The Queen v. Leung Keung Tai

CACC000120/1986

BETWEEN

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Coram: Hon. Yang, J.A., Hon. Power and Hon. Penlington, JJ.

Date of hearing: 27 June 1986

Date of delivery of judgment: 27 June 1986

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JUDGMENT

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Power, J.

1. The applicant was charged that on the 22nd July 1985 at the Dao Hang Bank, in Nathan Road, he robbed a bank teller Li Sin-fun, of $44,700. He pleaded not guilty to that charge and was convicted after trial before the judge and jury and sentenced to imprisonment for 8 years. He now seeks leave to appeal against that conviction.

2. The complaint that was made in this application is that the judge failed in his duty to put the defence s case to the jury adequately, fully and fairly. It is suggested that, when the summing-up is read as a whole, the live issues raised by the defence were never properly left for the jury's consideration.

3. Mr Mayne, who appears for the applicant, does not suggest that any single matter he raises would be sufficient to warrant interference by this Court but says that, when the summing-up is read as a whole, bearing in mind the cumulative effect the matters complained of must have had upon the minds of the jury, that this Court should be gravely concerned that the applicant was not afforded a fair hearing.

4. He stresses, at the outset, the weight that a jury will give to whatever falls from a judge when he makes observations as to the facts. He submits that even though a judge tells a jury that the facts are matters for them, his observations will, nonetheless, be given great weight by the jury in its deliberations-

5. I turn to the individual mattters as to which complaint I made.

(1) The failure of Miss Li, the teller, to identify the applicant. This failure was, Mr Mayne urges, strong evidence for the defence. He submits that it was a cornerstone of the defence case that the applicant, although said to have been seen by Miss Li at the time of the robbery, could not be identified by her. He submits that this is not the ordinary case of failure to identify, such as often occurs where an offence has been committed in circumstances of stress, as Miss Li gave a detailed description of the person by whom she said she had been threatened and to whom he gave the money. Further she gave an estimate of the age of that person and said that she would be able to recognise him again. Mr Mayne points out that she did not identify the applicant at an identification parade, that the applicant's age is much younger than the age suggested by Miss Li and that her detailed description was not a description of the applicant. The photographs showing the perpetrator committing the offence were before the jury who were able to look at those photographs and at the applicant and, whatever the evidence of Miss Li, make their own assessment in this regard. However that may be, Mr Mayne says that this failure to identify, although referred to by the judge in his direction, was not adequately and fairly dealt with by him. He submits that the judge whittled doom its value to the defence by suggesting a common sense test to the jury which might be used to explain how it was that Miss Li failed to make a proper assessment of the age of the applicant. We do not think the judge said anything that might properly be regarded as a whittling down of any matter of value to the defence and are satisfied that Miss Li's evidence and in particular her failure to identify the applicant were fully and adequately put to the jury.

(2) The fingerprint evidence. This was very damaging to the defence and it was suggested that the judge was not being even-handed when he made a suggestion, adverse to the defence, as to how the jury might consider the applicant's reaction when told that the demand note bore his fingerprints. We see no merit in this complaint. The judge did no more than make a common sense suggestion as to how the jury could, if they thought fit, approach this piece of evidence. It was also suggested that the defence was not adequately put because the judge did not, in so many words, advert to the possibility of, as Mr Mayne says, "a rare co-incidence". It is true that he did not, but we see no necessity for him so to do. The judge referred to the nature of the evidence, pointed to the fact that there had been no explanation from to the accused as to how his fingerprints came to be on the note and left the matter to the jury to make their assessment thereof. In the circumstances, this was perfectly a proper approach.

(3) The direction by the judge that the jury should not shrink from returning a verdict upon the evidence because of any sympathy they might feel for the accused presumably because of his age. This is a standard direction. We reject the suggestion by Mr Mayne that this was an indication to the jury that the judge had already made up his mind as to the guilt of the accused and that they should follow suit.

(4) The failure to put the defence case in an adequate and comprehensive way.  It is true that the judge did not set out the defence in a separate part of the summing-up. He did, however, in the course of his summing-up, deal with all the matters that were raised by the defendant and his counsel.

(5) The inadequate direction as to the statement by the accused to the police. It is not suggested that this direction was wrong in law but Mr Mayne suggests that the judge should have told the jury that little or no weight should be given to the statement unless they were satisfied that it was freely and voluntarily given. There are many ways in which a trial judge may direct a jury in this regard. In the present case judge did not err in law when giving this direction and we do not consider that the form he adopted to have been either inadequate or unfair.

(6) The judge failed to direct the jury as to the discrepancies that existed between the evidence of the three police officers who took the statement. We are at something of a disadvantage in assessing the submission in this regard as no application was made for a transcript of the evidence of these witnesses. Mr Mayne suggested however that the discrepancies must have been the same as those which existed when the witnesses gave their evidence in the voice dire proceedings. These discrepancies which are referred to in ruling of the judge on admissibility indicate that there was variance between the evidence of these witnesses on a number of peripheral matters. Mr Mayne suggests that although these matters were peripheral, they were of great importance as it is often only from such peripheral discrepancies that one is able to make an assessment as to the veracity of witnesses on the central issue. This is true. The judge is, however, not required to refer the jury to every piece of the evidence presented. The jury heard these witnesses and heard evidence of the defendant. It is clear that they were not prepared to accept the evidence of the defendant and were, in the outcome, left in no doubt as to his guilt.

6. As I indicated earlier Mr Mayne says that the cumulative effects of the above matters must have left the jury with the impression that the judge was telling them that they "would be fools to treat the defence case as a real live issue". This is criticism for which we see no justification.

7. We see nothing in the summing-up that calls for interference by this Court. The application must, therefore, be refused.

Representation:

Mr D. O'Reilly Mayne, Q. C. and Mr A. Souyave (C. W. Leung & Co. ) for the Applicant

Mr McCoy (Crown Prosecutor) for the Respondent