LEUNG FEI WAH v. HKSAR

FACC No. 9 of 2005

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

 FINAL APPEAL NO. 9 of 2005 (CRIMINAL)

(ON APPEAL FROM CACC No. 311 of 2002)

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Between :

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Court: Chief Justice Li, Mr Justice Bokhary PJ, Mr Justice Chan PJ, Mr Justice Ribeiro PJ and Sir Ivor Richardson NPJ

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J U D G M E N T

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Chief Justice Li :

1.  I agree with the judgment of Sir Ivor Richardson NPJ.

Mr Justice Bokhary PJ :

2.  I agree with the judgment of Sir Ivor Richardson NPJ.

Mr Justice Chan PJ :

3.  I agree with the judgment of Sir Ivor Richardson NPJ.

Mr Justice Ribeiro PJ :

4.  I agree with the judgment of Sir Ivor Richardson NPJ.

Sir Ivor Richardson NPJ :

5.  The appellant was convicted in the Court of First Instance before Deputy Judge Toh and a jury on 5 counts of robbery and 1 count of indecent assault (Count 2) associated with the first alleged robbery.  The incidents the subject of the robbery charges involved different victims who had advertised their flats or rooms for lease and they occurred on different dates.

6.  The Appeal Committee gave leave to appeal limited to the conviction for indecent assault.  The point in issue is whether the trial judge erred in directing the jury that, if they found the appellant guilty of robbery on Count 1, they could not find him not guilty of indecent assault on Count 2.  While the other convictions and the sentences are not in question on this appeal, it is as well to add that the appellant was sentenced to 7 years’ imprisonment on Count 1 and 2 years on Count 2 reduced to 1 year for totality reasons, and by making sentences on the other 4 counts partly consecutive the appellant was sentenced to serve a total of 14½ years’ imprisonment.

7.  The Court of Appeal dismissed an appeal against conviction on Counts 1, 2, 4, 5 and 6.  The misdirection ground was not raised before the Court of Appeal but there is ample material from the trial for this Court to determine whether, as the appellant contends, substantial and grave miscarriage of justice has been done while the appellant remains convicted and sentenced on Count 2.

Counts 1 and 2: the facts

8.  The evidence at trial of Madam Wong Yuen Mei (“Madam Wong”) was that she advertised her flat for renting; the appellant came to view the flat on 14 July 2000; in the course of the viewing and, after he said he liked the flat and she was inputting the mobile number he gave her into her mobile, he grabbed her around the neck, declared robbery, tied her hands with string and gagged her mouth with a towel, both of which he had brought along.  She was pushed to the floor and her assailant hit her on the head and on the back with his hand.  He searched her wallet and took money and credit cards.  When she refused his demands for her pin numbers, he put his hand into her brassiere and at some point took off her bra, and tied it around her neck.  He pulled her nipple twice and threatened to molest her if she did not comply.  She responded by giving false pin numbers.  The statement of agreed facts recorded that she sustained bruises over her right back and abrasions over both her wrist and ankle areas in the robbery.  The appellant did not give evidence at trial.  He made no admissions in his video/statement and denied ever being at the flat or knowing Madam Wong.

9.  The substantial issue for the jury was whether Madam Wong had correctly identified the appellant as her assailant.  Shortly after the incident she failed to identify him from his photo from amongst some 880 photos but did so at an identification parade held earlier on 18 May 2001, the day of the video interview.  She said she could see his face clearly, because it was mid-afternoon and the lighting was bright, and she gave a physical description.  She chatted with him for some minutes before she was assailed.  She noted, she said, that her assailant had the Chinese character “wah” on his left forearm and a police officer gave evidence that he saw a tattoo with that character on the appellant’s left forearm.

