HKSAR v. Tso Kin Shing

[English Translation - 英譯本]

CACC 284/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 284 OF 2013

(ON APPEAL FROM HCCC NO. 111 OF 2013)

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CAAR 3/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 3 OF 2013

(ON APPEAL FROM HCCC NO. 111 OF 2013)

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(Heard Together)

REASONS FOR JUDGMENT

Hon Cheung JA (giving the reasons for judgment of the Court)：

1.1The defendant was charged with three offences, two of rape, contrary to section 118(1) of the Crimes Ordinance, Cap. 200 Laws of Hong Kong (Counts 1 and 3); and one of attempted rape, contrary to sections 118(1) and 159G of the Crimes Ordinance (Count 2). After trial before Maggie Poon J sitting with a jury, the defendant was convicted on the two counts of rape but acquitted of attempted rape. The Judge sentenced him to 8 years’ imprisonment for each of the rape offences, with 2 years of the sentence for the second offence to run consecutively to the sentence for the first offence, making a total sentence of 10 years’ imprisonment.

1.2The Secretary for Justice applied for a review of sentence, following which the defendant applied for leave to appeal his convictions and sentences, although he subsequently abandoned his application in relation to the sentences.

1.3At the hearing, we first dealt with the defendant’s application for leave to appeal his convictions.  We allowed his application and, treating the application as the appeal proper, we allowed the appeal, quashed the convictions and set aside the sentences.  This decision rendered it unnecessary for us to determine the application by the Secretary for Justice for review of sentence.  Our reasons for allowing the defendant’s appeal are set out below.

Prosecution case

2.1X, the complainant in the present case was a young girl born in March 1999.  She came from a single parent family.  Initially she lived with her mother and her two siblings, a younger brother and a younger sister.  In 2006, X’s mother became acquainted with the defendant.  Subsequently, the defendant and his own son moved to the residence of X’s mother and lived with them.  X called the defendant her father.  In January 2008, X’s mother and the defendant gave birth to a baby girl.

2.2The defendant was born in March 1964 and was aged 49 at the time of trial.

2.3X gave evidence that since she was in Primary 5, the defendant had sexually assaulted her about 30 to 32 times.  The first count of rape stemmed from the first sexual assault which the defendant made on X.  At that time X was 11 or 12 years old and was in the second term of Primary 5.  The second count of rape was the last rape the defendant did to X, who was then 13 years old.  The particulars of both counts were that X unsuccessfully tried to resist the defendant, who forcibly inserted his penis into X’s private parts and ejaculated inside her.

2.4In August 2012, X came to know her boyfriend.  She told him that she was under tremendous stress at home because she had been sexually assaulted by her stepfather since she was 12.  Her boyfriend advised her to report the matter to the police, but she refused because she did not want her siblings to endure the same experience as she did, i.e. being looked down upon by reason of being “fatherless” from an early age.  Finally, X promised her boyfriend she would call the police if the defendant molested her again.

2.5After X was raped by the defendant for the last time, she complained to her mother, but her mother did not believe her.  On the same day X told her boyfriend over the phone that the defendant had molested her again.  Her boyfriend and X sought assistance from the boyfriend’s mother.  Eventually, they managed to contact X’s aunt, who accompanied X to the police on the evening of 6 November 2012 to report the matter.

2.6In the early hours of 7 November 2012, the police arrested the defendant at X’s residence for an offence of rape and took him to Tuen Mun Police Station for investigation.  On the afternoon of that day, the police conducted a video-recorded interview with the defendant.  He admitted that he did have sexual intercourse with X on 6 November 2012, but alleged that at the material time he was drunk when he returned home, that he was lying asleep on the sofa-bed, and then X, completely naked, sat on his body and inserted his penis, which stuck out from his underpants, into her vagina, and that he resisted but to no avail.  The defendant said he subsequently learned that X did that to him with a view to making a deal with him so that he would allow her to stay out of home overnight on the Winter Solstice day.  The defendant denied other accusations against him.  He claimed that he had never had sexual intercourse with X apart from the incident on 6 November 2012.

