The Queen v. Lau Sou-wah

CACC001174/1982

Headnote

Defendant - on arrest and after caution - denies involvement with dangerous drugs found in his premises and alleges that he has let the premises to another - Comment by the Judge on his failure to give the name of this other person prior to his giving evidence in the case is still comment upon silence within 237 the rule in Reg. v. Gilbert [1978]66 Cr. App. Rep. 237/(followed in Cho Chak Bor & others v. The Queen Cr. App. 761/82.) - proviso applied.

BETWEEN

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

Date: 23rd June, 1983.

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JUDGMENT

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McMullin, V.-P. :

1. On the 13th April, 1982 a party of police under the command of Inspector Yiu Shiu-wing went to premises on the 6th floor of No. 12C Lung Chun Back Street, Walled City, Kowloon. They got there at 4.50 p.m. The premises were locked and nobody answered their knock upon the door. A woman know as Fuk Yun-mei arrived shortly after at about 5.00 p.m. She was intercepted by the police on her way to her flat on the 5th floor where she resides with her husband. The flat on the 6th floor in which the police were interested is also the property of her husband. She admitted the police to this flat having procured a key from her own flat.

2. Nobody was found within the flat upon the 6th floor but the police discovered within a large number of the articles commonly associated with the preparation of heroin such as sieves, bowls, basins, gas heaters and various chemicals. There was also a microwave oven. At various places within the flat the police also discovered a large number of plastic bags containing heroin mixture to a total quantity of over 8 kilogrammes in weight. It has never been disputed that the premises on the 6th floor had been used for the manufacturing of these dangerous drugs but it was conceded by the Crown that neither Madam Fuk nor her husband had anything to do with that operation.

3. The 6th floor premises had been unoccupied for sometime but early in March 1982 the defendant, Lau Sou-wah, who is a cousin of Fuk Yin Mai's husband Lau Pui-ming, obtained permission from the Laus to move into the 6th floor flat, the reason given being that he was in ill-health and needed the attention of a doctor for whom Mr. Lau Pui-ming was then working as a drivers.  The defendant's own home is in Kung Lok Road, Kwun Tong, a long way from the Walled City.

4. On the 13th April, while the police was still carrying out their investigations on the 6th floor, the applicant turned up at the flat on the 5th floor and was intercepted and searched by the police. He was found to be in possession of four keys, two of which fitted the grille and entrance door to the flat and the others the iron grille and door Leading into the building.

5. The applicant was arrested and cautioned by Detective Sergeant Die Yung, his attention having been drawn to the discovery of the dangerous drugs within the flat. According to the sergeant the defendant did not say anything but the defendant testified that there had been a conversation in the course of which he had been asked various questions to which he had made replies indicating that these drugs had nothing to do either with himself or with Mrs. Lau, but that he had let a friend Live in the premises. He said that at some point in that conversation he had suggested that the drugs might belong to that friend.

6. Inspector Yiu was questioned about the same matter and he admitted that he had asked the applicant some questions but could not recall whether he had asked him about the ownership of the drugs or whether the defendant had made any reply thereto. He conceded that the defendant might have made some such explanation but he could not recall that having happened.

7. Shortly before midnight on the 13th, the applicant, in answer to a formal caution administered to him at the Narcotics Bureau, made a short statement which was the subject of challenge at the trial. It was admitted in evidence. It is as follows:

"That quantity of dangerous drugs was placed there by me for someone. It has nothing to do with the wife of my younger brother."

8. It is common ground that the reference to "younger brother" is a reference to Mr. Lau Pui-ming who is in fact the cousin of the applicant. On the following day, the applicant was formally charged. In answer to the charge, he said: "This matter has nothing to do with my younger brother's wife."

9. As the judge said, the case for the Crown rested primarily upon the following items of undisputed evidence:

10. All the relevant presumptions under the law arose against the defendant in respect of the second count but not in respect of the first or third. He was acquitted of manufacturing but was convicted of the offences stated in the second and third counts.

11. The defendant's answer to this formidable body of evidence was as follows. He is a long time drug dependant. He has a regular supplier called Ng Fei. At the beginning of March, because of ill-health, he moved from his bomb in Kwun Tong to the walled City flat, to be near medical assistance. He was attended on at least one occasion by the doctor for whom his cousin Mr. Lau worked. However, he spent only 10 days in the premises and then he suffered something in the nature of a stroke and had to be carried bodily by his cousin, Pui-ming, from the premises and transported to St. Teresa's Hospital where he was treated.

