The Queen v. Tsang Yat-lui
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CACC000703/1982
John Mullick (Howell & Lo) assigned for the applicant. J.L. Cagney, Senior Crown Counsel, for the Crown/respondent. IN THE COURT OF APPEAL
BETWEEN
______________ Coram : Sir Alan Huggins, V.-P., Barker, J.A. & O'Connor, J. Date of Judgment: 10 February 1983 ___________ JUDGMENT ___________ O'Connor, J. : 1. The applicant was charged before a judge and jury with robbery and wounding with intent to cause grievous bodily harm. The jury acquitted him of the wounding charge. On the robbery charge he was convicted and sentenced to twelve years imprisonment. His application for leave to appeal against conviction and sentence having been refused by the single judge, he renews his applications before us. 2. The prosecution evidence was that in the early hours of the morning two robbers, at least one of whom was armed with a knife, gained entry to a flat wherein a couple were sleeping. The husband was seriously injured by one of the robbers. The robbers tied up the wife and left her in the bedroom. During the course of the robbery the bedroom light was turned on by the robbers, so that they could then better see and obtain any property that might be worth stealing. The wife had ample opportunity to observe at least one of the robbers. At an identification parade, five months after the robbery, she picked out the applicant as the robber who threatened her, turned on the light and tied her up. The learned trial judge gave an adequate direction to the jury as to the dangers inherent in the identification evidence. 3. The other evidence incriminatory of the applicant was that five months after the robbery he approached a friend, who happened to be a policeman, and asked him to pawn a watch for him. He told the officer that he had purchased the watch in Thailand. The reason he gave the officer for seeking his assistance, was that he himself had not got his identity card with him. The officer pawned the watch for $20,000 which he gave to the applicant. Later the officer, becoming suspicious, contacted the applicant again and they went to a police station. The watch had been stolen in the robbery. The applicant gave evidence and said that he purchased the watch in Thailand in early September, within three weeks of the robbery. 4. Three grounds of appeal against conviction were argued before us. 5. The first ground is that the jury were not directed that a conviction for handling stolen property was an alternative open to them on the robbery charge. There was in fact no separate count for handling in the indictment. It eras contended that the jury might have decided to place no reliance on the identification evidence, and being left with the evidence o?possession by the applicant of the watch they ought to have considered a verdict of handling, if they concluded that his possession was incriminatory and devoid of an innocent explanation. 6. Handling would not, at common law, have been an alternative open on a charge of robbery, as it is not a cognate offence. The offence o?robbery does not contain within itself the ingredients of the offence of handling. The possibility of it being an alternative verdict is purely statutory, by virtue of section 32 of the Theft Ordinance. That section provides that on a charge of robbery the alternative verdict of handling is only open if the accused is found not guilty of the offence of robbery. Under the section an acquittal of robbery is necessary before there can be a conviction for handling. If the learned trial judge had been minded to leave handling to the jury, he would have had to direct them that they would have to acquit of robbery before they could convict of handling. 7. It would appear strange if, the applicant having been convicted on adequate evidence and a proper direction from the judge in relation to the offence of robbery, could successfully argue that the conviction could not stand because the offence of handling, was not left to the jury as an alternative. The offence of handling was effectively negatived by the conviction of robbery. The trial judge, in his charge to the jury, had made it clear that if the applicant's story left them in any reasonable doubt as to his being one of the robbers, they must acquit. The jury being satisfied beyond reasonable doubt that he was one of the robbers, negatived his coming into possession of the watch in the manner he alleged. The applicant was in no way prejudiced by the fact that the judge did not go on to add that in those circumstances, instead of completely acquitting him in respect of his obtaining the watch, they should go on to consider whether he was guilty of handling. 8. The applicant's contention that the trial judge ought to have left a verdict of handling to the jury is tantamount to seeking a direction that even` if the jury are satisfied beyond reasonable doubt that he was one of the robbers, thereby rejecting his story of how he came by the watch, they ought nevertheless go on to consider not convicting him of robbery, but convicting him of handling, on the basis that his story of not obtaining the watch in the robbery might be true. A jury would rightly think the law was an ass, if it were directed in those terms. Where a jury is satisfied beyond a reasonable doubt that an accused committed a particular crime, they can only refuse to convict him of it, and instead convict of a lesser crime, by being false to their jurors' oath. It is sufficient that the jury apply their minds to the offence charged, and if they are satisfied beyond reasonable doubt that he is guilty of it, they do not have to consider whether or not he might be guilty of an offence with which he was not charged. 