Luk Chi Wah v. R.

CACC000306/1994

IN THE COURT OF APPEAL

1994, No.306
(Criminal)

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Coram: Hon. Macdougall, V.-P., Ryan and Stuart-Moore, JJ.

Date of hearing: 15 November 1994

Date of judgment: 15 November 1994

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J U D G M E N T

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Stuart-Moore, J. (giving the judgment of the Court):

1. On 23rd May 1994 this Applicant was convicted by Deputy Judge Day in the District Court of three charges of burglary and one charge of attempted burglary for which he received a total sentence of four years' imprisonment. He now seeks leave to appeal against the convictions alone.

2. The facts could not have been more straightforward. On 28th May 1993 a night watchman, at about 7:45 p.m., observed two strangers enter the 15-storey building where these offences occurred and he was suspicious because he noticed that they went to a floor which he knew at that time was unoccupied. His suspicions were increased when about half an hour later a male, who may or may not have been one of the two strangers he had seen earlier on, also went to the same floor. This time he called the police and it was they who secured the building. In due course the Applicant, who was D2 on the Charge Sheet, emerged from the lift with D1 who later absconded whilst on bail prior to trial. The allegation at the trial was that D1 was carrying three bags of stolen goods and that this Applicant was carrying one bag of stolen goods which together represented some of the items from the burglaries. Later on police found a third man hiding in a cardboard box on the fifth floor of the building. He was in the premises adjoining two of the other premises burgled. This man is known as LEUNG Tong and in due course he provided considerable co-operation to the police and, as a result of the information he gave, police were able to find further stolen property and equipment used to carry out the burglaries. LEUNG Tong was D3 at the trial and he pleaded guilty to the charges he faced. In result, therefore, this Applicant was tried alone. Aside from the bag of stolen goods he was said to have been holding at the time of his arrest he was found in possession of just over $6,000 and a telephone notebook which had inside the name of LEUNG Tong and his pager number. The Applicant at the police station was in due course to sign a series of detailed confession statements to the police in which he explained how he had acted as lookout for D1. He blamed D1 as being the person whose idea it was to carry out these offences and said that he had gone along because at the time he was unemployed. All of these allegations were fiercely contested at the trial and this Applicant now puts forward several grounds as to why he should be given leave to appeal.

3. In essence, he says that there was no evidence which linked him to any of the burglaries and it could be said that he is there referring to no forensic evidence. In his second ground he says that the police constable who arrested him had set him up with the bag of property. As to the statements he says that they were made under torture and lastly, in his written grounds, he says that there were misleading pieces of evidence which were never properly clarified. He adds to that today that he feels that the trial was heavily biased against him.

4. We are grateful to Mr. Saw, who appears on behalf of the Respondent, for very properly pointing out to us a blemish in the learned Deputy Judge's Reasons for Verdict. In his Reasons the Deputy Judge said this:

"Mr. Luk has been a most unreliable witness and there is no doubt in my mind that he has made much of his evidence up as he has gone along. He has lied in his evidence in court. I am aware that there may be other reasons than guilt why a person would lie..."

There is then the reference to the case of R.v.Lucas (1981) 73 CAR 159. Had the learned Deputy Judge stopped at that point all would have been well but he went on by saying:

"... in this case the lies have been deliberate, material and motivated by a realisation of guilt and a fear of the truth and in my view are evidence of his guilt."

The lies were not themselves evidence of guilt but in the context they were clearly supportive of the case for the prosecution. Such misdirection as this was is offset by what the learned Deputy Judge went on to say:

"The lies in court, however, form a small part of the evidence against him."

We do not consider that the error is such as would make the convictions unsafe or unsatisfactory. In the context it was a minor blemish.

5. The combination of the points which were raised against the Applicant during his trial were carefully analysed and considered by the learned Deputy Judge. He found that there was no reason to doubt the evidence about finding stolen property in the applicant's possession. He also found that there was no reason to doubt that the confessions to these crimes were honestly and voluntarily made. He found that the Applicant made an appalling witness at the trial. Lies that he found had been told were about important issues and it was particularly relevant that the Applicant was unable satisfactorily to explain what he was doing in the building at all at that time of day. Equally important was the presence of LEUNG Tong's name in the telephone notebook which the evidence established was there at the time of arrest and was not put there later on.

6. In our judgment the learned Deputy Judge could have reached no other verdicts than those recorded and we agree with his assessment that the evidence faced by this Applicant was overwhelming. There is no merit at all in this application and it is refused.

Representation:

Mr. D.G. Saw, S.C.C., for Crown/Respondent.

Applicant: LUK Chi-wah, present, unrepresented.