CHUM PUI-KEUNG v. THE QUEEN

CACC000064/1981

          Application for leave to appeal against conviction on ground that opening and closing addresses of prosecuting counsel exceeded proper limit - Application granted - Conviction quashed - order for new trial.

 

IN THE COURT OF APPEAL	1981 No. 64
	(Criminal)

BETWEEN
	CHUM PUI-KEUNG	Appellant
	and
	THE QUEEN	Respondent

Coram: Hon. Roberts, C.J., Li & Silke, JJ.A.

Date of Judgment: 2nd December, 1981.

 

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

JUDGMENT

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

 

Li, J.A.:

1. The applicant was convicted on the 14th of January this year of 1 count of attempted robbery and 2 counts of robbery. He was sentenced to 10 years imprisonment in respect of the attempted robbery and 11 years each of the 2 counts of robbery - the sentences to be concurrent.

2. He applied for leave to appeal against conviction and sentence which was refused by a single judge on the 23rd of March. He renewed his application to this Court on the 28th of March this year.

3. He first appeared before this Court on the 20th of August. On that occasion he applied for counsel to be assigned to him since he was refused legal aid on the 21st of February. Having read the transcript, this Court ordered that legal aid be granted to the applicant with the observation that the attention of assigned counsel be directed to the opening and the closing addresses of prosecuting counsel. Hence this hearing of his application.

4. Mr. Duffy, learned Crown Counsel before us, concedes that in view of the contents of both the opening and the closing addresses by Crown Counsel in the Court below, the appeal must be allowed. He also intimates that in view of the concession, he leaves the question of a new trial to this Court.

5. Learned Counsel for the appellant, Mr. Sparrow, on the other hand, says that in view of the time gap, the concession given by the Crown and the nature of the evidence against the applicant, this Court should, in their discretion, not order a new trial. That is the sum total of the argument.

6. Speaking for myself, I must observe that Mr. Duffy's concession is fair and proper. The opening and closing speeches of Prosecuting Counsel in the Court below do lend colour to the proposition that he has exceeded the proper limits in his address to the jury. In my 30 years of experience at the Bar and on the Bench, these are about the strongest and the most aggressive addresses I have ever observed. I make haste to add that it must be due to a slip and inadvertent enthusiasm on the part of Prosecuting Counsel. From my experience of him, such form of address is not consistent with his normal character and behaviour in Court. In short, he is not a man who is aggressive. He has always been fair.

7. Be that as it may, the only evidence to connect the appellant with the attempted robbery and the 2 counts of robbery is his cautioned statement. The cautioned statement was admitted after a lengthy voir dire. It was acted upon by the jury after, if I may respectfully say so, an impeccable summing up and direction by the learned trial judge.

8. In view of the order that we are about to make, I feel that the least I say about the evidence or the details of the 3 counts of which the applicant was convicted, the better. We find that the jury, if accepting that cautioned statement, could have returned a verdict as they did at the last trial.

9. For these reasons, we feel that there should be a new trial. The appeal would be allowed to the extent that the convictions of the applicant will be quashed, the sentences set aside and there shall be a trial de novo. The applicant will be remanded in custody pending the new trial.

 

 

	(Simon F.S. Li)
	Justice of Appeal

 

Representation:

Mr. Sparrow (W.K. Lore & Co.) for appellant

Mr. Duffy, C.C. for Crown/respondent.