Kwok Chi-wah and Another v. The Queen

CACC000184/1980

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Coram: Huggins and Cons, JJ.A. and Zimmern, J.

Date of Judgment: 14th August 1980.

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JUDGMENT

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Huggins, J.A.:

1. Having come to the conclusion that these convictions were unsafe and unsatisfactory we allowed the appeals and said we would give our reasons later.

2. Various complaints were made of the judge's summing-up, but we think they were groundless. In particular there was no obligation upon him to direct the jury that no adverse inference should be drawn from the 1st Appellant's election not to give evidence, because nothing had been said which might suggest that such an inference was open to them. It was not only unnecessary but it would have been wrong for the judge to tell the jury that, if they thought the alibi of the two Defendants who were acquitted might be true, that would destroy the whole case against the Appellants: it might cast doubt upon the credibility of the Crown witnesses, but it was for the jury to decide whether it would. That said, it will be seen that the result of this appeal might have been different if the judge had elaborated upon the link between the case for the Appellants and that for the other Defendants. Again, there was no evidence implicating the witness Jimmy Wu Chim-mei in the offences charged so as to call for a direction that his evidence required corroboration.

3. It was strongly argued that the verdicts of Guilty entered against the Appellants and the verdicts of Not guilty entered against the other Defendants were inconsistent. With respect we do not think they were inconsistent. Indeed, the substance of the argument addressed to us was not that the verdicts were inconsistent in themselves but that there was reason to suspect that the jury might have failed to appreciate the possible effect of their verdicts of acquittal upon the credibility of the witnesses on whose testimony the convictions were based.

4. The evidence can be outlined quite shortly. The witness Jimmy Wu said that on the evening of 31st August 1979 he saw all four Defendants at the Fu Lai Restaurant and heard them talk of taking away something valuable from Wong Tak, one of the victims. The following morning he saw the four Defendants at his home at about 9 o'clock and they took from him, for the purposes of an "act", some re-entry permits and identity cards which friends had left in his custody. There was then evidence that the four Defendants shortly afterwards arrived at the home of Wong Tak. Various witnesses who claimed to have been in Wong Tak's flat during the whole or part of the time the Defendants were said to have been there - a period of about one hour - identified one or more of them and described the robberies. It was never denied that the 1st and 4th Defendants (the Appellants) were present, but the 2nd and 3rd Defendants adduced evidence of alibis. The case for the Appellants was that they were present for an innocent purpose. After the alleged robberies Wong Tak was with the first three Defendants for another hour or thereabouts, having lunch.

5. The difficulty was, of course, that we did not know by what train of reasoning the jury arrived at their verdicts. In theory they could have come to the conclusion that although all the Crown witnesses were honest they just might have mistakenly identified the 2nd and 3rd Defendants as being two of the robbers. However, it was contended that in the circumstances of the case no real possibility of mistake could arise: either the 2nd and 3rd Defendants were there (as to which the jury were presumably in doubt) or the witnesses were lying, and if they were lying as to the presence of those two Defendants it was unsafe to rely upon their evidence that any robberies took place at all. The foundation of the contention was that each of the identifying witnesses was present with the 2nd and 3rd Defendants for a long time under conditions which made the chances of mistake extremely remote.

6. It was with some hesitation that we accepted that contention and interfered with the verdicts of the jury, but we were left with a lurking doubt whether the Appellants had been rightly convicted.

14th August 1980.

Representation:

Cheng Huan & E. Chung (D.L.A.) for 1st appellant.

P. Chan (Michael Jenkins & Co.) for 2nd appellant.

Gall for Crown/Respondent.