THE QUEEN v. NGAN CHUN YEE AND OTHERS

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JUDGMENT

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Roberts, C. J.:

Preliminary

1. This is an application for leave to appeal against both conviction and sentence but we shall be dealing at this stage only with the application relating to conviction.

2. The first two defendants were charged with uttering forged banknotes and with possession of forged banknotes. The third defendant was, in addition, charged on a further count of possession of forged banknotes.

3. The first two defendants were each acquitted of uttering and convicted of possession. The third defendant was acquitted of uttering, and of possession on the second of the two possession counts, and convicted on the first of the two possession counts.

Facts

4. On 11th October, 1983, Detective Sergeant No. 122 was told by an informant, named WONG Ming-kei, that forged Hong Kong currency notes were for sale. The Sergeant then arranged, through Wong, to meet the supplier on 11th October in a tea-house.

5. At the meeting, the Sergeant was introduced to D.1 and D.2 and a discussion took place between them. It was agreed that these two defendants would sell forged banknotes to the Sergeant. The Sergeant asked for a sample. D.1 told D.2 to go and get one, which he did, bringing back a specimen forged $1,000 note. A price was agreed of $280 per $1,000 note. On 17th October WONG Ming-kei told the Sergeant that a further meeting was arranged for 17th October at which the forged notes would be produced.

6. The three defendants met the Sergeant at a restaurant, the agreed meeting place. D.3 was carrying a yellow plastic photographic bag. All of them went to Wong Ming-kei's car, which was outside. In the car the deal was struck and the Sergeant was just about to take possession of the bag when his colleagues emerged from ambush and arrested the three defendants.

7. D.2 was seen to throw the bag, containing 100 $1000 notes, which were subsequently shown to have been forged, out of the car. When the car was searched, D.3's wallet was found on the floor containing three forged $1,000 notes. It was those three notes that were the subject of the possession count of which he was acquitted by the jury.

Inconsistent verdicts

8. Mr. Ramanathan has argued, on behalf of D.3, that the verdicts of the jury whereby that defendant was convicted on the second count of possession and acquitted on the third count of possession were inconsistent verdicts, in view of the facts which were established and of the evidence of D.3 himself.

9. In essence, D.3's story was that a man called "Ming Chai" gave him both the yellow plastic bag and three $1,000 notes. He said that be believed that the yellow plastic bag contained photographs and that he had no reason to suppose that the three $1,000 notes were forged. He said he was asked to give these notes to D 2, when they had tea together. He left the notes in his wallet.

10. By their verdict, the jury must have decided that they disbelieved D.3 so far as his knowledge of the contents of the yellow plastic bag was concerned and must have been satisfied, to the necessary degree of proof, that he knew that this bag contained forged banknotes.

11. We do not find that this verdict is necessarily inconsistent with the finding of not guilty in relation to the three banknotes which were found in D. 3's wallet on the floor of the car. Perhaps it can be said that the jury were unduly merciful in acquitting him of that charge, and it is possible to think of various explanations as to why the jury should have so decided. They might, for example, though this is purely speculative, have thought that D.3 was being paid, for his services in conveying the forged banknotes, with banknotes which he thought were real banknotes. Alternatively, they may have decided that, because he was to deal with the three banknotes in a different way from those in the bag, he might have thought that they were different in composition; in other words, that they were genuine and that those in the plastic bag were forged.

Burden of proof

12. We turn now to the more important ground, which is based on the recent decision of another division of this court in R. v. Yeung Kuen-Chi⁽¹⁾. In that appeal, this court disapproved a passage in the summing-up of a judge which read as follows-

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

13. The court, commenting on this in Yeung⁽¹⁾, criticized the contrast which the judge appeared to have drawn between "certain" and "sure"-

"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."

14. We do not think that the judgment in Yueng⁽¹⁾ should be given a wider application than its terms necessarily require, so as to make improper any direction which happens to be in similar terms to those used by the judge in Yeung⁽¹⁾; nor any direction which does not accord with that recommended in Yeung⁽¹⁾.

15. As has been said in many cases, an indispensible part of any summing-up is the explanation by the judge to the jury of the standard of proof which lies upon the Crown. The jury must be left in no doubt that the Crown's evidence must attain that standard before it is proper to convict but, as this court said in Yeung^(l) -

".... 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."

