Lau Hue Wan v. The Queen

CACC000683/1967

APPELLATE JURISDICTION

CRIMINAL APPEAL NO.683 OF 1967

(On Appeal from Case No.2 of November, 1967 Session)

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Coram: Rigby, S.P.J., Blair-Kerr and Mills-Owens, JJ.

Date of Judgment: 29 January 1968

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JUDGMENT

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1. The appellant was alleged to be the tenant of a flat and was charged on indictment with four counts: (1) possession of a quantity of heroin found in a bedroom in the flat; (2) possession of a quantity of heroin found in another room of the flat, being a room in which heroin was being unlawfully manufactured; (3) permitting or suffering the storage in the latter room of the heroin found therein; (4) permitting or suffering that room to be used for such manufacture. She was convicted by the verdict of the jury on Counts 1 and 4 and acquitted on Counts 2 and 3.

2. Having heard her appeal against conviction on Court 4, and having allowed the same, we now give our reasons therefor. The only ground put forward on her behalf was that the trial judge misdirected the jury, in respect of that count, when he said: -

"So again on the fourth charge, the burden of proof lies on the Crown, as in all criminal cases, and unless you are satisfied beyond reasonable doubt that they have proved their case, she is entitled to an acquittal. There is no suggestion here of any presumption, and not only that, if you think that it is probable that she did not know that the place was being used as a manufacture of dangerous drugs, if you think that it is probable, then you are to give her the benefit of the doubt."

3. Early in his summing-up the learned judge told the jury, quite correctly of course, that it was for the prosecution to prove the case beyond reasonable doubt but that in respect of the two possession counts (Counts 1 and 2) the law raised a presumption, dependent on whether she was proved to have had possession of the keys to the room referred to in Court 1, and the keys of the flat, respectively. Coming to Counts 3 and 4, he correctly told the jury (at p.11 of the summing-up) that the burden of proof lay entirely on the Crown and that she did not have to prove her innocence. When he came to deal with count 3 in more detail, however, he said (at p.13): -

"Now she has gone into the witness box and given evidence on oath, and you must consider her evidence and must consider the evidence of the whole set-up of the flat before coming to your conclusion. You must remember that this is a charge where no presumption arises. The Crown have to prove their case beyond all reasonable doubt and when considering the defence, which is that she says that anyway she was not the tenant or occupier of the flat and (2) she did not know the existence of those drugs in those two places, then when you consider that defence, though you are not convinced of it, if you think that it is probable that she may be right, then you should give her the benefit of the doubt and acquit."

As she was acquitted on Count 3 no complaint is made of this passage. The passage complained of, which we have quoted earlier, in respect of the 4th count, was the final passage of the summing-up (at p.14), being followed merely by a request to the jury to consider their verdict and a short reference to the admissibility of a majority verdict. The learned judge concluded by asking counsel whether there was anything that they would like him to put to the jury, receiving a negative answer from counsel for the prosecution and from counsel then appearing for the defence (Mr. Swaine not being her counsel at the trial).

4. Clearly the second sentence of the passage complained of was open to objection as suggesting that the onus lay on the appellant to show that it was more likely than not that she did not know that heroin was being manufactured in the premises, or as suggesting that she was only entitled to the benefit of any doubt if it was of a degree higher than a reasonable doubt. Counsel for the Crown who, it is apparent, had the opportunity to ask for a correction at the trial, supported the passage complained of on two grounds. He relied on the fact that a general direction on the onus of proof, in correct terms, was given earlier in the summing-up, namely at pp.2 and 11. Secondly, he contended that the passage complained of could, and ought to be, severed; the first sentence to be taken as dealing with the position if the jury thought there was a reasonable doubt on the case as a whole and the second sentence to be taken as dealing with the position if the jury thought that the defence had put up a probable case. His argument, in effect, and as we understand it, was that the passage in question should be paraphrased as follows: where an accused gives evidence the result, in the mind of the jury, may be either (a) to convince them he is innocent; (b) although his explanation is not accepted, to raise a reasonable doubt (See Murtagh v. Kennedy⁽¹⁾); the first sentence, it was submitted, correctly put case (b) while the second sentence correctly deal with case (a) Crown Counsel also relied on the judgment of the Full Court in the consolidated cases of (1) Hui Shing⁽²⁾ and (2) Lau Luen Po v. R.⁽³⁾ for the proposition that it was not necessarily wrong to make use of the term "probable" in directing a jury on the standard of proof. The Full Court (at p.19 of the cyclestyled judgment) said:-

