The Queen v. Leung Chi Ming

CACC000352/1991

BETWEEN

----------------------

Coram: Hon. Yang, C.J., Hon. Silke, V.-P., & Hon. Power, J.A.

Date of Hearing: 12 December 1991

Date of Judgment: 12 December 1991

-----------------

JUDGMENT

-----------------

Hon. Yang, C.J.:

1. This is the judgment of the Court.

2. The applicant was convicted after trial by Judge Whaley for attempted handling stolen goods and sentenced to imprisonment for 20 months. He seeks leave to appeal against both conviction and sentence. He was acquitted of a charge of attempting to export unmanifested cargo.

3. Stated briefly, the case for the Crown is that on a clear, moonless night the applicant was seen driving his crane lorry on a well lit road towards a secluded spot accompanied by a Honda Accord motor car. There he activated the crane so that the Honda Accord car, which was later discovered to be a stolen car, could be lifted up to a speed boat which was waiting in the waters.

4. It is not necessary for the purpose of this application to discuss the evidence in any detail. We are concerned simply with one aspect of the learned judge's Reasons for Verdict, and this we consider to be a misdirection on the part of the learned judge on the question of burden of proof.

5. At page 7 of his Reasons for Verdict in the 3rd paragraph, he says:

"The case hinges on whether I find that the Defendant's version that he had withdrawn from the operation immediately before his arrest might reasonably be true. If it might, the prosecution would have failed to prove his guilt beyond a reasonable doubt."

And on page 16, he says this:   

"In summary, I do not consider that the Defendant's version of what happened on the night in question is reasonably capable of being true. It is an ex post facto invention, admittedly put forward in his cautioned statement, to provide an innocent explanation for his presence at the scene and participation in the events in question."

6. These passages seem to suggest that the judge had in mind that it was for the applicant to prove the truth of his defence rather than directing himself that it was a question of assessing the evidence of the defence to see whether the prosecution in the end had succeeded in proving guilt beyond reasonable doubt. In the light of the nature of that misdirection, we do not think this is a case for us to apply the proviso.

7. Having heard counsel, we are of the view that this is an appropriate case for a new trial to be ordered. We therefore allow the application, treat the application as the hearing of the appeal, allow the appeal, quash the conviction, and set aside the sentence. We order a new trial on a fresh indictment charging attempted handling stolen goods.

Representation:

Mr. Casewell for Crown/respondent

Mr. G. Watson (S.C. Chan & Co.) for applicant