The Queen v. Chiu Chi-keung

Case No.CACC 499/1990

Court

Court of Appeal

Date01 Aug 1991

Judge—

Case Document

100%Judiciary

CACC000499/1990

IN THE COURT OF APPEAL

1990 No. 499
(Criminal)

HEADNOTE

Use of strongly critical language by district court judge in Reasons for Verdict when describing evidence of a defendant. Held that the language was strong but not improper and was not surprising in view of other patent incredibility of the applicant's evidence. The fact that a judge finds that an applicant has lied is no warrant for the making of an automatic assumption that he must make use of those lies by drawing inferences therefrom when coming to a conclusion of guilt.

IN THE COURT OF APPEAL

1990 No. 499
(Criminal)

THE QUEEN

AND

CHIU CHI-KEUNG

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Coram: Hon. Kempster, J.A., Power & Macdougall, JJ.A.

Date of Hearing: 1 August 1991

Date of Judgment: 1 August 1991

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JUDGMENT

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Power, J A.:

1. This is the judgment of the Court.

2. The applicant was charged before Judge Yeung in the District court with three charges of robbery, one of possession of an offensive weapon in a public place and one of assault occasioning actual bodily harm. The court found no case to answer on the first two charges of robbery but found the applicant guilty on the other three charges. He was sentenced to imprisonment for four years on the robbery charge, six months concurrent on the charge of possession of an offensive weapon in a public place and six months consecutive on the charge of assault occasioning actual bodily harm. He entered appeals against both convictions and sentences. He has now abandoned his appeal against the sentences but has pursued his appeal against the convictions. He is represented today by Mr. Grounds.

3. It was the Crown case that at about 3.20 a.m. on 28th March 1990, the first prosecution witness, to whom we shall refer as the victim, was on her way home when she reached outside the Kai Yip Estate market. It was the Crown case that the applicant walked past her from the opposite direction, then suddenly turned around, covered her eyes with his hands, declared robbery and took away her black handbag containing $100 in notes, $3 in coins, an identity card, a Hang Seng Bank passbook and her Hongkong Bank passbook. It was alleged that the applicant then hit her on the head with a hard object and fled. The victim had the presence of mind immediately to dial "999", in consequence of which police officers shortly thereafter came to the scene. They then saw the applicant running across Kwun Tong Road and intercepted and searched him and found that he had a knife concealed on his person.

4. The trial judge having reviewed the evidence of the prosecution witnesses and of the applicant, made the following findings:

	"The Court have (sic) considered the evidence as well as Counsel's submission carefully. The evidence of the Defendant was pathetic. He was trying to explain why he had to cross the road, why his fingers were injured with blood at the back of his hand, why he kept the knife where it was and why he didn't offer the same explanation to the police. When being questioned his explanations are totally unbelievable.
	If he needed to urinate at 3.30 a.m. along Kwun Tong Road, he would perhaps look for a tree, a lamppost or any quiet corner to do it. Instead he was seen jumping over some railings, climbing over the concrete barrier in the middle of the road to cross it. This was a most unnatural behaviour and most unconvincing.
	His explanation as to why he had to keep the knife where it was found was preposterous. The Court noted that the jacket he was wearing had a number of pockets. If he didn't want to put it at his rear jeans pocket because it would be protruding, the obvious place to put it would be the pockets of his jacket. In any event, why should he be worried that by having the knife protruding from his rear jeans pocket, it would be attention drawing? It was 3 o'clock in the early morning when the road was practically completely deserted. His explanation as to the injuries to his fingers was artificial and unconvincing. The Court is driven to the conclusion that the Defendant was simply making up all his evidence to try to get away from a most difficult situation being confronted with all the evidence against him.
	Disbelieving the Defendant is one thing. Whether the Crown has proved its case against the Defendant is another. The burden is always in the prosecution throughout the trial to satisfy the Court beyond a reasonable doubt of the guilt of a Defendant before he can be properly convicted.
	The Court has considered all the evidence carefully, the evidence of P.W.1, the evidence pertaining to the arrest of the Defendant, the cautioned statement he made as well as his own evidence. The Court accepts the content of his cautioned statement and attached full weight to it. The evidence against the Defendant is overwhelming.
	All the circumstantial evidence and the direct evidence all point to the guilt of the Defendant."