"The objection here is really based upon the proposition that any reference to probability in relation to proof beyond reasonable doubt is wrong and with that proposition we cannot agree."

But this was preceded by the following:-

"Unless it could be said that what was later put to the jury, on the nature of proof upon the balance of probabilities, was couched in such terms as to blur the distinction between the Crown's duty and an accused's duty, in proving any matter, the direction could not otherwise be said to be objectionable."

And it was followed by :-

"No doubt when a judge has to direct the jury upon both standards of proof he will hesitate before employing such terms and will use them only when he is convinced that the form of words employed gives full weight to the basic distinction between a high degree of proof and a low degree."

Earlier at p.18, the Full Court had said:-

"If we felt obliged to say that the earlier direction as to what constituted proof beyond reasonable doubt, containing, as it did, reference to probability, taken together with what was later said about the balance of probabilities, must have misled the jury into believing that the standard of proof for the Crown and for the prisoner were more or less the same, we might have found it necessary to say that this was a material misdirection. Perhaps it would be preferable, in dealing with the question of what constitutes proof beyond reasonable doubt, to eschew all reference to the terms "probable" and "probability" whenever it is necessary to refer to the two standards of proof lest the jury tend to confuse the two standards and to conclude that the prisoner had to prove as much as the Crown, or that probability was the proper test to apply to all the facts in issue."

5. It was our view that the passage in question in the case before us could not be supported, in the circumstances of the case. The later part of it told the jury, in express terms, that the appellant was entitled to the benefit of the doubt if they thought it probable that she did not know the premises were being used for the manufacture of dangerous drugs; indeed, the expression "if you think that it is probable" was stated twice. No jury, in our opinion, could be expected, with any degree of certainty, to have understood the passage in the manner suggested, somewhat temerariously, by Crown Counsel. Although the appellant was acquitted on virtually the same facts on the count of permitting storage (Count 3) as to which, also, the jury were told no presumption arose, that might have been because the jury took the view - a possible view - that although the appellant night not have known at any given moment that there were drugs stored in the room where manufacture was going on, she must - from the general nature of the evidence, including the smell - have been aware that manufacture was going on, and we therefore make no point of this. However, not only was the later part of the passage wrong in itself, as we think, but it occurred in a summing-up which had, necessarily, to deal with two sets of circumstances, namely two counts in respect of which a presumption might arise, dependent on possession of the keys, when the onus would be on the appellant to establish a probable defence, and two counts where no such presumption arose. It was therefore essential that the two categories be carefully distinguished. Count 4 fell into the category in respect of which no presumption arose. Unfortunately, the later part of the passage in question obscured this vital distinction, in terms which could not be other than prejudicial to the appellant. Bearing in mind that it was virtually the final passage in the summing-up, it is impossible to be certain that the distinction was not blurred and the jury not misled, in the circumstances of the case.

6. For these reasons we allowed the appeal and quashed the conviction and sentence in respect of Count 4. The conviction and Sentence in respect of Count 1 will stand.

29th January, 1968.

Representation:

Swaine instructed by D'Almada Remedios & Co. for appellant.

Alexander, Crown Counsel, for respondent.

(1) (1955) 39 Cr. App. R. 72. 83

(2) Cr. App. No. 96 of 1967

(3) Cr. App. No. 262 of 1967