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CACC000266/1984
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Headnote
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Proper direction as to standard of proof.
IN THE COURT OF APPEAL
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Criminal Appeal
No. 266 of 1984
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BETWEEN
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The Queen
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Respondent |
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and
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YEUNG Kuen-chi (Dl) |
1st Applicant |
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CHEUK Tung-shing(D3)
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2nd Applicant |
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Coram: Hon. Yang & Barker, JJ.A. & Barnes, J.
Date of hearing: 8-9 November, 1984.
Date of handing down judgment: 16th November, 1984.
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JUDGMENT
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Barker, J. A.:
1. The applicants were convicted on two counts of rape and one of robbery and were each sentenced to a total of 14 years imprisonment.
2. It was an appalling case. HO Ngan-sum, a respectable married woman, was repeatedly raped, and forced to have oral sex, all this happening in the presence and sight of her husband who was bound and helpless to assist her. In addition, the couple were robbed.
3. At the trial, the second accused pleaded guilty and was called to give evidence on behalf of the prosecution before being sentenced. Mr. Desmond Keane Q. C., who appeared on behalf of the lst Applicant only but whose arguments embraced the case of the 2nd Applicant, sought to submit that it was improper to call as a prosecution witness a co-accused who had pleaded guilty but had not been sentenced. Because of the view we formed as to his second ground of appeal, we did not call upon him to argue as to the competency of the co-accused. We wish to make it clear, in case this matter should go further, that Mr. Keene has not abandoned the point.
4. The second ground of appeal relates to the direction given by the trial judge as to the standard of proof required of the prosecution in criminal cases.
5. The Judge said:
"There is a burden on the Crown to prove every element of these charges and the Crown must do so beyond a reasonable doubt. He cannot do so to a hundred per cent certainty. Tha tis not possible, but you must, in other words, be sure."
6. There are manifest inconsistencies in that direction. In the first place, a contrast appears to be made between "certain" and "sure". Yet if a conscientious juror were, assuming the summing up was not finished at the end of the day, to go to his Shorter Oxford English Dictionary, he would find that one of the definitions of "certain" is "sure".Secondly, it is to be regretted that the judge suggested that it was not possible for the Crown to prove its case to a hundred per cent certainty, for that is precisely what it did have to do. We are aware that it is common parlance in Hong Kong to talk of percentages of certainty. That may do little harm in social conversation, but it is wholly inappropriate in the legal context, for it usually involves a flat contradiction. Thus 80% certainty is not certainty at all: nor is 99% certainty. And similarly with the use of the word sure. A witness is either sure, or he is not. There is no half way house.
7. Doubtless the judge was endeavouring to explain what is meant by "a reasonable doubt", but in so dong he used language which was capable of being misunderstood. This is by no means the first time in recent months that we have seen directions along these lines and we cannot warn too strongly against their repetition.
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In R. v. Lawrence (1), Lord Hailsham L. C. said:-
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"It has been said before, but obviously requires to be said again. The purpose of a direction to a jury is not best achieved by a disquisition on jurisprudence or philosophy or a universally applicable circular tour round the area of law affected by the case. The search for universally applicable definitions is often productive of more obscurity than light."
8. Thus it is that there is no set form of words which must be used, but we commend to the consideration of judges the direction suggested by Eveleigh L. J. in his address to the 7th Commonwealth Law Conference last year:-
"Members of the jury, the prosecution have to satisfy you so that you can feel sure of it that the evidence presented to you in this trial has established every ingredient of the offence of which it is said the accused is guilty. If there is any ingredient of the offence which is not established by the evidence so that you can feel sure of it then your verdict in relation to that offence must be Not Guilty."
9. A number of points must be noted. First, it is not necessary that the words "beyond a reasonable doubt" should be used at all: it is enough that the jury be told that it must be sure. The judge should avoid any temptation to seek to explain what is "sure", for so to do will inevitably result in obscuring or limiting the meaning of this plain and simple word.
10. Secondly if the time honoured (and by some preferred) phrase "beyond a reasonable doubt" is used, it is wrong to attempt any explanation of what is a reasonable doubt; they too are simple English words and experience shows that juries are capable of understanding them without explanation.
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Lord Goddard L. C. J. in R. v. Summers (2) said:
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"I have never yet heard a court give a satisfactory definition of what is a reasonable doubt."
11. And Professor Glanville Williams in his Textbook of Criminal Law 2nd edition at p. 43 wrote:
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"
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What is meant by reasonable doubt?
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The phrase is virtually indefinable. It can be said to mean not a mere fanciful doubt but one to which reasonable men would give weight - but how does that help? The best course is for the judge to state the rule without comment."
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We entirely agree. |
12. Thirdly, all references to the inability of the Prosecution to prove its case to a mathematical certainty or to any degree of certainty or sureness are to be avoided. They are as confusing as they are misleading.
13. Fourthly, the direction as to the burden and standard of proof need only be given once.
14. It is with these principles in mind that we approach the instant case. Mr. Dale, for the Crown, argued that, apart from the initial direction as to the standard of proof to which we have earlier referred, the Judge in later passages of the summing up and in relation to specific issues stated that the jury must be sure, or satisfied beyond reasonable doubt, and that therefore, taking the summing up as a whole, the jury could be in no doubt as to what the prosecution had to prove.
15. We entirely accept that the summing up does have to be read as a whole. But the initial all-embracing and, as we held, incorrect direction as to the standard of proof was the umbrella beneath which all subsequent directions sheltered and such directions were subject thereto.
16. In the result, these convictions cannot stand. In KWAN Ping Bong v. The Queen(3), Lord Diplock said at p.616:
"A misdirection as to the onus of proving an essential fact in issue seldom provides an appropriate case for the application of the proviso."
17. Respectfully, we agree, and indeed the Crown did not contend to the contrary.
18. We therefore allowed the applications for leave to appeal, treated the hearing as the hearing of the appeals, allowed the appeals and quashed the convictions. In all the circumstances we ordered a retrial.
(1) (1981) 1 A. E. R. 974 at 977
(2) (1952) 36 Cr. App. R. 14
(3) (1979) A.C. 609
Representation:
Mr. Desmond Keane, Q.C. & Mr. Rupert Spicer (Y.K. Poon & Co.) for D1/ 1st Applicant.
D3/2nd Applicant in person.
Mr. P.J. Dale for Crown/Respondent.
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