with him for bringing the 7th defendant into the premises. The 7th defendant was therefore instructed to remain in the outer office until the 8th defendant had finished his work. The 7th defendant did as he was told.

36. Sometime later he heard someone knocking at the main door and then, after an interim of about 5 minutes another series of knocks. This time the knocking was accompanied by shouts of "Police, open up!". He hurried to the machine room where he saw the 6th and 8th defendants at the toilet where there were lumps of white powder lying on the floor which the two defendants were clearly trying to flush down the toilet bowl. He told them about the police. He Bias warned to get out. Before he could do anything further, the police had got in and he was stopped inside the machine room. He was, as already noted, acquitted.

37. It would seem that the clinching evidence which persuaded the jury to convict the lst, 2nd, 3rd and 5th defendants was the discovery of the traces of the drugs which have been described earlier. Of them all, only the 4th defendant was wholly without such traces- a factor which no doubt accounts for his being acquitted. It would appear that the jury must have accepted in substance the story given by the 7th defendant whose shoes and jacket were contaminated only with salts of morphine. No doubt the jury adopted the suggestion of the Judge that they might think it possible that that contamination could have occurred when the 7th defendant made his incursion into the machine room and went close to where the two other defendants were endeavouring to dispose of salts of morphine down the toilet bowl.

38. None of the other defendants could explain the existence of trace elements upon clothing, hands or shoes.

39. The first of the two main grounds of appeal is concerned with what is described as the tenuous nature of the evidence upon which these convictions were founded.  We did not call upon Counsel for the Crown to reply upon that ground. The nature, extent, and possible significance of that evidence was explored very fully by the Judge in an extremely lengthy address and the jury cannot have been left in any doubt as to what the precise nature of it was as it touched the case of each of the defendants.

40. In the course of that address, the possibilities put forward by the defence of chance contamination were once more drawn to the attention of the jury. The suggestion had been that the lst, 2nd and 3rd, as well as the 5th defendants might have come by the traces of drugs found upon them through air borne particles whether in the lobby or in the factory, or else by contact with the 6th, 7th and 8th defendants after arrest.

41. The Crown's position was that air-borne contamination in the lobby was extremely unlikely and was not much more likely in the factory itself where the 4th defendant had been together with the 5th defendant for a considerable part of the evening and yet was wholly uncontaminated Further, the prosecution contended that the presence of traces of salts of esters of morphine on the lst and 3rd defendants' upper garments - corresponding with such traces found upon the upper garments of the 6th and 8th defendants was strong indication that that contamination had come about through contact with items of the equipment which had themselves been found to be so contaminated.

42. All of this evidence was plainly put before the jury and its possibilities fully explored. On its own, this objection is quite insufficient to support the lurking doubt which the final ground of appeal invokes.

43. A separate point was taken in regard to the 5th defendant. The judge did not advise the jury that in considering whether the presumptions under Section 52 had been rebutted they should consider all the evidence and not merely that given by the defendant himself. There may be cases when such non-direction would ground a serious objection. That was not so in the present case for there was nothing in the Crown's own case which could fairly be said to have afforded support to the defendant's story.

44. Nothing more need to be said in relation to the case of the 5th defendant.

45. The only ground which has occasioned concern relates to the case against the 1st , 2nd and 3rd defendants. It is contended that the judge commented adversely on the failure of the defendants to disclose their respective defences to the police and that he erred in doing so.

46. This is a troubled area of the law. Before turning to consider the relevant passages in the summing-up, it should be noted, firstly, that all three defendants did say something in answer to police enquiries after they had been detected in the lobby; secondly, that the 1st and 3rd defendants did so at the police station after caution; thirdly, that only the 2nd defendant's response to the sergeant's enquiry: "We were going for a midnight snack was said before caution; and fourthly, that none of them, prior to trial, explained his presence in the lift lobby on the night of the 26th November in the manner in which that was explained when he came to give evidence. The only statements of which we are aware were in fact extremely brief. There was the 2nd defendant's reference to the midnight snack - the only words spoken by any of them in the lobby. After caution, the lst defendant said merely that he was intending to go down in the lift. (There was some question as to whether he had said that he was getting out of the lift when later questioned after caution by the police but in giving evidence he said that what he had intended to say to the police was that he was getting into the lift and at this stage it appears to be accepted by the Crown that that was the nature of the only explanation that he gave.) After formal charge, the 3rd defendant said: "That night I was at the lift lobby to wait for the lift. I did riot have any dangerous drugs nor dangerous drugs manufacturing equipment."

