R. v. Luk She-bun

CACC000196/1992

IN THE COURT OF APPEAL

1992, No. 196
(Criminal)

____________

____________

Coram: Hon. Yang, C.J., Silke, V-P. & Mortimer, J. in Court

Date of hearing: 31 March 1993

Date of judgment: 31 March 1993

_______________

J U D G M E N T

_______________

Mortimer J.

1. The applicant was convicted before Keith J. and a jury on 6th May 1992 of one offence of aiding and abetting others to possess a semi-automatic pistol and ammunition. The offence took place in January and February of 1991. The trial lasted 3 days. The applicant was sentenced to 7 years' imprisonment. He now seeks leave to appeal against that conviction and, if necessary, the sentence imposed upon him.

2. The facts are very simple. The applicant rented a room in someone else's flat and sometime later three others, two men and a woman, came to stay in the flat. At least two of them were illegal immigrants in Hong Kong and were not working. They stayed in a bedroom which was rented by the accused. Sometime after they came, the applicant saw them with a plastic bag. Later when the applicant found that bag in the wardrobe he was shown by one of them the automatic pistol and the ammunition inside it.

3. The issues were: First, whether he knew it to be a real gun; and then, whether he assisted them thereafter to be in possession of the gun and the ammunition. He told the court, and said in confession statements, that he asked them to remove the gun and they said they would remove it. But in fact sometime later, the gun was discovered in the same bag in the flat in a place where it could easily be seen. There were issues whether the applicant knew that it was still there. His evidence and the statement he had made earlier were not quite consistent but nearly so. In his confession statement, he admitted that he had lied to the police about not knowing that the persons who were in the flat, were illegal immigrants.

4. The case turned upon several matters: his failure to report to others what he had seen; his failure to check that the gun had been removed from the flat; his failure to tell the police that those who had the gun had told him that they would take it away; and the fact that he continued to allow them to stay after the discovery of the gun. Certain inconsistencies were also relied upon.

5. It is particularly the admitted lie in his statement and his knowledge of the illegal immigrants upon which this application turns. The prosecution case was simply that he knew all along that the gun remained in the flat. The bag containing it was there to be seen when eventually the police raided.

6. The first ground of appeal relied upon is that the learned judge failed to give any proper direction upon the lies. It is said that he ought to have given a "Broadhurst" direction. Mr. Mathews argues that such a direction was incumbent upon the judge, because of the admitted lie coupled with the evidence of the applicant's knowledge of the illegal immigrants being present in his flat and the admission that he had been convicted of this. He points to the reliance placed upon those matters by the Prosecution, both in the opening and in particular the cross-examination of the accused.

7. However, the Crown never relied upon those lies as a proof of or evidence of guilt linked with other matters. Nor indeed did the Crown rely upon those lies coupled with other matters as affecting the accused's credibility. There is no doubt that there is no general duty upon a judge to give a direction that the jury should consider whether there could be an innocent explanation for lies told by him, either in the witness box or before the trial, save perhaps in two cases; first where lies are relied upon as corroboration; and second where lies are relied upon as supporting evidence of identification.

8. This court has indicated the absence of any general duty in two cases, the first R. v. MAN Bing-chou [1990] No. 383 and more recently in R. v. CHEUNG King-kwong [1991] No. 583. In that latter case, Mr. Justice Macdougall J.A. - who gave the judgment of the court - said this:

"There is no rule which requires the judge invariably to give such a direction whenever there is a clash between the testimony of a prosecution witness or witnesses and that of an accused, or what he had said in the statement to the police, or when his veracity is challenged by the prosecution."

In that case, it was said that:

"There was no real danger that the jury might have made an erroneous assumption of guilt because of the applicant's lies."

That applies equally in this case.

