THE QUEEN v. WONG KWOK CHEONG

IN THE COURT OF APPEAL

1994, No.567
(Criminal)

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JUDGMENT

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Power, VP, (giving the judgment of the Court):

1. The applicant was charged with having arms and ammunition with intent to commit an arrestable offence. He faced an alternative count of possession of arms and ammunition without a licence. The applicant was convicted on the first count after trial before Duffy J. and a jury. The particulars of the count on which he was convicted were that he, together with three other persons between 1^st October and 2^nd November 1993, had with them a firearm namely a Colt. 45 ACP caliber self-loading pistol with a magazine and ammunition, namely three rounds of ammunition with intent to commit an arrestable offence, namely robbery.

2. The facts briefly stated were that an undercover police officer, who was referred to as Ah Hung, met with the applicant in the weeks preceding 1^st October 1993 and discussed with him an intended robbery. The undercover police officer thereafter provided him with information, that was, in fact, concocted, as to a possible victim and on 2^nd November police arrested the applicant and three others, one of whom was carrying a pistol. It was the Crown case that they were then on their way to rob the person targeted by Ah Hung who, in fact, did not exist.

3. The thrust of the appeal today, which has been argued by Mr. McLanachan, was that the trial judge made comments during the trial which were unnecessary and prejudicial to the applicant which rendered the trial unsafe and unsatisfactory. Mr McLanchan submitted that the comments must be looked at in their totality.

4. He referred first to what the trial judge said when dealing with the standard of proof. He told the jury:

“A reasonable doubt is precisely what it says, a reasonable doubt as opposed to a fanciful, stupid or ridiculous doubt.”

The words “stupid or ridiculous”, it is suggested, are inappropriate and unsuitable for use in a summing-up. It was an unusual choice of words but we are satisfied that by themselves they would have gone nowhere towards vitiating the propriety of the trial and that they add no weight to the suggested cumulative effect.

5. Mr. McLanachan next refers to a direction to the jury that when assessing the evidence they should “let your common sense be your article of faith and be guided by your consciences” It is suggested that this also was an unnecessary and prejudicial direction. The trial judge, when that paragraph is read, was doing no more than telling the jury that they should be guided by their common sense and their consciences. We find it difficult to see that there could be anything improper or prejudicial in such a comment whether taken alone or in conjunction with the other matters as to which complaint is made.

6. Criticism is made of the comment by the judge, which appears at p.25 of the Summing-up, where, having dealt with the evidence of the applicant, he said:

“I am sure your common sense will provide you with the answer to that question.”

Mr. McLanachan links this with a further comment by the trial judge, which appears at p.28 of the Summing-up, in which he poses a number of questions. These suggest possibilities which the jury might consider when coming to their decision. It is submitted that the comment at p.25 and the questions at p.28 are heavily weighed in favour of the prosecution and that the posing of them by the judge would have influenced the jury to the point where they would have been left in no doubt that he was indicating to them that they should return a verdict of guilty.

7. The Summing-up was, without question, a robust one but, as the Crown points out at the very outset, the judge said to the jury:

“When I refer to the evidence, I may reveal to you that I have taken a certain view of the facts. Or it may be that you will rightly or wrongly deduce from what I have said that I have taken a certain view of the facts.

Counsel have addressed you from their respective standpoints, asking you to accept their views of the facts. You must remember that as the jury and judges of fact, you are not bound by anything I have said about the facts, or anything counsel have said about the facts. If our views about the facts appeal to you, then by all means adopt them. But if they do not, then you must reject them and reach your verdict based upon your own assessment of the evidence.”

Further, immediately after posing the questions at p.28, he said:

“You must make up your minds about matters such as that, members of the jury, it is for you to decide.”

We are mindful that, while a trial judge is entitled to take a robust view of the evidence, there is a line beyond which he must not go. This line separates the judge form the arena. He must never step into the arena and, in effect, assume the role of prosecutor. He must never indicate to the jury that the evidence is conclusive and that the only verdict they can return is guilty. We are satisfied that, although the directions were robust, the judge did not step into the arena and that it was throughout perfectly plain to the jury that, whatever they might consider the judge thought about the evidence, it was for them to make up their own minds thereon. We are satisfied that there is nothing in the first four grounds of appeal which deal with the above matters.

8. Ground 5 states:

“The Crown’s case was that all 4 men arrested on 2 November were engaged in a joint enterprise to commit a robbery using the gun carried by D3.

(i) This was the basis that the First Count was put to the Jury by the Learned Judge (8-11) even though the other Defendants had been formally acquitted of this offence earlier.

(ii) The Jury should have been warned that, given the acquittal of co-defendants, for whatever reason, the evidence to support the contention of a joint enterprise should be examined with particular care before convicting the Appellant.”

9. It is contended that what the judge said when dealing with this matter was inadequate. He said:

“You have been told that other defendants in this case, that is, the 2nd and the 3rd defendant, pleaded guilty to being in possession of the gun, that is the alternative charge, and you have been told that the 4th defendant has been acquitted. Now you were told that simply so that you would not be left wondering what happened to them, and speculating wondering what happened to them, why they are not here. That is the only reason you were told that.

You must not allow the plea of guilty by the 2^nd defendant and the 3^rd defendant to influence you in any adverse way against this defendant, or allow the acquittal of the 4^th defendant to influence you at all.

There are many, many factors involved in pleas of guilty and in acquittals of which you are not made aware. It would be dangerous for you to try to draw any inferences at all from pleas of guilty or acquittals. Once again, I have to tell you, and maybe it will become boring, members of the jury, but once again I tell you, it is the evidence on which you decide this case, no these other extraneous matters. So I exhort you, please just have regard to the evidence.”

We reject the suggestion that the trial judge should have made some further observation in which he directed the jury to examine the Crown case on joint enterprise with particular care. We are satisfied that the direction given was an adequate one.

10. The suggestion made in Grounds 6 and 7 is that the judge erred when he allowed prejudicial evidence that the defendant had allegedly committed other robberies. It is submitted that the jury would have been led to the false impression that he had other convictions. There is nothing in this ground. That evidence came to light in the course of the evidence of the undercover police officer who told the court what the applicant had said to him. No objection was taken to this evidence when it was given nor, indeed, in our view, could there rightly have been any objection. It was an admission about other offences but it was one made by the applicant in the course of the planning of the robbery. The trial judge was more than fair when directing the jury as to the way in which they should approach this evidence.

“Ah Hung told you he at one stage asked the defendant if he had committed a robbery before, and according to Ah Hung, the defendant told him that he had done so with his two his two younger brothers. Now, of course, the defendant denies that, and you must keep in mind that you must not draw any adverse inferences against the defendant from that evidence. It was related to you only as part of Ah Hung’s story and not to prejudice you in (sic) any way against the defendant.”

Before closing, we deal with the submission that, whatever view might be taken of any of the individual matters argued, cumulatively they must leave this court with a real doubt as to whether this conviction was safe and satisfactory. We have considered the matters raised both singly and in the round and we do not consider that the conviction was either unsafe or unsatisfactory. The application for leave to appeal against that conviction must therefore be refused.