47. Each of the defendants was challenged in cross-examination on his failure to give to the police, when asked the explanation for his presence in the lobby, the explanation which was ultimately tendered to the court.

48. In dealing with this part of the case the Judge said:

"It is quite clear that none told the police that they had made a fruitless visit to the factory for the purpose of collecting a cheque and that they had been unable to gain entry into the factory. The defendants say that they were given no opportunity to speak but were told to remain silent. It is a question of fact for you whether you think that, even accepting that they were not allowed to speak at that time, they could have told the police that story later when they were interviewed by a police officer."

49. It is conceded that that must have been a reference to interview after caution. Then having dealt in some detail with what was discovered by the police upon entering into the factory premises,, he turned to the self exculpatory statements of the 6th and 8th defendants. Then he read out the brief statement of the 3rd defendant which had been written down and was produced in evidence and he said:

"It is just a straight-forward bare denial. You see on all these occasions these persons could have said whatever they wanted. They were not on this occasion told to keep quiet."

The words "this occasion" refers to the time when all the defendants were interviewed and cautioned and charged at the police station.

50. Later the Judge considered the defence of each of the defendants separately and in relation to the 1st defendant and his failure to give an explanation to the police he said the following things:

"He agreed, as you have seen, that he never told the police one single word about the reason for going to his factory that night."

51. And shortly after that, he said:

"Well, in respect of the lst defendant, members of the jury, you may wonder why he did not tell the police he had been playing mahjong elsewhere earlier that night and that he had gone to the premises in order to collect his cheque. I am sure, had he told them that, enquiries would have been made into his story. Instead, he told them that he had just come from the lift... He never told the police that he tried to get in and failed, and it is for you to decide upon that story whether you are satisfied beyond reasonable doubt that the prosecution has proved the guilt of the 1st defendant.''

52. Turning to the case of the 2nd defendant he said:

53. Lastly, he said, in relation to the 3rd defendant:

"When asked why he had not told the police his story, he said he too was stopped from talking. Then he was asked, 'If you had been given an opportunity to talk, would you have said it?' and he said something in these words, 'Well, it all depends the way the questions would have gone.'"

54. Mr. Niamatullah asks us to say that each of these directions invites the jury to form an adverse opinion of the failure of the defendants to disclose to the police the explanation for their presence outside the factory which they later put before the court. He says that even taken singly, but more especially in their cumulative effect, they amount to grave misdirection which must have strongly influenced the jury in convicting the defendants.

55. Before considering the cases to which counsel have referred us, it is necessary to dispose of two contentions by which Mr. Duncan sought to turn aside this objection. Firstly, he said that since the objection is that the defendants' right to remain silent had been infringed, the cited authorities dealing with that right should not apply since each of the defendants, in the event, had in fact said something to the police.

56. Secondly, he said that, at any rate in the case of the 2nd defendant who had not been cautioned before he spoke, it could not be said that any such right had been infringed since he had not yet been apprised of that right by the caution.

57. These are two aspects of a single situation which must, however, be distinguished from the quite different situation which arises when, upon arrest, or after caution or charge, the defendant has given an explanation which is materially different from his evidence.  In such case the judge is clearly entitled to draw the jury's attention to the difference.

58. As to the first of these contentions, the cases which we have to consider do not make any distinction between failure by an accused person to say anything at all by way of explanation after detection and challenge of arrest and saying something which is not in the nature of an explanation. Comment in which case is generally referred to as comment upon silence.

59. The second contention was expressly disapproved by the Privy Council in Hall 19711 All E.R. 322. The Board, (p.324) disapproving the decision in Feigenbaum [1919] 1 K.B. 431, said that the distinction which Counsel had sought to make between silence before and silence after caution' was not a valid one. Archbold, relying upon Hall, puts the matter succinctly in the words used by Diplock L.J. at page 324: "The caution merely serves to remind the defendant of a right which he already possesses at common law."

