CHU KWOK KEUNG v. R.

IN THE COURT OF APPEAL

1990, No. 597
(Criminal)

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J U D G M E N T

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Hon. Yang, CJ

1. The applicant was convicted after trial before a judge and jury on four counts, namely, robbery, possession of firearms at the time of committing a robbery, conspiracy to rob and possession of arms and ammunition without a licence. This is his application for leave to appeal against conviction.

2. The evidence against the applicant, who was the first accused amongst a number of co-accused at the trial, came largely from an accomplice Cheung Man-fai ("Cheung"). The judge gave a clear direction as to accomplice evidence and no criticism was made in this Court of the judge's direction to the jury in this respect. The judge also explained to the jury in some detail that the applicant's objections to Cheung's evidence were mainly in the context of credibility.

3. It is not disputed that on the 7th of January 1990, a robbery was committed by a number of persons at the Silver Spring Sauna, Nathan Road ("the Sauna"). A sum of $6000 - was stolen.

4. Cheung was one of the culprits named in the indictment and the evidence he gave for the prosecution was considerably different from the several statements he had given to the police upon his arrest. The judge in his summing up warned the jury that what Cheung had said in his statement to the police was not evidence, and that only what he had said in Court constituted evidence. Cheung's evidence concerning the applicant was that the applicant had arranged for him and three others to come to Hong Kong illegally from Mainland China to work in a wholesale fashion business owned by the applicant. Sometime before the robbery at the Sauna the applicant told Cheung and the other men that they should commit a robbery. Cheung said that on 6 January the applicant had pointed a gun at them and had ordered them to commit the robbery. On the 7th of January according to-Cheung, he, the applicant, and others went to the Sauna. Cheung and the other two men from Mainland China were each given a gun by the applicant, but that later the applicant took the gun back from the man who was the third accused at the trial. The applicant and that accused remained at the top of the stairs leading down to the Sauna while the others went in, threatened the staff with the two guns, and took the money.

5. The evidence summarised above concerns the first two counts.

6. On the third count i.e. conspiracy to rob, Cheung's evidence was that on the evening of the 10th of January the applicant took the men from Mainland China to a cooked food stall. There he introduced them to a man called Chan Chi-fai, and said that Chan worked at an illegal gambling casino and that they would later be taken there to rob. A little later they set out but the applicant was arrested when the group walked into a police ambush in Tung Choi Street, Kowloon some 40 feet away from the cooked food stall. Upon arrest, the applicant said to the police:

"Sir, I was merely acting as a look-out in order to earn some money for the New Year. It had nothing to do with me."

7. The judge in his summing up added that those words uttered by the applicant to the police were capable of corroborating Cheung's evidence if the jury believed that the words were an admission by the applicant.

8. The fourth and last count alleged that on the 11th of January 1990 at Tung Choi Street, Kowloon, the applicant and his two co-accused together with other persons had in their possession three pistols with 32 rounds of ammunition.

9. There was evidence that the three pistols were found in the rear lane of Tung Choi Street. There was Cheung's evidence that the applicant had had possession of one of the guns which was later found in a lane at the rear of Tung Choi Street. There was also evidence that Cheung had been in possession of a pistol which he had later thrown out of a window into the rear lane when attempting to escape from the police. Here too the judge directed the jury clearly on the law as to conspiracy.

10. Four Grounds of Appeal had been argued before us this morning. The first complaint is that the judge in his summing up "gave a misleading direction as to the standard of proof to be adopted by the jury by inviting them to adopt an everyday approach to their consideration of the evidence and the case as a whole."

11. What the judge had told the jury was this:

"You-must be fair and impartial, and you may not bring into the court room any knowledge that you have other than what you hear as evidence in this court. When I say, however, you cannot bring knowledge, I mean knowledge as to facts. You do, of course, take into the jury room your everyday commonsense. You are used, as men and women of the world, citizens of Hong Kong, to making many decisions on a daily basis about your life and about your work. Those decisions you make on a commonsense basis. You evaluate what you hear from people, you evaluate their characters. You make decisions as to whether or not you believe what you say. You make those decisions on a commonsense basis. Use the same approach to the evidence that you have heard in this court.

