The Queen v. Chow Wai-kuen

CACC000384/1996

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

Coram: Mortimer and Mayo JJA and Sears J in Court

Date of Judgment: 16 January 1997

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

JUDGMENT

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

Mortimer JA (giving the judgment of the Court):

1. On 11 June 1996 the applicant was convicted before Bokhary J and a jury of an offence of using a firearm with intent to resist arrest and an offence of possessing a small quantity of heroin. He was sentenced to two periods of imprisonment - 4½ years and 9 months, making 5 years and 3 months in total. He applies for leave to appeal against conviction.

The facts

2. Three officers on plain clothes patrol stopped the applicant in Tuen Mun. When they opened his clenched hand, it contained 2 straws - those straws contained the heroin in the 2nd charge. At that moment, he pushed the officers and ran away. He was soon caught and there was a violent struggle in which the applicant succeeded in grabbing the gun of one of the officers. He then pointed the gun at the officers and said "Don't move. I have a gun." Another struggle followed - all fell to the ground - and a shot was fired. Fortunately, no one was injured by the shot. The applicant was eventually subdued and arrested. The two straws were found nearby later. At the police station the applicant made full confession to using the gun with intent to resist arrest and to the possession of heroin.

At trial

3. The applicant denied the charge. He gave evidence, saying that he had been stopped but nothing was found upon him. The officers searched nearby and found the straws which they alleged were his. In order to prevent them from taking him to the police station, he pushed them and ran off. He was caught but ran away again, he said. Then he fell and heard someone shouting "Freeze". He got up. He was then attacked again and he heard a shot after which he was held down and arrested. He said the confessions were obtained by inducement and threats and that they were untrue.

The application

4. Mr Mackay, who appears on this application for leave to appeal against conviction, takes one point. It relates to the evidence before the jury which consisted of:

5. The point taken by Mr Mackay is that the judge left the evidence to the jury in such a way that they were invited to consider separately:

6. The way the judge put it was:

"There are two bases upon which the prosecution put this case against the accused. Either one on its own would be enough, if you are sure of it, for the purpose of finding the accused guilty."

So, it is submitted by Mr Mackay that by directing them in this way - and further directions followed - the judge invited the jury to consider the oral evidence of the police officers in isolation from the other evidence in deciding whether to convict. If necessary, then to consider the evidence of the confession statements quite separately from the other evidence in deciding whether to convict. He says this amounts to a direction to the jury to consider only part of the evidence before them.

7. If that had been the effect of the direction to the jury, it would have been seriously flawed. But, of course, it is necessary to look at the whole of the summing-up in order to determine whether the judge really did leave the case to the jury on that basis. A reading of the whole of the summing-up makes it quite clear that the judge properly invited the jury to have regard to the whole of the evidence and not to compartmentalise it in the way that it is submitted she did.

8. We could add that it is perhaps better not to use the phrase that the phrase that the judge used - "There are two bases upon which the prosecution put this case" - because, of course, the jury always have to consider the whole of the evidence. We have no doubt that they did.

9. With great respect to the submissions made by Mr Mackay, with commendable directness and brevity, there is nothing in them. The application is refused.

Representation:

Mr Graeme Mackay (DLA) for applicant

Mr Kevin P. Zervos (Crown Prosecutor) for Crown/Respondent