THE QUEEN v. LEE YUK WAH AND OTHERS

Criminal Law - Privy Council - Judicial precedent - Privy Council decisions from jurisdictions other than Hong Kong.

                Applications sought leave to appeal against convictions on the ground that the trial judge had wrongly directed the jury that there was a distinction between being certain and being sure. They relied upon the judgment of the Court of Appeal in R. v. Yeung & Anor, Cr.App. No. 266 of 1984 (unreported).

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JUDGMENT

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Kempster, J.A. :

1. Day by day all over the Commonwealth judges are directing themselves or juries on the burden and standard of proof required to allow the conviction of persons accused of crime. Yet in Hong Kong there is uncertainty as to the general terms in which a direction on the standard of proof should be expressed. By reason of the forthright submissions made in the present appeal it is incumbent upon this Court to resolve that uncertainty if it can. We are bound to grasp the nettle.

2. Traditionally juries in England were told that they had to be satisfied of all the constituent elements of a criminal offence beyond all reasonable doubt before they could bring in a verdict of guilty. But in R. v. Summers ⁽¹⁾ Lord Goddard C.J. advocated a different formula namely that juries should be told that they should be satisfied and sure of guilt. However, three years later in R. v. Hepworth & Anor⁽²⁾ he modified his stance somewhat and the traditional formula again became acceptable. Prudent judges have since given a hybrid direction emphasizing the burden resting on the prosecution and explaining the standard of proof as being beyond all reasonable doubt in the sense that jurors must be satisfied of guilt so that they are sure of it. In Hong Kong, if not elsewhere, judges have seen fit to elaborate on such a direction in an attempt to ensure the proper appreciation of their duty by the particular juries who have shared with them responsibility for the outcome of criminal trials. Such elaboration has been widely criticised; for example, in R. v. YIP⁽³⁾. In R. v. Yeung & Anor ⁽⁴⁾ a division of this Court carefully explained what would constitute a proper direction on the standard of proof. The Court also held that a direction in the following terms visa misleading and wrong:

"There is a burden on the Crown to prove every element of these charges and the Crown must do so beyond reasonable doubt. It cannot do so to a hundred percent certainty. That is not possible, but you must, in other words, be sure."

Although it was and is accepted that a summing-up must be considered as a whole that direction was held to have confused and misled the jury by raising a false dichotomy between certainty and assurance and to have vitiated all subsequent references to reasonable doubt. The convictions were quashed.

3. A plethora of applications for leave to appeal against conviction followed and in three, also reported, decisions (R. v. Ngan Chun Yee & Others ⁽⁵⁾; R. v. Wong Leung⁽⁶⁾; R. v. Peter Lee⁽⁷⁾) other divisions of this Court have held that unfortunate elaborations by reference, for example, to "mathematical certainty" not markedly different from that impugned in Yeung⁽⁴⁾, had not, having regard to subsequent references to reasonable doubt, misled the relevant juries.

4. The direction presently complained of was given by Deputy Judge Hopkinson on 24th September 1984 in these terms:

"I should add that you don't have to be certain of a defendant's guilt before you can convict him. Few things are certain in this uncertain world and you can't be certain in a mathematical sense in any case."

 

Many references to proof beyond reasonable doubt followed and the jury in due course convicted all the applicants of conspiracy and one of them of possessing dangerous drugs for the purposes of unlawful trafficking as well. The jury acquitted one of the defendants tried together with the applicants.

5. The applicants, who seek leave to appeal against such convictions, contend that the direction in question was more confusing than that given in Yeung⁽⁴⁾ and rely on the conclusion of this Court in that appeal that "certain' is synonymous with ''sure". For my part, even after considering the relevant references in the Shorter Oxford English Dictionary, I cannot accept that these words, albeit related in usage, bear the same meaning and emphasis. Certainty imports the absence of all doubt. Assurance imports the absence ofall reasonable doubt. Thus a direction to convict in the absence of all reasonable doubt is consistent with a direction to convict only when sure of guilt. Ormrod L.J. distinguished between being certain and being sure in R. v. Bracewell⁽⁸⁾ at p.49. A direction to convict only when "certain" imposes a different and impossibly high burden on the prosecution.

