FAMC No. 22 of 2001
IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MISCELLANEOUS PROCEEDINGS NO. 22 OF 2001 (CRIMINAL)
(ON APPLICATION FOR LEAVE TO APPEAL
Appeal Committee: Mr Justice Bokhary PJ, Mr Justice Chan PJ and Mr Justice Nazareth NPJ
Date of Hearing: 12 October 2001
Date of Determination: 12 October 2001
Mr Justice Bokhary PJ:
1. These two applicants were tried before His Honour Judge Day in the District Court. The charge sheet contained seven charges. Allwere laid under the Prevention of Bribery Ordinance, Cap. 201. The 6th and 7th charge resulted in acquittals. But the 1st applicant was convicted on the 1st and 2nd charges: both beingof accepting an advantage as an agent, contrary to s.9(1)(a). And the 2nd applicant was convicted on the 3rd, 4th and 5th charges: all three being of offering an advantage to an agent, contraryto s.9(2)(a).
2. The convictions were on the following footing. What the 1st applicant accepted under the 1st and 2nd charges respectively was whatthe 2nd applicant offered under the 3rd and 4th charges respectively. The 5th charge concerned what the 2nd applicant offered tosomeone other than the 1st applicant. The 1st applicant was an employee of a bank. The 2nd applicant was a director and shareholderof a company seeking loans from the bank. The person to whom the offer under the 5th charge was made was another employee of thesame bank. All the offers were made with a view to getting the loans from the bank by bribing its employees.
3. Both applicants’ convictions were affirmed by the Court of Appeal (Mayo VP and Wong and Woo JJA), the one on the 5th charge by theapplication of the proviso. Having been refused a certificate by the Court of Appeal (Stuart-Moore Ag CJHC, Woo JA and Burrell J),the applicants are now before this Committee.
4. Both applicants ask us to certify, and to grant leave to appeal to the Court of Final Appeal on, the following point which is putforward on their behalf as a reasonably arguable point of law of great and general importance involved in the decision of the Courtof Appeal from which they wish to appeal:
Alternatively, they seek leave to appeal on the basis that it is reasonably arguable that those matters constituted substantial andgrave injustice to them.
5. On his own, the 2nd applicant asks us to certify, and to grant leave to appeal to the Court of Final Appeal on, the following pointwhich is put forward on his behalf as a reasonably arguable point of law of great and general importance involved in the decisionof the Court of Appeal from which he wishes to appeal:
Alternatively, he seeks leave to appeal on the basis that it is reasonably arguable that those matters constituted substantial andgrave injustice to him.
6. As to “mixed” statements, what the judge said was this:
7. It is argued on the applicants’ behalf that that approach is at variance with the one laid down by the House of Lords in R v. Sharp  1 WLR 7. It is contended in the applicants’ Notice of Application that under the Sharp approach it is wrong in law “to suggest that less weight will be attached to the exculpatory part of a ‘mixed’ statement made insuch circumstances than where it is stated in testimony or that there is no way to test whether such exculpatory part is true orreliable without the maker entering the witness-box.”
8. Dealing first with the second part of that contention, the short answer to it is simply that the judge did not say that there isno way to test the truth or reliability of the exculpatory part of a “mixed” statement without the maker entering the witness-box.
9. As to the first part of that contention, it is to be noted that what the House of Lords did in Sharp’s case was to adopt the following statement of the law made by Lord Lane CJ in R v. Duncan (1981) 73 Cr. App. R. 359 at p.365:
10. That makes it plain that, contrary to the applicants’ contention, the exculpatory parts of a “mixed” statement do indeed have lessweight than its inculpatory parts.
11. What remains of the first point of law which we are asked to certify is the question it seeks to raise as to whether “it is correctin law to say … that a judge or jury is entitled to draw an adverse inference against the defendant more readily in view of hiselection not to give evidence”.
12. In R v. Sung Shui Sing  HKLR 587 at p.592 the Court of Appeal’s predecessor the Full Court said that “where the prosecution have established facts from which a tribunalmight reasonably infer a fraudulent intent, it does not lie in [the accused’s] mouth to complain if such an inference is made andif this inference is reached more readily because of his decision not to afford the tribunal the benefit of his version of his intentions”.Citing Sung’s case in support, the Court of Appeal said in R v. Lam Tsz Wah  HKLR 54 at p.63 G-H that “since the applicant chose not to go into the witness box to explain the circumstances in which his fingerprintcome to be on [the metal bar with which the deceased was struck] he cannot complain if a proper inference is drawn, and if it isdrawn more readily in view of his election”. In convicting the applicants, the judge in the present case cited that passage fromthe judgment in Lam’s case. And in affirming those convictions, the Court of Appeal in the present case relied upon Sung’s case and Lam’s case.
