HKSAR v. Ng Wai Yan

CACC000229/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No. 229
(Criminal)

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

Date of Judgment: 16 October 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. On 17 April 1997 the applicant was convicted, after trial before Gall J and a jury, of two offences of murder and three of wounding with intent. He was sentenced to life imprisonment on the murders and 5 years imprisonment concurrent on each of the wounding counts.

The facts

2. The offences were committed during a revenge attack when one group of young men attacked another and chopped them with knives. One of the attackers, Poon Chai had himself been assaulted and suffered from some injury earlier the same evening in Tsuen Wan Plaza. A group of his friends and associates including the applicant, planned a revenge attack. Some of them armed themselves with knives. The applicant was not one of them. The group went, some with and some without knives, in two vehicles - a car and a van - in search of the proposed victim. After searching, a group was found in Hoi Kok Street, Tsuen Wan. The attackers were mistaken. It did not include the youth against whom they sought revenge. But a vicious attack was carried out with knives leaving two dead and three badly hurt. After the attack, the attackers and those who were with them fled in the vehicles.

The evidence

3. The evidence against the applicant consisted entirely of answers he gave in interviews to the police. In brief, he admitted taking part in the planning of the attack. The plan was to attack with knives and chop. He describes the finding of the group; the identifying of the group by Poon Chai; and the attackers getting out of the car to carry out the attack. In one statement he said they watched and sat in the car, but in a later statement, he said that he and the others got out of the car and watched. There was, however, independent evidence which tended to show that his second version was the correct one.

4. After the attack, all left in the vehicles. Later he saw the weapons were collected into a bag. He assumed that they were thrown away.

The issue

5. The real issue was whether there was evidence that the applicant participated and assisted in the offences. The jury were properly directed that his mere presence when the offences were committed was not sufficient. The evidence of participation by the applicant was contained in one answer that he gave in one of the later interviews.

6. In answer to a question about the incident, he said:

"It was the incident in which 'Pun Chai' was hit and wounded on his head. Well, 'Pun Chai' then said (he) wanted to chop them back. Well, 'Ah Tau' then said, (')You make your own decision.(') As a result, shortly after 11 p.m., 'Pun Chai', 'Kwong Chai', 'Wai Leung' and 'Tai B' were told to go. 'Tai Ma', 'Sai Ma', 'Chun Lok' and I were responsible for seeing them get there."

The applicant's part - on the evidence - was responsibility to see that the attackers got to the place where the attack took place.

At trial

7. The applicant did not give evidence. His defences were first, that the statement he had made could not be relied upon. The admissions were unreliable because of police oppression towards him. These included assaults. This was put in cross-examination to the police officers, but of misbehaviour of the kind alleged in cross-examination, there was no evidence before the jury at all.

8. The second defence was that in any event the statements - when fully considered - were not admissions of the offences but denials of them.

9. The third defence was that the admission did not amount to an admission of participation in the offences. Counsel invited the jury not to strain the language, that is the words "'Chun Lok' and I were responsible for seeing them get there" as an admission to participation in the offence.

The application

10. Mr Christopher Grounds appears for the applicant on this application. He takes a number of points in his draft perfected grounds of appeal against conviction.

11. The first ground concerns a remark comment made by prosecuting counsel in his final address to the jury when dealing with the allegations against the police officers in cross-examination. The passage reads as follows:

"Defence suggested that every - almost every police officer in this case was lying on oath, in other words committing perjury. That's a very, very serious offence and should a police officer take the risk of lying on oath and being found out, you would assume, would you not that that would be the end of his career. My learned friend has made these serious allegations against the police, and I mean no criticism of my learned friend, because it's his duty to put his instructions to the best of his ability whether he likes them or not."

Mr Grounds says that this comment by prosecuting counsel was quite wrong because it invites the jury to treat the police witnesses in a special category to the extent that they were more likely to be telling the truth than other witnesses. The real force of his submission is that once the prosecuting counsel had said that to the jury it was incumbent upon the judge to rectify the matter and direct the jury properly on their approach to the police officers as witnesses. Undoubtedly, the comment which was made by counsel should not have been made. It is well recognised that such an approach to police witnesses is wrong.

12. But does this failure of the judge to put the matter right amount to a material irregularity in the trial? The point was not taken up by the judge. The judge is not criticised by counsel for the way in which he invited the jury to approach the credibility of the witnesses. The judge made it quite clear that they had to accept the law from him on his directions. That is the nub of this point.

13. The judge gives directions to the jury. The jury must follow those directions. What a judge says has the authority of the court. It is quite different when counsel is addressing the jury. Counsel addresses the jury and makes submissions for their consideration. Of course, it would be quite wrong if the judge were to suggest to the jury that any witness, whether a police officer or any other witness, was to be treated in a special category so as to put the witness beyond the reach of the jury's consideration on credibility. But that did not happen in this case.

14. Mr Grounds cited in support the judgment in this Court in R v Li Chun-choi [1990]1 HKLR 665 where indeed an appeal was allowed consequent upon a remark made by prosecuting counsel in his opening address. But with the greatest respect, that case is very different. In that case, this Court had to consider the disclosure by prosecuting counsel that the accused person had a previous record - that was disclosure of inadmissible information to the jury - which, it was held, amounted to a material irregularity upon which the court allowed the appeal. That case is not relevant authority in the circumstances of this case. There was no material irregularity here, arising out of prosecuting counsel's remarks even though they should not have been made nor was it a material irregularity that the judge did not refer to the words in his summing-up.

15. The first ground fails.

16. In his second ground, counsel submits that the judge erred in law and wrongly directed the jury upon lies, a direction which, it is said, was unnecessary, confusing and prejudicial.

17. The direction which the judge gave was of the type often given to protect an accused person against a jury concluding that because an accused person has lied, he must be guilty.

18. The judge raised the question before his summing-up whether he should give a direction. Counsel for the defence was content that he should do so. The direction the judge gave was unquestionably a proper direction in the circumstances of the case. There was no suggestion that the jury could at any stage accept a lie as support for the prosecution case. There is nothing in this ground of appeal.

19. Ground 3 and ground 4 can be considered together.

20. It is submitted that the judge wrongly directed the jury as to how they should approach the evidence in one particular passage and, secondly, that the judge delivered a summing-up that was fundamentally unbalanced in the way in which the jury were directed upon the appellant's participation in the joint enterprise, and in the manner in which the defence case was put to the jury.

21. This involves a reading of the summing-up as a whole. It is enough to say that the judge's approach in the summing-up when dealing with the defences put forward was a meticulous one. The judge focused on the real issues for the jury. He assisted them to identify those issues as he dealt with them. He left each defence for the jury's consideration. It is true, he reminded the jury of counsel's submissions and then reminded them of the evidence. From time to time the judge made comments about the evidence for the jury's consideration. These were comments he was entitled to make. He made it quite clear that his comments were only for the consideration of the jury and were not directions. As for the suggestion that the summing-up was fundamentally unbalanced, that allegation is simply not made out on a full reading of the summing-up. In the result, the judge reminded the jury of the evidence, reminded them of the issues and left the defences to the jury. There is nothing in these grounds of appeal as advanced.

22. Ground 5 is that the judge wrongly directed the jury on the implication of the appellant being described as "a target". It is necessary to set out what the judge said at p. 14F:

"You have also heard that the police wanted the accused. He was on a list. He was a suspect, a target, you have heard the word. You have heard that DPC 2033 had been instructed that should be located, he was to be the one to deal with the accused.

You may not speculate as to what information the police has. I do not know, you do not know. You may not speculate how he came to the attention of the police. How they even knew his name. You must ignore all of that. You have taken an oath to return a verdict on the evidence you hear and see in this court. You have no evidence as to what was known about him by the police, and you totally ignore any reference as to that. It is not in evidence, and does not fall into your consideration."