12. He remained there until the end of March when he discharged himself against his doctor's advice. During his treatment he was given pills for his condition. While he was still in hospital, Ng Fei came to see him and because Ng was suffering from the very same condition which had brought the defendant to hospital, the defendant gave Ng a phial of pills, the very phial which the police later found in the 6th floor flat.

13. He had given a set of four keys to Ng Fei when he first moved to the flat from Kwun Tong and these had been given to him by Mrs. Lau. Ng Fei had had copies of these keys made and the defendant gave two different accounts of why this had been done. At first he said that the intention was that Ng would be able to not only to enter the building but to enter the flat while the defendant was asleep, in order to deliver supplies of drugs to him, without disturbing him. But later he said that when he gave the four keys to Ng, his intention was that the latter should cause only the two keys which admitted him to the building to be cut, but that Ng had nevertheless had all four copied. He said that when he left the hospital he was still not feeling well and for that reason he did not return to the flat but went back to his home premises at Kwun Tong without either returning the keys to Mrs. Fuk or recovering his documents and other properties from the flat Before returning home he had agreed with Ng Fei that the latter could go on using the flat in his absence for the purpose of indulging his own drug habit and so he did not recover the duplicate keys from Ng.

14. On the 13th April, the date of the police raid, he had gone to consult a doctor in Lei Yu Nun at about 3 p.m. and had then returned to his home in Kwun Tong. Between that time and 6.00 p.m. he consumed some 20 cigarettes which he "loaded" with heroin, having removed part of the tobacco. While he was smoking these cigarettes, he both sat and reclined at times. He was then wearing the vest and socks and shoes which were later taken from him by the police.

15. Sometime in the evening he bethought him of his cousin's wife. Pui-ming himself had gone off on a business trip and before leaving they had discussed the fact that Mrs. Lau was given to playing mahjong somewhat to the detriment of her household duties. The defendant said that because he feared that Mrs. Lau might be neglecting the feeding of her children, he thought it advisable to contact her by telephone. He rang many times but could get no answer from Pui ming's flat. The time was then about 8 p.m. He then rang another relative, a Mr. Yip Nam, who lived in the building near to 12C lung Chun Back Street. He asked Yip why it was that he could get no answer from the laws flat and Yip told him that the flat was at that time being raided by the police.

16. Yip gave evidence about this and did not say anything quite as clear as that. He did say however that he had been returning home and had passed No. 12C, which is on his way, and had seen a number of women outside who had told him that the police had gone into the building and had gone up to the higher floors.. Yip agreed that he had passed this information on to the defendant. The defendant went on to say that having spoken to Yip he at once made his way to 12C and went up to the 5th floor whereupon he was arrested by the police.

17. Mr. Clayton, who also appeared for the defendant in the court below, asked us to say that the defendant did not have a fair trial. Some five typescript pages of complaints are particularised but all of them are urged in support of the complaint set forth in the fifth ground which is in the following terms:

18. It is necessary therefore to examine the summing-up in some detail.

19. The Judge set out the undisputed facts which have been described above. He had included one other item which has not been set out above because it was later withdrawn. He had told the jury that nothing had been found in the premises which seemed to relate to anybody other than the defendant. That was not quite accurate since a finger print which was not the defendant's, had been found on one of the articles within the flat. This was however brought to the attention of the Judge at the end of the summing-up and was corrected by him.

20. Having set out the undisputed facts, the Judge went on to say:

"Now the Crown contends that because this extensive body of highly incriminating evidence cannot be disputed, the accused has no choice but to weave his defence around it, and that this has resulted in a manifestly strained and contrived attempt to explain away the case against him. The Crown says that the strained nature of the accused's defence is evidenced by a procession of remarkable coincidences that must have occurred if any credence is to be placed at all on the version given by the accused."

21. Mr. Sulan, who also appeared in the lower court on behalf of the Crown, says that such indeed was the Crown's contention. He concedes that the word "coincidence" may not have been then most appropriate term since all he had intended to imply by using it was that the defendant's story involved a number of events or happenings, put forward to explain away the highly suspicious circumstances in which he had found himself, each of which was in itself an unlikely or suspicious event and the more so for being conjoined in a sequence with other such events.