In those everyday decisions you would not speculate, and the same must apply here. You cannot be fanciful, you cannot speculate about what might or might not have happened."

12. Then, after directing the jury on the subject of inferences the judge turned to the burden of proof. He said:

"There is no onus on the accused. They have to prove nothing. They are innocent until the Crown has proved that they are guilty. And when I say they are innocent, you must ignore the fact that two of them, the 3rd and the 5th Accused, are illegal immigrants. That has nothing to do with it. The fact that they have come across the border in that fashion does not make an inference - a reasonable and necessary inference that they are guilty of the crimes they face here, the accusations they face here.

Their past in China and any other matter here, other than the evidence that you have heard is to be left out of your thinking. They come before you as men of good character and innocent until the Crown has proved that they are guilty."

and

"Having told you that the Crown must prove the guilt of the accused, you must consider to what standard the Crown must present that proof, and that standard is that of beyond reasonable doubt. They are simple everyday words. I am not going to go through them one by one and give you separate definitions of them other than to say beyond reasonable doubt is the same thing as saying you must be sure of the guilt of the accused before you can convict. If you are in respect of any accused on any of the counts in the indictment, less than sure that the Crown has proved their guilt at the end of the day, then you must acquit."

13. We are unable to find any justification in the criticism of the judge's advice to the jury to use their common sense. The directions on the burden and standard of proof were unexceptionable. There is nothing inherently objectionable in the jury applying their commonsense to the evidence and arriving at verdicts that they are sure of the guilt of an accused. There is nothing in the judge's advice to the jury that would have led them to believe that they could convict the accused without being sure of his guilt. This ground of appeal has no substance.

14. The second ground of appeal concerns the following direction that the judge gave the jury as to the use which they could make of statements that Cheung had made to the police prior to trial:

"You have before you statements made to the police upon arrest and after he decided to become a witness for the Crown by the 4th prosecution witness, CHEUNG Man-fai. They were put before you so that you could put into context the cross-examination by defence counsel. The contents of those statements are not evidence in this trial. Where you see a reference to any fact in those statements which was not a fact given in the evidence of the trial, you will ignore that fact. Those statements are before you so that you can compare the evidence given by CHEUNG Man-fai in this court with statements that he has given on previous occasions. That may well help you decide whether or not what he says in court is the truth, but you may only look to what he said in court to determine what is the truth. You cannot look at those statements and take facts from them to use those in your decision making. They do no more, and I cannot emphasise this enough, they do no more, those written statements before you, than help you decide whether CHEUNG Man-fai is telling the truth or not. They do not provide facts for you to rely upon. The only facts from CHEUNG Man-fai that you may rely upon are the words, he said, the contents of the words he said in court."

15. It is contended that this direction was misleading and failed to direct the jury that those statements did constitute evidence of what Cheung had said on prior occasions and should be considered together with the evidence given by him at trial.

16. In our view this objection is a mere play on words. Plainly, by using the statements as a means of testing the truth of Cheung's testimony in court, the jury would be treating the statements as evidence for that purpose. Far from preventing the jury from using the statements for this purpose the judge expressly told them that they could do so. It is clear to us that the judge was properly directing the jury that the statements were relevant only to Cheung's credibility and did not constitute evidence of the facts.

17. Thirdly, it is submitted that at page 102 of the record, which is page 21 of the summing-up, the judge reminded the jury as to the evidence of the accomplice, Cheung, in relation to the applicant carrying a firearm, but omitted to draw to their attention that this was inconsistent with the expert evidence which failed to establish that the applicant had been holding a firearm as alleged by Cheung at the time in question.

