THE QUEEN v. POON WAI CHUEN

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JUDGMENT OF THE COURT

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Macdougall, J.A.:

1. The applicant and the co-accused were convicted of robbery after trial before Deputy Judge Gall, as he then was, and a jury. He now seeks leave to appeal against that conviction. His co-accused, who originally had also lodged an application for leave to appeal against conviction, abandoned his application.

2. There was undisputed evidence that at around 3 a.m. on the 10th March 1989 a group of men wearing stocking masks and armed with knives and hand guns, entered premises in which illegal gambling was being conducted and robbed thirty or forty gamblers of cash, jewellery and other articles of personal property to a total value of approximately $1.3 million.

3. The evidence against the applicant was that 18 hours after the robbery he was seen by the police entering a flat in Sai Yeung Choi Street. He was carrying $27,500 in cash. The police also found on his person a gold Dupont lighter, two gold Dupont pens, a gold necklace and pendant, all of which the victims of the robbery identified as having been stolen from them. However, only one of those articles, namely, the lighter, whose base was dented, bore any obvious distinguishing marks which would render them easily recognisable.

4. There was also evidence that the applicant had bought a new Rolex watch that day for $26,000. Moreover, a Miss Suen testified that she was with the applicant, his co-accused and a third man in a flat at about 2.15 a.m. on the 10th March when she overheard a telephone conversation in the course of which the three men arranged to meet another person at the Wan Dao Restaurant. The applicant and his two companions then left the flat. Evidence disclosed that the Wah Dao Restaurant is located 16 metres from the illegal gambling premises at which the robbery took place. It also emerged from several witnesses that there were four robbers. In cross-examination Miss Suen said that she was not sure whether this telephone conversation occurred on the 10th March. However, as the deputy judge pointed out to the jury in his summing up, it was open to them to draw the inference that she had reason to remember that occasion because it occurred on the night before the day on which the applicant and his co-accused were arrested. Moreover, she was arrested during the course of the investigation into this case, but in respect of other matters.

5. Neither the applicant nor his co-accused gave evidence at the trial. There were no witnesses called for the defence. Mr. Thomas Iu, who appeared on behalf of the applicant in this court but not in the court below, advanced several grounds of appeal. He submitted that the verdict was unsafe and unsatisfactory in that there must be a lurking doubt as to the guilt of the applicant on account of the tenuous nature of the evidence that the articles found in his possession were stolen in the robbery. He contended that the situation was aggravated by the fact that the deputy judge failed to remind the jury to give the benefit of any doubt to the applicant.

6. The evidence concerning the articles found on the applicant's person must be considered in the light of the other evidence in the case, particularly that of the discovery in the flat in Sai Yeung Choi Street of articles, including identity cards that had undoubtedly been stolen in the course of the robbery. We shall refer to the Sai Yeung Choi Street evidence when we turn to the second ground of appeal.

7. The direction which the deputy judge gave on the burden and standard of proof could hardly had been more emphatic. It was as follows:

"As I have said the Crown has made an accusation against the defendants, having made that accusation they must prove what they say to be true before the defendants can be convicted. The defendants have to prove nothing. They come here before you without any imputation of guilt, without any suggestion that they might have to in any way defend themselves. The burden of proof is on the Crown and remains solidly with the Crown throughout your deliberations.

 

To what standard must the Crown prove that the defendants are guilty before you could find them guilty? The standard is this, you must be sure, that is you must be certain beyond reasonable doubt of the guilt of each of the accused before you can convict either of them."

8. Later, after referring to the evidence of identification of the articles found in the applicant's possession, the deputy judge told the jury, "You must weigh that evidence and consider whether you are certain of that identification." In our view that was sufficient. It was not necessary then to add that they must give the benefit of any doubt to the applicant.

9. The second ground of appeal was that the deputy judge should have exercised his discretion to exclude the evidence concerning the discovery in the Sai Yeung Choi Street premises of items stolen in the robbery. The basis on which this ground rests is that since there was clear evidence that other persons also had access to these premises, the prejudicial effect of the evidence as to the presence there of the stolen goods completely outweighed its probative value.

10. The deputy judge suggested to the jury that since other persons had access to those premises and since another set of keys to them had been found in a jacket inside the cubicle, they might think that the presence there of articles stolen in the robbery was of a little assistance to them. We do not agree. The applicant had not only been found entering these premises, but he had in his possession both a key to the main door and a key to the cubicle in which goods and pawn tickets relating to goods stolen in the robbery were found. The evidence was not only properly admitted by the deputy judge but was of far greater cogency than he seemed to think. It was supportive of the other evidence in the case. The mere fact that other persons had access to these premises did not destroy the relevance of the evidence. There is no merit in this ground of appeal. In our view the judge would have been wrong to have excluded this evidence.

