The Queen v. Chan Lok-yu

CACC000922/1983

[Appellate Court may still intervene, despite comment warning, if it   considers judge's comments far stronger than the facts warrant.]

IN THE COURT OF APPEAL

BETWEEN

Coram: McMullin, V.-P. Li & Silke, JJ.A.

Date: 8th November 1983

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J U D G M E N T

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Silke, J.A.:

1. The applicant was convicted of the offence of attempted robbery and he now seeks leave to appeal against his conviction.

2. The only ground argued, with admirable succinctness and in short compass, by Mr. Wong, who appears for the applicant in this Court, is that the learned trial judge erred in law when in summing up to the jury he said that he himself found the evidence against the defendant was overwhelming.

3. The attempted robbery related to an attempt to rob a security van. The person who made the attempt was dressed in the uniform of a security guard. By reason of that, the back door of the van was opened to him by the driver when the other members of the squad had gone to take in or take out money.

4. When they returned an alert member thought that there was something wrong. The result of that was that the person attempting the robbery became alarmed and ran away. He was chased by a Mr. Wong and the rest of the guards who saw him remove his upper garment leaving him naked from the waist up, remove and throw away the security helmet and throw away a knife which he was carrying. Mr. Wong lost sight of him near the premises 84-86 Shek Pai Wan Road. He thought that he had gone up there.

5. The police had been alerted. They came to where Mr. Wong waited and they went into the premises. On the roof, having made their presence felt by knocking on the door and on the wall, they found the applicant naked from the waist up and dressed in a pair of security uniform trousers. He, if their evidence was to be believed, immediately made an inculpatory remark. He was later brought back to the police station. He made a confessional statement.

6. There was no identification by the driver of the van. There was a form of identification - I would not put it very much higher than that - by Mr. Wong who had chased him.

7. The defence was innocent involvement. The applicant said that he was passing the premises, was bumped into by a man who pressed something hard into his back and who forced him up to the staircase landing between the second and third floors. There he was stripped of all his garments and the man then ran away. The applicant said that he heard people coming up the stairs, he thought they might be women returning from the market and, with innate modesty, he rapidly went to the roof grabbing on the way the only clothes he could see - which were a pair of security guard's trousers.

8. All these factors were clearly left to the jury. The weight to be attached to the confessional statement of the applicant was a matter entirely for them and they were so directed.

9. Early in the summing-up the Judge  gave  the proper and customary warning as to comment. There is no quarrel with that particular direction. The jury had been previously told, again quite properly, that the facts were entirely for them.

10. As he came to the closing stages of his Summing-up, the Judge gave a further direction on comment and I think it is worth repeating the entirety of the passage:

"But that, members of the jury, is purely comment on my part and lot will remember what I said to you at the very beginning that you are in no way bound by any expression of opinion that I may make. You day disregard it with with impunity, and also please bear in mind that the accused does not have to prove Anything. He does not have to prove his innocence. The anus of proving the guilt of the accused lies on the Crown and that has to be proved to the extent that I have indicated to you before, to the extent that you are sure"

Then it comes that which Mr. Wong has termed the "offending passage":

"Members of the jury, I think there is overwhelming evidence in this case but  that again, I emphasize, is purely an expression of my own view, it in no way binds you. You may disregard it entirely if you do not agree with it. Of course, if you agree with it, you adopt it and it becomes your own view."

11. We think that that expression of the view of the trial judge was too strong. Expressions of this sort should be avoided.

12. We had been referred to Malcolm Steward Broadhurst v. The Queen ⁽¹⁾ at page 464 where in giving the opinion of the Board, Lord Devlin said:

"The Chief Justice indicated his opinions very freely during his summing-up, and they were usually, if not invariably, against the accused."

I would interpolate here that the comment to which I have referred in the summing-up of the trial judge here was the only comment which could be considered in any way unfair and Was the only comment to which our attention has been directed. Lord Devlin went on:

"The opinions of the presiding judge on issues of fact can often be of great assistance to the jury. But it is very important that the jury should be told that they are not bound by them nor relieved thereby of the responsibility for forming their own view.Nevertheless, a jury is likely to pay great attention to them: and even in a case where a proper warning is given, an appellate court may still intervene if it considers them far stronger than the facts warrant. In the present case no warning was given, and their Lordships consider also that, even had there been a warning, the Chief Justice went too far in revealing his views, so far that there was a danger of the jury being overawed by them."

13. Broadhurst ⁽¹⁾ of course differs also from this case in that here there was a full and a clear direction upon comment.

14. Having said that, in our view this comment should not have been made. We now have to consider whether or not a miscarriage of justice has occurred. This was a single comment in the context of a direction that the jury could ignore, if they wished, comments made by the Judge. The evidence was, in any event, strong. We do not think the jury could have been overawed by this particular single comment. We do not think that the applicant has been prejudiced by it nor do we think a miscarriage of justice resulted from it.

15. In the event we apply the proviso and the application for leave to appeal will be refused.

(1) [1964] A.C. 441

(1) [1964] A.C. 441

Representation:

Wesley Wong, Esq. assigned by Director of Legal Aid for the applicant.

I.M. Duguid, Esq. for Crown/Respondent.