The Clinical Legal Education (“CLE”) team is delighted to share two recent successful appeal cases: HKSAR v Kwan Wing Yan [2022] HKCA 1424 and HKSAR v Leung Chiu Yun [2022] HKCA 1600.  In both cases, the respective appellants were originally refused legal aid for reason that there were no merits in their appeals. They wrote to our CLE Office to seek assistance. Upon reviewing the papers for the appeal and conducting legal research, our CLE Office identified reasonable grounds of appeal and so we assisted them to seek a reconsideration of their legal aid applications. Legal aid was eventually granted to them so that they could pursue their appeals with legal representation. These two cases show the contribution of our CLE Office in assisting with the due administration of justice and rectifying miscarriages of justice when at times some trial judges and/or lawyers might have overlooked or forgotten some established norms and procedures that ensure fair trials in our criminal justice system.

Both cases involved the offence of trafficking in dangerous drugs. The prosecution relied on admissions allegedly made by the respective appellants under caution, while the defence case was that those admissions were given involuntarily as a result of oppressive conduct by the police. It is an established norm in our criminal justice system that in order to give effect to an accused’s constitutional right of silence, no admission can be admitted as evidence against an accused unless the prosecution can prove beyond reasonable doubt that it was made by the accused voluntarily, and that no adverse inference can be drawn against an accused if he/she maintains his/her right of silence.

In a trial by jury in the High Court, a voire dire will be held in the absence of the jury for the trial judge to determine whether the challenged admission was voluntarily made. If the trial judge is not satisfied with the voluntariness, the challenged admission will not be tendered as evidence at the trial proper before the jury. Even if the trial judge is satisfied with the voluntariness so that the admission evidence can be adduced before the jury, the trial judge still needs to direct the jury in the summing-up to completely ignore the alleged admission unless they are sure of its voluntariness.

On the other hand, if the trial is before a professional judge without any jury in the District Court or the Magistrates’ Court, an alternative procedure is often adopted in lieu of a voire dire. Under the alternative procedure, all prosecution witnesses will first testify on both the voluntariness issue and the general issue in relation to the offence. Afterwards, the accused may choose to testify to challenge the alleged admissions, but his/her evidence at this stage will be confined to the voluntariness issue only and not be on any other aspects of the case. Thereafter, the professional judge will decide whether the alleged admission was made voluntarily and be admissible as evidence as well as whether there is a prima facie case against the accused. After the professional judge’s determination on the admissibility of the alleged admission and if he/she rules that there is a prima facie case, the earlier evidence given by the prosecution witnesses will be treated as evidence for the trial, and the accused may then decide whether to give evidence or call any defence witnesses at the trial. The accused’s earlier evidence given on the voluntariness issue will not be regarded as evidence for the trial unless the accused adopts it when he/she chooses to give evidence at the trial proper.

The advantage of the alternative procedure is to save the time and trouble for the prosecution witnesses who would otherwise have to give evidence at the trial again after the determination of the admissibility of the challenged admission, while at the same time fully preserve an accused’s right of silence. The accused may choose whether or not to give evidence at trial on an informed basis after knowing what admissible evidence has been adduced by the prosecution against him/her. However, given the design of this alternative procedure, it is an established norm that the professional judge should only rule on the voluntariness issue and not on any other aspects of the case when he/she determines the admissibility of the challenged admission, because at that stage, the professional judge has not yet heard the defence evidence on other aspects of the case (particularly on whether or not the accused has committed the relevant offence).

In our first case of HKSAR v Kwan Wing Yan, the trial took place before a District Court Judge who adopted the alternative procedure. However, when the Judge determined that the challenged admission was voluntary and admissible, he further held that the defendant orally admitted at the scene that the subject dangerous drugs were for her own consumption and further accepted the police witnesses’ evidence that the drugs were seized by the police from the defendant, when the defence case was that she did not make any such oral admission and that the packet of dangerous drugs was picked up by the police on the floor dropped by another person. After hearing the defence evidence, the Judge convicted the defendant and sentenced her to 6 years and 10 months’ imprisonment. The Court of Appeal allowed the appeal and affirmed the established norm that under the alternative procedure, a trial judge should determine only the voluntariness of the challenged admission and not any other aspects of the case. The prosecution did not seek a retrial and the defendant was therefore released immediately upon the conclusion of the appeal hearing and reunited with her husband and children after serving over 3 years in prison. This case highlights the importance of the professional judge’s duty under the alternative procedure to keep his/her mind open before hearing the defence evidence and not to prematurely accept the prosecution witnesses’ evidence on the general issue in relation to the offence.