9. A trial judge has a discretion whether or not to leave to the jury an alternative offence not expressly included in the indictment. He certainly is not obliged to exercise his discretion by leaving to the jury an alternative which, in the circumstances, lacks an air of reality, and merely amounts to giving the jury a soft option. Indeed to do so may be unfair to the accused. 10. The second ground of appeal was that there was a danger that the judge's charge to the jury, considered as a whole may have led them to believe that unlawful possession of the watch was only consistent with robbery. We see nothing in this ground. The judge made it clear to the jury that possession of the watch was simply one matter they were to consider in deciding whether guilt was proven to the requisite degree. 11. The third ground of appeal took issue with the following direction:-
The criticism made is that the judge was there telling the jury that if they found that the applicant had lied in the witness box, they could take that into account as strengthening an inference of guilt. Counsel relied upon passages in Tumahole Bereng v. The King (1) and Reg. v. Chapman(2) and also referred us to Reg. v. Chik Shui-wai(3) and Reg. v. Lucas (4). 12. The law relating to lies told in court, particularly in relation to corroboration, appeared to be in an unsatisfactory state after the decision in Rep. v. Chapman. It was undoubtedly true, in many cases, that where the story of a witness was found to be untrue, the result was that there was simply no evidence on the point. However that was not universally true. There might be many instances where the fact that a false story had been told, was only reasonably explicable on the basis that the motive towards falsity was a realisation that the truth was inconsistent with innocence. If, on consideration of all the circumstances, it appeared that the reason for lies was a realisation by the accused that the truth was inconsistent with his innocence, there seemed no good reason why that finding of consciousness of guilt should not be utilised towards proof of guilt. If it were to be classified for evidentiary purposes, it would appear to be an admission by conduct. 13. The law has been clarified in England in Reg. v. Lucas (4), which explained the Tumahole Bereng and Chapman cases. The effect of that decision is that weight may be given to lies told by an accused in the witness box on the same basis as lies told out of court. The lies must be deliberate, relate to a material issue, be motivated by a realisation of guilt and be shown to be lies by independent evidence. 14. The passage in the judge's charge to the jury, is taken almost word for word from the opinion of the Privy Council in Broadhurst v. R.(5). The judge was telling the jury that if they concluded that the applicant lied in the witness box they were not entitled to jump to the conclusion that because he lied he was guilty, but that they should consider possible reasons for his lies and if, after consideration, they concluded he lied because he knew the truth was inconsistent with innocence, then his lies could support and strengthen an inference of guilt. 15. The applicant who was aged twenty five was sentenced to twelve years imprisonment. He had been acquitted on the charge of wounding with intent. The judge had left that charge to them solely on the basis that the Crown had to prove that he wielded the knife. It was not left on the basis of complicity. The judge did not leave an alternative of simple wounding to the jury. In the circumstances the acquittal on the wounding charge is explicable either on the basis of the jury not being satisfied that the applicant wielded the knife, or on the basis that they were not satisfied that there was an intent to cause grievous harm. The latter explanation is unlikely in the light of the injuries inflicted, and the former explanation is probably correct. The judge quite properly passed sentence on the basis that he did not wield the knife. However the applicant was one of a Pair of robbers who invaded domestic premises by night, put the occupants into a state of terror, tied them up and ransacked the Premises. They then went off leaving a grievously wounded man to his fate. The applicant did not wield the knife, but if the injured victim had died, he would have been guilty at least of manslaughter. He went on this criminal expedition with a man who he knew was armed with a knife. He cannot escape all responsibility for the use of it we considered the sentence to be within the proper exercise by the judge of his sentencing discretion. 16. We refused leave to appeal against either conviction or sentence. (1) [1949] A.C. 253 at 270 (2) [1973] Q.B. 774 at 779H-A, 781F-782E, 783B-754c and 754E-G (3) [1977] H.K.L.R. 259 (4) [1981] 1 Q.B. 720 (4) [1981] Q.B. 720 (5) [1964] A.C. 441 at 457 Representation: John Mullick (Howell & Lo) assigned for the applicant. J.L. Cagney, Senior Crown Counsel, for the Crown/respondent. |