The Queen v. Yau Kwong Chiu

Case No.CACC 407/1983

Court

Court of Appeal

Date—

Judge—

Case Document

100%Judiciary

CACC000407/1983

[Failure of accused to give evidence not to be regarded as assisting Crown case.]

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

1983 No.407

(Criminal)

BETWEEN :

	THE QUEEN	Respondent
	and
	YAU Kwong Chiu	Appellant

Coram: Roberts, C.J., Yang, J.A. and Rhind, J.

Date: 17th May, 1983.

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JUDGMENT

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Roberts, C.J. -

1. The appellant was jointly charged with CHEUNG Ying-lung (D.1) with two offences of burglary and was singly charged with handling stolen goods. D.1 was convicted on both charges of burglary. The appellant (D.2) was convicted of the first charge of burglary and of the third charge of handling stolen goods, but acquitted on the second charge of burglary.

Facts

2. It was established that during the night of 20th September, 1982, an entry was effected into two flats at 1A San Lau Street in Kowloon. It appears as if the intruders first entered Flat D, as it was referred to in evidence, which was the subject of the second charge and from there went into Flat C, which was the subject of the first charge.

3. No property was taken from Flat D. A quantity of money and hi-fi equipment, which is listed in the particulars of offence of the first charge, was stolen from Flat C.

4. The evidence against D.2 consisted of a cautioned statement made by him on the 21st November, 1982. In it D.2 admitted that he knew D.1, that on the day of the offence he was off duty, that he had gone to the street where the burglaries occurred on that day and that D.1 had given him a set of sound equipment components which he took to an electrical stall dealer and sold for $1,200. He gave the proceeds of the sale to D.l.

Grounds of Appeal

5. Mr. Mayne based his appeal on three main grounds. Firstly, that the verdicts on the first and second charges were inconsistent in that, on the case as presented by the Crown, D.2 must have passed through Flat D, from which nothing was taken, on his way to Flat C from which the various pieces of electrical equipment were taken and so must be guilty of both the first and second charges or of neither.

6. In our view, however, the verdicts were not inconsistent, for the reason given by the District Judge, who explains that he acquitted D.2 on the second charge, because the only evidence which implicated him in that burglary was the statement of D.1, which was not admissible in evidence against D.2. The conviction of D.2 on the first charge, by contrast, depends upon his possession of recently stolen goods; such evidence did not exist in relation to the second charge.

7. D.2's admissions to the police contained passages upon which the judge could reasonably have come to the conclusion that there was a recent possession by D.2 of the goods taken from Flat C. There is, however, no admission in that statement that D.2 had taken part in any entry into Flat D. We agree that the judge was entitled, and, indeed, right, to come to the conclusion that he must acquit D.2 on the second charge.

8. The second ground taken by Mr, Mayne was that the judge had not applied the law on evidence of a circumstantial nature in a manner which he should have done.

9. As we understand it, the complaint is that the judge did not set out in his judgment the principles applicable to the weight to be given to evidence of a circumstantial kind. Had this been a jury trial there might have been substance in this argument. We should, however, again say that a judgment of District Judge is not the same as a summing-up to a jury and that it is not necessary for a District Judge to set out on every occasion there broad basic principles of law applicable to criminal trials, which he must be presumed to know.

10. The third main ground, and the one on which we are satisfied this conviction must be quashed, was that the judge placed an unfair weight on the failure of the defendant to give evidence.

11. The submission is based upon the last three paragraphs of the judgment, which read as follows -

"	However A2 declined to provide any answers. He is not obliged to do so but the result is that I have not been given any explanation from him which could indicate innocent association with Al or a credible reason for his undertaking the sale of the stolen goods. Nor is there any attempt to show what he was in fact doing on the 20th September. As the evidence stands he was certainly in a position to have gone to the flat that evening.
	As I have said the evidence against A2 is less weighty than one might expect. If an explanation had been given it might well have been difficult to reject it. Doubt could easily have remained to the extent that he would have been acquitted. But no explanation at all has been given.
	In the result I am satisfied beyond reasonable doubt that A2 was with Al during the burglary in the 1st charge and did sell the stolen articles knowing that they were in fact the articles stolen from Flat C. I convict him on each of the 1st and 3rd charges. I did not convict him on the 2nd charge because the only evidence tying him to that burglary is in A1's statement which is not admissible against A2."

