The right to remain silent is a powerful weapon in the hands of criminal defence lawyers in Hong Kong as affirmed in the recent case of HKSAR v ATA ASAF  HKCFA 31. Here, the Court of Final Appeal (“CFA”) overturned a defendant’s conviction for trafficking dangerous drugs on the grounds that the prejudicial effect of inadmissible evidence that the jury heard during trial had not been remedied by the trial judge’s standard direction.
The appellant was searched by police who observed a suspected theft on the streets of Jordan and was found to have stolen goods and dangerous drugs. On arrest and after being cautioned for possession of dangerous drugs, he exercised his right to silence. He also remained silent while being interviewed at the police station. He was subsequently charged with one count of theft (Count 1) and one count of trafficking in dangerous drugs (Count 2).
The appellant pleaded guilty to Count 1 for theft and not guilty to Count 2 for trafficking. Instead, he plead guilty to possession, which was not accepted by the prosecution.
During cross-examination at trial, prosecuting counsel sought to undermine the appellant’s credibility by showing he did not have the equipment to consume the drugs in his house as he had claimed, and thus must have been trafficking them, rather than being merely in possession. The prosecution also sought to use the appellant’s failure to indicate where the equipment was located in his house when being questioned by police officers to establish that the appellant was dishonest. However, the defendant was exercising his right to silence. The appellant was convicted on both counts, receiving a total sentence of 7 years’ imprisonment.
The appellant appealed his conviction on Count 2 on the grounds that this was a case of possession, not trafficking. While the Court of Appeal (“CoA”) unanimously rejected this ground of appeal, it questioned during argumentation whether the appellant’s cross-examination at trial constituted an error of law or an irregularity in the trial and, if so, whether it was material, a point eventually taken by counsel.
It was common ground in the CoA that the evidence was inadmissible and infringed the appellant’s right to silence. However, after concluding that it did not render the conviction unsafe, the CoA dismissed this ground of appeal by a majority. The CoA allowed an appeal against sentencing and reduced the sentence to 6 years and 9 months. Subsequently, the Appeal Committee granted the appellant’s appeal to the CFA on the basis that it was reasonably arguable there had been substantial and grave injustice in the circumstances after the jury had heard the inadmissible evidence.
The CFA agreed that the cross-examination evidence was inadmissible and had infringed the appellant’s right to silence, citing HKSAR v Lee Fuk Hing (2004) 7 HKCFAR 600. However, it disagreed with the CoA’s assessment of the impact of the trial judge’s standard direction to the jury. It found that by failing to tell the jury to wholly ignore the impermissible evidence or to specifically identify the portion of the prosecution’s cross-examination that was impermissible in the directions, the jury may have been confused as to whether this evidence was admissible. The CFA found that the trial judge should have given a “clear, unequivocal legal direction that the jury must ignore [the inadmissible evidence], were not permitted to rely on it and [provide] an explanation for why this legal direction was being given.”
It also noted that it was immaterial that the defence counsel did not raise the matter of the inadmissible evidence with the trial judge at any stage, because in the circumstances the counsel would have not been aware of the seriously prejudicial effect of the evidence at the time. Accordingly, the court quashed the conviction for trafficking and replaced it with a conviction for possession.
It is important for solicitors to raise objections to impermissible lines of questioning, infringing their clients’ right to silence during cross-examination by the prosecution as well as ensure a judge gives proper directions to the jury. It is important for defense counsel to make these objections and be vigilant in doing so because the CoA may not take the lead in identifying these types of irregularities. Trial judges should expressly direct the jury as to what line of questioning is inadmissible and to wholly disregard that evidence.