The Queen v. Lo Kwok Kuen

CACC000277/1987

IN THE COURT OF APPEAL

BETWEEN

Coram: Silke, V.-P., Penlington, J.A. & Macdougall, J.

Date of Hearing: 8th November 1988

Date of Judgment: 8th November 1988

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J U D G M E N T

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Silke, V.-P.:

1. On 1st October 1986 Madam Chan Bick Ching and her 12 year old daughter were found brutally done to death in their residence at Flat 3, 20/F., Hui Ming Court in Kwun Tong.

2. Police investigation began and the bodies were removed at 6.58 p.m. on that day after the police photographer had taken photographs numbers 1-41 which provided a full record of the flat and the state it was in.

3. At 2:30 a.m. on what was now the 2nd October, the police went to the flat occupied by the Appellant and his family on the same floor in the building and numbered 1.

4. At 3:45 a.m. the Appellant made the first of a series of statements. He admitted that he had visited the deceased's flat on two occasions prior to the 1st October by unusual means. He said he was asleep between 1:30 a.m. and 7:30 a.m. the indicated time of death - on 1st October. He was arrested at 6:00 a.m..

5. The series of statements continued, each one more bizarre than the other, and they included the record of two interviews he had with a police psychologist, Miss Tam. The first of these was on 3rd October. He was still in custody and the inspector in charge of the case was present.

6. The Appellant eventually appeared for trial before Hooper, J. and a jury on an indictment containing two counts of murder on 25th lay 1987 he was convicted on both counts. He now appeals against those convictions.

7. The appeal began on 19th April 1988 when the Appellant was represented by Mr. Martin Thomas, with him Mr. Van Buuren. The main argument centered around the issue of the admissibility of the evidence of Miss Tam as to what took place in the course of the interviews she had with the Appellant. There had been objection raised at trial but the trial judge ruled against the defence. The second part of the main argument and this had relevance to the first, was the direction given by the trial judge on the manner in which the jury should view the numerous statements of the Appellant. These statements were, on their face exculpatory and the issue upon which the submission was made was the Leung Kam Kwok, Privy Council, versus Sharp, House of Lords, controversy.

8. On the morning of the third day of the hearing a matter arose the possibility of a visit-by the. Appellant in the company of some of the investigating officers to flat 3 before any interview with the psychologist had taken place.

9. We adjourned the hearing to permit the Crown, represented by Mr. Findlay with him Mr. Bruce and today Mr. Callaghan who was counsel at trial, to investigate.

10. The significance was this. At trial the real thrust of the. Crown's case was a reliance on the details of the condition of Flat 3 as given by the Appellant in his interview with the psychologist to show that as only the killer could have known them therefore the Appellant was the killer. This was, and properly so, picked up by Hooper, J. in the course of his summing-up when he made reference to the photographs and what they depicted comparing this to that which the Appellant had said to the psychologist.

11. No police evidence had been, given at trial to show any visit to the flat on 2nd October by the Appellant. The Appellant said in one of his statements that a visit at a time unknown, had taken place on that day. That statement was in evidence.

12. It is now accepted that the Appellant did make a visit accompanied by the police at 7:00 on 2nd October. It is clears and has not been contested before us, that this fact was unknown to Mr. Callaghan it was of great importance that the jury should know of the visit and that there be evidence of the condition of the flat when it was made.

13. This had two aspects. It might well have affected the trial judge's exercise of his discretion to admit the evidence of the psychologist. It would have been a factor going to the contention of knowledge advanced by the Crown. If the evidence of Miss. Tam was still before the jury it would have been a factor in the approach of the jury - and one upon which it would have been necessary to direct them - to the psychologist's evidence and their evaluation of the contention of the Crown.

14. Mr. Howard, counsel for the Appellant at trial was instructed that the Appellant had visited Flat 3 on the morning of 2nd October. He did not for its full significance did not emerge until Miss Tam gave evidence cross-examine any of the police witnesses whose evidence came before hers on this. After Miss Tam's evidence was in he did not, as a matter of tactics, seek their recall. The Appellant gave no evidence at trial.

15. The application before us now is to hear fresh evidence on the basis of a new ground of appeal Ground 6 - filed on 11th July 1988 alleging a material irregularity in that the evidence of the visit was not before the trial Court.

16. Mr. Findlay has urged us that we should not do this: (1) because there is "no reasonable excuse" for the matter not having been raised at trial, (2) that the issue of the state of the flat at the time of the visit is not raised by Ground 6; (3) that it is not a matter for this Court to re-open issues decided at trial or issues deliberately not dealt with there.

17. We accept that a miscalculation or a misjudgment or wrong tactics by counsel at trial are not, in themselves, sufficient to constitute valid grounds of appeal. Nor are we here to decide that advice given on appeal is better than advice given at trial.

18. But here there is the added factor that counsel for the Crown - and we neither intend nor imply any criticism of Mr. Callaghan's conduct - put his case, and strongly, without his being aware of a piece of evidence which had important bearing on that case. Both the visit, the condition of the flat, and whether or not the Appellant was in a position to see that condition were of importance.

19. We do not think that it would be proper for this Court to in effect retry the issue itself. It is too wide and we would need the assistance of many witnesses the police who gave evidence at trial not the least. Nor are we prepared to simply dismiss this out of hand whether the tactics at trial were right or wrong. The matter clearly needs investigation in full.

20. There was in our view a material irregularity in the sense that, given the emphasis placed on the significance of the disclosures made by the Appellant to the psychologist, highly material evidence which should have been before the jury was not. We attach no blame to Mr. Callaghan for this.

21. We do not consider it necessary to hear fresh evidence bearing in mind the accepted fact.

22. In the very unusual circumstances of the evidence at the trial and in the light of that which we have said we are left with a strong sense of disquiet as to the safe and satisfactory nature of the convictions. We consider that the interests of justice require that the matter be fully investigated at a fresh trial.

23. To effect this we quash the convictions and order a new trial on the same indictment.

Representation:

Martin Thomas, Esq., Q.C. & B. Van Buuren, Esq. (Tang, Wong & Cheung) for Appellant

J.K. Findlay, Esq., Q.C. & Peter Callaghan, Esq. & Tony Man, Esq. for Crown