60. Archbold, in putting the matter thus, goes on to note that Lawton L.J. in R. v. Chandler [1976] 63 Cr. App. R. expressed reservations about this statement of the law and refused to follow Hall on that point. In Chandler, the defendant was interviewed by a police officer in the presence of the defendant's solicitor. The officer put certain questions to him without first cautioning him. The questions clearly indicated that the police were in possession of information from which it might be inferred that the defendant had been involved in a fraud. The defendant refused to comment upon those questions which most clearly called for an explanation as bearing upon matters which tended to incriminate him. He was then told that the police suspected him and he was cautioned. The Judge invited the jury to consider whether this refusal to comment indicated to them a) guilt, b) innocence or c) was wholly neutral. It was for this reason that the Court of Appeal quashed the conviction. Lawton L.J. (p.111 ) puts it that the Judge's procedure had short-circuited the proper intellectual process since the true question for the jury's consideration was whether the reaction of the defendant to the questions indicated to them that he was accepting the substance of the allegations which those questions implied against him.

61. Archbold regards the comment by Lawton L.J. on Hall and the common law right to silence as biter since the proper question in Chandler had not been left to the jury and that was why the conviction was quashed. This seems to be correct. But there is another and perhaps a better reason for considering the opinion to be obiter, because the reservation expressed about the opinion of the court in Hall is, in Chandler, bound to the facts before the court in that case The essential fact in the view of the appellate court in Chandler was that the parties were dealing with each other upon equal terms since the defendant had his solicitor to advise him. Lawton,L.J. must, it would seem, be interpreted as saying that in those circumstances, the accused's "right to silence" - be it at common law or else made explicit in the words of a caution - cannot be permitted to inhibit a jury from considering the demeanour of the defendant in face of a question or accusation which might seem to call for an explanation. On what we know of the facts of the present case, the defendants from the first moment of confrontation by the police, subsequent interrogation and questioning could not have been said to be upon equal terms with their interrogators. In any event we are, at this point, bound by the decision in Hall.

62. In the present case there can be no doubt that these directions did invite the jury to form an adverse opinion of the evidence of the three defendants.

63. Notwithstanding expressions of dissatisfaction in recent cases, the prevailing state of opinion in the English courts would certainly seem to be that it is a misdirection to direct a jury in such terms. Together with a number of earlier decisions Mr. Niamatullah relies strongly upon Gilbert [1978] 66 Cr. App. R.237 defendant, Gilbert, was charged with the murder of a fellow after the event workman. Some two weeks after the event he was arrested and interviewed by the police. Initially, he refused to answer questions, but on the following day, he said that he wanted to make a statement. He was cautioned in the usual way. He then made a statement which related only to the relationship between himself and the deceased, but then he fell silent without having dealt with the circumstances of the incident in which the deceased had lost his life. He then said that he did not wish to say anything further as it would not be in his interest to do so.

64. At the trial the Judge reminded the jury that the defendant had been cautioned and he told them that they must not infer guilt merely from the defendant's silence. Then he read the cautioned statement to the jury and he said:

"Now, members of the jury, while as I say, he is perfectly entitled to maintain silence, he is not required to make a statement. If he does elect to make a statement, you are entitled to look at the statement to see if it helps you in the task you have to perform. Bear in mind we have heard of this matter of self-defence for the first time. Ask yourself the question, if it is the real explanation of what happened, do you or do you not think it remarkable that when making the statement, the accused says nothing whatever about it. That may help you, applying your common sense, to test the substance of the matter of self-defence, which he has now gone into in some detail in the witness box.''

65. Delivering the judgment of the Court of Appeal, Viscount Dilhorne (at p.244) said:

"There are a large number of reported cases arising from comments made at trials on the failure of the accused to disclose the defence put forward at the trial when questioned by the police or at an earlier stage of the proceedings. It is, as Lord Parker, C.J. said in Hoare (1966) 50 Cr. App. R. 166, 169; ...not possible to reconcile all of them. It is in our opinion now clearly established by decisions of the Court of Appeal and of the Court of Criminal Appeal that to invite a jury to form an adverse opinion against an accused on account of his exercise of his right of silence is a misdirection ....".

