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Hksar V.chan Chu Leung (陳柱良)

Judgment Cited in Precedent Map Related
Vincent
JurisdictionHong Kong
Judgment Date05 January 2024
Neutral Citation[2024] HKCFA 1
Year2023
Subject MatterFinal Appeal (Criminal)
Judgement NumberFACC12/2023
CourtCourt of Final Appeal (Hong Kong)
FACC12/2023 HKSAR v.CHAN CHU LEUNG (陳柱良)

FACC No. 12 of 2023

[2024] HKCFA 1

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 12 OF 2023 (CRIMINAL)

(ON APPEAL FROM CACC NO. 160 OF 2010)

________________________

BETWEEN
HKSAR Respondent
and
CHAN CHU LEUNG (陳柱良) Appellant

_________________________

Before: Chief Justice Cheung, Mr Justice Ribeiro PJ, Mr Justice Fok PJ, Mr Justice Lam PJ and Mr Justice Gleeson NPJ
Date of Hearing: 28 November 2023
Date of Judgment: 5 January 2024

___________________

J U D G M E N T

___________________

Chief Justice Cheung:

1. I agree with the judgment of Mr Justice Fok PJ.

Mr Justice Ribeiro PJ:

2. I agree with the judgment of Mr Justice Fok PJ.

Mr Justice Fok PJ:

A. Introduction

3. This appeal arises out of the appellant’s conviction before Mrs Justice V Bokhary (“the Judge”) sitting with a jury, on 23 April 2010, of one count of attempting to traffic in a dangerous drug, namely 6,605.68 grammes of cocaine. It raises an important question as to the scope of a criminal defendant’s right of silence in the context of later allegations of police impropriety. It also affords an opportunity for the Court of Final Appeal to consider a number of concerns expressed by the Court of Appeal about the right of silence in this jurisdiction.

A.1 The facts and the appellant’s conviction

4. On 16 February 2009, 20 cartons of air cargo arrived in Hong Kong on a flight from Amsterdam. On examination, the police found 25 bags of powder, containing the cocaine the subject of the charge, in two of the cartons. Dummy bags of baking powder, dusted with fluorescent powder, were substituted for the bags of cocaine.

5. With an airway bill given to him by one of the appellant’s co-accused, D2, at an address in Tuen Mun, a delivery driver collected the cargo from the airport and drove back to Tuen Mun where the appellant and D2 then put the cargo into larger cartons. The appellant and D2 then loaded the cargo, now in the larger cartons, onto another van which then drove to Granville Circuit in Tsim Sha Tsui. D2 travelled in the van with the cargo and the appellant drove a private car to Granville Circuit. Together with D2, the appellant moved the cartons into an address in Wing Hing Mansion, to which D2 had the key. About half an hour after their arrival, they were intercepted by police outside Room C in the building and apprehended after a struggle. They were taken into Room C where the cartons, including those containing the bags of dummy drugs were found. The appellant and D2 were then arrested. Two other co-accused (D3 and D4), alleged to have been lookouts outside the addresses in Tuen Mun and Granville Circuit, were also arrested.

6. The appellant remained silent under caution. Traces of fluorescent powder were found on his nail clippings and his fingerprints were also identified on a box and on some adhesive tape that was found in Room C.

7. The appellant’s case was that he did not know the cargo contained dangerous drugs. He testified at trial that he was asked to undertake a casual job to move some goods by a person called Ah Chu, whom he had come to know and for whom he had worked as a vehicle attendant on about 30 occasions. Ah Chu had asked him to find a friend to help, so the appellant had asked D2. Each of the appellant and D2 were to be paid $300 for their work in receiving and repacking the cargo in Tuen Mun and then moving it to the address in Granville Circuit. The appellant denied he and D2 struggled with the police and also that they had opened any boxes or bags in Tuen Mun or Room C. He said the police rushed in as they were leaving Room C.

8. Since the nature of the cargo was not in issue and the appellant admitted he had received the cargo in Tuen Mun and repacked it and moved the cartons into Room C, the only issue at trial in respect of the appellant was one of knowledge, namely whether he knew he was dealing with dangerous drugs.

9. The jury were persuaded that the appellant did have the requisite knowledge for the trafficking offence and convicted him by a majority verdict of 6 to 1. He was sentenced by the Judge, on 26 April 2010, to 25 years’ imprisonment.

