Lai Tin Hei and Others v. The Queen
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CACC000811/1975
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----------------- Coram: Huggins & Pickering, JJ.A. & McMullin, J. Date of Judgment: 20th February 1976. ----------------- JUDGMENT ----------------- Huggins, J.A.: 1. We will deal first with the appeal of the first Appellant against his conviction on a charge of robbery, and at the outset we must express our gratitude to counsel on both sides for the admirable way in which this case - a difficult case - has been presented to us. 2. The ground of appeal is that the verdict was unsafe and unsatisfactory. The sole evidence against this Appellant was a confession statement. That confession was challenged as inadmissible and there was a lengthy voire dire after which the learned judge admitted the confession. The matter was again contested before the jury and the jury were fully directed on the dangers of accepting this confession as reliable evidence. Indeed, if any criticism is to be made of the summing-up it is that the learned judge was wrong in directing the jury too favourably on the question of the weight to be attached to this statement and in effect went back to the law as it stood in the days of Bass 1953 1 Q.B. 680 and before the days of CHAN Wai-keung 1967 2 A.C. 160. However, the jury obviously accepted this confession as true. We think that perhaps the learned judge in his summing-up might have made more of the real substance of the complaint which is now made to us, namely that the victim of the robbery, the owner of the shop, positively swore that the Appellant was not one of the robbers who came to the premises. The point that was not really emphasised to the jury was that the confession, assuming it to be true, asserted that the Appellant was one of two robbers who were the main participants in the robbery. There was talk of a third man but the confession did not leave it open that the Appellant was this third man who was not actually seen by the victim: he was one who stood in the premises for a considerable length of time, and it is extraordinary that he was not identified - not only was not identified but was positively said not to be one of the robbers whom the victim saw. Mr. Duffy fairly argues that, if there can be doubt whether the evidence of one witness as to identification ought to be accepted, so there is question whether the non-identification of one witness ought to be relied upon. That, perhaps, does not necessarily follow directly, because the memory of the non-identifying witness is jogged by actually seeing the person in the dock. When he then still says that the Appellant was not one of the robbers that is a very strong piece of evidence. We think this was not, perhaps, sufficiently drawn to the attention of the jury but, be that as it may, it leaves us with a lurking doubt and we think it would not be safe to allow this verdict to stand. 3. It was further argued that the fact that the jury in returning their verdicts first of all indicated that they were undecided about the verdict on this particular count in respect of the first Appellant and that they then made a somewhat unusual comment was important. The foreman said:
The days have passed when juries are kept without food and water and without rest until they have reached a verdict and certainly it has, in modern times, been said that the jury must not be given time limits for returning verdicts. There may not be very much weight in this particular point because, if we may say so with respect, the learned judge gave a model direction when he was faced with this difficult situation, and it may well be that the jury merely meant that they had so far been unable to return a verdict but that the answer to the question which was put to them was that if given a little more time they would be able to agree. However, it is something which can be thrown into the scale in this case and, as I say, we think that it would be unsafe to allow the verdict of Guilty to stand. 4. The appeal of the first Appellant will be allowed. 20th February 1976. Representation: |