13. In saying what it said in Sung’s case, the Full Court was following its understanding of what the Privy Council said in R v. Sharmpal Singh  AC 188 at p.198:
It is to be observed that the Privy Council did not say that an inference adverse to the accused is more readily to be drawn by reasonof his failure to testify. The point that Privy Council made is simply this. Take a case where an explanation given by the accusedmight have created a reasonable doubt if he had gone into the witness box and given a not incredible explanation. Suppose the accusedchooses not to testify. If so, the tribunal of fact should not conjure up a reasonable doubt by speculating upon what he might havesaid if he had testified.
14. In Weissensteiner v. R (1993) 178 CLR 217 the High Court of Australia (by a majority of 5:2) upheld a direction to the jury that they might more safely draw an inference ofguilt from the evidence because the accused did not give evidence of relevant facts which could be perceived to be within his knowledge.It is to be noted that there the word used was “safely” rather than, as in the present case, “readily”. It is at least reasonablyarguable that that difference is material. In this connection, it is interesting to note that the minority, in holding that the directionin that case was a misdirection, said that the direction suggested that the accused’s failure to give evidence in relation to somematters entitled the jury more “readily” to draw an inference of guilt from the whole of the prosecution’s case. That is how thelearned judges who considered the direction to be a misdirection saw its effect there. In the present case the word “readily” wasused in terms.
15. On the one hand, an accused’s failure to go into the witness-box is not to be held against him. Nor, on the other hand, does it warrantspeculation in his favour upon what explanation he might have offered, or defence he might have raised, if he had gone into the witness-box.
16. We will come back, in due course, to this part of the first point of law.
17. As to the application of the proviso by the Court of Appeal in this case, we do not consider it reasonably arguable that a rule canbe laid down to the effect that the proviso can never be applied where the burden of proof is reversed by the trial court. The lawin Hong Kong on the point was settled to the contrary by the Court of Final Appeal in Chan Chuen Ho v. HKSAR (1999) 2 HKCFAR 198. Mr Justice Ching PJ quoted Lord Diplock’s statement in Kwan Ping Bong v. R  2 WLR 433 at p.439 that “A misdirection as to the onus of proving an essential fact in issue at the trial seldom provides an appropriate casefor the application of the proviso”. Then Mr Justice Ching PJ, with whom the other members of the Court agreed, observed (at p.203A)that “That does not mean, however, the proviso should never be applied in a case of that type”.
18. In Chan’s case it was held that, as Mr Justice Ching PJ put it at p.204B, “by the slimmest of margins” the proviso could not be applied onthe particular facts of that case.
19. Is it reasonably arguable that the application of the proviso by the Court of Appeal in the present case amounted to a departurefrom accepted norms? There was no misapprehension of principle on the Court of Appeal’s part. It was simply a question of how theevidence was assessed on correct proviso principles. And we see no basis for a reasonable argument that there was any departure fromaccepted norms in how the Court of Appeal made that assessment.
20. So the second point of law is not reasonably arguable either. Nor is it reasonably arguable that the Court of Appeal’s applicationof the proviso on the 5th charge gave rise to substantial and grave injustice to the 2nd applicant.
21. We revert now to the question of whether it is a misdirection for a judge to direct a jury or himself that an inference adverse toan accused is more readily to be drawn if he does not testify. We consider it at least reasonably arguable that such a drection isa misdirection. It is part of the standard jury direction on an accused’s right of silence that his silence does nothing to establishhis guilt. And it is at least reasonably arguable that the direction complained of is inconsistent with that. If so, is the directioncomplained of wrong or is that standard direction too favourable to the defence? These issues merit the attention of the Court ofFinal Appeal.
22. We certify that the point raised by the question “Is it a misdirection for a judge to direct a jury or himself that an inferenceadverse to an accused is more readily to be drawn if he does not testify?” is a point of law of great and general importance involvedin the decision from which leave to appeal is sought. We consider the point to be at least reasonably arguable. Accordingly, we grantleave to appeal to the Court of Final Appeal for the point to be pursued. It will be for the Court itself to say whether or not thepoint is to be resolved in the applicants’ favour, and if it is, to decide whether the proviso ought to be applied.
Mr Andrew Macrae SC & Ms Maggie Wong (instructed by Messrs Haldanes) for both applicants
Mr Kevin P. Zervos (of the Department of Justice) for the respondent