1. The Appellant was intercepted by police officers when seen to be interfering with the property of a drunk man. When searched he was found to be in possession of a plastic bag containing 12.07g of the dangerous drug known as “Ice”. The Appellant was arrested and cautioned but remained silent. Later at the police station, he was interviewed again and remained silent. The Appellant was charged with a count of theft and a count of trafficking in a dangerous drug. The Appellant pleaded guilty to the theft charge and not guilty to the trafficking charge. He offered to plead guilty to a charge of possession but the prosecution proceeded with the trafficking charge. 2. At trial, the Appellant gave evidence that the “Ice” was only for his own consumption, and that drug-taking equipment was kept outside the window of his bedroom. In cross-examination, prosecuting counsel questioned the Appellant about his failure to volunteer to the police the location of his drug-taking equipment, and suggested that he was lying about its existence. Furthermore, prosecuting counsel in his closing speech asked the rhetorical question why the police failed to find the drug-taking equipment at the Appellant’s home, and suggested to the jury that the Appellant’s account for possession was inherently unbelievable. The jury convicted the Appellant of trafficking. 3. It was common ground that the cross-examination as to why he did not tell the police where his drug-taking equipment was located constituted inadmissible evidence. It infringed the Appellant’s right to silence by impermissibly undermining the Appellant’s credibility through the suggestion that his evidence was a late invention. The Court of Appeal, by a majority, concluded that, although this was an irregularity in the trial, it was not material. 4. The Court of Final Appeal observed that, since the question of whether the right to silence has been materially infringed is fact and context sensitive, it was necessary to identify the issue to which the inadmissible evidence related and its importance in the context of the case as a whole. 5. It was common ground at trial and on appeal that the sole and critical issue at trial was the credibility of the Appellant. This was an important context in which to judge the materiality of the inadmissible evidence and also the effectiveness of any remedial steps taken to cure any prejudicial effect. 6. The Court concluded that the introduction of the inadmissible evidence was clearly a material irregularity in the context of the present case. The purpose of prosecuting counsel’s cross-examination and closing speech was clearly to suggest that the Appellant was a dishonest person. The consistent theme of the prosecution was that the Appellant was not to be believed in part because he made things up as he went along. In the context of a short trial such as this, it was reasonable to conclude that the prejudicial effect of any inadmissible evidence would still have been fresh in the minds of the jury when returning their verdict. 7. The Court also concluded that, in the context of the summing-up, such prejudicial effect was not remedied by the judge’s directions. There was a real risk that the jury may have embarked on an impermissible line of reasoning: namely that, because the Appellant did not mention something helpful to his defence at the earliest opportunity, the defence was not to be believed. 8. By reason of the Appellant’s conviction in these circumstances, substantial and grave injustice was done to the Appellant and the appeal was therefore allowed. The Appellant’s conviction for trafficking in a dangerous drug was quashed and substituted by a conviction for possession of a dangerous drug. At both counsel’s invitation, the Court substituted a sentence that would allow for the Appellant’s immediate release.