HKSAR v. CHAND GILL

CACC 219/2014

CRIMINAL APPEAL NO. 219 OF 2014

(ON APPEAL FROM HCCC NO. 20 OF 2014)

________________________

________________________

____________________

J U D G M E N T
____________________

Hon Macrae JA (giving the Judgment of the Court):

1.  On 9 October, this Court granted leave to appeal in respect of the applicant’s conviction on Count 4 of the indictment for rape, contrary to section 118 of the Crimes Ordinance, Cap 200, but refused leave to appeal in respect of the applicant’s conviction on Count 3 for non-consensual buggery, contrary to section 118A of the same Ordinance. Accordingly, we allowed the appeal in relation to Count 4 and quashed the conviction, but dismissed the appeal in relation to Count 3. The applicant now applies for a Certificate pursuant to section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, that there is involved in our decision a point of great and general importance.

2.  Both parties have consented to this application being determined on the papers.

3.  The point of law attached to the Notice of Motion is in the following terms:

“During trial the applicant elected not to testify. However, he was interviewed under caution which was video-recorded (“VRI”). General Directions were given as to the burden on prosecution to prove the case beyond reasonable doubt. Sharp Direction was given and also the jury was asked to choose between the evidence of (the complainant) (PW1) and what the applicant had said in the VRI by determining who was they reckoned told the truth. At no stage was the jury directed with regard to the standard of proof applicable to what the applicant had said in VRI, as suggested in HKSAR v Lee Fuk Hing (2004) 7 HKCFAR 600 at 612F-613G and HKSAR v Jim Fai [2006] 1 HKLRD 968 at 974-975C. In the circumstances where the only defence evidence is the out-of-court statements under caution, should the jury be directed as to standard of proof applicable to that evidence?”

4.  Stripping that statement of its unnecessary narrative and inappropriate verbiage, the question can be articulated more properly and succinctly, as Ms Panesar has ultimately done in her written submission in support of this application, as follows:[1]

“Where the defendant elects not to testify under oath but has made a mixed statement under caution which is admitted into evidence, should the jury be directed as to the standard of proof applicable to the out-of-court statements of the accused?”

5.  This application raises, yet again, a point derived from the case of Liberato v The Queen (1985) 159 CLR 507, at 515, which was first endorsed by the Court of Final Appeal in Sze Kwan Lung & Others v HKSAR [2004] 3 HKLRD 328, at 337G-I, and subsequently in Lee Fuk Hing v HKSAR [2005] 1 HKLRD 349, at 359H - 360H, and Jim Fai v HKSAR [2006] 1 HKLRD 968, at 974I - 975C.  The point appears to be a recurring feature of appeals wherever a case turns on a conflict between the evidence of the prosecution and defence witnesses and the judge tells the jury, usually by way of general introduction to his summing-up, that ultimately the issue comes down to who they believe.

6.  The refinement in this particular instance, however, is that, whereas in Liberato, Sze Kwan Lung, Lee Fuk Hing and Jim Fai, the appellants themselves gave evidence (although, in Sze Kwan Lung, the 1^st and 7^th appellants did not testify, the 2^nd to 6^th appellants did give evidence, which was described by the Court, at 337I, as “of material assistance to the 1^st and 7^th appellants as well as themselves”), the applicant in the present case did not.  Rather, the applicant relied on what was said in his police record of interview, introduced into evidence by the prosecution, which was a so-called ‘mixed statement’ inasmuch as in it, the applicant admitted anal penetration but asserted that such penetration was accidental.

7.  Ms Panesar argues that, where a ‘mixed statement’ is put into evidence but the defendant does not himself give evidence on oath, the jury must still be directed that if what is asserted in that record of interview is or may be true, he must be acquitted.[2]

Discussion

8.  Since the applicant did not in this case testify, the judge was obliged to give two particular directions, which specifically related to the out-of-court statements given by a defendant who did not give evidence: both are standard specimen directions promulgated by the Hong Kong Judicial Institute.  First, in the context of an applicant who has no previous convictions (as in this case), it was necessary for the judge to tell the jury that his good character supported the credibility of what he had told the police in his record of interview.  Secondly, it was incumbent on the judge to explain, in the context of a ‘mixed statement’, that the jury must consider the whole of the statement in deciding where the truth lay; that they may feel the incriminating parts of the statement were likely to be true, for why else would he have made them; but that they may feel that less weight was to be attached to his explanation, since it had not been made on oath, it had not been repeated on oath, and had not been tested in cross-examination.  The judge gave both directions: first, as to credibility[3]; secondly, as to the jury’s approach to a ‘mixed statement’.[4]

9.  The second standard direction above is derived from R v Duncan (1981) 73 Cr App R 359, at 365, as approved by the House of Lords in R v Sharp [1988] 1 WLR 7, at 15D-F.  Later in his judgment in Duncan, Lord Lane LCJ emphasised, at 365:

“All the components of the mixed statement were evidence of the facts stated, although their weight as evidence might differ widely.”

