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The Court of Final Appeal Overturned Conviction Where Right to Silence was Infringed

2017-04-01

Introduction

A recent judgment from the Court of Final Appeal has reinstated a person’s right against self-incrimination under the criminal procedure of Hong Kong. In HKSAR v Ata Asaf [2016] HKEC 1091, the Court of Final Appeal overturned the appellant’s conviction for trafficking in a dangerous drug on the ground that inadmissible evidence infringing the appellant’s right to silence has amounted to material irregularity, resulting in substantial and grave injustice to the appellant.

Fact

The appellant was first convicted of trafficking in a dangerous drug (the “Charge”). A bag containing 12.07g of methamphetamine hydrochloride (“Ice”) was found on the appellant. The appellant remained silent on arrest and caution when being interviewed at a police station and later pleaded not guilty to the Charge.

At trial, the appellant claimed, for the first time, that he was a habitual drug abuser and the Ice was for his own consumption. In cross-examination, when the appellant was asked why he had not told the police where he consumed and stored the Ice, he replied that he was not asked about it. The prosecution counsel suggested that the appellant’s account was completely untrue. Subsequently, in the prosecution counsel’s closing speech, he commented that it was only during the appellant’s evidence that he first testified that he went out with sufficient money to buy the drugs found in his possession; and then asked rhetorically why the police had failed to find the drug-taking equipment at the appellant’s home and submitted that the appellant’s entire evidence was inherently unbelievable.

The Court of Appeal’s Ruling

The Court of Appeal agreed that the cross-examination suggested the appellant’s evidence was a recent invention which undermined his credibility. Albeit it was held that such evidence infringing the appellant’s right to silence was inadmissible, a majority of the Court of Appeal rejected that the inadmissible evidence constituted a material irregularity in the trial and the appellant’s conviction stood. The appellant then appealed to the Court of Final Appeal.

The Court of Final Appeal’s Ruling

Right to Silence

The right to silence is a fundamental right to a person suspected of or charged with a criminal offence, as recognised in another Court of Final Appeal’s decision in Lee Fuk Hing v HKSAR [2005] 1 HKLRD 349. Where a suspect’s silence is used to draw inference of guilt, or where a line of defence or evidence suggested a late invention because something was not mentioned by a suspect earlier, such person’s right against self-incrimination could otherwise become a possible source of entrapment. It is unfair for a person to have the right to remain silent, and usually to have been reminded of this right through the caution when being interviewed, and then for his silence to be put against him at trial.

Infringement of Right to Silence as a Material Irregularity

The question of whether the right to silence has been materially infringed is fact and context sensitive. In this case, it was held that the introduction of the inadmissible evidence was clearly a material irregularity in the context of the appellant’s trial.

In this case, the Court of Final Appeal pinpointed that the sole and critical issue for the jury was whether the appellant’s claim that the drugs were for his own consumption rather than for trafficking was true. The appellant’s defence was that he was a habitual drug abuser and that the Ice found on him was for his own personal consumption. The defence counsel devised a “bold tactic” to bolster the credibility of appellant’s evidence by introducing to the jury a number of appellants’ previous convictions illustrating that the appellant had only been convicted of offences relating to mere possession of dangerous drugs but none for trafficking. Such introduction of the criminal convictions would expose the appellant to the risk of being subject to unfair prejudice in his cross-examination.

The prosecution counsel attacked the appellant’s credibility root and branch and cast doubts on the appellant’s credibility by questioning why he had not made this claim previously. Such premise was based on inadmissible evidence and material in breach of the appellant’s right to silence.

Prejudicial Effect not Remedied

Whether the error requires to be rectified and, if so, how, will depend on the facts of each individual case. In her summing-up to the jury, the trial Judge gave the standard direction to the jury on the accused’s right to silence. Although the judge considered that the statement was in the context of a summing-up that was, in general, extremely favourable to the defence case and implied that the jury ought to accept the truth of his claim that he was only in possession of the drugs for his own use and not for the purposes of trafficking, such standard direction on the right to silence did not remedy the error constituted by the inadmissible evidence introduced in the prosecution counsel’s closing speech that it was only during his testimony the day before that the appellant had claimed he went out that day with sufficient money to buy the drugs found in his possession. As a result, substantial and grave injustice was done to the appellant and the Court of Final Appeal eventually substituted the appellant’s conviction for trafficking in a dangerous drug with a conviction for possession.

Implications

In Hong Kong, a person’s right against self-incrimination is enshrined under the common law, the Hong Kong Bill of Rights Ordinance (Chapter 383) as well as the provision of the International Covenant and Civil and Political Rights via the Basic Law. Silence shall not be used for the purpose of inferring guilt or of assessing the truthfulness of an accused and the credibility of the testimony of an accused at trial. The judges shall deliver a clear, unequivocal legal direction that the jury must ignore inadmissible evidence in breach of the right to silence and shall not rely on it and offer an explanation for why this legal direction is being given.

It is important to bear in mind that such right may be subject to abrogation. For instance, where an individual is required to attend a Securities and Futures Commissions interview and, at that time, has not been charged with a criminal offence, the Securities and Futures Ordinance can compel the individual to give self-incriminating evidence at that interview.  Having said that, relevant laws do make other provisions to safeguard persons under investigation against self-incrimination.


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Important: The law and procedure on this subject are very specialised and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.

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