IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CRIMINAL APPEAL NO. 448 OF 2009
(ON APPEAL FROM DCCC NO. 264 OF 2009)
Before: Hon Tang Ag CJHC, Lunn J and Saw J in Court
Date of Hearing: 17 September 2010
Date of Decision: 17 September 2010
Hon Tang Ag CJHC:
1. The applicant was convicted by Deputy District Judge Woodcock of 5 counts of fraud, contrary to section 16A of the Theft Ordinance, Cap. 210. He was sentenced to imprisonment for 2 years after he has made full restitution.
2. His application for leave to appeal to us was dismissed on 9 June 2010, and the Reasons for Judgment (“the Judgment”) was handeddown on 29 June 2010.
3. The applicant now seeks a certificate that a point of law of great and general importance is involved in the decision, namely:
4. Mr Boyton, for the applicant, submitted that the crux of the question is whether a suspected person’s partial explanation resultsin a complete waiver of his right to silence, or is it a partial waiver limited to the specific explanation(s).
5. It is said that the question arose because I said in para. 34 of the Judgment:
6. A few words of explanation are necessary.
7. According to the prosecution, a funding agreement dated 20 May 2006 was signed by PW1 on behalf of L’Sure Golf Tourism Pte Ltdand the applicant for the lender Universal Alliance Limited of London (“Universal Alliance”). The evidence of PW1 was that therewere two original copies of the funding agreement. Both were kept by the applicant. PW1 was, however, given a photocopy which wasproduced as Exhibit P1.
8. Exhibit D1 was produced by the applicant. It purported to be one of the two originals. However, Exhibit D1 bore what purportedto be the signatures of PW1 and the signatures of a Mr Gandhi, purportedly signing on behalf of Universal Alliance.
9. After the applicant was arrested on 14 September 2008, he was interviewed on the same day. Under caution, he told the police thathe was only a middleman and that the funding agreement was made between Mr Gandhi and PW1.
10. This is what I said in paras. 31 to 33 of the Judgment:
11. Then in para. 34, I said:
12. That is correct as a statement of fact and was said in the introductory and narrative part of the judgment.
13. When I dealt with the issues in the appeal, starting from para. 44 of the judgment, I did not say that because of his failure tomention Exhibit D1 during his interviews, the applicant should be disbelieved. Nor had the learned trial judge said so.
14. In para. 49, however, after referring to the fact that the applicant had on two occasions in 2008 sent monies to PW1 after receivingletters of demand from PW1’s solicitors, I went on to say:
15. I do not believe the question sought to be certified arises at all.
16. But first I must explain Mr Boyton’s point, which is a facet of the right of silence.
17. The leading decision on the right of silence is Lee Fuk Hing v. HKSAR (2004) 7 HKCFAR 600. In the judgment of Mortimer NPJ which had the concurrence of the other members of the court, he said at para. 57 at 622:
18. Mr Boyton submitted that whilst that is so if the statement to the police was inconsistent with his defence, no comment or cross-examinationis permissible in respect of an omission. Here the applicant had merely failed to mention Exhibit D1 when interviewed. There wasno inconsistency.
19. I do not think it is necessary for us to decide whether on the facts of this case, it would have been permissible for the learnedjudge to draw adverse inference from the fact that although the applicant was shown Exhibit P1 during his interview, he had failedto mention that he had the possession of the original of the funding agreement which bore the purported signatures of PW1 and MrGandhi.
20. It is unnecessary for this point to be decided because the fact that Exhibit D1 was not mentioned by the applicant was not a reasongiven by the learned trial judge for rejecting the applicant’s defence. Nor was that a reason for dismissing his appeal.
21. The learned judge was satisfied that the prosecution witnesses were witnesses of truth; and that DW1 who was called on behalf ofthe defence (the applicant did not give evidence), in relation to Exhibit D1, was disbelieved by the learned judge.
22. DW1’s evidence was described by the learned trial judge as:
23. Furthermore, in any event, I would not certify the question. The law is as stated by the Court of Final Appeal in Lee Fuk Hing and does not require clarification. In some cases, it may be difficult as a matter of fact to decide whether an omission amountedto an inconsistency. But that is a question of fact which has to be resolved in the particular case. Nor for the reasons givenabove does it arise here.
24. For the above reasons, I refuse to certify any question for the purpose of section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484.
Hon Lunn J:
25. I agree with the judgment of Tang Ag CJHC and have nothing to add.
Hon Saw J:
26. I agree with the judgment of Tang Ag CJHC and have nothing to add.
Mr. David Boyton, instructed by Messrs Jal. N. Karbhari & Co., for the Applicant.
Mr. Alex Lee, SADPP of the Department of Justice, for the Respondent.