The Queen v. Leung Mun-lam

CACC000134/1985

Headnote

Summing up - judge's direction departs from prosecution's case and defence.

BETWEEN

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Coram: Li, V.-P., Yang & Kempster, JJ.A.

Date of hearing: 15th October, 1985.

Date of delivery of judgment: 15th October, 1985.

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JUDGMENT

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Yang, J.A.:

1. On the 28th November 1984 the Applicant and his girlfriend were stopped and searched in the street by the police. A packet of drugs was inside a bag being carried by the girl, whereupon the girl immediately said that it was white powder and that it belonged to her. There was also evidence that the Applicant then remarked, "It's hers, and there are several more pounds of it at home". A further search revealed that each had a bunch of keys which opened up their one room apartment at 323 Portland Street. The police took the Applicant there and on arrival he pointed to the headboard and, again according to the evidence, said that the white powder had been taken by the girl there ten days previously and kept there, and further that she would pay him $200 a pound for escorting her when she delivered it. A more thorough search by the police uncovered a large sum of money in the wardrobe. The evidence was that he told the police that that money was the proceeds of the sale of white powder by the girl and that she had told him there was $73,000.

2. The defendant's case was that he knew nothing and did not make any of the statements attributed to him.

3. The main ground of this application for leave to appeal against conviction is that the judge directed the jury on the issue of aiding and abetting where that issue had been raised by neither the Crown nor by the Defence and was first mentioned in the summing up. It is clear from the record of proceedings that throughout the trial the case proceeded on the basis of joint possession of dangerous drugs by the Applicant and his girlfriend.

4. In R. v. Lamb⁽¹⁾ the Court of Appeal criticised a circuit judge in these terms:

"        In the view of this Court the circuit judge was guilty of a gross misdirection. The Crown case was not put forward as a case in which the appellant was driving or attempting to drive after the accident had occurred. This possible approach which was suggested to the jury was something, we are told, that the judge himself conjured up in his attempt to deal with the situation in which there were conflicting bases of fact put before him arising out of the differences between the appellant and his witnesses,"

5. But in R. v. Oakwell⁽²⁾, Lord Widgery C.J. said:

"        We think the proper approach to the argument put forward on this point is this. It is not the obligation of the judge precisely and exactly to follow the presentation of the case as put before him by the prosecution. What the judge has got to do is to secure a fair and sound conclusion at the end of the case. If the judge does not strictly follow the form of presentation which the prosecution have chosen to adopt, then it is always open to the defence to contend that that has resulted in a verdict which is unsafe or unsatisfactory. It does not, in our judgment, in general amount to an irregularity at the trial within the meaning of the Criminal Appeal Act 1968. But undoubtedly where the prosecution approach is departed from by the trial judge it is open to the defence to contend, if they can, that the verdict is thereby rendered unsafe or unsatisfactory. "

6. It would appear from the authorities that whilst it is undesirable for a judge in his direction to the jury, to depart from the basis upon which the Crown and the Defence have conducted the case, such a departure is not invariably fatal. We deprecate that part of the trial judge's summing up which deals with aiding and abetting, and would have had no hesitation in allowing the appeal if we came to the conclusion that the verdict was unsafe or unsatisfactory, or the defence had otherwise suffered gross miscarriage of justice. If the judge had in mind to put the issue of aiding and abetting to the jury, he should have given due notice to counsel on both sides and allowed them the opportunity of addressing the jury on it in their final speeches, or even, in a suitable case, calling new evidence. None of this was done here. Mr. Spicer, in his cogent argument, suggests that he might have conducted the defence rather differently, e.g. through cross-examination or final address, if he had known aiding and abetting was an issue. We have given this submission the most careful consideration and come to the view that even if the issue had been taken ab initio, on the evidence adduced the defence could not have been so effectively different as to influence the outcome of the trial. Whether the issue is one of joint possession or aiding and abetting, the defence was simply that the Applicant knew nothing and he made none of the statements the police said he made. In these circumstances, it is difficult to envisage what areas of inquiry defence counsel might have explored which would have been of assistance to the Applicant. This ground of appeal therefore fails.

7. The second main ground of appeal is that the charge did not give particulars of aiding and abetting. In dismissing this ground, we only need refer to s.89 of the Criminal Procedure Ordinance.

8. The other grounds may be dealt with briefly.

9. Mr. Spicer complains that the judge simply explained to the jury the requirement of knowledge for the concept of possession but failed to explain the other ingredient of possession, viz. control. The argument might have some force if the jury had been required to consider joint possession. The element of control paled into insignificance when the issue put before them was one of aiding and abetting, in which case control was not an essential factor to be considered. We think that this ground too must fail.

10. Mr. Spicer next complains that the judge has not directed the jury adequately on burden of proof and cites certain passages in the summing up to support his argument. Suffice it to say that reading the summing up as a whole, the direction on burden of proof is faultless.

11. Then it is complained that the judge failed to draw the distinction between aiding and abetting on the one hand and counselling and procuring on the other. Having considered the summing up, we find no substance in this ground.

12. Lastly, Mr. Spicer submits that the judge failed to deal with the evidence on each count separately. On page 4 of the summing up, the judge said, "But there is one thing I should perhaps mention, although again it has been made clear to you. There are, of course, two charges, two counts in this case and you must consider each one separately and give a separate verdict in respect of each count". In our judgment this passage is sufficient answer to Mr. Spicer's complaint.

13. The application for leave to appeal against conviction is dismissed.

(1) (1974) Cr. App. Rep. 196

(2) (1978) 1 W.L.R. 32

Representation:

R. Spicer (Tang & Knight) for Applicant

J. Reading, Crown Counsel for Respondent