The Queen v. Tsang Kam Hing

CACC000163/1990

BETWEEN

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Coram: Sir Ti Liang Yang, C.J., Silke, V.-P. & Macdougall, J.A.

Date of Hearing: 25 January 1991

Date of Judgment: 19 February 1991

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JUDGMENT

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Silke, V.-P.:

1. This is the judgment of the Court.

2. The applicant was convicted after trial before His Honour Judge Gall (as he then was), sitting as a Deputy Judge of the High Court, and a jury of conspiracy to rob, the use of a firearm with intent to resist arrest, and possession of a firearm and ammunition with intent to commit an arrestable offence.

3. He was sentenced to 10 years' imprisonment on the first count, 15 years' imprisonment on the second count and 12 years' imprisonment on the third. Five years of the sentence on count 1 was ordered to run consecutive to the sentence on count 2, the sentence on count 3 was made concurrent with those on counts 1 and 2, giving a total sentence of 20 years.

4. This is his application for leave to appeal against both conviction and, if necessary, sentence.

5. The undisputed facts were that on the 15th June 1989 in Queen's Road East, Mercer Street, Bonham Strand and Cleverly Street, the police were keeping watch on two men. Those two men visited two jewellery shops in the area and then went to Mercer Street, followed by the police. The police attempted to stop and search them whereupon one of the two men stepped away two paces, turned, and withdrew from his waist a pistol and attempted to fire a shot at the police. In the course of a police chase, during which shots were fired, he got away. The other man, Ip Kan Wai, went to a building in Des Voeux Road where he hid a pistol, ammunition and a plastic bag in a pump. Ip waited there. The police arrived and he was arrested.

6. The issue was whether or not the applicant was the man who had escaped from the scene.

7. The evidence that the applicant was that man came from the identification evidence of the three police officers who said they had observed him at the scene and during the chase and from, admitted into evidence after a contest on admissibility, the applicant's cautioned statement. That contained clear admissions of the offences specified in the indictment.

8. As the trial judge put it:

"If you were to believe that the 3 policemen tell the truth and that their evidence as to the identification of the defendant is accurate and truthful, then that would be enough for you to convict.

If you found the statement was true but found the identification was uncertain, the statement alone would be enough to convict. Either the identification or the statement if you find them respectively to be the truth beyond reasonable doubt would be enough to convict. Together they would also if you found them to be true enough - be enough to convict."

9. The applicant did not give evidence but called two alibi witnesses, namely his mother, Madam Chan, and his co-accused, Ip Kan Wai, who had pleaded guilty. Madam Chan's evidence was that her son was at home at the time and date in question. Ip's evidence was that the other man who was with him during the incident was a man called Leung and was positively not the applicant.

10. In directing the jury on the way in which they should approach the evidence of the mother, the learned judge, having recited the evidence given by her, said this:

"         You must apply your common sense to that evidence. It may be that you will find that she had told the truth. Now if you find that she has, that would cast a doubt on the case for the Crown. It is not proving that the defendant is innocent because he does not have to prove anything. But if you find that she is telling the truth and that the defendant was in his home on that day, that is a doubt on the case for the Crown. Since you cannot be sure if there is a doubt, you must acquit. If you do not find that she is telling the truth, if that is the way your common sense causes you to approach her evidence, then you just dismiss that evidence. It does not prove the guilt of the defendant. In fact, if you don't believe it, it is merely evidence which is not of assistance to you."

11. Then having, drawn the attention of the jury to the evidence of Ip, he went on in similar terms:

"         If you find that evidence to be true, then again that must cause a doubt. If you find that you believe Ip, then you must acquit. If looking at his evidence you do not believe him, again it is evidence you just disregard. It is of no value to you."

12. Shortly into his summing up the trial judge had given unexceptional directions upon the burden of proof. In the course of them he said this:

"There is no onus on the defendant. He has to prove nothing. He has to say nothing, he doesn't have to bring a defence, he can be silent at all times. He has nothing to prove." (Emphasis supplied)

13. At the conclusion of the summing up he said this:

"         At the end of the day, as I have said repeatedly, you may not convict unless you are sure of the guilt of the accused. You may not place any onus of proof upon him. You may not compare the evidence of the defence with that of the Crown. You must look at all the evidence, all the facts which you have before you and decide what is the truth. And when you are sure what is the truth, apply the law that I have given you.''

14. Accepting that, strictly, it is not required in law, nevertheless nowhere did the trial judge give a specific direction that it was for the Crown to disprove alibi and not for a defendant to prove it.

15. It is this "non-direction" coupled with the phraseology of the passages cited, together with a passage to which we shall come in a moment, which gives us cause for concern that the jury may not, because of the directions they received, have considered the correct burden of proof - for the defendant did "bring a defence" - alibi, albeit not from his own mouth.

16. That other passage occurred at pages 14 and 15 of the summing up and it reads:

"         The defence called evidence. Now, as I have said before, they are not obliged to do so. They are not obliged to put anything before you. A defendant from the moment of arrest until the end of a trial can be silent. There is no onus upon him to prove anything. In this case the defence have said 'Other than flaws that we say are in the Crown case - defects apparent on the Crown's  own evidence,' - matters which I have pointed out to you and Mr. Hoosen has pointed out to you - 'in addition to that we have affirmative evidence that we can show you which cast a doubt on what the Crown witnesses have said.' In this case, the mother of the defendant, Madam Chan, and the other man in the incident - Ip Kan Wai." (Emphasis supplied)

17. In our judgment there is a real danger emerging from these directions that the jury may have thought that, while they were told that there was no onus upon the defendant, yet, once he did call evidence to show he was not at the scene, then it was necessary for him to prove, as the jury were reminded counsel had termed it, the "affirmative;. evidence".

18. Further if the jury believed the alibi witness to be speaking the truth that would not just "cast a doubt on the case for the Crown" but would demolish it. The jury were never directed on those lines nor were they, in the proper context, told that even if they did not wholly believe the evidence of the alibi witnesses they should go on to consider whether it raised a reasonable doubt in their minds as to the guilt of the applicant. Could the evidence reasonably be true was the issue and not, as, we consider the directions appear to indicate, the black and white choice between a belief to be established by the applicant and his failure to so establish and therefore disbelief.

19. There is in our judgment a real danger that the jury may have been misled into thinking, in the absence of a specific direction to the contrary, that the burden was on the defendant to prove alibi.

20. We would add that we are not persuaded that the direction of which Mr. Hoosen complains, concerning the Magistrates Court plea by Ip in the presence of the applicant, would have misled the jury into thinking that the plea of Ip was admissible evidence against the applicant.

21. We would grant leave, treat the hearing as the hearing of the appeal and allow the appeal.

22. We would wish to hear counsel on a re-trial.

Representation:

A.A. Hoosen, Esq. (D.L.A.) for Applicant

D.G. Saw, Esq. for Crown/Respondent