Defendant’s defence in person

3.The defendant elected to give evidence.  He denied having started to sexually assault X during the second term of X’s Primary 5 studies.  He claimed that he had never had sexual intercourse with X.  His evidence was that on 6 November 2012 when he returned home he had sex with X’s mother, and thereafter he bathed his son and took his little daughter out to have breakfast.  He said most of what he told the police during the video-recorded interview was not true.  He explained that on the evening of the day in question two policemen and two policewomen entered his residence. The policewomen took X’s mother into a room.  He heard someone asking X’s mother whether he had raped X.  The defendant said one of the policemen, who was a sergeant, began to hit him and slap him.  The sergeant told him there was a lot of semen in X’s vagina and asked him whether he had raped X.  He answered in the negative and told the policemen that at the time he was inside the flat betting on soccer matches and having sex with X’s mother in a room.  The policemen took no notice of what he said, and then he was arrested and taken on board a police vehicle.  In the vehicle, the sergeant hit him again.  When they arrived at the police station, the sergeant kneed him in the groin.  Before the video-recorded interviewbegan, another policeman asked him whether he had raped X or had sexual intercourse with her. The policeman said if these matters could be sorted out quickly, the defendant would be allowed bail so that he could see his children.  The defendant explained that he thought that his life was in danger at that time and he wanted to leave the police station as soon as possible to go back home to see his children, and therefore during the video-recorded interview he thought things over and made up a story.

Grounds of appeal

4.1On appeal, Mr. Poon and Mr. Yam, Counsel for the defendant, initially put forward two grounds of appeal.  First, the Judge failed to give the defendant adequate direction and opportunity to make his closing speech.  Second, in giving directions to the jury, the Judge failed to explain that the fact that no DNA of the defendant’s was found in X’s body might lend support to the defendant’s defence that he had not had sexual intercourse with X.

4.2Pursuant to two other issues raised by this Court, defence Counsel adopted the legal questions arising from those two issues, from which the third and fourth grounds of appeal, as set out below, were formulated and relied upon.  The third ground was that Counsel for the prosecution was not entitled to make a closing speech in the present case.  The fourth ground was that the Judge should have held a voir dire in respect of the record of the defendant’s video-recorded interview.

Reason for decision

5.1We have allowed the appeal because there were material irregularities in the course of the trial which rendered the convictions unsafe, and it was inappropriate to invoke the proviso to uphold the convictions.

5.2We shall first deal with the third and fourth grounds of appeal, and then turn to the first and second grounds.

1) Respondent’s right to make a closing speech

Background

5.3The defendant was originally represented by Counsel A, who was assigned by the Legal Aid Department.  On 8 July 2013, which was the first day of trial, another Counsel B appeared for the defendant.  Counsel B applied to the Judge for an adjournment of trial but was refused.  Counsel B then informed the Judge that the defendant elected not to have legal representation and that he would conduct his own defence.  The Judge allowed Counsel B to cease acting for the defendant. From then on, throughout the trial the defendant was not legally represented.

5.4After the close of the prosecution case, the defendant gave evidence but did not call any witness.  Thereafter, Mr. Tam SC, Counsel for the prosecution, made a closing speech to the jury.

Legal principles

5.5Section 54 of the Criminal Procedure Ordinance confers competence on every person charged with an offence to be a witness for the defence.  Section 55 provides for the point of time at trial when the person charged is to be called as a witness.  Section 56(1) concerns the prosecution’s right of reply:

“(1) The fact that the person charged has been called as a witness shall not of itself confer on the prosecution the right of reply.”

5.6Although section 56(1) does not contain clear wording to that effect, its intent is that even if the person charged has given evidence in defence of himself, it does not confer on the prosecution the right of reply.