10.  The cross-examination of Madam Wong focused wholly on her identification of the appellant as her assailant and the reliability of her evidence in that regard.  Indeed, before beginning the cross-examination itself counsel for the appellant said:

“Now, I want to make it quite clear to you from the outset that I’m not suggesting that you’re telling any untruths, and I’m not suggesting that you didn’t go through a terrible ordeal on 14 July 2000.”

There was no challenge to her account of the indecent assault charged or of the robbery itself.  What was put to her, and denied, was that her identification of the appellant as the robber was mistaken.  That was put on the proposition, which she denied, that she had previously met the appellant in Central when he wanted to collect a debt on behalf of somebody else, and 10 months later in the identification parade she had mistakenly identified him as the robber.

The judge’s directions to the jury

11.  Beginning the summing up, the Deputy Judge noted that the real issue in the case was whether it was the defendant who was the robber and that it was not seriously disputed that an indecent assault of the victim of the robbery in Count 1 also took place.  The Deputy Judge gave careful comprehensive directions on the identification issues and reviewed the relevant evidence.

12.  The Deputy Judge appropriately directed the jury that the prosecution had to prove the particulars set out in each count.  The particulars given for Count 1 identified currency, a mobile telephone, 2 credit cards and a bank card as the subject of the robbery.  Dealing with Count 2 the Deputy Judge said:

“As you go down to the 2ndcount again, as I have said, it has indecent assault and the particulars of the offence.  As far as the particulars are concerned, the only matter which really concerns you is whether it was the defendant who committed this indecent assault.  The fact that Wong Yuen-mei was indecently assaulted has not been seriously challenged, and after I have instructed you on the law, it is a matter for you to decide if there was an indecent assault, and if there was, then you should have no difficulty in finding that Wong Yuen-mei was indecently assaulted and the only issue is whether it was the defendant.”

But, more specifically, she continued:

“Now, you must consider the case against and for the defendant on each count separately.  That means, if you find the defendant guilty or not guilty on one count it does not necessarily follow that you have to find him guilty or not guilty in the other counts.  You have to consider the evidence in each count separately and reach a decision on each count separately, except in relation to Counts 1 and 2, because the evidence for Counts 1 and 2 are totally tied in that it is just one victim, and that is Wong Yuen-mei, so it would be obvious that if you find the defendant not guilty on Count 1, he cannot be found guilty on Count 2 – he would be found not guilty on Count 2, and similarly, if you find him guilty on Count 1, then again it would be obvious to you that you cannot find him not guilty on Count 2.  It would have to be a similar verdict.

But apart from that, members of the jury, you have to look at each count separately.  One matter between Counts 1 and 2 is that Count 1 charges robbery and Count 2 is indecent assault, so after I have directed you on the law relating to robbery and indecent assault, it is still for you to decide if there was a robbery at the end of the day and if there was indecent assault….”

And,

“Now, in this case, the defence does not challenge that Madam Wong was assaulted in the circumstances as she had described to you by the robber, and I think you will have no difficulty at all in concluding from her evidence that the robber who assaulted her by twisting her nipple intended to assault her in that way, and that this act, this assault, is capable of being considered by right-minded persons as indecent, and that the robber had intended to commit such an assault on Madam Wong.  So I do not think you will have any difficulty in finding that an indecent assault, according to the law, did take place, and the only matter you have to decide is whether the defendant was the robber and the person who indecently assaulted Madam Wong.”

Then, she summarized her assessment of the case in this way:

“…. So, in Count 1 you have her identification of the defendant and you have the character “wah” on the forearm, which you may consider may help you, but it is a matter for you.  In Count 2 similarly, as I have told you, it really depends on the evidence of Madam Wong, and so you again must assess her evidence and consider if she had made the correct identification in this case.”

As well, the Deputy Judge gave standard directions that in respect of each witness the jury might accept all or part of the evidence or reject the witness’s evidence totally.

