HKSAR v. Lau Wai Man and Another

CACC000018/1998

IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL

1998, No. 18
(Criminal)

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Coram: Mortimer V.-P., Liu and Mayo, JJ.A. in Court

Date of Judgment : 24 July 1998

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J U D G M E N T

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Mortimer V-P (giving the judgment of the Court) :

1. The two applicants were convicted before Saied J and a jury on 17 December 1997. They were originally charged with four offences - robbery, administering drug with intent to commit an indictable offence, false imprisonment and theft.

At trial

2. Lau Wai-man, the 1st applicant, pleaded guilty to the last two of those offences - false imprisonment and theft - not guilty to the others. But he was convicted of those two others and received a total of 10 years imprisonment. Koo pleaded not guilty to all four offences but was convicted of the last three, having been acquitted of the robbery. She was sentenced to a total of 4 years imprisonment. They each apply for leave to appeal against the findings of guilt by the jury.

This hearing

3. The points raised by Mr Hoosen, who appears for Koo, are relevant to the convictions of Lau. So we allowed those matters to be advanced on behalf of both.

The brief facts

4. The very brief facts of this somewhat mystifying case are that the two applicants were apparently living together. They went to see a flat pretending to be prospective tenants or pretending to look at the flat on behalf of an airline. The flat belonged to the victim. They contacted him by telephone. Having previously visited the flat on the day of the offence, 29 January 1997, the two of them arrived. They arrived in Lau's Mercedes car. The number of that car was recorded by the caretaker of the flats. They had with them, according to the prosecution, tape suitable for gagging and blindfolding. They had a stupefying drug, string, a cardboard box - large enough to hold a man - and a trolley for moving it, together with stun guns or stun rods, and sharp instruments or knives.

5. According to the victim, he had prepared an agreement. Lau asked him to go into another room to talk commission, leaving Koo in the main room of the flat. Lau's fingerprints were found on that document later. When Lau and the victim came out, the victim said that he was touched with a stun gun on the back of his neck. In consequence there was a fight. After that first attack by Lau, he said that Koo who was in the room dashed forward with another stun gun. One applicant produced a knife and the other a letter opener. The victim offered his wallet but they took him to another room, made him lie on the floor, tied him up and sealed his mouth. They took from him the Visa card.

6. That was his evidence in chief. It was much toned down in cross-examination in consequence of which probably, the jury were not satisfied about the guilt of the 1st applicant.

7. When he was tied up, the two of them asked for his cheque book which was eventually found by Koo. He was made to sign three cheques after which, in the presence of Koo, Lau administered a drug to him. There was some discrepancy how this was done. Either on paper or in a straw followed by water. He was told that he was being given a sleeping drug and that they were leaving. That was the administering of the drug charge.

8. So far as the third count is concerned - false imprisonment - the cardboard box together with a trolley was brought up to the flat from the car. The victim was put in the box which was put in the car and eventually taken to the applicant's flat. The victim remembered being put on a bed. Lau apologising for robbing him. But later still blindfolded and gagged, Koo guided him out to the car. In due course money was taken from an ETM machine using the victim's card. Ten thousand dollars was taken. The victim was then driven out to somewhere near Fanling where was released.

9. The two applicants appreciated the likelihood of being caught, got rid of the car and left for Macau. Lau's telephone, according to one version, was thrown away into the sea. The box and the trolley were disposed of as well.

10. In Macau, it seems that the proceeds were spent gambling. On return to Hong Kong Lau was arrested. Koo gave herself up. They both made cautioned statements to the police. It appears they had put their heads together to make these during the time they were in Macau. The effect of those statements and the evidence which they gave in court was that the victim had made advances to Koo and what happened thereafter arose out of those advances. It is not necessary at this stage to go into further details.

11. In their evidence denying the offences, they pointed out that the no stun guns or no knives were recovered from anywhere by the police and they both gave evidence denying the offences for which they were on trial.