12. It is well established that a judge is entitled to comment upon the failure of an accused to give evidence, provided, and this overrides every other consideration, that such comment is fair in the circumstances and that the strength of it is consistent with fairness. There are many cases which emphasize the care with which a judge must approach the exercise of his discretion to comment.

13. Mr. Justice Devlin, in the unreported but well-known case of The Queen v. Adams, in the course of his summing-up, commented as follows -

"The other unusual feature is that the accused himself has not gone into the witness-box, and you have to determine this case, therefore, without evidence from him. I say it is unusual, but, then, this is in many respects an unusual case, and it may well justify an unusual course being taken. But, members of the jury, I want to face this frankly with you, because it is something that may be troubling your minds, and it is no good my pretending it is not there if it is. It is the natural reaction for laymen in those circumstances and perhaps for lawyers too, to say : 'Well, why has he. not gone into the witness-box if he was an innocent man?"'

14. The judge then goes on to say -

"As a matter of law it would be utterly wrong if you were to regard the defendant's silence as contributing in any way towards proof of guilt. It does not and it cannot. A prisoner who goes into the witness box goes there for his own benefit and his own defence. And the duty of the prosecution is to prove their case before ever the question arises as to whether the prisoner should be called or not."

15. Perhaps the most quoted passage in relation to the judge's exercise of his discretion to comment, is to be found in the case of Bathurst ⁽¹⁾ in which Lord Parker, the Chief Justice, said that the proper comment to be made by a judge was that -

"the defendant is not bound to give evidence that he can sit back and see if the prosecution have proved their case, and that while the jury have been deprived of the opportunity of hearing his story tested in cross-examination, the one thing they must not do is to assume that he is guilty because he has not gone into the witness box."

16. The judge must beware that he does not allow what is a weak case to be bolstered by the absence of evidence given by the defendant, a principle which was reiterated by Lawton, L.J. in Sparrow's case ⁽²⁾. To quote his exact words -

"....... it is a wrongful exercise of judicial discretion for a judge to bolster up a weak prosecution case by making comments about the accused's failure to give evidence;"

17. An examination of the passages which I have quoted from the District Judge's judgment, leaves us with the feeling that this is what the judge may have done.

18. If, when referring to D.2's failure to give any explanation, the judge meant that he had no evidence as to what the defence of D.2 was, this is clearly inaccurate. When interviewed by police officers on the 21st November, he put forward an explanation of his involvement with these stolen goods, based on innocent dealing and ignorance of the burglary itself. Although a self-serving statement, it was put in evidence by the Crown and was thus available for all purposes, though the weight to be given to it was a matter of fact for the judge.

19. If, on the other hand, by the phrase "if an explanation had been given" the judge means "if evidence had been given", the rest of that passage of his judgment, suggests that the absence of evidence had strengthened the case for the Crown. This view is supported by the phrase "in the result" which appears in the next paragraph of his judgment, since that implies that it was because of the absence of evidence by the defendant that the judge was satisfied beyond reasonable doubt that D.2 was with D.1 during the burglary.

20. It is proper for a trial judge to draw the attention of a jury, or of himself where he is the tribunal of fact, to the consequences of the decision of a defendant not to give evidence, which are that the prosecution evidence remains unchallenged and that the defendant's versions of events is not in evidence. When doing so, however, a judge must be careful not to suggest that the absence of evidence by a defendant can strengthen the case for the Crown and must remember that the burden of establishing its case beyond reasonable doubt never shifts from the Crown and cannot be strengthened by the defendant's silence.

21. We are satisfied that the conviction of D.2 on both charges must be quashed.

(1) [1968] 52 Cr.App.Rep. 251

(2) [1972] 57 Cr.App. Rep. 352.

Representation:

D. O'R. Mayne, Q.C., R. Murray (Howell & So) for Appellant

G.W. Alderdice, Senior Assistant Crown Prosecutor, for Respondent