5.7The decided cases show that the prosecution’s right to make a closing speech differs depending on whether a defendant is legally represented.  The prosecution has the right to make a closing speech when a legally represented defendant has himself given evidence but has not called any other witness.  However, where a defendant is not legally represented and calls no witnesses, then even though he gives evidence for himself, the prosecution is not entitled to make a closing speech.  In fact, this principle was laid down in cases dating back to almost a century ago: R v. Harrison (1923) 17 Cr. App. R. 156[1] and R v. Baggott (1927) 20 Cr. App. R. 92.  In recent times, the courts confirmed this principle in a number of cases, see R v. Mondon (1968) 52 Cr. App. R. 695 (at 698)[2], R v. Bryant & Oxley [1979] QB 108, [1978] 2 All ER 689, R v. Paul (2013) 2 Cr. App. R. 282.  In Hong Kong, this principle was confirmed by the Court of Appeal in R v. Man Ching-Ip & Others [1980] HKLR 890 (at 894)[3].  See also paragraph 4-200 of the 2014 edition of Archbold Hong Kong.  This principle also gains support from the order of speeches of the prosecution and the defence in a trial in which the defendant is not legally represented, as set out in paragraph 4-376 of the English Archbold and paragraph 4-161 of Archbold Hong Kong 2014.

5.8Although this principle has been called a “convention” applicable to criminal trials, there is authority which says that it is in fact more than a convention: see Paul (at 284).  In our understanding, this is a firmly established principle on the practice and procedure of criminal trials.  The rationale behind this principle is to ensure that the defendant receives a fair trial.  As was pointed out in Mondon (at 698)[4], when the outcome of a case hinges on findings of fact, which in turn depends upon the choice made by the jury between conflicting evidence given by the prosecution and by the defence, the advocate will undoubtedly play a highly influential role in the verdict to be returned by the jury.  In our view, there is usually a difference, in terms of the ability to convince the jury, between a person who has received professional training and an unrepresented defendant.  In order to redress this considerable imbalance in ability, a workable method is to disallow the prosecution to make a closing speech to the jury.  This is a fair rule and a rational approach.

5.9In Paul the court also stated (at 284) that there is a high responsibility on trial judges and prosecution counsel to guard against breaching this principle.  Generally speaking, non-compliance of this principle will result in the conviction being quashed.  That said, the court does not take a mechanical approach and will still have to consider whether to apply the proviso by considering whether any miscarriage of justice has occurred in the case.  See also R v. Pink [1971] 1 QB 508 (at 513).

Prosecution’s arguments

5.10Notwithstanding the clear support expressed in the abovementioned cases for this principle, Mr. Tam for the respondent contended that the prosecution did have the right to make a closing speech.  Mr. Tam argued for his view from a historical perspective, relying on Bryant and Oxley.  In that case, the English Court of Appeal reviewed the historical development of the rules governing the making of closing speeches by the prosecution.  It may be summarized as follows:

(1) In 1837 a practice direction was issued by the English judges.  Paragraph IV thereof provided that if the only evidence called on the part of the defendant was evidence as to character, although counsel for the prosecution was entitled to the reply, it would be a matter for his discretion whether he would use it or not; and that in some cases it might be fit and proper to do so.

(2) Archbold: Pleading and Evidence in Criminal Cases (14^th edition, 1859) stated (on page 147) that if the defendant gave any evidence, whether written or oral, counsel for the prosecution had the right to reply, and that even if such evidence went solely to character, strictly speaking it gave counsel for the prosecution a right of reply, although the right was rarely exercised in such cases.

(3) Since the issuance of the abovementioned practice direction, judges had actively discouraged counsel for the prosecution from exercising the right to reply where defendants gave evidence as to character; where, on the other hand, a defendant gave evidence of facts relating to the offence charged, counsel for the prosecution was entitled to make submissions in reply without such judicial restriction.

(4) Section 2 of the English Criminal Procedure Act 1865 provided that, where a defendant at trial was legally represented, the presiding judge had the duty, at the close of the prosecution case, to ask counsel for the defendant whether the defence intended to adduce evidence, and in the absence of indication by the defence of an intention to adduce evidence, counsel for the prosecution had the right to address the jury a second time to sum up the evidence against the defendant. Save and except the above amendment, the practice and procedure relating to the right of reply remained unchanged.

(5) Following the implementation of this Act, counsel for the prosecution was entitled to make two speeches in reply: one to sum up the prosecution case, and the other to reply if the defendant called evidence.  However, the judges at that time discouraged counsel for the prosecution from exercising the right to make submissions summing up the prosecution evidence unless there was special need for it.

