LI DEFAN AND ANOTHER v. HKSAR

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
FROM CACC NO. 520 OF 2000)

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Between:
LI DEFAN 1st Applicant
FAN YING CHAO 2nd Applicant
AND
HONG KONG SPECIAL ADMINISTRATIVE REGION Respondent

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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

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DETERMINATION

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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:

“Whether, in the context of a defendant of good character who gives and relies upon a ‘mixed’ out-of-court statement in the form oflengthy interviews made over several hours under vigorous interrogation which are both audio- and video-recorded and produced inevidence but who does not himself give evidence, it is correct in law to say: –

(i) that less weight will be given to the explanation in that statement than where it is stated in testimony and that there is noway to test whether such explanation is true or reliable unless he gives evidence;

(ii) that a judge or jury is entitled to draw an adverse inference against the defendant more readily in view of his election notto give evidence.”

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:

“Whether the application of the proviso to section 83(1) of the Criminal Procedure Ordinance, Cap. 221 is justified where, at a trial for an offence contrary to section 9(2)(a) of the Prevention of Bribery Ordinance Cap. 201 and when the defence is the general custom of giving lai-see at Chinese New Year, the trial Judge errs in law in the followingrespects:

(i) by finding that the defence of general custom was not available to the defendant because of the provisions of section 19 of the Prevention of Bribery Ordinance, Cap. 201; and,

(ii) by finding that the burden of proof was reversed and that it was necessary for the defendant to establish a defence of reasonableexcuse on the balance of probabilities.”

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:

“The statements were mixed and I thought I should treat any incriminating evidence found therein and any exculpatory material alongwith the balance of the evidence. I note [defence counsel’s] point that the interviews were lengthy, the defendants were confrontedwith documents, and the questions were detailed. It is nevertheless still the case that the weight afforded to exculpatory evidenceprovided in statements, is likely to be less than evidence given on oath in court and tested by cross examination.”

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 [1988] 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:

“Where a ‘mixed’ statement is under consideration by the jury in a case where the defendant has not given evidence, it seems to usthat the simplest, and, therefore, the method most likely to produce a just result, is for the jury to be told that the whole statement,both the incriminating parts and the excuses or explanations, must be considered by them in deciding where the truth lies. It is,to say the least, not helpful to try to explain to the jury that the exculpatory parts of the statement are something less than evidenceof the facts they state. Equally, where appropriate, as it usually will be, the judge may, and should, point out that the incriminatingparts are likely to be true (otherwise why say them?), whereas the excuses do not have the same weight. Nor is there any reason why,again where appropriate, the judge should not comment in relation to the exculpatory remarks upon the election of the accused notto give evidence.”

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 [1962] 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 [1984] 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 [1962] AC 188 at p.198:

” This is the sort of case in which a not incredible explanation given by the accused in the witness box might have created a reasonabledoubt. But there is no explanation; and the prisoner’s silence is emphasised by his consequent conduct. How did he come to squeezehis wife’s throat? When the prisoner, who is given the right to answer this question, chooses not to do so, the court must not bedeterred by the incompleteness of the tale from drawing the inferences that properly flow from the evidence it has got nor dissuadedfrom reaching a firm conclusion by speculation upon what the accused might have said if he had testified.”

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 [1979] 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.

(Kemal Bokhary)
Permanent Judge
(Patrick Chan)
Permanent Judge
(G P Nazareth)
Non-Permanent Judge

Representation:

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