This particular statement was described as “important” by Lord Steyn, giving the judgment of the House of Lords in R v Aziz [1996] 1 AC 41, at 49.

10.  No complaint can be, or is, made about the judge’s directions as far as they go.  Nor is any complaint made about the judge’s summary of what the applicant had said in his record of interview in relation to Count 3.  Furthermore, it was made clear to the jury that the applicant’s defence to the charge of non-consensual buggery in his record of interview was that it was accidental.[5]  Ms Panesar submits, however, that, even where the issue is one of the weight to be attached to the explanation in an out-of-court statement, which has not been supported by evidence, the jury must also be told that if what a defendant asserts in such a statement is or may be true, the defendant must be acquitted.

11.  The statement of principle in Liberato, at 515, was in fact made in the context of a case which turned on “a conflict between the evidence of a prosecution witness and the evidence of a defence witness”.  And, as we have pointed out, all of the cases upon which Ms Panesar relies, are cases involving affirmations of the principle where the defendant had himself given evidence, or relied of the testimony of a co-accused.  Nevertheless, assuming that the Liberato principle applies with equal force to assertions in a defendant’s out-of-court statement, as it does to a defendant’s evidence on oath, the important thing is that the message must be brought home to a jury, without any danger of dilution, confusion or contradiction, that they cannot convict if the defendant raises a reasonable doubt about his guilt.  As the Court in Sze Kwan Lung put it, at 337H-I:

“Whether by one form of words or another and whether in one way or another, that message must be conveyed to the jury.”

Whilst in Lee Fuk Hing, the Court said, at 359F:

“Such directions cannot be considered in isolation from the general body of the summing-up.”

12.  In this particular summing-up, the judge correctly gave the standard directions as to the burden and standard of proof in a criminal case[6], and the need for separate consideration of each count on the indictment.[7]  He explained that it was the prosecution’s duty to prove the applicant’s guilt by making the jury sure of it, which was the “same thing as being satisfied beyond a reasonable doubt of guilt, and nothing less than that will do.”[8]  Earlier in his opening remarks at the outset of his summing-up, he had emphasised that it was the jury’s duty to acquit the applicant if they were not sure that the complainant had told them the truth.[9]  Furthermore, when addressing the law in relation to Count 3, the judge told the jury in explicit terms:[10]

“The defence to the charge of buggery in Count 3 is that it was accidental. The prosecution must prove that it was not so in order for you to convict.”

13.  We do not think that the jury can have been under any misapprehension from the summing-up, when read as a whole, that not only must they be sure of the complainant’s evidence, but it was for the prosecution to disprove the applicant’s assertion of accidental buggery beyond reasonable doubt, before they could convict.  As we have said, at para 39 of our judgment, “… read as a whole, the summing-up made it abundantly clear … that (the jury) had to be sure in respect of Count 3 that the prosecution had disproved the defence of accidental buggery”.

14.  Accordingly, even assuming for present purposes that the Liberato principle applies with equal force to a defendant’s out-of-court statements, as to his evidence on oath, we do not think that the point arises in the present case, where the jury were expressly instructed that they must acquit if they were not sure that the complainant had told the truth in respect of a particular count on the indictment, which they were to regard separately; where the defence of accidental buggery was placed fully and squarely before the jury; and where they were told in explicit terms that the prosecution must disprove that defence if they were to convict.  In the event, the jury unanimously convicted the applicant on Count 3, but acquitted him on Counts 1 and 2, which to our minds demonstrates a faithful application of those instructions.

Conclusion

15.  For the above reasons, we decline to certify the question posed.

[1] Applicant’s written submissions, para 18

[2] Applicant’s written submissions, para’s 6; 12

[3] Appeal Bundle, p 19L-O

[4] Appeal Bundle, p 30I-B

[5] Appeal Bundle, pp 18N-O; 29B-D

[6] Appeal Bundle, p 15N - 16B

[7] Appeal Bundle, p 36K-N

[8] Appeal Bundle, p 15S-U

[9] Appeal Bundle, p 13R-T

[10] Appeal Bundle, p 18N-P