(6) In 1898, the English Criminal Evidence Act was enacted.  Prior to that, no defendant was allowed to testify. Section 3 of the Criminal Evidence Act 1898 provided that the fact that a defendant chose to testify would not of itself confer on the prosecution the right of reply.

5.11Mr. Tam also relied on the judgment of the Hong Kong Court of Appeal in R v. Tong Yuk Tim [1980] HKLR 140.  In that case the Court of Appeal said (at 144), “The Crown in England has the right of addressing the jury after the accused has given evidence, even if he does not call witnesses, see: Bryant and Oxley.  At page 692 of that report it is pointed out that when an unrepresented defendant gives evidence but calls no evidence, save as to character, the right of the Crown to address the jury should be exercised sparingly and with becoming brevity.  Such a limitation does not apply to defendants who are represented.”

5.12Mr. Tam stated (in his written submissions) that:

“4. The following points clearly emerge from the said two cases:

(1) The right of the prosecution to make a closing speech in a trial in which the defendant is legally represented, being part of the practice and procedure established in England by virtue of section 2 of the Criminal Procedure Act 1865 (hereinafter ‘the 1865 Act’), was indirectly introduced into Hong Kong by section 9(3) of the Criminal Procedure Ordinance, Cap. 221, Laws of Hong Kong;

(2) The prosecution’s right to make a closing speech in a trial in which the defendant [is legally represented] stems from the fact that the defendant is legally represented and has nothing to do with whether the defence has called any evidence;

(3) Section 2 of the 1865 Act is not applicable to a trial in which the defendant [is not legally represented];

(4) The purpose of the prosecution’s summing up closing speech is to allow counsel for the prosecution to sum up the prosecution case and evidence;

(5) The purpose of the prosecution’s reply closing speech is to allow counsel for the prosecution to deal with the defence case and evidence;

(6) In England, prior to the implementation of the Criminal Evidence Act 1898 (hereinafter ‘the 1898 Act’), a defendant had no right to give evidence, although he had the right to call evidence for the defence;

(7) In England, prior to the implementation of the 1898 Act, the prosecution had the right to make a reply closing speech as long as the defence had called evidence for the defence;

(8) In England, prior to the implementation of the 1898 Act, whether the prosecution had the right to make a reply closing speech had nothing to do with whether the defendant had given evidence, because (in those days) defendants simply had no right to give evidence;

(9) Whether the prosecution has the right to make a reply closing speech [mainly depends on whether the defence has called any evidence for the defence] [note: there are other considerations such as the position held by the prosecutor (Secretary for Justice or Solicitor General etc.), but such considerations are not relevant to the present case]. Whenever the defence calls evidence for the defence, the prosecution is entitled to make a reply closing speech. Technically speaking, even if such evidence goes solely to the defendant’s character, it still gives the prosecution the right to make a reply closing speech.

…

9. The above shows that the legislative intent of section 56(1) of Cap. 221 is the same as that of section 3 of the 1898 Act. Both of them are applicable where an unrepresented defendant stands trial. They are not intended to remove or undermine the prosecution’s right to reply to defence evidence. They merely provide that the fact that the defendant elects to give evidence (a right newly conferred on the defendant) does not of itself ‘confer on’ the prosecution the right of reply to defence evidence. In other words, before the 1898 Act came into force, the prosecution did not have the right to reply to the defendant’s evidence (because the defendant himself was not allowed to give evidence). After the 1898 Act came into force, the prosecution still had no right of reply simply because the defendant had given evidence. However, where the defence had called other evidence, the prosecution’s right of reply remained unchanged. The position in Hong Kong is the same. In Tong Yuk-tim v. The Queen at 143, Leonard J correctly pointed out, in relation to section 56 of Cap. 221, that:

‘It does not say that the prosecution shall not have a right of reply if the person charged have [sic] not been called as a witness.’