6. But for two decisions of the Privy Council this view would be neither here nor there as we would be bound by R. v. Yeung⁽⁴⁾ from which the Privy Council has refused leave to appeal. However, the thrust of de Lasala v. de Lasala⁽⁹⁾ at p. 558 is that the advice of the Privy Council, even in appeals which do not derive from Hong Kong, should bind us rather than a previous decision of the Court of Appeal. A-G of St. Christopher v. Reynolds ⁽¹⁰⁾ at p. 660; Young v. Bristol Aeroplane Co. Ltd.⁽¹¹⁾. Neither of the two decisions of the Privy Council was mentioned in the judgment in Yeung ⁽⁴⁾ but the first, Walters v. The Queen⁽¹²⁾ was, my Lord Barker, J. A. has informed us, cited in argument. It cannot, therefore, be said that the judgment was given per incuriam. The second decision Ferguson v. The Queen⁽¹³⁾ approved and indorsed what was said in Walters⁽¹²⁾.

7. In Walters⁽¹²⁾ a direction referring to "absolute certainty" and substantially similar to that complained of in the instant applications was upheld. The word "absolute" is no more than surplusage and no distinction is to be made between certainty and mathematical certainty. In Ferguson⁽¹³⁾ Lord Scarman said at p. 882:

"The time-honoured formula is that the jury must be satisfied beyond reasonable doubt. As Dickson C.J. said in Dawson v. The Queen⁽¹⁴⁾ at p. 18, attempts to substitute other expressions have never prospered. It is generally sufficient and safe to direct a jury that they must be satisfied beyond reasonable doubt so that they feel sure of the defendant's guilt. Nevertheless other words will suffice so long as the message is clear. In the present case the jury could have been under no illusion. The importance of being sure was repeatedly emphasized."

Although Deputy Judge Hopkinson did not emphasize the importance of being sure he repeatedly stressed the importance of being satisfied beyond reasonable doubt which, to quote my lord Barker, J.A. in Yeung⁽⁴⁾:

"are simple English words and experience shows that juries are capable of understanding them without explanation."

8. I am satisfied that the jury here was made well aware of the required standard of proof. Nonetheless I would express the hope that all judges in this jurisdiction will heed the helpful guidance in relation to directions on the standard of proof to be found in Ferguson ⁽¹³⁾ and in Yeung⁽4) .

9. The summing-up is also attacked on the footing that the learned judge "made comments which were in judicial and went beyond the limits of proper comments". This Court is invited to take into account the cumulative effect of the judge's admittedly disparaging remarks in relation to the defences advanced by all accused. He said of the evidence of the second accused "there are other aspects you may find it difficult to believe", giving instances, and told the jury they could draw their own conclusions "for what they are worth from such non-answers". In relation to the evidence of the third accused he referred to "those absurd suggestions", and to absurdity twice. As regards the first accused he said "you may think that by doing this he managed quite skillfully to avoid answering a series of quite awkward questions'- so you may think that those allegations of assault are extremely difficult to believe - you may also think it very difficult to believe that he really thought he could walk out from that police station scot-free after confessing to possession of the opium- but you may find it rather hard to believe that he could really have expected a sum of several $10,000 to be paid by those two friends of his for the damage to those vases -". Again in relation to the third accused he said, obviously inviting disbelief, "Anyway I am sure you will have no difficulty in deciding whether such a story could possibly be true" and rather more mildly suggested to the jury that they might think it "a rather far-fetched one to say the least". In relation to a meeting between the third, fourth and fifth accused and the reasons given by them for such meeting he said "You will probably find the whole story very difficult to believe. You may also find it difficult to believe that the fifth accused was never given an opportunity - to explain why he thought he had come to the restaurant." The judge made other observations in relation to the accuseds' evidence in a similar vein. By contrast he described the main witness for the, prosecution as "that very unruffled detective - who resisted all the allegations of assault with apparent complete composure".

10. There is another side to the coin. At the outset of his summing-up the learned judge told the jury:

11. In relation to the first accused's evidence he said to the jury "If you have any reasonable doubt - well then, you will find him not guilty".

12. In relation to the second accused he said:

Per Lord. Parker, C.J. in R. v. Blackley⁽¹⁵⁾ at p. 424. In that case the Court of Criminal Appeal quashed a conviction because

"- in the present case the deputy chairman went far beyond his proper function. No one who heard this, if it sounded at all like it reads on the transcript, could really believe that he had had a fair trial."

