LEE KAM YUEN v. R.

1993, No. 734
(Criminal)

H E A D N O T E

Good character direction in simple language.

When the accused has given evidence:-

"The accused's good character helps him in two ways. First, it is to be taken into account in his favour when you decide the weight to give to what he said in the witness-box. Secondly, he can rely on his good character as making it more unlikely than other wise that he would commit crime, as the prosecution alleges he did."

And when the accused has not given evidence:-

"The accused's good character helps him. He can rely on it as making it more unlikely than otherwise that he would commit crime, as the prosecution alleges he did."

Noted that when the accused has given evidence, so that both limbs of the good character direction should be given, failure to give the first limb of the direction may, in practice, be cured by the giving of the second limb of it.

Proviso applied in the present case.

1993, No. 734
(Criminal)

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J U D G M E N T

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Bokhary JA (delivering the judgment of the Court):

1. This is an application for leave to appeal against conviction and sentence. We are at the moment dealing with conviction.

2. The applicant and another man faced an indictment containing one count of robbery and an alternative count of burglary.

3. No evidence was offered against the other man, who was then acquitted on direction.

4. The case proceeded against the applicant.

5. On December 8 last year, the jury found the applicant guilty neither of robbery nor of burglary but of handling.

6. For that, Deputy Judge Wesley Wong, passing sentence on the same day, sentenced the applicant to two years' imprisonment.

7. The applicant gave evidence in his own defence at the trial. He was a man with a clear record. All that the judge said as to character was this:

"He has a clear record. He has never been in the police station before, so he said that he is a man of good character."

That does not come anywhere near the good character direction to be given where one is appropriate. The first question here is whether such a direction was appropriate.

8. Before we come to that question, in order that it may be answered in its proper setting, we will just review very briefly the general law on the topic.

9. Such law is in this state. Where the accused is of good character, or is to be treated as being of good character because any blemish on his character is so insignificant that the judge considers it right to ignore it, then the judge should refer in his summing-up to the fact that the accused is of good character. And having referred to that fact, he should continue to direct the jury along these lines, if the accused has given evidence:-

"The accused's good character helps him in two ways. First, it is to be taken into account in his favour when you decide the weight to give to what he said in the witness-box. Secondly, he can rely on his good character as making it more unlikely than otherwise that he would commit crime, as the prosecution alleges he did."

10. If he has not given evidence, then it should be put along these lines instead:-

"The-accused's good character helps him. He can rely on it as making it more unlikely than otherwise that he would commit crime, as the prosecution alleges he did."

11. All of that is in simple language, avoiding terms such as "credibility" and "propensity", which are very convenient when the concepts are being discussed among lawyers, but are less helpful when a judge is directing non-lawyers.

12. As we have indicated, the two-fold direction should be given where an accused of good character has gone into the witness-box. It should be mentioned however, that a failure to give the first limb of the direction may, in practice, be cured by the giving of the second limb of it. Thus, in Criminal Appeal No. 56 of 1994, Reg. v. Tangkao Sae Tang, August 19, 1994 (unreported), Litton JA, giving the judgment of this Court said (at p.7) this about that case:-

" In taking into account the applicant's good character as an indicator that he was less likely than otherwise to have committed the offence of rape, the jury, in our view, would inevitably have also taken it into account in deciding whether he might have been telling the truth in the witness-box when denying that he had raped the complainant."

13. So all of that forms the legal context in which it is necessary for us to decide whether a good character direction was appropriate in the present case.

14. As to the relevant facts, this is the position. The applicant said this in evidence. Having gone to the place in question innocently, there came a time when he suspected - not knew but only suspected - that the others there were engaged in smuggling. Fearing that his lorry might be damaged or that he might be harmed if he were to decline to co-operate - fearing that although nobody had actually threatened him to that or any effect - he decided, despite his suspicion, to continue to assist in the loading and the transportation of the goods nevertheless.

15. Now, quite clearly, even if a man has a clear record, if it is plain that he does not really have a good character after all - and there may be a number of ways in which that becomes plain - then he is not entitled to a good character direction.

16. The authorities are clear to that effect. Common sense and principle are no less clear to that effect.

17. In practice, there will be cases on the borderline. The present case is on the borderline. But the judge obviously considered that, although the applicant continued despite his suspicion, he was entitled to a good character direction. We say that because the judge attempted to give such a direction although he failed to give an adequate one.

18. We think that we ought to respect the judge's discretion in the matter and proceed on the footing that a good character direction was appropriate, so that the failure to give an adequate one amounted to non-direction.

19. That then raises the next question: which is whether the proviso ought to be applied. As to that, the facts are these. There was no dispute that the robbery alleged by the prosecution took place. Nor was there any dispute that the huge quantity of goods taken in that robbery, which robbery was at a warehouse, were taken away by means of the accused's lorry driven by him.

20. Also, there was no dispute that when he was formally charged with robbery, the applicant, who had not been treated in any improper way by the police, wrote this in answer to the charge:

"In this case, I was only told by a friend called LEE Kwan, nicknamed Tor Pui Lung, a person living neighbouring (me), to draw goods in this warehouse. And upon arrival to that warehouse, I then realized they were robbing that warehouse. However, as things had gone to that stage, for safety sake, I could but do according to their instruction. In this case, I was only responsible for driving vehicle."

21. Now, the applicant in his evidence said that he meant to say that he suspected that the others were smuggling, not that he realised that they were robbing. The idea of robbery was, he said, put into his head, through nobody's fault, by the fact that the police were charging him with a robbery.

22. On any view, that story appears very thin. And when one looks at all of the circumstances, including how badly the applicant fared under cross-examination, we are fully satisfied that no reasonable jury, properly directed, could have failed to convict the applicant of at least handling on the whole of the evidence properly before them. A conviction of handling at least was inevitable. And, as we have noted, this jury convicted not of robbery, not of burglary, but of handling. Upon an application of the proviso, the application for leave to appeal against conviction is treated as the appeal against conviction itself, but that appeal is dismissed.

[The applicant, acting in person for the purpose, then sought leave to appeal against sentence; and the Court refused such leave]