16. We should not like it to be thought that we disagree with the advice given in Yeung⁽¹⁾,as to the preferable direction on the standard of proof. But this formula is not the only proper one. What is important is that the words used by the judge should not be misleading, in the manner which this court found them to be in Yeung⁽¹⁾.

17. One passage in the summing up in this case is, in some respects, similar to that part of the summing-up which was disapproved in Yeung^(l)-

"All those three expressions are really intended to describe precisely the same thing. The final word on this is that the prosecution is not required to prove its case against any defendant to a degree of absolute mathematical certainty, that is to say beyond all doubt whatever."

18. In Yeung⁽¹⁾, the phrase "He cannot do so to a hundred per cent certainty. That is not possible, but you must, in other words, be sure," was held to be objectionable.

19. In this case, there is a reference to "absolute mathematical certainty". If the direction had stopped there it might well have been objectionable. It does not. The judge explains, what he means by "a degree of absolute mathematical certainty", namely, "beyond all doubt whatever".

20. No proper objection can be taken to a direction that the prosecution is not required to prove its case beyond all doubt whatever, though such a phrase is best avoided.

21. Furthermore, in about half a dozen other places, the judge used the phrase "beyond a reasonable doubt". The jury can, in our view, have been left in no doubt whatever as to the proper standard of proof which had to be attained by the Crown.

22. It is perhaps of interest to mention, as showing how differently courts have approached the words used in a summing-up on this matter, Walters v. R. ⁽²⁾, in which the Privy Council saw nothing wrong in a direction which contained the following passage -

"he law does of require the prosecution to prove its case with absolute certainty for the simple reason that nothing in life can be proved with absolute certainty."

Application of proviso

23. We should perhaps refer, though this is unnecessary to our decision, to the reference in Yeung⁽¹⁾ to the case of Kwan Ping Bong v. R.⁽³⁾, in which it was said that "a misdirection as to the onus of proving an essential fact in issue seldom provides an appropriate case for the application of the proviso." It is to be noted that this does not wholly rule out the use of the proviso, even where there is a misdirection as to the onus of proof.

24. In Kwan Ping Bong⁽³⁾ itself the primary issue before the court was where the burden of proof lay, not with the standard of proof. To that extent, therefore, Kwan Ping Bong⁽³⁾ is not a direct authority on the approach which ought to be adopted by a court where the standard of proof is in issue, though it is likely that if there is a substantial misdirection as to the standard of proof an appellate court may feel a degree of reluctance in applying the proviso.

25. The general principle as to the application of the proviso was set by Lord Atkin in R. v. Lawrence ⁽⁴⁾ -

"But, speaking generally,, it has to be remembered that it is an essential principle of our criminal law that a criminal charge has to be established by the prosecution beyond reasonable doubt: and it is essential that the tribunal of fact should understand this. Unless the judge makes sure that the jury appreciate their duty in this respect. his omission is as grave an error as active misdirection on the elements of the offence, and a verdict of guilty given by a jury who have not taken this fundamental principle into account is given in a case. where the essential forms of justice have been disregarded. In such a case, unless it can be predicated that properly directed the jury must have returned the same verdict, a substantial miscarriage of justice appears to be established."

26. Thus an appellate court may, in principle, apply the proviso in the circumstances referred to in that passage, so long as the jury, if properly directed, would have returned the same verdict. That general principle can perhaps be said to have been limited to some degree by Kwan Ping Bong⁽³⁾, which relates to the onus of proof. However, it is to be noted that no reference to Lawrence ⁽⁴⁾ appears in Kwan Ping Bong ⁽³⁾ (nor indeed in Yeung⁽¹⁾).

27. An illustration of the willingness of the English Court of Appeal, to apply the proviso can be seen in R. v. Edwards⁽⁵⁾, in which it was applied where the trial judge had failed to give any direction at all to the jury on the standard of proof.

28. For these reasons, we refuse the application for leave to appeal against conviction.

(1)    Crim. APP. 266/84.

(2)    [1969]2 A. C. 26 (P.C.)

(3)    [1979] A. C. 609 P. C.

(4)    [1933] A. C. 699 P. C. at p. 707.

(5)    [1983] 77 Cr. App. R. 5.