A rather different approach appears in R. v. Sparrow⁽¹⁶⁾ where Lawton L.J. said:

"The object of a summing-up is to help the jury and in our experience a jury is not helped by a colourless reading-out of the evidence as recorded by the judge in his notebook. The Judge is more than a mere referee who takes no part in the trial save to intervene when a rule of procedure or evidence is broken. He and the jury try the case together and it is his duty to give them the benefit of his knowledge of the law and to advise them in the light of his experience as to the significance of the evidence - but he must keep in mind always his duty to be fair. As A.T. Lawrence J. pointed out in Voisin⁽¹⁷⁾ at P. 536: 'Comments on the evidence which are not misdirections do not, by being added together, constitute a misdirection.' "

In Broadhurst v. Regina⁽¹⁸⁾ at p. 124 Lord Devlin, giving the opinion of the Privy Council, said:

"The learned Chief Justice indicated his opinions very freely during his summing-up and they were usually, if not invariably against the accused. The opinions of the presiding judge on this issue of fact can often be a great assistance to the jury. But it is very important that the jury should be told that they are not bound by them nor relieved thereby of their responsibility for forming their own view. Nevertheless, the jury is likely to pay great attention to them: and even in a case where a proper warning is given an Appellate Court may still intervene if it considers them far stronger than the facts warrant."

13. It is not suggested in the present context that the learned judge in any way misrepresented the evidence or that the several comments made were not individually warranted.

14. Albeit the several comments made by the learned judge were stronger than might be thought desirable they were not unfair. The jury acquitted one of those accused and, persuaded, I believe, by the facts rather than by the judge, would have reached the same verdicts if he had not said what he did. There has been no miscarriage of justice. I would dismiss the applications for leave to appeal against conviction.

(1)   [1952] 1 All E.R. 1059

(2)   [1955] 2 Q.B. 600

(3)    Crim.App. No. 302 of 1984 (unreported)

(4)    Crim.App. No. 266 of 1984 (unreported)

(5)    Crim.App. No. 137 of 1984

(6)    Crim.App. No. 517 of 1984

(7)    Crim.App. No. 292 of 1984

(8)    [1979] 68 Cr.App.R. 44

(9)    [1980] A.C. 546

(10)    [1980] A.C. 637

(11)    [1944] K.B. 718

(12)    [1969] 2 A.C. 26

(13)   [1979] 1 All E.R. 877

(14)    [1961] 106 C.L.R. 1

(15)   [1963] 6 W.I.R. 423

(16)    [1973] 57 Cr.App.R. 352

(17)   [1918] 1 K.B. 531

(18)    [1964] 1 All E.R. 111

Li, V.-P.:

15. I agree.

Barker, J.A.:

16. I have had the advantage of reading in draft the judgment of Kempster, J.A. and I agree that the applications for leave to appeal against conviction should be dismissed.

17. I accept that the Court of Appeal in Hong Kong is bound by a decision of the Privy Council, whether such decision was an appeal from Hong Kong or from some other territory. Thus Walters v. The Queen⁽¹⁾ is binding authority in Hong Kong, even though that was an appeal from the Court of Appeal of Jamaica.

18. In Walters the Privy Council was concerned with the direction as to the standard of proof given to the jury by a judge in a trial for murder. The direction was, to say the least of it, convoluted. It is true that it contained sentences such as:

"The law has set the standard of proof, namely, that the law does not require the prosecution to prove its case with absolute certainty for the simple reason that nothing in life can be proved with absolute certainty."

and in contrast:

"But before you, the jury can convict, you should be so satisfied that the evidence makes you feel quite sure that the prosecution has proved the guilt of the accused."

19. This direction was upheld by the Privy Council and at first blush it might seem that it was being judicially recognised that there is a dichotomy between "certain" and "sure". But in fact this was a matter which was never argued. The decision turned solely on the judge's prolix attempts to define for the benefit of the jury the meaning of reasonable doubt.

20. With respect, I remain of the view that to attempt to draw a distinction between the concepts of certainty and assurance can at best only confuse the jury and more probably mislead it.

21. But I echo the words of Kempster, J. A. Taking the summing-up as a whole, as Walters says must be done, I am satisfied that the jury knew full well the standard of proof required of the Crown. Moreover, if judges in this jurisdiction heed the suggested directions given in Reg. v. Yeung Kuen Chi & another⁽²⁾ or in Ferguson v. The Queen⁽³⁾, there will be no more sustainable appeals as to standard of proof.

(1)    (1969) 2 A.C. 26

(2)    Crim. App. No. 266 of 1984

(3)    (1979) 1 All E.R. 877