Tam Wing Kwai v. The Quen

CACC000267/1976

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Coram: Briggs, C.J., Huggins & Pickering, JJ.A.

Date of Judgment: 26th May 1976.

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JUDGMENT

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Huggins, J.A.:

1. The Appellant was convicted of robbery and murder and he appeals against both convictions.

2. The victim of the alleged murder was the amah in a private residential flat. She was a solitary person, unaccustomed to receiving visitors herself and having instructions from her employer not to admit callers at the flat without express authority from him. She was found dead with numerous chop wounds at about 5:05 p.m. on 15th July 1975 in the flat by the employer. Property had been stolen, but there was no sign of forcible entry. The Appellant was known to the Deceased, for he had been to the flat on several occasions with the permission of the employer, and a tentative arrangement had been made for him and his uncle to dine with the employer that very evening. He was interviewed by the police that night and one of his shoes was found to have blood on it. He was wearing clean clothing and examination of his other clothing revealed no traces of blood. He suggested that the blood on the shoe might be pig's blood as he was in "the trade of frying pig skin". However, the evidence of the forensic patholigist was that it was human blood of a group which could have come from the Deceased but could not have come from the Appellant himself.

3. For the rest the evidence for the prosecution consisted of statements made by the Appellant. There were in truth six statements. The first was made at 1:05 p.m. on 17th July when the Appellant was informed of the pathologist s findings. Thereupon he said that he had called at the flat at 4 p.m., found the main door open and, on entering, had seen the amah dead in the kitchen; he then immediately left. When he said this he was told that he was under arrest and he was cautioned. We were told that in fact he had been arrested earlier, but nothing really turns upon this. After the caution the Appellant made a second statement, which was completed at 2:43 p.m. The substance of that statement was that three men had forced him to go with them to the flat and induced the amah to open the door, whereupon they had burst in, taking him with them: he and the amah were about to be tied up when the amah screamed and was chopped by one of the mean: in the confusion the Appellant himself escaped. He said that he recognized one of the men as MOK Kin-sang, commonly known as Ah Sang.

4. The third statement was made at about 4:50 p.m. on 21st July, when the Appellant was told that the police had reason to believe that his second statement was incorrect and that Ah Sang had no connection with the case. Invited to explain, the Appellant replied that he mentioned Ah Sang because his was the first name which came into his head. He declined to answer any further questions and said he wanted to see his mother. That was arranged and, thereafter, at about 7:10 p.m. the Appellant made a fourth statement, which has fairly been described as amounting to a confession to both the offences: it contained a detailed account of a conspiracy to rob and of events said to have occurred inside the flat.

5. After further police enquiries the Appellant was again interviewed at about 3:30 p.m. on 25th July and was told that another person who had been named in the fourth statement as having been involved in the robbery and murder had been shown not to be implicated, and once more the Appellant was asked to explain. He then made a fifth statement, in which he admitted that that person had had no connection with the case and had been mentioned "because he had been there before".

6. The sixth statement was made at 3:20 p.m. on 7th August at the scene of the alleged crime and it differed from the others in that it was recorded on video-tape. We have not seen a projection of the tape but have a transcript of what was said. The Appellant was asked questions about what had happened when he entered the flat on 15th July, to which he replied - and he illustrated his answers by demonstration. This statement tends to confirm the confession contained in his fourth statement.

