Chung Tit-ki and Others v. The Queen
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CACC000125/1970 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CRIMINAL APPEAL NO. 125 OF 1970 -----------------
Coram: Mills-Owens, Huggins & McMullin JJ. Date of Judgment: 16 November 1970 ----------------- JUDGMENT ----------------- Huggins, J.: Two members of the staff of the Kin Cheng Bank were engaged in transporting a large sum of money from their own bank to the Chartered Bank when they were set upon and the metal box in which they were transporting the money was stolen. The three appellants were arrested and were jointly indicted with robbery with aggravation. The jury found the 2nd and 3rd appellants guilty of robbery with aggravation and the first appellant they found guilty of receiving property obtained under circumstances amounting to an indictable offence. The 1st and 2nd appellants appeal against conviction and the 1st and 3rd appellants appeal against sentence. 2. The first ground of appeal, which is advanced on behalf of both the 1st and 2nd appellants, is that the trial judge misdirected the jury as to the degree of proof which they should apply when considering whether or not the evidence proved the case beyond all reasonable doubt. Counsel's argument is based upon a passage at the beginning of the learned judge's direction where he said:
So far, it is conceded, no objection could be taken, but the judge went on:
It is argued that the analogy detracts from the force of the original direction and might have left the jury with the impression that proof beyond reasonable doubt amounted to something less than that which is required by law in a criminal case. Counsel concedes, and the authorities are clear, that no particular formula of words is required but that when it looks at the summing-up as a whole the Court must be satisfied that the jury would understand the conclusive nature of the proof required. We do not think that any useful purpose will be served by an analysis of the authorities cited to us but we have looked with care at the whole of the learned Commissioner's summing-up. Apart from the passage which we have cited there is nothing suggestive of a degree of proof less than proof beyond reasonable doubt. Time and time again the learned Commissioner used the phrase "completely satisfied". He also used the phrase "fully satisfied", "convinced of the truth", "absolutely satisfied" and, right at the end, he left them with these words:
The substance of Counsel's argument is that any amount of repetition of these undoubtedly correct phrases was insufficient to erase from the minds of the jury the interpretation of the words "beyond unreasonable doubt" which had been suggested to them at the beginning. It has been said before that attempts to try to explain the meaning of "proof beyond reasonable doubt" are probably doomed to failure and give rise to a risk of confusion. The difficulty about the analogy given by the learned Commissioner here lies in the words "you would not reach such a decision without being sure in your own mind that you were doing the right thing". In considering whether to move house or change one's job one must necessarily have regard to possible future events, which are uncertain, whereas the deliberations of a jury are not concerned with any futurity. Apart from that, one juror might be disposed to move house or change his job more readily than another and so require less "proof" that he is doing the right thing than would another juror. The value of the analogy is therefore questionable. However, we think that the overall impression left with the jury must have been that they had to be satisfied that they were sure of the guilt of these two appellants before they were convicted and accordingly we find no substance in the first ground of appeal. 3. The second ground is that the trial judge did not make it sufficiently clear to the jury that the jury must acquit if left in reasonable doubt concerning the accused's "explanation of facts". We think that the use of the word "facts" itself gives the answer to this ground of appeal. The argument is based upon Murtagh (1955) 39 Crim. App. R. 72 where convictions of murder and manslaughter were quashed on the ground of a defect in the summing-up in that the jury had not been specifically directed to acquit if the explanation of the defendants left them in doubt. In our view that case was clearly distinguishable. What happened there was that a motor car mounted the pavement and struck a man called Jackson, causing injuries from which Jackson subsequently died. There was evidence that the appellant was in a half drunken condition, that he and Jackson had earlier in the evening had an altercation which culminated in a fight, that thereafter the appellant smashed the window of a house which there was reason to believe he thought was Jackson's house, that he threw half a brick at Mrs. Jackson and that Mrs. Jackson threw back the half brick, smashing the back window of the appellant's car. It seems that the appellant later returned in the car, although he was no longer driving, and that Jackson threw the heavy iron lid of his coal cellar at the car, hitting it and smashing the windscreen. The allegation was that the car was driven recklessly on this occasion in order to intimidate and terrorise the Jacksons so that the killing of Jackson amounted to homicide. There was some evidence which suggested that the car had been deliberately driven on to the pavement and in those circumstances it was clearly of vital importance that the jury should be reminded of the appellant's explanation that the swerving of the motor car on to the foot path and the coming into contact of the car with Jackson was accidental in that it was caused through the driver's ducking to avoid the iron lid which he thought Jackson was about to throw at the car. As Mr. Justice Hilbery said "between the case put forward by the prosecution and the case put forward by the appellants there was a narrow issue of fact". The learned judge there in his summing-up used words which to a layman might possibly have suggested that the burden of proof was on the accused. In the present case the stories of the prosecution and the defence were entirely inconsistent, because the appellant denied that he was one of the men took part in the robbery. As to the cautioned statement which the appellant is alleged to have made the learned Commissioner expressly said that if the prosecution had failed to convince the jury of the truth of the statement or if they were in doubt whether it was true or not they must acquit. In our view the learned Commissioner's direction was adequate. 4. In the event the learned Commissioner passed a sentence of six an a half years' imprisonment on the 1st appellant for receiving and five and a half and four and a half years' imprisonment respectively on the 2nd and 3rd appellants for robbery with aggravation. It is submitted by counsel for the 1st appellant that it was wrong in principle to impose a heavier sentence on the receiver than on those actively engaged in the robbery and he suggests that the learned Commissioner in effect sentenced the 1st appellant as though he were one of the robbers. He points out that in passing sentence on the 1st appellant the learned Commissioner said: "I must take into consideration that this is not your first offence of robbery with aggravation", and, again, that as he was a policeman the public were entitled to have confidence in the police "- not to expect them to be committing crimes of violence". With respect to him we think that the learned Commissioner must for the moment have lost sight of the offence in respect of which the jury had returned a verdict of guilty. On the basis of the jury's verdict the 1st appellant was in no way responsible for the robbery itself and is not affected by the aggravating features of that robbery. Nevertheless the learned Commissioner very rightly had regard to the fact that the appellant was a serving policeman who should not be encouraging robbers by receiving the proceeds of their theft. The 1st appellant did in fact have a previous conviction for robbery with aggravation and we think that the proper course is to allow his appeal against sentence and to substitute a sentence of five and a half years' imprisonment for that which was imposed. 5. The 3rd appellant also had a previous conviction for robbery with aggravation, although he had not been convicted of that offence at the time that he was arrested for the present offence. He was sentenced to eighteen months' imprisonment and the sentence imposed in the present case was ordered to run consecutively. This appellant is considerably younger than the other two but the probation officer's report was unfavourable. The learned Commissioner was of the view that a substantial tern of imprisonment was unavoidable and we agree. In all the circumstances we do not think we ought to interfere. Representation: Donnelly assigned for 1st & 2nd Appellants. 3rd Appellant in person. Evans, C.C. for Crown/Respondent. Oral Judgment reduced into writing. |