HKSAR v. Ng Kwok Chun

CACC000116/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.116
(Criminal)

-------------------------------

Coram: Hon. Power, V.-P., Mayo, J.A. & Gall, J.

Date of Hearing: 26 November 1997

Date of Judgment: 26 November 1997

----------------------

J U D G M E N T

----------------------

Power, V.-P. (giving the judgment of the Court):

1. The applicant faced two counts of robbery. The first alleged that on 21st April 1993 at the Standard Chartered Bank, Shop No.24, Ground Floor, Kam Pik House, Choi Hung Estate, he, together with Leung Kwok-wai, Kay Sik-hong and others, robbed Wong Sau-lan of $26,000 in cash and Cheng Yan-yan of $27,980. The second count alleged that on 26th May 1993, at another branch of the Standard Chartered Bank in the Hin Keng Estate Commercial Complex, Shatin, the applicant, together with Leung Kwok-wai and Kay Sik-hong and others, robbed a Mr. Cheng Tsz-tong of $16,640 in cash and Mr. Young Chi-hung of $38,000. The applicant pleaded not guilty to both of those charges but was found guilty after trial before Bokhary , J. and a jury and he now seeks leave to appeal against those convictions.

2. Each of the robberies, as the facts I have stated indicate, was of a branch of the Standard Chartered Bank. In each a gun was brandished and a number of persons took part. Films were made of each robbery by security cameras. These films did not prove the identity of the applicant but they did, of course, establish that a robbery had taken place and the exact nature of that robbery.

3. The case against the applicant arose out of statements which he made when arrested more than three years after the commission of the offences.

4. The Grounds of Appeal really rest upon one matter which is a complaint that the trial judge failed properly to direct the jury as to the way in which they should approach the alibi evidence. Specific complaint is made of the following passage:

"I have talked about the prosecution disproving the alibi. If you are sure on the prosecution's evidence - essentially what it relies on as a true confession by the accused to the robbery under Count 1 - that the accused did commit that robbery, then the prosecution will have succeeded in proving its own case on that count and, at the same time, disproved the alibi raised by the accused in answer to that count."

5. It is submitted that this was an invitation to the jury to arrive at a finding on the evidence which dealt with the statement without having considered the totality of the evidence and, in particular, without having considered the alibi evidence.

6. It is essential when considering this submission to look at the summing-up as a whole. The trial judge at the outset had said:

"The prosecution has called a number of witnesses. The accused has gone into the witness-box and given evidence, and he has called three witnesses: his mother, Madam Chu Sau-ngor; his younger brother, Mr. Gary Ng Kwok-ho, and Mr. Leung Kwok-wai, who is named in each count as one of the robbers."

Shortly afterwards she said:

"At the start of this case, the oath you took was to try this case according to the evidence, and on that to return a true verdict."

7. It seems to us that it was made clear to the jury from the outset that they must decide the matter upon the evidence which they had heard. The passage about which complaint is made must be read not only in the context of the summing-up as a whole, but in the context in which it actually fell. Immediately before the passage, the following passage appears:

"Always remember that the burden of proof is upon the prosecution throughout. It never shifts. Under our system, in respect of any count against any accused, it is always for the prosecution to establish the accused's guilt. There is no burden on any accused to prove anything. That is the burden of proof, members of the jury.

Further, in respect of Count 1, the accused has raised an alibi. He says that he was not at the scene of the crime charged thereunder when it was committed. And his mother and younger brother have said the same thing. They said that he was at a family gathering at the material time. As the prosecution has to prove his guilt so that you are sure of it, he does not have to prove that he was elsewhere at the time. On the contrary, the prosecution must disprove the alibi. And even if you conclude that the alibi was false, that does not of itself entitle you to convict the accused. The prosecution must still make you sure of his guilt. An alibi is sometimes invented to bolster a genuine defence."

8. The jury were here clearly told to consider the alibi evidence and that the prosecution must, and I use the words of the judge "disprove the alibi". After this came the passage of which complaint is made and, immediately thereafter, came the passage:

"You saw and heard all the witnesses, including the accused and his mother and brother, in the witness-box. What did you make of them?"

9. It seems to us that the trial judge was here clearly directing the jury that they had to consider all of the evidence, both the evidence from the prosecution as to the confessional statement and the evidence from the defence as to the alibi.

10. It is suggested by Mr. Allan, who appears today for the applicant, that the jury might have taken the words of the judge in the passage of which complaint is made as a direction that if they accepted the prosecution evidence as to the making of the statement, there was no need to proceed further and to consider the defence evidence as to the alibi. A jury could, we are satisfied, take such a view of the direction only if they completely abandoned their common sense. The jury must be taken to have been fully aware of the issues and fully aware that if any evidence which they had heard raised a doubt then the benefit of it must be given to the applicant. Indeed the judge went on immediately to remind them not only that they had to consider the evidence of the alibi witnesses, as we have set out above, but also to remind them of the standard of proof.

11. As to the standard of proof, she said:

"Turning to the standard of proof, it comes to this. Before you can convict you must be satisfied so that you feel sure of the accused's guilt. In other words, you must be satisfied beyond reasonable doubt of the accused's guilt before you can convict. In respect of any charge, if you are not so satisfied, then you must acquit. But if you are so satisfied, then you are entitled to convict."

She then made reference to lies and, having done so, instructed the jury in the following terms:

"They are asking you to convict the accused on the whole of the evidence as the law applies to that evidence.

In proving its case beyond reasonable doubt if it can, the prosecution can only rely on the evidence in this court. Nothing you have seen, heard or experienced outside court can ever adversely affect any accused person. Pre-conceived ideas have no place in a courtroom. Their experience of life and their common sense, on the other hand, are things which jurors are expected to use. Go by the evidence. Do not speculate. Use your common sense.

You have had the advantage of seeing and hearing all the witnesses. Assess their reliability in the light of what they said and the way they said it. Do that in context, using your common sense and experience of life."

12. The trial judge, in her final direction to the jury, said:

"No accused has to prove anything. On each count against each accused, has the prosecution on the evidence which it has placed before you, discharged the burden of proving the accused's guilt beyond a reasonable doubt? That is what the prosecution has to do, what it sets out to do, and what it now submits to you it has succeeded in doing. The decision is yours and yours alone as the sole judges of fact."

13. We are satisfied that the jury were not in any way misled by the direction of the judge of which complaint is made. There is, we are satisfied, no merit in Ground 1.

14. Ground 2 relies upon a finding that there was a misdirection of the kind referred to in Ground 1 and insofar as Mr. Allan has conceded that Ground 2 fails if Ground 1 is rejected it does not fall for consideration.

15. The application for leave to appeal against conviction is, therefore, dismissed.

Representation:

Mr. D.G. Saw, S.C. & Mr. Johnny Chan (D.P.P.) for the Respondent.

Mr. William Allan instructed by Messrs. Josip Ma & Co. for the Applicant.