Upon the basis of those findings, the trial al judge was satisfied to record the convictions he did.

5. Mr. Grounds first ground of appeal is that the language the learned trial judge used in describing and assessing the applicant's evidence was excessive and did not enhance the Reasons for Verdict. The trial judge, as can be seem from the passage whim I have just read, did use strong language - "pathetic", "totally unbelievable", "unnatural behaviour and most unconvincing", "preposterous" and "artificial and unconvincing". Mr. Grounds takes particular issue with the judge's observation that the applicant's suggested behaviour when going to urinate was "unnatural and uncovincing". One must, however, look at the evidence when considering this observation. The evidence, which came from the police officers, was that he was seen jumping over some railings, and then crossing the road by climbing over a concrete dviding carrier. All of this was done, the applicant suggested, in an endeavour to find an appropriate spot.

6. When we consider the evidence as a whole we are satisfied that the language used was, while no doubt strong, not indicative of any impropriety on the part of the trial judge. Indeed, the applicant's story that, having happened to find the knife, he inserted it into the front of his jeans whereupon a safety pin, which he had, apparently, left open inside his jeans adjacent to the fly, then locked itself accidentally and fortuitously onto the knife's sheath, was, in our view, evidence of such manifest incredibility that we find ourselves not surprised that the language used by the judge was in strong terms.

7. The second ground alleges that the trial judge was clearly of the opinion that the applicant was a liar. This is hardly a ground as it is quite apparent from what the trial judge said that he did come to that conclusion. The grounds go on correctly to indicate that a District Judge in his reasons for verdict goes not nave to set out elementary rules. This statement will only be of significance if it is demonstrated not only that the trial judge failed to set out the elementary consideration but also overlooked it in arriving at his decision.

8. Three matters which, it appears, are intended to indicate that there was such an oversight are then set out:

	1.	"The law as to the use to which a Defendant's lies can be put by a tribunal of fact is not elementary and the Learned Trial Judge was wrong not to direct himself in clear terms in his Reasons for Verdict as to the use which could be made of lies and the use that he in fact made of them."
	2.	''Alternatively, in the special circumstances of this case by reason of the Learned Trial Judge's emotive use of English when describing and assessing the Appellant's evidence it was particularly important that a clear direction or statement on the use of lies be made in the 'Reasons for Verdict' to indicate that the lies themselves were not used as proof of guilt.
	3.	"The statement that 'all the circumstantial evidence and the direct evidence all point to the guilt of the Defendant' amounts to an error of law in that the Learned Trial Judge was or could have been including the Appellant's lies within this statement, and it is settled law that a Defendant's lies are not admissible as proof of a Defendant's guilt, but only go to confirm or support other evidence.

9. We assume that by his reference to the settled law concerning lies, Mr. Grounds means that lies by themselves are not capable of proving the guilt of an accused. However that may be, we are satisfied that Mr. Grounds' basic contention that the trial judge relied upon the applicant's lies when coming to his conclusion of guilt, is not borne out on an examination of the Reasons for Verdict. The trial judge stated as we have already indicated:

"Disbelieving the Defendant is one thing. Whether the Crown has proved its case against the Defendant is another. The burden is always on the prosecution throughout the trial to satisfy the Court beyond a reasonable doubt of the guilt of a Defendant before he can he properly convicted."

He went on to say that he "had considered all the evidence carefully, the evidence of P.W.1, the evidence pertaining to the arrest of the defendant, the cautioned statement he made as well as his own evidence". Because a trial judge has found that a witness has told lies there is no warrant for making an automatic assumption that he has used those lies in coming to a conclusion of guilt. This is particularly so, given what the trial judge said, in the present case. The trial judge must be taken to have done what he said he did, that is, to have relied upon the evidence he detailed in coming to his conclusion of guilt, and not upon any inference drawn from the defendant's lies. Indeed, even if the trial judge had failed to direct himself properly in this regard, and we are satisfied he did not, the evidence was so overwhelming that the matter would have been one in which we would have had no hesitation in applying the proviso.

10. For the above reasons, the application for leave to appeal against the convictions is dismissed.

Representation:

Mr. S.R. Bailey (Crown Prosecutor) for the Respondent.

Mr. Grounds (Instructed by Messrs. Tang, Wong & Cheung) for the Applicant.