9. The trial judge has a discretion whether to give a direction and if he decides to give a direction, he has a discretion about the terms in which he gives it. It must be remembered that in most cases where an accused is on trial express or implied allegations of lying will be made. It is only in those cases where it is necessary to achieve a fair trial that such a direction is required. It is not necessary and is undesirable to lay down the exact parameters.

10. In this case the learned judge did not ignore the lies in his summing-up. He said:

"The defendant admitted that he had lied to the police in his first interview when he told them that Wong had introduced Chu and Ting Ting to him when Wong brought them to the flat. The defendant told you that Wong had introduced him to them whilst he was in China. He said that he had lied to the police because he was scared that if he told them the truth, he would be charged with aiding and abetting illegal immigrants to remain in Hong Kong; and you may think - it is a matter for you - but you may think that that is a pretty credible reason for lying to the police. But remember just because he lied to the police in his first interview, does it mean that he is lying to you today? You do not need me to tell you that someone can lie on one occasion and can tell them the truth on another."

11. When the learned judge gave that direction, in our view, he gave a perfectly proper and fair direction in the circumstances of this case. This is not a case in which a "Broadhurst" direction was required for fairness. The direction was a fair direction, and it could be said that had the learned judge decided to give a "Broadhurst" direction - indicating to the jury that they could rely upon lies in as going towards the proof of guilt coupled with other matters - that might indeed have been an unfair direction. We reject the first ground.

12. The second ground is that the learned judge failed to give a proper direction as to the evidential value of the statements made by the applicant to the police. This, as we understand it, is because there were parts which were exculpatory and that nowhere in those statements did the applicant admit that he knew of the continued presence of the gun, so to that extent there was no admission of guilt of this offence.

13. With the greatest respect, such a direction - sometimes called a "Sharp" direction - certainly was not required in this case. The applicant gave full evidence about his knowledge and as to what had happened. Such a direction here would be quite inappropriate. It was - as submitted by Mr. Mathews - in the end of question of the applicant's credibility about his knowledge and dealings with the gun and the ammunition. The second ground also fails.

14. Mr. Mathews also criticises a particular passage in the summing-up to be found on p.14, where the learned judge had reminded the jury of the prosecution's submissions. The judge said:

"The prosecution therefore ask you to infer from that the defendant may have had an ulterior motive for putting them up".

15. This relates to the presence of the illegal immigrants. The learned judge then said:

"Although I have warned you against speculating about gaps in the evidence, it is open to you to draw inferences from the facts which you do have, though you may think that there is really no proper inference relevant to this case that you can draw from the fact that the defendant was prepared to put up illegal immigrants whom he hardly knew".

16. It is suggested that the learned judge ought to have given further directions about the way in which the jury could approach inferences, although that is not in the Notice of Appeal. Further - and this is the particular matter relied upon - that direction left it open to the jury to draw an inference adverse to the accused just from the fact that he was prepared to put up illegal immigrants.

17. When the learned judge directed the jury that they may think there was really no proper inference to be drawn from those matters, that was a perfectly fair direction. It was couched in terms which are often used by judges, although Mr. Mathews makes perhaps a good point when he says the jury had not heard it before. Nevertheless, when a judge uses these words, no jury is going to draw inferences when it has been told by the judge not to do so. This direction related to a submission of the Crown which the judge was fairly inviting the jury not to follow. It was also a proper direction.

18. Finally, Mr. Mathews asks that the court to give leave on the basis that the conviction is unsatisfactory when one puts all those things together - his submissions about the lies, his submissions about the failure to give a direction in relation to the statements and the final submission about inferences. It is sometimes said that nothing added to nothing equals nothing.

19. In the circumstances, the applicant is not given leave to appeal in this matter. This application is dismissed.

20. Having heard submissions of counsel for leave to appeal against sentence leave is refused. The sentence was justified and was neither manifestly excessive nor wrong in principle.

Representation:

Mr. J. Mathews (Tang, Wong & Cheung) for Applicant.

Mr. A. Bruce for Crown/Respondent.