7. There are only three matters which we think call for consideration in this judgment. First it is contended that the trial judge was wrong to admit any of these six statements in evidence, on the ground that they were, as a matter of law, inadmissible in evidence or, if admissible, should have been excluded in the exercise of the judge's discretion. We think that the first part of the argument was in truth directed against the last four statements only, because it was to the effect that any statement obtained from an accused person when he is in custodia legis, i.e. after he has once been brought before a magistrate, is inadmissible in evidence. No authority has been cited to us for distinguishing between the position when a statement is made after arrest but before the accused person is brought before a magistrate and the position thereafter: Mr. Sedgwick merely suggests that a time must come when further questioning by the police must be stopped and that the first court appearance provides a convenient point at which to draw the line. As so often happens there are conflicting interests at stake: on the one hand the police must not be hindered in their efforts to bring the guilty to justice and on the other they must not be allowed to compel an accused person to provide additional evidence against himself. Mr. Reid referred us to Reg. v. Kennedy 1963 Crim. L.R. 109, where a defendant who had made a statement in the course of committal proceedings was afterwards questioned on that statement by a police officer. The report is much condensed and we are not sure that the Court of Criminal Appeal did, as stated, hold that the statement was "inadmissible": more probably they thought it was admissible but should not have been admitted, for the principal discussion appears to have related to the Judges' Rules. Mr. Reid cited the case as showing that there was no material distinction between questioning a person in custody before and questioning him after proceedings before a magistrate, but it cannot be regarded as authority in the absence of a fuller report. In the present case a step was taken which we hope will not be repeated. After the Appellant had been brought before a magistrate and remanded in jail custody application was made (and granted) that he be released into police custody so that he could be further questioned. We will assume that the purpose was not primarily to obtain more evidence against him but rather to investigate his allegations against the persons he had implicated by his previous statements, but there ought to be proper facilities for such enquires to be pursued within the confines of the remand prison. It is not surprising that allegations of ill treatment during the ensuing period of detention have been made against the police, even though they have been found by the trial judge to be without foundation. However, although the methods adopted may be open to criticism, we are not persuaded that there is any rule of law which rendered the resulting statements inadmissible once the judge was satisfied that they were voluntary. Nor do we think that the judge was wrong not to exclude those statements in the exercise of a discretion. We see nothing inherently suspicious in the form of the statements, but the Detective Chief Inspector went further than was wise when he said "Iu kai sik", an expression which could be interpreted as putting some pressure on the Appellant to explain. Rather, if the Appellant was already under arrest, should he have been cautioned, but the prosecution did not rely upon the first statement as being true and he was cautioned before any further statement was taken. It was the fourth statement which was vital to the prosecution case and we cannot say that the trial judge was wrong not to exclude that statement.

8. The next point we mention is that the judge refused to direct the jury as to the effect it would have if they were not wholly satisfied that the statements were voluntary. CHAN Wei-keung v. Reg. 1967 2 App. Cas. 160 laid down that the jury are concerned with the truth of a confession and that for them the voluntariness of that confession is relevant only as a factor in deciding as to its truth. In the present case the jury were properly directed that they had to be satisfied that the confession was true. There is no rule that the jury must be told of all the factors they must consider in arriving at the truth on a particular matter. Their common sense will tell them what they must consider and all that is required of the judge is to sum up the evidence. That was done here. Although Mr. Sedgwick expressly asserted that he was not endeavouring to replant the heresy rooted out by CHAN Wei-keung v. Reg., we think the argument advanced would tend to have that effect. In our view the judge's direction was sufficient.

9. We turn to the last point in the appeal. The video-tape is attacked on the ground that it was a reconstruction of the crime and it is submitted that it was inadmissible because it was not the best evidence. Mr. Sedgwick relied on Quinn (1961) 45 Cr. App. R. 279, where the defence sought to put in a film of a reconstruction of the exhibition alleged to have been obscene. It is enough to say that we think that case is clearly distinguishable because there the "performers" were not party to the proceedings. That film was, indeed, "a method of proof which would be most unsatisfactory for the reason that it would be almost impossible to analyse motion by motion those slight differences which may in the totality result in a scene quite different in character than [sic] that performed on the night in question". Any form of demonstration or reconstruction is open to that criticism to some degree, but in that case there was the added objection that the evidence was self-serving. In the present case the events which took place on 7th August at the flat were at the instance of the police, whereas it was the Appellant who carried out the demonstration. Mr. Fussell said that the Appellant was asked "whether he was willing to go over the scene, to reconstruct the scene with us with the aid of a video-tape recorder". Later he said that the purpose in deciding to employ this apparatus was that there might be an actual recording of what took place at the flat, so that there could not be any argument about what the Appellant did and said in the course of the "reconstruction". It seems to us that the over-all intention was to bolster up the Crown's case, it being hoped that the Appellant would confirm visually what he had already said in his fourth statement. In our view it was not the recording on video-tape which was open to objection but the fact that a further "statement" was taken at all. Sound tape recordings of statements are commonly admitted in evidence. A video-tape merely extends the record to the sense of sight and it is a record which is much more difficult to tamper with than is a tape of the sound alone. In our view such evidence may as a general rule properly be admitted. However, we think it was wrong here to try to obtain confirmation of the fourth statement in this way and we think that the sixth statement ought to have been excluded in the exercise of the judge's discretion, but we are satisfied that the support for the Crown's case which was thus wrongly obtained was of minimal value and that no injustice has resulted from the admission of this evidence.

10. For these reasons the application is dismissed.

26th May 1976.

Representation: