THE QUEEN v. CHEUNG CHING-WAN (D4) AND ANOTHER

IN THE COURT OF APPEAL

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JUDGMENT

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Barker, J.A.

1. In this case the fourth defendant, CHEUNG Ching-wan and the seventh defendant, CHEUNG Yiu-lam seek leave to appeal against conviction, the latter defendant having abandoned his application for leave to appeal against sentence.

2. It is unnecessary, for the purposes of this judgment, to set out the facts of the case, since the only point argued was whether the Judge's direction as to the standard of proof required of the prosecution was a proper one.

3. This direction was as follows:

4. No complaint is, or could be, made, as to the first paragraph of this direction. It is the second and third paragraphs thereof which are said to be objectionable.

5. The approach to this matter is set out in Walters v. The Queen (PC) ⁽¹⁾ , an appeal from The Court of Appeal of Jamaica, where Lord Diplock said, at page 30:

"In their Lordships' view the correctness or otherwise of a direction to a jury on the onus of proof cannot depend upon such fine semantic distinctions. No jury ............. as it listens to an oral summing-up by the judge is capable of appreciating them. As Lord Goddard C.J. said in Rex v. Kritz (1950) 1 K.B. 82 at p. 89:

 

And Lord Diplock added:

"Their Lordships would deprecate any attempt to lay down some precise formula or to draw fine distinctions between one set of words and another. It is the effect of the summing-up as a whole that matters."

6. There have been two recent decisions of this Court upon the question of standard of proof, namely YEUNG Kuen-chi and another⁽²⁾ and MAN Chun-yee and others⁽³⁾ . It was suggested in argument before us that there might be some conflict between these two cases, but we do not agree. All they decided is that the summing-up in each case must be considered on its own to see whether, taken as a whole, it leaves the jury in no doubt as to where their duty lies and as to the extent of that duty.

7. In Yeung's case the direction was held to be objectionable. This was because the Judge, after correctly stating that the Crown must prove its case beyond a reasonable doubt added:

"It cannot do so to a hundred per cent certainty. That is not possible, but you must, in other words be sure."

8. It was the apparent dichotomy between "certain" and "sure' which was held to be misleading and confusing to the jury. And although at later stages and in relation to specific issues, the phrase "beyond reasonable doubt" was used simpliciter, such references were, to adopt what was said by the High Court of Australia in Green v. The Queen⁽⁴⁾ at p. 31:

"controlled by the definition of that expression which his Honour gave in the passage we have quoted."

9. There is some authority in England for a distinction. Thus in Phipson on Evidence 13th Ed. at page 62, it is said:

"Sure does not mean certain and since the two may be confused it is submitted that it is better not to give a direction using the word 'sure'."

10. Similarly Archbold 41st Ed. at paragraph 4-426(4) states:

"It is well established that the standard of proof is less than certain. As in ordinary English 'sure' and 'certain' are virtually indistinguishable it savours of what the late Sir Rupert Cross might have described as 'gobbledegook' to tell the jury that while they must be 'sure' they need not be 'certain'."

11. Whatever may be the position in England we adhere to the view expressed in Yeung. In the Shorter Oxford English Dictionary "certain" is defined as "sure" and "sure" is defined as certain. Therefore it was held that the direction in that partiuclar case could not be sustained.

12. In Ngan's case the position was different. It is true that in Ngan the direction referred to proof not being required to "a degree of absolute mathematical certainty, that is to say beyond all doubts whatever."

13. But for the reasons given by Roberts C.J. it is clear that, on the summing-up as a whole, the jury knew what the prosecution had to prove and to what standard.

14. What then of the present case? It is true that the Judge said that the Crown does not have to prove its case with mathematical certainty, and if he had stopped there, the direction might well have been objectionable. But he did not, because he added :

"The Crown has to prove its case to the extent that it leaves you with no reasonable doubt whatever;"

and in the next paragraph,

"If at the end of your deliberations you are left in any reasonable doubt .......... about the guilt of the accused, then that doubt must be resolved in favour of the accused,"

15. Moreover after no less than nine references dealing with specific issues to proof being required beyond reasonable doubt, the Judge concludes his summing-up by saying:

"Bear in mind that the onus of proving the guilt lies upon the Crown to prove guilt beyond doubt or reasonable doubt."

16. It was argued that the use of the words "beyond a shadow of a doubt" in some way diluted the effect of the direction as a whole. We do not agree, nor do we see anything objectionable in the third paragraph of the direction. It was, to use the words of Counsel for the Crown, good robust common sense.

17. Taking, as we must, the summing-up as a whole, we are satisfied that the jury could have had no doubt as to the standard of proof required of the Crown.

18. Accordingly, the applications for leave to appeal against conviction are dismissed.

(1)    (1969) 2 A.C. 26

(2)    Cr. App. 266 of 1984

(3)    Cr. App. 137 of 1984

(4)    (1971) 126 C.L.R. 28