The arguments on appeal

13.  Mr Ross for the appellant submitted, first, that in essence the Deputy Judge directed the jury to convict on Count 2 if they found the appellant guilty on Count 1; and that in doing so the Deputy Judge misdirected the jury in law contrary to settled authority in common law jurisdictions – in Hong Kong (HKSAR v. Lui Tsi Fai [2003] 2 HKLRD 927), the United Kingdom (R v. Wang [2005] 1 WLR 661), Australia (Jackson v. The Queen (1976) 134 CLR 42), and the United States (United Brotherhood of Carpenters and Joiners v. United States (1946) 330 US 395).  Further, he submitted, there was scope in the evidence for the jury to give different verdicts on Counts 1 and 2. The jury may have accepted Madam Wong’s identification evidence and her account of the robbery but rejected the evidence of indecent assault.  And the challenged direction specific to Count 2 could only have predominated in the minds of the jury over other general directions to consider each count separately.

14.  Second, and anticipating that the respondent would invite the Court to apply the proviso under s.83 of the Criminal Procedure Ordinance, Cap. 221, Mr Ross submitted that it cannot be said that a hypothetical reasonable jury, properly directed, would have inevitably convicted on Count 2: while believing the appellant on Count 1, the jury may not have believed her on Count 2.

15.  For the respondent, Mr Cheung Wai-sun conceded that the Deputy Judge erred in directing the jury that, if they found the appellant guilty on Count 1, they could not find him not guilty on Count 2: the second verdict would have to be guilty.  Referring to the same authorities relied on for the appellant and Yager v. The Queen (1977-1978) 139 CLR 28, he submitted that only in wholly exceptional cases where there is something in the nature of a formal admission of guilt is the trial judge entitled to direct the jury to return a guilty verdict.

16.  On the application of the proviso, Mr Cheung submitted that, once the hypothetical reasonable jury, properly directed, found the appellant committed the robbery, they must also have found the appellant committed the indecent assault.  There was, he said, no issue that the indecent assault testified to by Madam Wong was committed and both counts stood or fell together.  A finding by a reasonable jury that the appellant was not guilty of indecent assault would have been perverse.

The law

17.  In dealing with the substantive appeal this Court has the power, in appropriate cases, to apply the proviso. The test for applying the proviso is whether a hypothetical reasonable jury, properly directed, would inevitably have come to the same conclusion or would no doubt have convicted (Yuen Kwai Choi v. HKSAR (2003) 6 HKCFAR 113 at p.132 para.54).

The substantive appeal

18.  It is unnecessary to review the authorities at length and it is sufficient to refer to HKSAR v. Lui Tsi Fai and R v. Wang, and to DPP v. Stonehouse [1978] AC 55 which was the primary authority considered and applied in both these cases.

19.  Lui Tsi Fai was a murder trial where the defence limited his responsibility to manslaughter.  The judge directed the jury that their only possible verdicts were murder or manslaughter.  The Court of Appeal held that was a material misdirection and, in terms of the not guilty plea, the trial judge should have left the jury with the option of acquittal (p.933):

“22. …The key issue addressed in DPP v Stonehouse was whether it was correct for the Judge to withdraw from the jury their right to decide whether the evidence established the offences.  The same issue arises in this appeal, namely, whether the Judge was entitled to withdraw from the jury decisions as to whether the evidence established beyond reasonable doubt that the appellant had killed the deceased and that in doing so he had acted unlawfully…” 

And (p.934),

“24. In the present proceedings, it seems to us, however obvious it was from a combination of the appellant’s admissions to the police and his testimony at trial, together with the absence of evidence sufficient to raise a case of self-defence, that he was guilty at least of manslaughter, technically the Judge should have left the jury to decide whether or not the evidence established that the appellant had killed the deceased and that the killing was unlawful…”

The Court of Appeal applied the reasoning in DPP v. Stonehouse.  There Lord Salmon said (pp 79-80):

“Anyone in the judge’s position might easily have made the slip which he did of not leaving the jury to decide whether the facts proved amounted to the attempt charged.  However obvious it may be that they did and that the accused was guilty, technically, the judge should still have left it to the jury to decide whether or not the evidence established the attempt charged and to have found him guilty or not guilty accordingly…

… Whilst there is no doubt that if a judge is satisfied that there is no evidence before the jury which could justify them in convicting the accused and that it would be perverse for them to do so, it is the judge’s duty to direct them to acquit.