22. The Judge drew the attention of the jury to some 12 of these alleged coincidences. He pointed out that some of these had been specifically mentioned by Mr. Sulan in his address and some had, in his view, emerged in the course of cross-examination. Before turning to those, and more particularly to Mr. Clayton's criticism of the way in which they were handled, it is necessary to deal with a preliminary point which Mr. Clayton made, arising from the passage in the summing-up quoted above.

23. Apart from any other objections which might be taken to the manner in which the Judge presented these coincidences, Counsel says that, in putting the matter in the way he did, the Judge may have led the jury to believe that if they found that one or more of these events had not occurred then, even though the defendant had told the truth about the remainder, they must nevertheless refuse to give any credence to his explanation as a whole. We do not think the jury could have so misread the Judge's comment - for that is all it was - on the Crown's attitude. The Crown's point was simply that the defendant had found it necessary to meet the Crown's case by concocting an elaborate story. It is in relation to the Judge's treatment of those elements in the evidence relied upon by the Crown as showing that there was a concoction that the trouble arises.

24. It is not contended that the defence was not put to the jury. That was fully and fairly done and the Judge's treatment of it occupied some five pages of the transcript. We are now principally concerned with the second count (possession for the purposes of unlawful trafficking). What counsel, judge, and jury alike, therefore, were concerned with was the explanation made by the defendant.

25. Mr. Clayton's complaint is substantially this: That the Judge in outlining the adverse inferences which the Crown sought to draw from each of the alleged "suspicious coincidences" did so uncritically although, in counsel's contention, other inferences were available, capable of yielding an innocent interpretation of the facts. In addition, counsel discerns an eagerness to bring home the prosecution case at its strongest to the mind of the jury in the fact that the Judge in some instances either put the prosecution contention higher than the prosecutor had sought, to put it, or else had suggested adverse inferences of his own which had never been suggested by the prosecution at all. Counsel then contrasts this treatment of the prosecution argument with that given to the argument on behalf of the defendant, and he points out that in dealing with some 8 points made by him in support of the defendant's case, the judge has, in every instance, subjoined to his exposition of each particular point a critical comment inviting the jury to form an adverse opinion of the argument for the defence.

26. Mr. Sulan, who strongly supports the propriety of the summing-up as a whole, concedes that in one or two instances the Judge has suggested adverse inferences which had not been urged by the prosecution. One example of this concerns an incident described by the defendant when, as he maintained, he was pushed into the premises by one police officer and hastily pushed out by another. The Judge put it to the jury that it was the Crown's contention that this was a lame endeavour to explain the discovery of traces of heroin upon his shoes. In fact the Crown prosecutor had never made a point of this and neither had the defence.

27. The only other significant example of this relates to the four duplicate keys allegedly cut by Ng Fei. According to Mr. Sulan, the prosecution point here was that the defendant had never told the Laus that he had given the keys to somebody else and that they had been copied, The Judge however directed the jury's attention to the fact that although the defendant had been visited by the Laus while he ties in hospital on several occasions, he had never returned the keys to them.

28. Before proceeding to consider the main question - which is the question of balance and fairness - it should be observed that it is by no means improper for the Judge to direct the jury's attention to any inference which seems to him reasonably to arise from the evidence whether or not the point has been made by counsel. Over all, and in the broadest terms, what he must avoid is the impression of giving what was described in R. v. Bleckley⁽¹⁾ as a whole speech for the prosecution.

29. The real force of Mr. Clayton's argument as to the Judge's handling of the alleged "coincidence" rests in the contention that other inferences susceptible of an innocent interpretation were never drawn to the jury's attention. We are certainly not persuaded that this was the case in respect of each of the twelve points put to the jury as constituting the Crown's critique of the defence's explanation. But some of them do call for comment. In dealing with the defendant's behaviour after he left hospital the Judge said:

"Another coincidence you may think, members of the jury - it is entirely a matter for you, as are all of these matters which may appear to be coincidences that although the accused had abandoned the use of the 6th floor in favour of his own home, he left a T.V. set, clothing, and important travel documents there. The Crown says that if he had abandoned these premises, what an extraordinary situation it ties to leave all of these items there."

30. The Judge should there have in fairness reminded the jury that the defendant's story was that he was still not well when he left hospital, and that he did not yet feel up to the task of mounting all the stairs to the 6th floor in order to repossess himself of his property.

