THE QUEEN v. HUI KWOK HUNG

Headnote

Proper direction to use to which jury can put lies told in an endeavour to establish an alibi.

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JUDGMENT

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Power, J.A.:

1. The applicant faced a charge of possession of dangerous drugs for the purpose of unlawful trafficking. It was alleged that he and another on 6th September 1989 at wooden hut 1563, Holy Cross Path Village, Shaukiwan, had in their possession dangerous drugs, namely 3,647.73 grammes of a mixture containing 218.39 grammes of salts of esters of morphine and 56.21 grammes of a mixture containing 36.02 grammes of salts of esters of morphine for the purpose of unlawful trafficking. Both pleaded not guilty to that charge. After trial, he was convicted and the co-defendant was acquitted. He was sentenced to imprisonment for ten years. He now appeals against that conviction.

2. The Crown case was that the applicant and the other man were in possession of the dangerous drugs particularized in the charge on that evening in the wooden hut at Holy Cross Path Village. It was the police evidence that they kept that hut under observation from 11.30 p.m. to defendants, fled escaping down the hillside through the jungle. The applicant was arrested not long after Tang Shiu Kin Hospital where he went for treatment for his injuries. He maintained that he received these in a motor cycle accident.  It was, of course, the Crown case that he was injured while escaping. He called two alibi witnesses who testified that he was at Tai Ning Street until midnight. If that were so, given the police observation of the hut from 11.30 p.m., he could have been one of the two men who escaped therefrom at 12.30 a.m. If he established his alibi or if the alibi created a doubt in the mind of the jury then he was entitled to acquittal.

3. We need only deal with the third of his four grounds which is that "The trial judge apparently had misguided the jury when they gave the verdict. It is unfair to me." The trial judge dealt with the alibi evidence in the following way:

"If you believe the evidence of YU Cheuk-man, and/or the evidence of LEUNG, the other alibi witness, if you believe they are telling the truth, then you must have a doubt on the Crown case, because if they are telling the truth, the 2nd accused at midnight was in Tai Ning Street -- sorry, the 1st accused, I do apologize. The first accused was in Tai Ning Street after 12 o'clock and could not have been at hut 1563, because the police have said that no one could have got past them to that but from 11.30 onwards. So, quite clearly if you believe the alibi witnesses,  you must acquit because you must have a doubt. That is in respect of the 1st accused.

 

        If you do not believe them, then you may do so on two bases. One is that they are mistaken. If you find that they are mistaken in what they say, then all it means is they don't help you make up your minds. If they are mistaken, it does not help the Crown at all.

 

        If you were to find that they have deliberately lied to falsely make up an alibi for the 1st accused to deceive you, then you could find in that some support for the identification of the 1st accused."

 

The trial judge here told the jury that if they believed the alibi witnesses they would have to acquit because they must nave a doubt. The trial judge dealt nowhere with the position which would arise if the jury were left in doubt as to whether or not the alibi evidence was truthful. It is correct that they would, had they considered that the evidence might be truthful, have had to give the benefit of the doubt to the accused. The direction should have been given that if they were left in doubt by the alibi evidence as to whether or not the accused was in Tai Ning Street then that doubt must be resolved in his favour. This was, in the circumstances of this case where the defence was one of alibi, a serious omission. It was not the only unsatisfactory feature of the direction for when dealing with the possibility of the alibi witnesses being mistaken, the trial judge said:

"If they are mistaken, it does not help the Crown at all."

He clearly meant by this that if the jury was satisfied that the alibi witnesses were mistaken, then this did not advance the Crown case but meant that they had to look at the other evidence to determine whether or not guilt was established beyond reasonable doubt. The jury would have been more assisted by a less elliptical direction than that which was given in this regard.

4. The trial judge finally directed the jury that if they were satisfied that the alibi witnesses had deliberately lied then they could find in that some support for the identification of the 1st accused. However, he failed to tell them that an innocent accused, fearful of wrongful conviction, might seek to gain an acquittal by advancing false alibi evidence, and that they must, therefore, before using that evidence to support the identification, be satisfied that the accused was motivated by a consciousness of guilt in doing so.

5. The direction which the judge gave was inadequate and rendered the conviction unsafe. We are satisfied that this is not a proper case in which to apply the proviso. We therefore grant the application and, treating it as the hearing of the appeal, allow the appeal and quash the conviction and sentence. We order a retrial on a fresh indictment.