He went on to cite the cases of Gerard (1948) 32 Cr. App. R. 132 and Davis (1959) 43 Cr . App. R. 215 in which cases Humphreys J. and Lord Goddard C.J. had spoken in similar terms.

66. Viscount Dilhorne then went on to consider Ryan (1964) 50 Cr. App. R. 144. That case, and the criticism of it by the Court of Appeal in Gilbert, vividly illustrate the progressive attentuation of what might be called the ground of permissible comment. As the law stands in England at the moment, and having regard to the fine distinctions that have been made, that ground would appear to be narrow and perilous indeed.

67. In Ryan, the Court sought to draw a distinction between a comment upon silence which directly apprised the jury of their right to infer guilt therefrom and a comment in the following form: "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." The court in Ryan perceived a line of division between these two directions. In Gilbert however the court would give no countenance to any such distinction. The judgment continues:

"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, although in a more oblique fashion than in Davis (supra)."

68. Nevertheless Viscount Dilhorne then concludes:

"We regard the present position as unsatisfactory. In our view it may not be a Misdirection to say simply "this defence was first put forward at this trial" or words to that effect, but if more is said, it may give rise to the inference that a jury is being invited to disregard the defence put forward because the accused exercised his right of silence, in which case a conviction will be placed in jeopardy."

69. In the end, however, despite this misdirection, the court in Gilbert applied the proviso to s.2(1) of the Criminal Appeal Act 1968 and dismissed the appeal on the ground that there had been no miscarriage of justice.

70. In doing so it was noted that the court had similarly applied the proviso in Foster (1974) Crim. L.R. 544, where very much stronger language had been used by the trial Judge. What the Judge had said in that case was: "Can you imagine an innocent man not saying something to the police ...he said nothing."

71. While the Judge's comment in the present case stopped well short of suggesting that the reaction of the defendants when challenged might bean 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.

72. It is perhaps unfortunate that some of the case law has tended to ellide 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] A .C. 545, per Lord Atkinson at P.554 in a passage which receives emphatic endorsement by Lawton L.J. in Chandler.) That is to say, the reaction of the defendant may constitute positive evidence against him.

73. 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.

74. 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."

75. 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.

76. 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".

77. This is an area littered with nice distinctions and forensic misgivings; unsuitable terrain for reclamation by judicial decision as the court in Gilbert recognised. 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.

78. 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. Rep., at p.165:

79. We would add that this advice is applicable also in cases where silence - or anon explanatory statement - occurs before charge or cautions.

80. We are satisfied that the Judge's comments in the present case did go beyond what he was entitled to say as the law now stands. We have gone into this matter in some detail, in deference to that summing-up which was in other respects extremely painstaking and which must, the misdirection apart have been very helpful to the jury.

81. We cannot however say that the misdirection embodied in these passages could not have had a substantial effect upon the verdict of the jury. The probability that it did have such an effect is enhanced by the fact that, as Mr. Niamatullah has pointed out, there was no general direction apprising the jury of the defendants' right to remain silent; and by the fact that, at the very end of this long summing-up, the foreman of the jury pointed out that the jury had not seen copies of the statements of the lst and 2nd defendants. The Judge then reminded them that these statements had not been put in evidence and that they were left with the evidence given by the police officers of the very brief replies made by the 1st and 2nd and 3rd appellants to police enquiries.

82. We have felt compelled to examine the existing state of the law at some length in order to afford guidance for future cases. This was, however, a strong circumstantial case and even without the misdirections which have been noted we are satisfied that the jury must have come to the same conclusion. For this reason we think that this is a proper case for the application of the proviso to s.83(1). of the Criminal procedure Ordinance in relation to the appeals of the lst, 2nd and 3rd defendants. The applications of all four defendants for leave to appeal will be refused.

Representation:

Mr. A.M. Niamatullah (John Ip & Co.) for Al - A3.

Mr. A.M. Niamatullah (D.L.A.) for A4.

Mr. Peter Duncan for Respondent/Crown.