31. Next, the Judge suggested to the jury that it was an extraordinary fact that the defendant had seen fit to go home into Kwun Tong rather than return to the 6th floor flat since his purpose in going there in the first instance had been that he would thus be close to medical attention. Mr. Sulan, while conceding that the point which the prosecution were making, was rather that the story of going to the 6th floor flat for medical attention in the first instance was an unlikely one, nevertheless enlists this criticism by the Judge as a valid one. This point however had never been put to the defendant when he was giving evidence and since the Judge was himself picking the point up, it would have been fairer to have explored it a little further. The Judge could, for example, have reminded the jury that on the defendant's story, the medical assistance he had received, while at the premises had not seemed to benefit him very much and that a period of recuperation in the bosom of his family might have seemed to him a preferable course.

32. Concerning the evidence of Yip Nam, the Judge said:

"Another coincidence you may think, members of the jury, is that the accused's relative, YIP Nam, by sheer chance just happeeed to be passing by 12-C Lung Chun Back Street when he was informed by a group of women that some police had entered 12-C and had gone up to a flat above the flat occupied by Mr. YIP's mother-in-law. Mr. YIP indicated that this flat, his mother-in-law's flat, was on the ground floor, Therefore, in the circumstances, the police could have been going to any one of the flats above the ground floor; we have heard that there were ten floors in that building.

This was told to YIP Nam right at the very time that the accused was attempting to contact Madam Fuk in order to see whether she was feeding her children, and that being unable to contact her, he telephoned Mr. YIP to ask him, although he lived in the next building, as to where Madam FUK might be."

33. Insofar as this was represented as an unlikely coincidence, it would have been preferable for the Judge to have reminded the jury that Yip's evidence was that he ties returning home from work and that his way home led past No. 12-C.

34. Then there was the comment, to which reference has already been made in another connection, concerning the failure of the applicant to return the keys to the Laus while the defendant visa still in hospital. The Judge puts it that there could have been "no obvious reason" for his failure to hand back the keys. One obvious reason however, and one which was canvassed in cross-examination, was that, on the applicant's story, he had permitted Ng Fei to use the premises while he was away. Ng Fei had his own set of keys and this would no doubt be something which the applicant would not wish to make known to Madam Lau who might well have objected. Moreover it was not the applicant's case that he was intending to surrender the tenancy.

35. Finally, the Judge pointed out, as another coincidence, that although the applicant's vest, socks and shoes were contaminated with heroin, the outer garments which had been left in the room where all the drugs and equipment referable to manufacturing had been found were quite uncontaminated. He said: "Does this suggest to you that direct splashes occurring in the course of manufacturing heroin were the cause of the contamination of the vest, socks and shoes rather than environmental contamination'"

36. There is no doubt that the possibility of environmental contamination, as against direct contamination in the process of manufacturing, was somewhat confusingly explored with the Government chemist by counsel for the defence, as Mr. Clayton himself concedes. The Crown's point here - and it is on the whole accurately reflected by the Judge's handling of it - was that the applicant's explanation of how his vest, socks and shoes became contaminated was an unlikely one. That explanation included the suggestion that finely divided particles of heroin floating around in the smoke from the cigarettes being consumed by the applicant could have lodged in his clothing, socks and shoes in his way. The explanation also consisted in part of the suggestion that particles of the heroin in the cigarettes had dropped directly upon these articles. This part of the defendant's suggestion was overlooked in the earlier part of the summing-up. This was corrected at the end when the nature of the contention was repeated by Mr. Clayton to the Judge in the presence of the jury. The Government chemist was never asked whether the traces which he found on the socks, vest and shoes were likely to have been caused by direct splashing in the course of manufacturing. Had that been done, the answer might well have been that the contamination should have been of an altogether grosser character. While this criticism has some weight, in the event the jury acquitted on the manufacturing charge and would not appear therefore to have been affected by any want of balance there may have been.

37. On the other side of the picture Mr. Clayton complains of the critical examination given to the arguments put forward by him on behalf of the defence. Counsel has made very much less this point and we think with good reason. We have considered each of these comments in turn and we cannot say that in any instance the comment was excessive or uncalled for. The question still is then: whether, having made comments which he was entitled to make on the submissions for the defendant, the judge unnecessarily influenced the jury in failing to make comparably critical comments where that was possible on some of the points being made for the Crown. If that were all that had to be considered in this case it would, upon its own, be quite insufficient to. Justify the interference of this court. But Mr. Clayton has a further complaint.