This rule, which has long been established, is to protect the accused against being wrongly convicted.  But there is no converse rule – although there may be some who think that there should be.  If the judge is satisfied that, on the evidence, the jury would not be justified in acquitting the accused and indeed that it would be perverse of them to do so, he has no power to pre-empt the jury’s verdict by directing them to convict.  The jury alone have the right to decide that the accused is guilty…”

To similar effect Lord Keith of Kinkel said (p.94):

“… It is the function of the presiding judge at a trial to direct the jury upon the relevant rules of law.  This includes the duty, if the judge takes the view that the evidence led, if accepted, cannot in law amount to proof of the crime charged, of directing the jury that they must acquit.  It is the function of the jury, on the other hand, not only to find the facts and to draw inferences from the facts, but in modern practice also to apply the law, as they are directed upon it, to the facts as they find them to be.  I regard this division of function as being of fundamental importance, and I should regret very much any tendency on the part of presiding judges to direct juries that, if they find certain facts to have been established, they must necessarily convict.  A lawyer may think that the result of applying the law correctly to a certain factual situation is perfectly clear, but nevertheless the evidence may give rise to nuances which he has not observed, but which are apparent to the collective mind of a lay jury.  It may be suggested that a direction to convict would only be given in exceptional circumstances, but that involves the existence of a discretion to decide whether such circumstances exist, and with it the possibility that the discretion may be wrongly exercised.  Thus the field for appeals against conviction would be widened.  The wiser and sounder course, in my opinion, is to adhere to the principle that, in every case where a jury may be entitled to convict, the application of the law to the facts is a matter for the jury and not for the judge.  I see no reason to doubt that the good sense and responsible outlook of juries will enable them to perform this task successfully.”

20.  In Wang the certified question of public importance was: “In what circumstances, if any, is a judge entitled to direct a jury to return a verdict of guilty?”  Lord Bingham of Cornhill delivering the opinion of the Appellate Committee affirmed and applied DPP v. Stonehouse and answered that question in the negative, firmly rejecting an extended argument to the contrary.

21.  In Lui Tsi Fai the Court of Appeal went on to apply the approach in the decision of the English Court of Appeal in R. v. Gent (1989) 89 Cr App R 247 at p.250:

“Whether or not there is still a category of rare cases where the judge is justified in directing a conviction, it is perhaps unnecessary to decide.  There is no reference to any such category in the speeches of the majority in DPP v Stonehouse (1977) 65 Cr App R 192, [1978] AC 55; and the existence of such a category is inconsistent with the thrust of Lord Keith’s speech at p.232 and p.94 respectively.

Our own view would be that, if such a category exists at all, it must be confined to wholly exceptional cases where, for example, there has been something in the nature of a formal admission of guilt.  The fact that on the evidence, including the evidence of the defendant himself, only one verdict is possible, does not justify the judge in directing the jury to convict.  If the judge takes the view that the defendant has, in the course of his evidence, admitted his guilt, then it is always open to him to give the defendant an opportunity, in the absence of the jury, to change his plea.  But if he maintains his plea, the defendant is entitled to the verdict of a jury, even though in the view of the judge, an acquittal would be perverse.”

The Court of Appeal in Lui Tsi Fai also referred in that context to the Australian decision in Yager v. The Queen where Mason J at p.46 concluded that the formal admission at trial entitled the trial judge to direct a verdict of guilty.  That possible qualification is the basis for the submission for the respondent on this appeal (para.15 above).