10. Put simply, the prosecution’s right to reply in closing speech in a trial in which the defendant was not legally represented, a right which existed in England before the 1898 Act came into force, was neither expanded nor diminished by the operation of section 3 of that Act.  The position in Hong Kong is the same.  The prosecution’s right to reply in closing speech has neither been expanded nor been diminished by the operation of section 56(1).”

5.13Mr. Tam said that section 56(1) of the Criminal Procedure Ordinance mirrored section 3 of the Criminal Evidence Act 1898.

5.14Mr. Tam submitted that the crucial question in the present case was whether the defendant had called any defence evidence at trial, not whether he had called any “witness”.  In the present case, although the defendant did not call any witness except himself, he had adduced other evidence, and such evidence had been submitted to the court by both parties by way of agreed facts, and therefore the prosecution was entitled to make a closing speech.  The evidence relied on by Mr. Tam was Part II of the Facts Admitted by the Prosecution and the Defence.  Paragraph 2 thereof stated that the Reports on the Academic Performance of the Student in relation to X’s performances in Primary 4, Primary 5 and Primary 6 were produced as defence exhibits.  These exhibits were “unused materials” supplied by the prosecution to the defence.  According to Mr. Tam, he had asked the defendant whether he would use these materials and the defendant replied “Yes”, and then they were submitted to the court by way of agreed facts.  Mr. Tam said he had done so because he wanted to assist the defendant.  Mr. Poon, Counsel for the defendant, informed us that in giving evidence the defendant did not refer to X’s Reports on the Academic Performance.

Our view

5.15With respect, it is not easy to understand Mr. Tam’s arguments, and his position is rather ambiguous.  On the one hand, he insisted that the prosecution had the right to make a closing speech, but on the other hand, in response to our enquiries, he accepted the principle stated by the Court of Appeal in Man Ching-Ip.  In our view, he appeared to have mixed up two issues which are related but different in nature.  They are: first, whether the principle exists; second, whether the principle does not apply to the present case.

5.16On the first issue, it is not necessary for us to deal with Mr. Tam’s arguments one by one because, with respect, his arguments were misconceived.  Mr. Tam assumed, in our view erroneously, that the 1837 practice direction was applicable where a defendant was unrepresented and that the criminal practice and procedure following the issuance of the practice direction, as discussed in Bryant and Oxley, were also applicable to an unrepresented defendant.  At the hearing Mr. Tam did not submit to us the original text of this practice direction.  After the hearing we went through the original text.  The practice direction was entitled “Practice To be observed on Trials for Felony where the Prisoner has Counsel” 7 CAR & P 676 (677) (173 ER 269 (at 297)).  This very title made it clear that the practice direction was applicable only where the prisoner had counsel.  The introductory paragraph of the practice direction further explained that the practice direction was issued by the English court in response to questions arising from the recent Act for allowing prisoners to make full defence by counsel.  Therefore, the discussion in this practice direction related only to trials in which the defendant was legally represented.  We do not agree that this 1837 practice direction or the criminal practice and procedure following the implementation of the practice direction confirmed the prosecution’s right to make a closing speech where the defendant was unrepresented or conferred such right on the prosecution.  After the Criminal Evidence Act 1898 came into force, in R v. Thomas (1922) 17 Cr. App. R. 34 the English Lord Chief Justice clearly stated that where a defendant was not legally represented, the mere fact that he had given evidence did not, under the Criminal Evidence Act 1898, give the prosecution the right of reply.  Mr. Tam failed to show that the authorities he cited are applicable to cases where the defendant is unrepresented.  In any event, recent decided cases in England and Hong Kong have clearly set out the principles currently in force.

5.17We consider that in Tong Yuk Tim a mistake was made in referring to the content of Bryant and Oxley because Bryant and Oxley had not made the abovementioned comment in respect of cases involving unrepresented defendants.  On the contrary, Bryant and Oxley referred to Harrison and Baggott and reiterated that the principle that where an unrepresented defendant called no witness other than himself the prosecution had no right of reply was one which must be carefully observed. In R v. Gardner (1899) 1 QB 150, which was referred to in Bryant and Oxley, the defendant was represented, and we do not see how that case can assist Mr. Tam in his arguments.

