THE QUEEN v. WONG LEUNG

IN THE COURT OF APPEAL

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JUDGMENT

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Cons, J.A. delivered the judgment of the Court:

1. At about 10.50 p.m. in the evening of the 7th April this year, two men gained entry to a 2nd floor flat in Kowloon. One of those men held a knife. Subsequently the two were joined by a third man. The occupants of the flat were a man and a woman. Both of them were tied up and they were robbed. In addition the woman was raped by one of the men and was forced to have oral sex with another. The whole affair, according to her evidence, took about half an hour.

2. Shortly after 11.25 p.m. on the same evening, a friend of the man called at the flat to see him. The friend was very surprised when his knocking on the door was answered by a stranger who held a knife and who ordered him to go inside. The friend did not comply with that order but he ran away down the stairs. The stranger gave chase, although not for very far, and returned into the premises. Then the friend saw three men come out. The friend went down to the street and raised the alarm and a few seconds later saw the same three men emerged from the building. They made off in different directions. The friend chased one of the three and he caught him. That one turned out to be the Appellant and the friend took him with the help of a passer-by to the nearest police station. There in his jacket pockets were found four packets of Marlboro cigarettes, two in each pocket. The cigarettes were to some extent unusual in that they bore no Government warning as to the hazards of smoking to health. The evidence of the woman occupant of the flat was that she had a carton of such packets in her home at the time of the robbery and that some of the packets were missing after the robbery. The Appellant was in due course indicted for robbery, rape and indecent assault. He was convicted by the jury of robbery. They found him not guilty of the rape and they discharged him, on the direction of the Judge, on the count of indecent assault. He seeks leave to appeal against the conviction of robbery.

3. Initially, he drafted his own grounds of appeal, which are lengthy and almost completely taken up by the evidence which he could have given to the jury at his trial had he so wished. He is now represented by Counsel who does not pursue the other matters raised in that original notice, but confines himself to one complaint with regard to a sentence in the summing-up. The sentence in question is this:

"The Crown does not have to prove its case with mathematical certainty because you will readily appreciate human affairs do not lend themselves to that sort of certainty."

It is the reference to mathematical certainty to which Counsel objects.

4. He refers us to two cases decided in this Court. The first is Yeung Kuen Chi⁽¹⁾ in which a direction referring to "one hundred per cent certainty", and contrasting it with the word 'sure', was struck down. The second case is Ngan Chun Yee and Others ⁽²⁾ where a direction referring to "absolute mathematical certainty" was upheld. This Court referred in the same judgment to the case of Walters⁽³⁾ in which their Lordships of the Privy Council saw nothing wrong with the direction referring to "absolute certainty".

5. The sentence we have read out was not the sole direction of the Judge with regard to the standard of proof. When he principally mentioned this matter at the beginning of his summing-up what he said to the jury occupied over twenty lines of the transcript. When he reverted to it just before the jury retired, he more sensibly restricted his comments to a simple reminder that the Crown had to prove the guilt of the accused beyond reasonable doubt. In what we would otherwise respectfully say was a model summing-up the Judge went further than was desirable in directing the jury as to the standard of proof. But taking into account all that he said, we are satisfied that the jury cannot have been in any was misled as to the standard which they were required to apply.

6. For this reason, leave is refused to appeal against conviction. The application for leave to appeal against sentence has been abandoned.

(1)    Crim. App. 266/84

(2)    Crim. App. 137/84

(3)    [1969] 2 A.C. 26