11. The third ground of appeal was that the deputy judge misdirected the jury on the issue of lies in three respects. Mr. Iu submitted that, first, he failed to remind them that the evidence tending to show that the applicant had lied in an alibi notice was suspect, unreliable and uncertain; secondly, he failed to direct them that before they could rely on that lie they had to be satisfied that it was a deliberate lie and was motivated by a realisation of guilt and fear of telling the truth and, thirdly, that he failed to explain or specify to them the evidence which the false alibi evidence could be said to corroborate. This ground therefore relates to corroboration and to the issue of lies being capable of amounting to corroboration.

12. We should at once observe that although the judge directed the jury as to corroboration in its technical, legal sense there was no witness in this case in respect of whose testimony the judge was obliged to give a corroboration warning. There were no accomplice witnesses. The direction seems to have been aimed principally at Miss Suen's testimony. Apart from warning the jury that they should be very cautious before drawing any inference adverse to the applicant from any lie that they thought he might have told, the deputy judge warned them that because Miss Suen had convictions for possession of drugs and, during the course of the investigation in this case had been arrested in relation to matters not related to the robbery, she might have had her own reasons for assisting the Crown. That, however, did not make her a witness in respect of whose evidence it was incumbent on the judge to warn the jury that it would be dangerous to convict in the absence of corroboration. The decision in R. v. Lucas [1981] 1 QB 720, in so far as it relates to the criteria that must be met before a lie told out of court can be capable of amounting to corroboration, is therefore not applicable.

13. Neither the applicant nor the witness he named in his alibi notice as being a person who would be able to substantiate his alibi, gave evidence at the trial. Where an accused fails to present to the jury the evidence which he asserts in an alibi notice will establish his alibi, the jury are entitled, in the absence of any satisfactory explanation for that failure, to conclude on a consideration of all the evidence before them that he has lied. In this regard the deputy judge gave them a firm warning. He said:

 

"If you find that the alibi notice given by the 1st defendant tells a lie about his whereabouts on the morning of the 10th March, then that lie could corroborate in the same way."

The words "in the same way" referred to his treatment of the evidence relating to the co-accused. He continued:

"But there are a number of warnings I must give you about that piece of evidence. The alibi witness referred to by the 1st defendant is missing, he could not be found. You may not in any way consider anything adverse to the 1st defendant by the fact that that witness is missing, and you must also consider the terms of the alibi notice in the light of the fact that the witness has been unable to be presented before you in court.

 

You must also be very cautious of what weight you place upon the alibi notice if you find it to be a lie. People lie for many reasons. Just because someone says, 'I was not there when the crime was committed.', it does not mean that he did commit the crime if you find it to be a lie. He might be frightened. He may have been somewhere else that he ought not to have been. The lie, if it is a lie at all, is not necessarily an indication of guilt, and you should be very cautious before you assume any adverse inference against the defendant from it."

14. In the light of these directions and the observations we have made, we do not think that there is any substance in any of the three matters raised by Mr. Iu. With regard to the fourth ground of appeal, Mr. Iu submitted that the deputy judge gave "a misleading, confusing, contradictory and illogical direction" to the jury concerning the drawing of inferences. The passage of which complaint is made is as follows:

"When you come to consider the evidence of various witnesses you may accept all that a witness has said or part or none of that witness's evidence. You may be selective. You can believe those matters you find to be true and disregard those which you do not.

 

You may draw inferences from the facts that are placed before you. Unless you are present when something happens, you cannot know directly that it has happened. Very often you can only determine what has happened by looking at all the circumstances and drawing a conclusion from those circumstances an inference. You are permitted to do that, but when you do so you may only draw an inference which is adverse to the defendants if it is the only reasonable inference that can be drawn.

 

You will notice that the trial is a case of the Crown against the defendants. It is an accusation made by the Crown and the Crown must prove that accusation. So if there is an inference that you can draw from facts that may be in favour of the defendants or may not be in favour you may not draw the one which is not in favour of the defendants unless it is the only reasonable one you can draw."

15. While we accept that this passage could have been more happily expressed, we are satisfied that it by no means suggests, as Mr. Iu submits it does, that the jury should only draw an inference favourable to the defence when it is the only reasonable one that can be drawn.

16. Mr. Iu also complained that the deputy judge failed to direct the jury that where two inferences can be drawn they must only draw that which is favourable to the defence, and that he also failed to remind the jury that, in inferring that the applicant was one of the robbers and not a handler of the goods stolen in the robbery, they would in effect be drawing an inference which was adverse to the applicant.

17. As to the first of these complaints, we are of the opinion that the direction given was entirely adequate. There was no necessity to embellish it by adding that where two possible inferences are possible the only one that may be drawn is that which favours the applicant. There is no merit in the second complaint. The deputy judge was under no duty to give any such reminder to the jury.

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