5.18As for the second point, namely whether the principle is not applicable in the present case, we do not agree that the production of documentary evidence by the defendant by way of agreed facts was equivalent to the calling of witnesses by the defendant. Mr. Tam did not refer us to any decided case in support of this contention.  This argument is problematic; for example, if a defendant produces documentary evidence when he himself is giving evidence, is he to be regarded as having called witnesses in deviation from the abovementioned principle?  The practical effect of this principle would be seriously undermined if the prosecution was not required to observe the principle that it had no right to make a closing speech solely because the agreed facts stated that such documents were produced in the form of defence exhibits.

5.19In any event, had Mr. Tam intended to rely on the production by the defendant of other documents by way of the admitted facts as a reason for departing from the principle that counsel for the prosecution could not make another closing speech, he would have to ask the Judge to inform the unrepresented defendant about his rights and alert him to the consequences of submitting the agreed facts.  We do not agree that there were circumstances in the present case which warranted a departure from this important principle.

5.20In our judgment, the making of the closing speech by the prosecution constituted an irregularity.  We shall deal with the other grounds of appeal before discussing whether the proviso should be applied.

2) Voir dire

6.1During the pre-trial hearing on 30 May 2013, Counsel A informed the court that he would object to the admission of the record of interview as evidence.  On the day of the trial, when the defendant was still represented, no “agreed facts” were submitted by the parties.  Counsel B applied for an adjournment of the trial and also informed the Judge that a voir dire was not required.  After the Judge allowed Counsel B to cease acting for the defendant, she explained to the defendant the procedures of the trial.  In the following conversation between the Judge and the defendant, mention was made of the record of interview and of the defendant having been assaulted by a police officer:

“Court: Yes, you also know that a record of interview was made of you, right?

Def: I understand.

Court: Regarding this record of interview, a moment ago, before he withdrew from the trial, your ex-counsel told me that the latest instruction you gave him was that you don’t dispute the voluntariness of the record of interview. Can you confirm this point at this stage?

Def: I don’t dispute …

Court: You don’t dispute the voluntariness.

Def: You can say — I don’t dispute that.

…

Def: I also — I understand. I also want to make a complaint, can I?

Court: What is your complaint?

Def: I complain that the police officer did not have any order, but he came into my private residence, arrested me and assaulted me.

Court: But just now you said you confirm that you don’t dispute the voluntariness.

Def: Yes, I don’t dispute the statement, but I didn’t say I don’t dispute that the policeman had done that.

Court: Well, in a moment, when police officers come here to give evidence, you can cross-examine them. You can say ‘You assaulted me’, then …

Def: When I was in Court 1 I had complained once. Now, it is July — this is …

Court: Well, I was not present in Court 1.

Def: I understand …

Court: Right, I have no idea about it.

Def: I mean when I was in court …

Court: And the jurors have no idea about it, so you have to cross-examine the witnesses in the presence of the jury.

Def: I am now making a complaint. I hope the court can put it on record, so that in future I can follow up on it. I mean I …

Court: I am not here to deal with complaints; I am here to deal with evidence.  Complaints should be made to the Complaints Against Police Office, do you understand?  To deal with evidence means that if these things affect your evidence, you can cross-examine the witnesses when they come up.  If you see that witness who you think had assaulted you or threatened you, you can cross-examine him.  You have the right to do that.  This is your right.  No one can deprive you of this right, understand?  If you intend to exercise this right, you can wait until the jurors are selected and then exercise your right in the presence of the jury.  You can cross-examine all witnesses. You can cross-examine the victim, the police officers and others, understand?”

6.2Following that, Mr. Tam informed the court that he had prepared a statement of agreed facts.  He suggested that he read out the agreed facts and that the defendant could sign the statement if he did not dispute the matters contained therein.  The Judge said to the defendant:

“Court: No matter whether you are literate or not, you listen to the prosecutor when he reads out [those facts]. Earlier on, Mr. Kan of Counsel and Mr. Tam had discussed those facts, and they should be facts which are not in dispute. What you dispute is merely whether or not you had done it, but these facts should be those which are not in dispute. You don’t need to look at [the statement]. You are illiterate. Now [the statement] will be read to you. You listen carefully and then tell me whether you confirm that these facts are not in dispute. As for the other matters which are in dispute, we will hear the evidence. Do you understand? Now, you just listen.”

