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SCMP Reporter

A JUDGE caused a furore yesterday on the eve of his retirement when he called for an end to a defendant's right to silence in criminal trials.

   Mr Justice Macdougall also said it was time to overhaul complex rules of evidence which enabled dozens of guilty people to walk free after winning appeals on technicalities.

  He made the controversial comments in a speech on his last day at the Court of Appeal.

  But lawyers and legal experts expressed alarm at Mr Justice Macdougall's call to abolish the right to silence, which they said should be 'vigorously defended'.

  They were particularly worried about any moves to erode defendants' rights in the run-up to 1997.

  Under Hong Kong law, suspects have the right not to answer police questions after their arrest and not to give evidence at their trial.

  Judges and juries are not allowed to infer any guilt from such a refusal to co-operate with police or testify.

 But Mr Justice Macdougall told a gathering of lawyers it was wrong to allow defendants to hide behind a wall of silence.

  'It has long been the view of many jurists, and it's one which I strongly share, that an accused should not be allowed to shield behind such a right,' he said.

 'If having failed to make a statement to the investigating authority . . . he then advances a defence at trial, he should be subjected to cross-examination on such a failure.

 'In the event he elects not to give evidence, adverse comment should be permitted as to his failure to answer the allegation made against him.'  But barrister John Haynes said removing the right to silence violated the basic principle that a suspect was innocent until proven guilty.

  'With the approach of 1997 the right to silence could not be more important,' he said.

 Another barrister, who declined to be named, said: 'I think he is a lone voice. It would be a massive step backwards. It's fundamental to the common law system that when someone is charged with a crime, that person can in no way whatsoever be required to co-operate in the preparation of the case against them.'  Bar Association vice-chairman Barry Sceats said: 'I am concerned that changes are being introduced . . . that potentially weaken the rights of accused people at this stage when we don't know what the future holds.'  Nihal Jayawickrama, a law lecturer at the University of Hong Kong, said: 'There are two principles. One is the presumption of innocence. The other is that a person should be protected from self-incrimination.

 'It's not desirable that one should tamper with these principles. The influence of the Chinese system is going to be very great and I think we should hold on fast to what we have.'   But lawyers welcomed the judge's call to amend the complex rules relating to corroborative evidence.

  He said experienced judges and lawyers often disagreed on what evidence amounted to corroboration.

 'It is a legal minefield . . . and has proved to be a fatal ground for countless appeals, the result of which has been the quashing of convictions of many guilty defendants.'   He also criticised the need to warn juries in rape trials of the dangers of assessing uncorroborated evidence on the grounds that women often make false allegations in sexual cases.

  The judge said it was no more of a problem to consider the credibility of an alleged victim in a sexual case than in it was in any other trial.

  He added: 'The sooner this requirement is abolished, the sooner justice will be served.

  'It's all too often forgotten that justice is a two-sided coin. On the one side justice for the accused and on the other side justice for society and the victims of crime.'   Mr Justice Macdougall, 63, who speaks Cantonese and Mandarin, came to Hong Kong from Western Australia in 1965.

  He became a High Court judge in 1980 and has been Vice-President of the Court of Appeal since 1993.



End to right of silence call sparks furore