38. The substance of the defence was that the defendant had nothing to do with the equipment in the premises and had never been engaged in manufacturing there. It is an essential part of that case that what the police discovered had been introduced there by Ng Fei, possibly in combination with others. From the prosecution point of view, Ng Fei and the alleged duplicate keys were merely a central part of the invented story.  The defendant was closely pressed by counsel for the Crown in cross-examination and he was asked why, upon his arrest, he had not revealed the identity and whereabouts of this person. He gave various reasons for that. One was that a constable had told him that he was not entitled to say anything then but could tell his story to the court. Another was that when his statements were being taken at the police station, a police officer asked him to reveal the identity of his boss and also to give the police Y$2 million, presumably as the price of his own immunity. Again he said that he never revealed the identity of Ng Fei because he thought his wife had made a report to ICAC. His wife was called and she gave evidence that she had indeed made a report to ICAC. This was done at the request of her husband who had suggested that perhaps Ah Fei had given a bribe to the police as a result of which he had not been arrested. She said however that this report had not been made until some six or eight weeks after the arrest of her husband. Her evidence as to her husband's intention of revealing the identity and whereabouts of Ng Fei to the police was distinctly equivocal.

39. Mr. Clayton does not contend that counsel was not within his rights in cross-examining the defendant upon this matter. His complaint relates to what the Judge made of it. The Judge, carefully and correctly pointed out to the jury that on the prosecution story the defendant had not said anything immediately upon his arrest and he directed them that because the defendant had then been cautioned he was entitled to remain silent and the fact that he thereafter said nothing, if it was a fact, could not be held against him. He then went on to say:

"However, the Defence say he did say something to the police out there. You will recall that Inspector YIU was asked whether or not the accused did say something. The inspector said that he thought that he did not but he couldn't be sure.

The Defence insists that the accused did say something out there, that he said that neither he nor his sister-in- Law were involved and that he had let the flat to someone else.

Well, if this is so, members of the jury, that the accused did elect to make some answer to the police, then, of course, it would be surprising that he did not expostulate his is due to a friend of nine, a man called NG Fei ; I can tell you where to find him." You may think, members of the jury, that if those were the circumstances and if NG Fei had abused the hospitality of the accused by manufacturing dangerous drugs in these premises, then the accused would have no reason to want to protect NG Fei; rather he would want to have NG Fei brought to justice so that both he, the accused, and his sister-in-law could be exculpated.

If, on the other hand, there is an NG Fei or some other person involved and that person is an accomplice of the accused, then, of course, the accused would not want to reveal his name and whereabouts, because there could be no purpose in so doing. There could be no purpose in having both of them imprisoned. Indeed, a greater purpose, you may think, would perhaps be achieved by not disclosing the name and whereabouts of this person so that he could say that that person was the one who was responsible for the manufacture of the dangerous drugs inside the premises."

40. There is no doubt that it would be difficult to construe this passage in any manner other than that which Mr. Clayton invites us to construe it. It is very unlikely that the jury would have understood these words of the judge as anything other than an invitation to conclude, as the judge himself had plainly done, that this failure to reveal the name and whereabouts of NG Fei rendered the explanation given by the defendant quite unworthy of belief, either on the basis that Ng Fei did not exist or that the defendant was an accomplice of Ng Fei.

41. But Mr. Clayton puts the matter further. Even if such a comment were permissible it was, he says, in the circumstances altogether too strong, since it left guilty complicity as the only rational explanation for the defendant's reticence. There could, counsel says, have been other reasons for that. One such possibility in keeping with innocence was that the very tie of friendship which the defendant alleged existed between him and NG Fei obliged him, upon being suddenly confronted with what was startling evidence of NG Fei's misconduct, to limit the explanation which he desired to give as narrowly as he could consonant with the need to exculpate himself and not immediately to inculpate his friend. Another, and perhaps more likely possibility was that he was unwilling to reveal who the friend was to whom he said he had left the premises since he was aware that if traced and questioned it would emerge that NG Fei was, like himself, a long time drug addict who had been in the habit of supplying the defendant with drugs. While the presumption of innocence persisted it might not have seemed wholly unreasonable to the jury that an innocent man, suddenly confronted with such a situation, should hesitate to reveal his own drug dependency and his relationship with the drug pusher, realizing his peril in view of the equipment and other materials which had been found in the premises. By contrast the judge's analysis explored two hypotheses each of which yielded only inferences which were adverse to the defence.