A.2 The procedural history leading to this appeal

10. On 6 May 2010, the appellant applied for leave to appeal against conviction but, after the refusal of legal aid, he filed a notice to abandon his appeal on 21 October 2010.

11. After a lengthy interval, on 5 January 2017, the appellant applied for leave to treat his abandonment as a nullity. The single Justice of Appeal seized of the application considered there was no basis on which to list the matter before the court and the appellant was advised his only recourse was to petition the Chief Executive to refer the matter to the Court of Appeal under s.83P of the Criminal Procedure Ordinance (Cap.221) (“the CPO”). Accordingly, on 21 December 2018, the appellant applied to the Chief Executive under that section, as a result of which, on 14 January 2022, the Chief Executive referred the whole case to the Court of Appeal and it was therefore heard by the Court of Appeal as an appeal against conviction.[1]

12. Before the Court of Appeal, the only ground of appeal relevant to this appeal was the contention that there were material irregularities arising from breaches by the prosecution of the appellant’s right of silence which were not cured by the Judge. Specifically, there were two respects (set out in more detail later in this judgment) in which it was alleged the appellant’s right of silence was infringed. First, in respect of the prosecution’s cross-examination of the appellant concerning the involvement of Ah Chu (referred to as the 1st impugned cross-examination) and, secondly, in respect of the prosecution’s cross-examination of the appellant concerning the evidence of the fluorescent powder (referred to as the 2nd impugned cross-examination).

13. The Court of Appeal rejected this ground of appeal in respect of both impugned areas of cross-examination[2] and dismissed the appeal.

14. In respect of the Ah Chu cross-examination, the Court of Appeal held that this was impermissible since it sought to make use of his exercise of the right of silence to challenge his credibility. However, the Court of Appeal held that the Judge’s directions, including a specific direction to ignore the impugned cross-examination in question, were sufficient to rectify the error so that no unfairness was caused to the appellant.

15. In respect of the fluorescent powder cross-examination, the Court of Appeal held that the cross-examination in question, which concerned the lack of complaint about alleged police impropriety, did not infringe the appellant’s right of silence since there was not what the Court of Appeal called “a free-standing ‘right of no-complaint’ unrelated to the exercise of an accused’s right of silence”.[3] But if the cross-examination had infringed his right of silence, the Court of Appeal held that, by reason of the Judge’s directions to them about that right, the jury would not have taken the appellant’s lack of complaint against him and would not have engaged in an impermissible line of reasoning.

A.3 Leave to appeal to the CFA and the issues on this appeal

16. The appellant applied to the Court of Appeal to certify that a point of law of great and general importance was involved in the appeal.[4] The Court of Appeal declined to so certify the point of law, on the basis that the question posed did not arise given the Judge’s directions about the right of silence. However, notwithstanding the refusal of a certificate, the Court of Appeal drew the attention of the Appeal Committee to a number of concerns about this area of the law.

17. The Appeal Committee granted the appellant leave to appeal to the Court of Final Appeal[5] in respect of the following question, namely:

“When it is common ground that a defendant has maintained his pre-trial right to silence, is it permissible for the prosecution to question or make use of:

(a) the defendant’s pre-trial lack of or late complaint regarding police impropriety during the investigation giving rise to the charge?

(b) the defendant’s pre-trial lack of or late disclosure, whether in the form of a complaint or not, about a matter other than ‘the occurrence of an offence, the identity of the participants and the roles which they played’ but nonetheless addressing a piece of incriminating evidence?”

18. Leave to appeal in respect of that question was confined to the appellant’s complaints arising out of the fluorescent powder cross-examination. Leave to appeal was also granted to the appellant on the substantial and grave injustice basis regarding the issue of whether any such infringement in respect of that cross-examination was cured by the Judge’s directions, so that this issue could be addressed in the event it was held that the appellant’s right of silence had been infringed.

19. Leave to appeal was refused in relation to the appellant’s complaints concerning the Ah Chu cross-examination and the Judge’s direction in respect of that cross-examination.

B. The impugned cross-examination and the Judge’s directions

20. In order to put the discussion that follows into proper context, it will be helpful to set out the two impugned areas of cross-examination and the Judge’s directions in relation to the right of silence.

B.1 The appellant’s exercise of his right of silence

21. First, it is important to note that, unlike other cases to which reference will later be made, there is no issue in the present case as to whether the appellant availed himself of his right of silence upon...

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