The application

12. Mr Hoosen takes in his first ground of appeal points on the direction given by the judge about the statements made by his clients to the police. As we have said, the points that he makes are equally valid in the case of Lau. Mr Chapman, who appears for the prosecution, agrees. The particular passage to which his submissions have been directed appears at p.70D of the bundle. This is the direction the judge gave:

"With regard to the main statements made by D1 and D2, those being partly adverse to them, you are entitled and, indeed, it is for you to consider their statements in their entirety - that is, as a whole - for, otherwise, you cannot evaluate the facts and the admissions that they have made unless you evaluate the facts and the excuses or explanations accompanying them. So you've got to consider the statements as a whole, in their entirety, in coming to any conclusions.

I am directing you, therefore, that the whole of their statements is to be taken into consideration as evidence, in deciding where the truth lay. If, having considered the evidence carefully, you are satisfied beyond reasonable doubt you are sure that his version of the entire incident, in all respects, is true and you find that the contents of the main statements made by D1 and D2 under caution are true, thus rejecting their explanations as to how they came into being, then and only then will you convict both defendants - D1 of Counts 1 and 2, D2 of all four counts."

The point made by Mr Hoosen is simple. It is that the judge failed to direct the jury that the confession statement of one of the applicants is not admissible against the other.

13. Further, that the judge invited the jury to consider all the statements, that is those made by each applicant, as a whole in order to decide where the truth lay so that the jury were left to consider Lau's statement in evaluating Koo's evidence and vice versa. It is such trite law that it is not necessary to cite authority for the proposition that one person's cautioned statement is not evidence against another accused unless the contents of that statement have been sworn to as true by the maker in the witness box in the same case. That was not the situation here.

14. Mr Chapman submits, however, that these directions are not fatal to the convictions in this case. He submits that this is an unusual case. He says as follows:

"There were three distinct versions of what occurred at the place of the first offence. There was the victim's version."

That was the first version.

15. The second version was he described as:

"the fictitious version scripted in Macau by both accused which reflected that preparation in Macau and in broad terms said the same thing, although each implicating the other ..."

And the third,

"the evidence in the witness box explaining the way in which those statements came about and explaining the evidence of the victim."

So it is submitted that as the judge - immediately after the passage to which we have made reference - invited the jury to consider the creditworthiness of the victim as the most important issue in the case, the passage can have done no harm. The passage to which Mr Chapman referred was at p.70:

"Since this prosecution depends solely on the view you take of the creditworthiness of PW1, if, after having scrutinised his evidence carefully and closely in the light of the evidence as a whole, you reach the conclusion that, because of the quality of his evidence, his veracity is doubtful - his truthfulness is doubtful - or having considered the entire evidence, you find that the defence put forward by D1 and D2 is true or may be true - and this also applies to their explanations concerning their two statements - or, you are left in any doubt about the prosecution case, you will acquit them of all the counts that they face ..."

Mr Chapman submits that the judge correctly identified that the case really depended upon the creditworthiness of PW1 and that if the jury followed that direction, they could not have been misled by what the judge said and that the convictions ought to stand.

16. We are obliged to Mr Chapman for putting these matters forward for our consideration but in the end we cannot accept them.

Conclusion

17. The correct issue was the creditworthiness of PW1. In assessing that - as the judge said - the evidence advanced by Lau and Koo was an essential part of evaluating the victim's evidence. But going back one stage, the judge directed the jury that in evaluating the evidence of D1 and D2, they were to consider the statements in their entirety in order to decide where the truth lay. We cannot exclude the possibility that on that direction the jury were assessing the credibility of each of the applicants against the statement of the other.

18. This is such a fundamental principle. Evidence which the jury consider should be only evidence admissible against each accused. The result is that this was an error of law which renders the convictions recorded by the jury against each of these applicants unsafe.

19. In those circumstances in each case we allow the leave to appeal. We treat the application as the hearing of the appeal. We allow the appeals and quash the convictions.

Representation:

1st Applicant in person (conviction for 1st and 2nd counts; sentence for 3rd and 4th counts)

Mr A.A. Hoosen (M/s Ivan Tang & Co) for 2nd Applicant (conviction)

Mr P.S. Chapman (SADPP) and Miss Yasmin Mahomed (SGC) (DPP) for Respondent