6.3According to the transcript of the trial, Mr. Tam then read out part of the agreed facts, and the defendant indicated that he disagreed with some of the facts.  On the following day, i.e. 9 July 2013, Mr. Tam read out to the court a statement of agreed facts which both parties had signed.  Paragraph 7 of the statement stated that the defendant voluntarily underwent a recorded interview with the police and that both parties agreed to produce the record of the interview as evidence.

6.4In our judgment, even though Counsel B had informed the Judge that no voir dire was required, when the defendant chose to act in person and complained that he had been assaulted by a police officer, the Judge was obliged to seek clarification from the defendant on this matter.  This is because if the defendant had been assaulted by any police officer, this would certainly be highly relevant to the question of whether the record of interview was made by the defendant voluntarily.  Unfortunately, the Judge did not enquire of the defendant about his actual position on this matter.  We agree with the defence that under such circumstances it was necessary for the court to conduct a voir dire.

6.5Furthermore, it was in our view questionable for Mr. Tam to seek agreement from the defendant that the record of interview was voluntarily made when he knew that the defendant said that he had been assaulted by a police officer.  The transcript of the trial does not indicate that the Judge had explained to the defendant the legal consequences of the production of the agreed facts by the prosecution and the defence.  These agreed facts were certainly prejudicial to the defendant, because the Judge directed the jury that in assessing the defendant’s evidence they could take into account paragraph 7 of the agreed facts (which the defendant had signed) which stated that the defendant agreed that he had voluntarily participated in the video-recorded interview, but the defendant testified that he had not done so voluntarily and that he had been subjected to force.  The Judge told the jury that they could consider the relevant parts of the agreed facts to decide which version was correct.  Such a direction would, in our view, cause the jury to reject the contention that the defendant had not voluntarily attended the video-recorded interview.  In his closing speech Mr. Tam also invited the jury to assess the defendant’s veracity  in light of the discrepancy between the agreed facts and his evidence.  In our view, regardless of whether a voir dire should have been held, the circumstances under which the agreed facts came into existence gave rise to an irregularity in the course of the trial.

6.6We hold that the failure to hold a voir dire in the present case and the production of the agreed facts by the defendant and prosecution constituted another irregularity in the course of the trial.

3) Defence’s closing speech

7.1The defence complained that the Judge had not given the defendant adequate direction and opportunity to make a closing speech.  The defendant claimed that he was not quite literate and had informed the Judge at an earlier stage that he would not make a closing speech.  After the prosecution made its closing speech, the Judge asked the defendant again whether he would make a closing speech.  He said he would and proceeded to make a speech.  The court record shows that the following conversation took place:

“Court: Thank you. Defendant, please stand up. Do you have a closing speech to make?

Def: Yes.

Court: Go ahead.

Def: My Lady — Lady, members of the jury, as the case which I committed this time, as it affects my wife Madam Hui, because — so I concealed many things. I mean I felt that I could not look my wife in the eyes, because this incident …

Court: Wait, wait. As I explained to you yesterday, these things should have been said when you were giving evidence.

Def: Oh, in that case I have nothing to say.

Court: Yes, because when you were giving evidence, the prosecution was entitled to cross-examine you.

Def: Yes.

Court: The time for, [and] the stage of, giving evidence is now over. To make a [closing] speech is to make a submission on the basis of the facts of the present case, the evidence already available and the testimony which has been given. That is to say, it’s like what Mr. Tam has done earlier on. Just now you talked about what you had done to your wife, etc., that’s not what you should say at the stage of making a [closing] submission.

Def: Oh, sorry, my Lady, I didn’t know …

Court: Yes, do you understand?

Def: I understand.

Court: Do you have other submissions to make?

Def: No.

Court: Sit down.  Ladies and gentlemen, let’s have an adjournment for 15 minutes, and then I shall begin the first part of the summing up and directions.  15 minutes.”

7.2As an unrepresented defendant lacks legal knowledge, the court has the duty to assist him in order to ensure that he receives a fair trial.  How this duty is to be actually performed depends on the circumstances of each case.  In the present case, the court’s duty was to remind the defendant what had been said against him in the prosecution’s speech and to remind him that he needed to respond thereto.  In particular, when the prosecution had made a closing speech in violation of the abovementioned principle that the prosecution had no right to make a closing speech, had the Judge or Mr. Tam been aware of this principle, there would have been an even greater need for the Judge to assist the defendant to enable him to rebut the prosecution’s allegations.  Unfortunately, however, neither the Judge nor Mr. Tam was aware that the prosecution had no right to make a closing speech, and the few short sentences uttered by the defendant before he was cut short could not even begin to reply to the speech made by a Senior Counsel.

7.3In any event, a defendant is entitled to make a closing speech.  Earlier on at trial, the Judge had said the following to the defendant:

“Court: Let me first say something to the defendant. Defendant, please stand up. Just now you have given your evidence. The procedure for tomorrow is that the prosecution will make its closing speech. After the prosecution’s closing speech, you too have the right to make your closing speech. That means you can draw the jurors’ attention to certain evidence and points of law, but this is not the same as giving evidence. This and giving evidence are two different matters. Today you have completed the giving of evidence. That is to say, the closing speech tomorrow will be to make certain comments or criticisms on the evidence which has been adduced. You can choose to make or not to make this speech, do you understand? But you are not to give evidence. You cannot talk again about the warrant of arrest or about how you were assaulted by the police, because what you have to say has already been said today when you were in the witness box. Do you understand? Do you understand the difference?

Def: I understand.

Court: Will you make a closing speech?

Def: I won’t.”

7.4Although the defendant said that he would not make a closing speech, in the end he chose to make a speech. When he was making his speech, the Judge reminded him that on the day before she had explained to him what the content of the speech should be, namely that in his closing speech he could not talk again about the warrant of arrest or the assault by the police.  This, in our view, might have given rise to misunderstanding on the part of the defendant, as a result of which he did not carry on with his speech.  Although he had given evidence about these matters, when he was closing his case it was open to him to rely on such evidence in support of his defence.

7.5In our judgment, the subject matter of this ground of appeal constituted another irregularity in the course of the trial.

4) Directions on DNA

8.In her directions to the jury, the Judge referred to the evidence of the forensic pathologist: no DNA of the defendant was found in X’s private parts, but it did not mean that the defendant had had no sexual intercourse with X.  The Judge did correctly refer to the evidence of the forensic pathologist.  However, in our judgment, the Judge should have reminded jurors, who had no legal knowledge, that when they assessed the defendant’s defence that he had not had sexual intercourse with X, they should also consider whether the absence of his DNA from X’s private parts could serve to bolster his defence.  In our judgment, the Judge’s direction in this respect was less than thorough.

Proviso

9.In view of the other grounds of appeal discussed above, we do not consider it appropriate to apply the proviso in the present case.

Quashing the convictions and retrial

10.Our decision to quash the convictions and order a retrial is one which we make with reluctance, because this decision merely addresses the irregularities which arose in the course of the trial and does not determine the merits or otherwise of the prosecution case or the defence case; in particular, upon retrial, X will have to recall and recount facts and details which traumatized her.  However, the rule of law requires the court to ensure due respect for and compliance of well-established legal principles which safeguard the rights of defendants in criminal trials. In particular, when the failure to comply with these principles has rendered the trial unfair and the conviction(s) unsafe, it is necessary for the court to make a resolute decision.

Mr. Simon Tam SC, Senior Assistant Director of Public Prosecutions, for the Applicant (CAAR 3/2013) and the Respondent (CACC 284/2013).

Mr. Jackson Poon, instructed by Messrs. A.M. Mui & Kwan and assigned by the Legal Aid Department, for the Respondent (CAAR 3/2013).

Mr. Jackson Poon and Mr. Kenwick Yam, instructed by Messrs. Wong, Kwan & Co., for the Applicant (CACC 284/2013).

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Edmund Cham, Solicitor.