22.  However, whether or not under Hong Kong law there is still a category of rare cases where the judge is justified in directing a guilty verdict does not arise in the present case.  Again, cases of apparently inconsistent verdicts, where some latitude is traditionally given where the jury has returned verdicts which appear to an appellate court as logically inconsistent, are not in point on this appeal.

The proviso

23.  The well-settled test for applying the proviso is whether a hypothetical reasonable jury, properly directed, would inevitably have come to the same conclusion or would have convicted (para.17 above).

24.  I should, perhaps, add, as the judgment in R. v. Wang observed at para.13:

“… In his essay ‘The Judge and the Jury’ (The Judge (1981), p.142), Lord Devlin convincingly explained why application of the proviso is not inconsistent with denial of a power or duty to direct conviction:

‘Looked at in this way, it does not at all follow that the propriety of a summing up is to be tested in the same way as the application of the proviso [to section 2(1) of the Criminal Appeal Act 1968].  The latter, as I have said, necessarily involves some invasion of the jury’s province.  When the necessity is lacking, there can be no justification for the invasion.  If a point depends upon the decision of a particular tribunal and the tribunal is still open, it must be better, however obvious the answer is thought to be, to get the tribunal itself to give it.  It is only when the tribunal is closed, when the jury that decided the case is functus officio, and there is no way of getting another one, that the judges are forced themselves to determine what a jury might think.’”

And in the recent determination of the Appeal Committee in Lui Tsi Fai v. HKSAR, FAMC No. 53 of 2003, 27 February 2004, Mr Justice Bokhary PJ, rejecting the argument that it was unconstitutional to apply the proviso where the trial judge misdirected the jury that they must return a guilty verdict, said (pp 2-3):

“… If it is reasonably possible that a jury would have acquitted outright if the option of doing so had been left to them, then of course no conviction following the withdrawal of that option could ever be sustained.  No such conviction can be sustained just because the appellate court considers it highly unlikely that the jury would have acquitted outright even if the option of doing so had been left to them.  That is not how the proviso ever operates.  In a case of the present kind, the proviso operates on the basis that the appellate court is satisfied that no reasonable jury would have acquitted outright even if the option of doing so had been left to them.  If the appellate court is satisfied of that, then quashing the conviction founded on the guilty verdict returned by the jury would run counter to the concept of trial by jury.”

25.  Notwithstanding the account given in evidence by Madam Wong and the way the case was run by the defence with counsel making it clear to her and the jury that he accepted she was not telling any untruths and that the whole thrust of the defence case was that she was mistaken in her identification of the defendant as the robber (para.10 above), Mr Ross submitted that the jury was entitled to accept part of her evidence (identification and robbery) and reject that part relating to the indecent assault charge and, so, to find the defendant not guilty on Count 2.  In principle, that is, of course, correct but the practical answer turns on consideration of the evidence and what a reasonable jury might draw from it.

26.  Mr Ross advanced two considerations which, he submitted might properly have weighed with a reasonable jury in concluding that the indecent assault charge had not been proved beyond reasonable doubt.  First, he sought to divide the incident into two parts submitting that the robbery was over before the alleged assault occurred.  But it was not a separate subsequent opportunistic sexual attack.  On the contrary the defendant did it to gain the benefit of the cards he stole from her and what he chose to do to further the robbery impacted on her as an indecent assault as he must have appreciated.

27.  Second, Mr Ross submitted that a jury could have concluded that the conduct charged in Count 2, being contrary to the modus operandi in the other 4 robbery counts where, on the facts, there was no sexual element involved, Count 2 had not been proved.  This hypothesis is pure speculation.  And the jury had been directed to consider the case against and for the defendant on each count separately (para.12 above).  A not guilty verdict would have been perverse.

28.  I am satisfied that a reasonable jury must inevitably have found the defendant guilty of indecent assault and I would dismiss the appeal.

Chief Justice Li :

29.  The Court unanimously dismisses the appeal.