LEUNG KWOK-HUNG AND OTHERS v. THE QUEEN

BETWEEN

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Coram: Sir Alan Huggins, V.-P., Yang & Barker, JJ.A.

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JUDGMENT

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Sir Alan Huggins, V.-P. :

1. These three Applicants were indicted on one count of attempted robbery and two counts of wounding with intent. After a trial before a judge and jury they were all convicted of attempted robbery and 1st Appellant was convicted on the two wounding counts. The application is based upon an allegation of inadequate direction by the learned judge on what he himself said was a crucial matter. There is no doubt that the Applicants did go to premises occupied by the two victims. Their story was that they went there to collect a debt. The victims contend that they attempted to rob and one of the victims was, according to the witnesses, tied up with wire. This tying up with wire became a central issue in the case because the police made a search of the premises very shortly after the alleged offence and found no wire. It was the defence case that, if there was no wire, it was highly unlikely that the evidence of tying up was true.

2. The direction of the learned judge unfortunately was very far from clear. He did, in a general direction, tell the jury that they were the judges of fact, but, when he came to the matter of the wire, he said this:

"         Now I think one has to look very carefully at the photograph - 29(1). The photograph itself is very unclear if you look at it with your naked eye, but after my attention was drawn to this matter - after Sergeant LEUNG gave his evidence - I looked at it again using a magnifying glass and, you can see, there are two distinct strands of wire - the first one on the right which is near the jamb of this door and another strand near this Stool, this collapsible stool.

 

        Now with all of Sergeant LEUNG'S experience, it doesn't seem to me, and I think this is a matter really for you, that he had looked at these particular places carefully. That is the entrance to the rear portion of the flat,"

(and I interpose here to say that subsequently he corrected that to "a door inside the flat")

"there is the sign or signs of what appears to be strands of wire both there and both near the leg of that collapsible stool, and if he had looked everywhere - if he had looked just there - he might have been able to find these two strands of wire.

 

        That photograph is with you, and the other photographs as well, and it is really for you to find whether you'll say that from this photograph these are cut strands of wire or untied strands of wire.

 

        It is absolutely crucial to this case so far as this wire is concerned because if you find the evidence of Chau Ming to be unreliable and you find that she has not been tied at all, then the question of an attempted robbery does not really arise. On the other hand, if the accused had gone up to those premises with Ah Shing just for the purpose of collecting a debt, why was it necessary to tie up this girl Chau Ming at all?"

The difficulties are these. In that last paragraph the learned judge does not indicate what he means by "It" when he says "It is absolutely crucial". It is possible to read the whole of this passage as indicating to the jury that it was for them to decide whether there was wire or not and that, if there was no wire then it was unlikely that the evidence of tying up was true. However, it is possible to read the passage in another way. It is suggested - and with a measure of justification - that the learned judge in the earlier parts of the passage cited is asserting as a fact that there was wire in the photograph and telling the jury that it was for it to decide whether those strands of wire in fact shown had been cut or had been untied. We do not know how the jury would have understood the direction. Then the last paragraph is not clear because the judge said it was absolutely crucial to this case "so far as this wire is concerned", and we are not sure what he meant by that. Different members of the court read the summing-up in different ways, and the conclusion we have therefore reached is that the jury may have understood it in different ways and that it is not safe to leave the matter as it is.

3. What was important was whether corroboration of the evidence of tying up could be found in proof of the existence of wire, or, on the other hand, whether the absence of wire tended to prove the evidence of tying up to be untrue. It was very important evidence. It may not have been "crucial", but it was so important that we hold that the lack of clarity in the direction rendered the verdicts unsafe. We, therefore, allow the applications, allow the appeals and set aside the convictions.

9th February 1983.