42. Mr. Clayton's primary point on this issue is however that the comments were simply not permissible at law. For this he relies upon the decision of the Court of Appeal (Criminal Division) in the case of Gilbert [1978] 66 Cr. App. Rep. 237 a decision which was recently considered and followed by this court in Criminal Appeal 761 of 1982, CHO Chak-bor and others v. The Queen.

43. In Gilbert the defendant was charged with the murder of a fellow workman and he was duly cautioned. He then gave an account of the relationship between himself and the deceased and he declined to say anything further. $e said nothing about the death of the deceased. At the trial he raised self-defence for the first time. The Court of Appeal (Criminal Division) disapproved a direction given by the trial Judge which was to the effect that they should test the substance of this defence having regard to the fact that the defendant had not mentioned it when making his statement to the police. Delivering the judgment of the court, Viscount Dilhorne said (page 244):

"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 the jury to form an adverse opinion against an accused on account of his exercise of his right of silence is a misdirection..."

44. Mr. Sulan does not challenge the authority of Gilbert but he seeks to distinguish it on the facts from the present case. In Gilbert, he says, what was spoken by the accused, was quite irrelevant, to the charge whereas what was said by the defendant in the present case amounted to an explanation but one which was incomplete. Thus he says we are in a "grey area" not yet covered by authority. Mr. Sulan makes a further point. The Judge, he says, was in any event merely commenting upon the credibility of the defendant's allegation that he, the defendant had made some kind of explanation when he was confronted with the contents of the premises. If the point of the Judge's comment was that the admitted failure to mention the name and whereabouts of NG Fei made it unlikely that the defendant had in fact said anything at all, that could not have been justly criticised so long as he did not go on to direct the jury that they could draw an adverse conclusion from that silence. But we cannot read the Judge's comment in that way. After the passage which has been quoted he said:

"Well, it's a matter for you, members of the jury, to decide what actually happened there. As I say, if the accused did not say anything other than just give his name, then, of course, having been cautioned, it cannot be held against him that he did not make any reference to NG Fei because, as I say, the caution embodies a statement to the effect that he's not obliged to say anything."

That could only have led the jury to conclude that if the applicant had said something by way of explanation but without referring to NG Fei then, notwithstanding that he had been cautioned, the jury could hold that silence as to NG Fei's name and whereabouts against him.

45. What therefore is to be said of Mr. Sulan's major point - that it is permissible to invite an adverse view of an explanation given at the time of arrest which merely omits some telling or material detail which is later told to the court? Counsel has sought to argue that in introducing the name of his friend, NG Fei, when giving his explanation to the court, the applicant was saying something which was inconsistent with what he alleged he had told the police at the time of his arrest. If it were so, the Judge would have been perfectly entitled to draw the inconsistency to the attention of the jury. But we cannot see any warrant for using the term "inconsistent" in this ray. There is simply nothing inconsistent between saying in the first instance that the drugs were probably those of a friend and later on saying that the drugs were probably those belonging to a friend called NG Fei.

46. Mr. Sulan is to be commended upon the ingenuity of an argument which was necessarily mounted at short notice since neither Counsel in this case was aware of the recent decision of this court in Cho Chak-bor. Nevertheless, in the end, it is an argument which comes back to the single proposition that the decided cases do not cover the precise point at issue here. This was a resourceful endeavour to extract a valid distinction from the present circumstances. But with due respect to Mr. Sulan's forceful and persuasive argument vie do not see that any valid distinction can be made. The whole point of the Judge's comment was still substantially this: that the defendant had failed to disclose the true nature of his defence at a point when common sense would suggest that it should have been disclosed. The rule in Gilbert still applies and the comment, attractive as it may be to mere common sense, should not have been made. The interests of a fair trial would have been better secured if the Judge, instead of offering a somewhat elaborate analysis of this part of the evidence, and in a manner so tellingly against the case of the applicant, had simply reminded the jury that even on the applicant's own story, the name of NG Fei had never been mentioned by him to the police. Had he dealt with the matter in that way he would probably have gone on to remind them that the applicant's wife had given evidence in which she alleged that she had given the name NG Fei to inspector Yiu with the purpose of having the former arrested. And he would have reminded them that she had corroborated her husband's evidence to the effect that Inspector Yiu had actually mentioned that name to the applicant. These matters were undoubtedly put forward in some sense to explain the fact that the defendant had not mentioned the name of NG Fei at the outset lame as this story may have sounded in the ears of the jury, it was nevertheless desirable that in commenting upon that silence (silence in the sense of failing to mention the name NG Fei) the Judge should also have dram these attempted explanations to their attention.