23. Mr D.G. Saw SC, for the prosecution, asks whether this direction was necessary at all because it was known that the applicant was present at the offences. It is hardly surprising in those circumstances that the police would want to interview him. The fact that he was a suspect took the matter no further and the judge's direction on that was impeccable. The judge used the word "target". Of course, to those who practise criminal law, sometimes "a target" means much more than was indicated by the evidence or by the judge in this case. It is clear from the words the judge used that all that was meant by the word "target" was that the applicant was a suspect. With this in mind the judge's direction was appropriate. There is nothing in this ground and it fails.

24. Ground 6 concerns a suggestion to the jury that the word "negotiation" as translated in the video-tapes statements could perhaps be replaced by the word "discussion". This is advanced as a ground of appeal. Of course, it is not and could not be a material irregularity in this trial. It is an insignificant matter which should never have found its way into a notice of appeal. Mr Saw submits that it is misconceived. We agree.

25. On grounds 7 and 8 it is submitted that the judge failed to give a ruling at the close of the case as to the admissibility of the appellant's statements under caution. It is also said that counsel wrongly failed to remind the judge of this issue and ask for a ruling. The question is, therefore, is it incumbent upon a judge to give a ruling on admissibility in the circumstances of this case?

26. Before the trial started it was said by counsel that there would be a voir dire. By the time the trial started, however, the alternative procedure was used. There was no voir dire. The police officers were cross-examined about their behaviour. It was suggested to them that they had been involved in disreputable behaviour concerning the statements. Those matters were denied. At the end of the prosecution case, there was no evidence for the consideration of the jury of that misconduct. In these circumstances was it incumbent upon the trial judge nevertheless to make a ruling that he was satisfied that the statements were voluntary and admissible?

27. This point was considered in R v Jim Chong-shing, Criminal Appeal No. 79 of 1988, Penlington JA delivered the judgment of the court. On the alternative procedure he said:

"This second alternative course was chosen by the defence here and it is the last sentence in Lord Bridge's dicta which is relied on. There was no objection taken when the confessions statement was introduced and there was no submission made at any stage that the trial judge should withdraw the statement from the jury or tell them that they should entirely disregard it, on the basis that it had not been shown to be voluntary. It is however submitted that the judge should have nevertheless made a ruling as to whether he found the statement was voluntary.

We do not think there is any substance in this argument. We are quite satisfied that if, at the conclusion of the Crown's evidence, or alternatively when all the evidence had concluded relating to the statement, the judge had been of the view in the absence of any submission that he was not satisfied it was voluntary he would have directed the jury to disregard it. We do not consider that in Ajodha Lord Bridge meant that in all instances where the second alternative procedure is followed the judge must give a ruling on admissibility whether or not a submission is made, but to do so only when he considers, on the evidence, that he should."

That is a passage which we follow. It refers to a passage in Lord Bridge's speech in Ajodha v The State [1982] AC 204 at 223D:

"... defending counsel may for tactical reasons prefer that the evidence bearing on that issue be heard before the jury, with a single cross-examination of the witnesses on both sides, even though this means that the jury hear the impugned statement whether admissible or not. If the defence adopts this tactic, it will be open to defence counsel to submit at the close of the evidence that, if the judge doubts the voluntariness of the statement, he should direct the jury to disregard it, or, if the statement is essential to sustain the prosecution case, direct an acquittal. Even in the absence of such a submission, if the judge himself forms the view that the voluntariness of the statement is in doubt, he should take the like action proprio motu."

As has been pointed out by Mr Saw, there is nothing in Thongjai & Another v R [1997]2 HKC 109 which derogates in any way from that. It follows that it was not in the circumstances of this case incumbent upon the defence counsel to make an application nor was it incumbent upon the judge to make a ruling unless he formed the view that the voluntariness of the statement was in doubt. In any event, had there been an application on the evidence to exclude these statements, it would have undoubtedly failed. There was no evidence of impropriety or worse on the police officers' part to raise the issue. Those last two grounds in the circumstances are misconceived and they fail.

28. Ground 9 is a factual ground, that in the circumstances, the convictions were unsafe and unsatisfactory. There is nothing in the earlier grounds advanced. There is nothing in ground 9 either.

29. This application fails.

Representation:

Mr Christopher Grounds (DLA) for Applicant

Mr D.G. Saw SC and Mr W.T. Chiu (DPP) for Respondent