In our second case of HKSAR v Leung Chiu Yun, the defendant was tried in the High Court with a jury. He was convicted and sentenced to 17 years and 10 months’ imprisonment.  At trial, in order to attack the defendant’s credibility and prove his guilt, the prosecution relied heavily on his alleged admissions to the police and his delay in making complaints of alleged police maltreatment to various authorities. In his summing-up to the jury, the trial judge recited the prosecution’s submission for the jury’s consideration: If the defendant’s allegations of police improprieties were true, why didn’t he make the complaint to the Duty Officer inside the police station or later to the magistrate when he was legally represented? When the defence counsel sought to make an argument in favour of the defendant that his fingerprints were not found on any of the packets of dangerous drugs seized inside the premises, the trial judge directed the jury that as a matter of law, the absence of fingerprint evidence was simply a neutral factor and did not assist the defendant. The Court of Appeal allowed the appeal on both grounds of appeal identified by our CLE Office and advanced at the appeal, namely, misdirection on the issue of delay in making complaints and on the issue of fingerprint evidence. The Court of Appeal quashed the conviction as being unsafe and unsatisfactory, and ordered a retrial.

On the first ground, it is important to note that the right of silence is not simply the defendant’s right not to submit to compulsory interrogation which may lead to him/her having to make statements against his/her interest, but a right that extends to protect him/her from inferences of guilt or attack on his/her credibility arising from his/her failure to make statements in his/her favour. Hence, in general, a defendant’s delay in making complaints about police misconduct could not be used to infer guilt or to discredit him/her, although the jury may consider the delay in complaint to assist them in determining whether the defendant made the challenged admission voluntarily (i.e. whether the defendant had availed himself/herself of the right of silence). In order to give full effect to an accused’s right of silence, the jury should be directed that if they found in the defendant’s favour that he/she was or might have been coerced into making the admission, they must treat the defendant as if he/she had maintained the right of silence and must not draw any adverse inferences against him/her. The Court of Appeal reaffirmed these established principles and held that the trial judge had misdirected the jury.

On the second ground, the Court of Appeal found it surprising and unsatisfactory that although the police had tested the exhibits and could not find any fingerprints belonging to the defendant, the defence did not request for this favourable result to be included in the Admitted Facts and the prosecution did not call any expert witness to explain the possible reasons for such absence. It affirmed the established norm that whether the absence of fingerprint evidence might assist the defence case should depend on the circumstances of the case and the trial judge should not usurp the jury’s fact-finding function. In the defendant’s case, given the police’s claim that the defendant was holding a bag of drugs before the arrest and that the rest of the drugs were found in many plastics bags in various places inside the premises, one would have expected that the defendant’s fingerprints be found at least on certain exhibits such that the absence of fingerprint evidence might throw doubt on the police’s claim.

Read the media report of the second case: 「零指模」販毒案被告重囚17年上訴得直 判詞斥原審不應「篡奪陪審團職能」

About Clinical Legal Education at HKU
The CLE Programme was launched in January 2010 as the first and only live-client clinical legal education programme in Hong Kong. We run a Free Legal Advice Scheme (“FLAS”) on HKU Campus under the Duty Lawyer Service, offering free preliminary legal advice to members of the public facing legal problems involving the laws of Hong Kong. Our CLE team also assists clients in their applications for legal aid for the purpose of pursuing their civil and criminal appeals and, in exceptional cases, assists in arranging pro bono legal representation.

As of February 2023, we have handled over 2,600 cases with over 900 students involved.

Despite the high operating costs of the CLE Programme, the Faculty is committed to providing quality experiential learning for its law students across all years, from gaining exposure through court attendance at civil and criminal appeal hearings to developing practical lawyering skills through interviewing real clients and conducting legal research under the supervision of CLE teachers and qualified lawyers.

Please visit our website and follow us on Facebook for more details on our efforts in serving the public and providing quality teaching for our students.