47. In Cho Chak-bor (supra) this court, while pointing out the restricted nature of the Judge's right to comment upon silence, either in the strict sense, or else in the extended sense of failure to reveal the essential defence, nevertheless affirmed the Judge's right - and indeed his duty - to draw to the jury's attention any significant discrepancy between anything said by the accused after arrest - whether before or after caution (Hall v. Regina 1971 1 All E.R. 322) - and his evidence in court. Even then it is preferable that the jury should simply be reminded of the discrepancy and advised to make what they can of it. If the matter is plain, advocacy by the Judge is almost certainly unnecessary, and if it is not plain, then advocacy may be unfairly tendentious

48. Similar considerations apply, if anything, with greater force where the Judge is drawing the jury's attention to the failure of the accused a) to say anything at all by way of innocent explanation or b) to disclose an obvious and vital part of his defence when apprehended. Whichever is the case - and whether it be before or after caution - anything said by the Judge which amounts to an invitation to disbelieve the accused's defence goes too far.

49. While the present state of the law may not be satisfactory, it would do little to improve it if we were to hold that a Judge - who is not entitled to invite an adverse inference from total silence in the face of an accusation or charge - is nevertheless entitled to do so where the accused has given an explanation which withholds an important portion of his defence. The whole point of such comments is to alert the jury to a suspicious circumstance bearing upon the truth of the accused's story, yet the former situation must yield, if anything, a more lively impression of suspicious discomposure than does the latter. In either case the significance of the event is best left to the good sense of the jury without judicial gloss.

50. The evidence in this case as a whole was very strong. The summing-up was in certain aspects, which we have indicated, unbalanced. This was unfortunate but the jury clearly felt the facts to be for themselves despite the comments of the trial judge. They did, as we have said, acquit of the manufacturing charge. We are not prepared to say that the applicant has lost any opportunity which was fairly open to him of an acquittal upon the remaining charges.

51. In the Light of this we would, as was done in Cho Chak Bor, apply the proviso on the misdirection as to silence.

52. Before parting from the case. there is one other matter which we feel obliged to mention. In pressing his point that the Judge's comment was merely one bearing upon the credibility of the applicant, Mr. Sulan, confronted with the previous decision of this court in Cho Chak-bor, suggested that in that case we had fallen into the error of suggesting that an attack upon credibility by a prosecutor by way of question directed to enquiring why the explanation put forward at the trial was not put forward immediately upon arrest was itself an invalid procedure. If such had been our view in that case, Counsel would have had every reason to exclaim, as he did, that we were taking a fundamental and most valuable tool from the hands of the prosecution.

53. It must be said that the passage which permitted him to mount this argument is not happily expressed. Throughout, however, we were dealing with the extent of permissible comment, from the bench, upon silence or upon failure to make timely disclosure of a defence. We pointed out that there was a distinction between reaction in the face of an accusation which might amount to evidence of the accusation's being accepted by the defendant - a matter upon which the jury would be rightly asked to decide - and comment upon mere silence in the absence of any suggestion that the reaction might have amounted to accepting the accusation. Delivering the judgment of the court I then said: (page 19):

"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 was 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."

54. It was the word "attack" in the last line which undoubtedly Led counsel in the present case to assume that we were saying that such cross-examination was in itself impermissible. On that lording Counsel's misreading of our intention was understandable. It should have been made clear that while attack on credibility in cross-examination is perfectly permissible comment, of the find which had been under discussion in the earlier part of the judgment, upon such evidence was not. If for the word "attack" the word "comment" be substituted, the meaning becomes somewhat more accessible.

55. For the reasons given, however, the application must be refused.

(1)     1963 C.L.R. p.433

Representation:

Peter Clayton (D.L.A.) assigned for the Appellant.

John Sulan for Respondent/Crown.