18. The judge had directed the jury in these terms:

"In respect of the second count involving the firearms, similarly if you accept the evidence of CHEUNG Man-fai that the 1st accused knew of the existence of the firearms, knew that they all had them, carried one himself, and went to the Silver Springs where the robbery was committed using those firearms, that would be sufficient, if you are sure, for you to convict the 1st accused. Anything less than being sure, then you must acquit."

19. Mr. Heard, a ballistics expert, had testified that he had examined the hands of the applicant and his co-accused after 4.15 am on 11 January 1990 and that a ferrozine test on the applicant's hands produced a negative result. He further testified that although he had detected marks on a suspect's hands up to eight hours after the suspect had handled a gun, he had found that for all practical purposes such marks would disappear after six hours from the time of handling a gun. Moreover, a negative result does not necessarily rule out the possibility that a suspect has handled a firearm within the period when a ferrozine test can be effective because "the test depends very much on what the person is doing at the time he holds the gun - is he under some sort of stress; are his hands sweating; how long he holds the gun for and how tightly; and also what he does immediately afterwards. If he wipes his hands on clothing then a lot of the marks would be removed."

20. The robbery at the Silver Springs Sauna occurred on 7 January, some four days before the ferrozine test was carried out on the applicant's hands. Plainly no traces of contact with a firearm would have been detectable after such a lapse of time. In those circumstances it would have been completely misleading and therefore wrong for the judge to have referred the jury to the negative ferrozine test that had been conducted on the applicant's hands and to have suggested to them that it had failed to establish that the applicant had been holding a firearm at the time of the commission of robbery at the Silver Springs Sauna. There is no merit in this ground.

21. The fourth and last ground was that in the course of directing the jury to acquit the fourth accused following a successful submission of no case to answer on his behalf the learned judge inferred that he considered there was sufficient evidence against the remaining accused. It was further argued that this indication by the judge was particularly prejudicial to this applicant in the light of the totality of the evidence against him.

22. The passage of which complaint is made is as follows:

"Members of the jury, as you will recall when you last left the Crown had completed its case. The accused have been placed in your charge and you have taken an oath to deliver a verdict upon them. Having analysed the evidence in respect of the 4th accused YUEN Kam- chuen, I have come to the conclusion that there is not sufficient evidence for him to be put further on trial on this matter. Therefore I direct you to acquit him at this stage. You will be asked by my learned clerk to deliver a verdict now in respect of the 4th accused because only you can deliver a verdict but I do direct you to deliver a verdict of not guilty in respect of the 4th accused."

23. In the case of Smith and Doe (1987) 85 Cr.App.R.197 Watkins L.J.

referred to a summing up made by a judge where the judge said that-

"if he had thought that there was sufficient evidence of identification available to the jury he would have withdrawn the case from them."

24. Lord Justice Mustill said this:

"The question as to the whether or not there is a sufficiency of evidence is one which is exclusively for the judge following submissions made to him in the absence of the jury. His decision should not be revealed to the jury lest it wrongly influences them. There is a risk that they might convict because they think the judge's view is a sufficient indication that the evidence is strong enough for that purpose".

25. The case cited here refers to a summing up but here we are dealing with a situation where the judge at the close of submission on no case to answer indicated to the jury that there was insufficient evidence in respect of one of the co-accused to go to the jury. When he came to sum up the whole case to the jury he dealt with each and every other co- accused including this applicant separately and clearly. We do not think that the applicant was prejudiced, or the jury could have been misled, by the way in which the judge dealt with the applicant.

26. Whenever there is a successful submission of no case made in respect of one accused in the course of a trial in which there is more than one accused, it must be obvious to the jury that the judge is of the view that there is sufficient evidence against the other one or more of the accused to justify the case proceeding against that on those accused.

27. The judge did not say that he was of the opinion that the other accused were guilty. Indeed he clearly left to the jury the issue as to whether the remaining accused were guilty of the offences on which they were standing trial. This ground is devoid of merit.

28. For these reasons the application for leave to appeal against conviction is refused.