R. v. Tse Yue Wo

CACC000282/1992

IN THE COURT OF APPEAL

1992, No. 282
(Criminal)

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Coram: Hon Yang CJ, Macdougall VP, and Bokhary JA

Date of hearing: 2 September 1993

Date of judgment: 2 September 1993

Date of handing down of reasons: 10 September 1993

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J U D G M E N T

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Hon Yang, CJ:

1. The applicant TSE Yue-wo (the third accused at the trial, hereinafter referred to as "Tse") was convicted of murder. He now seeks leave to appeal against conviction.

2. The evidence against Tse came mainly from the video reconstruction and his cautioned statements.

3. At the hearing of the application, Mr Callaghan argued on behalf of the applicant: -

(1) that there were discrepancies in the prosecution evidence as to the method used to obtain three of Tse's cautioned statements and his signatures thereon, namely, Exs P76, P79 and P80 (in particular Ex P79);

(2) that the cautioned statements were not made in the way the police witnesses said they were made;

(3) that as there was during the trial on the general issue a shift in the factual basis, upon which the cautioned statements had earlier been ruled voluntary and admissible at the close of the voir dire proceeding, the trial judge should have reconsidered his ruling and withdrawn the cautioned statements from the jury; and

(4) that the judge should have reminded the jury fully of the inconsistencies in the prosecution witness in the summing up.

4. The fifth Ground of Appeal, that the judge misled the jury to believe they should disregard all the allegations of the applicant concerning the taking of the statements, was not argued. There is in any event nothing in the summing up to support this ground. We do not therefore think it necessary to pursue the issue.

5. The case against Tse was that in November 1990 the second accused at the trial stole a cheque belonging to the trading company where he was employed. The cheque was signed, but the drawee was left blank as was the amount. On 3 December 1990, the deceased, MA Sau-ming, a sixteen years old woman, cashed the cheque for $40,000. On Tse's own evidence he signed at the back of the cheque and his fingerprint appeared on it.

6. According to Tse's first cautioned statement (Ex P76), he asked one CHAN Yuk-fung to help cash the cheque for him, promising to give her $10,000 if she was successful. Sometime later he was informed by his girl friend CHAN Wai-ping that the cheque had been cashed - he having earlier given the cheque to her to hand over to CHAN Yuk-fung. The girl friend told him that she had given $10,000 to CHAN Yuk-fung, but CHAN Yuk-fung's friend demanded $3,000 more.

7. In another statement (Ex P79), Tse gave details of the murder. He said it was his suggestion to rape "the girl who withdrew the money to make her dare not say anything". Having made the necessary preparations by hiring a car and providing themselves with hemp twine and a quilt, Tse and his friends met the deceased and CHAN Yuk-fung at the mid-level of Kowloon Peak, where Tse asked the deceased if she wanted to have $3,000 more and she said yes. After further conversation, Tse and his two friends (the first and second accused at the trial) decided to rape the deceased in turn. There was then a brief discussion between Tse and the deceased as to whether she might "reveal the job", and Tse and his friends decided to "do her down". It was Tse who acted first by putting the hemp twine round her neck saying, "You don't blame me, I want you to die". He used force to pull the twine with the assistance of his two friends. He then saw the deceased's tongue protruding slightly, and told the others she was dead. Then they wrapped the body in the quilt, tied it up and threw it into the river.

8. The next statement, Ex P80, shows that Tse led the police to a gutter in Kowloon into which he had thrown away the torn pieces of the deceased's identity card, and the place where the deceased's Walkman was thrown away.

9. Both at the voir dire proceeding and at the trial on the general issue, much attention was devoted to details of how the cautioned statements were taken from Tse. There were questions asked by the defence of the police witnesses as to how long the taking of each statement lasted, whether a statement was read to or by Tse, and whether it was read by the police officer who was a witness to the taking of the statement. There were also questions asked as to whether the set pattern which the police said they followed in the taking of cautioned statements was strictly followed. There was, for example, the suggestion that the officer who took the statement Ex P79 (DPC 11675) must have been telling an untruth, when he recorded on the statement that the reading of the statement by him and by Tse, and also the putting of 25 signatures by Tse on the statement, took only 13 minutes when it was said that a reading by him in Court took 16 minutes.

10. We were taken through numerous passages in the evidence to show the discrepancies in the police witnesses' evidence in the voir dire and that at the trial on the general issue, and also the discrepancies between police witnesses. It is not necessary for us here to refer those passages save to say that we note that some discrepancies do exist.

11. In brief, what Mr Callaghan was arguing was that the officer (DPC 11675) who took all the cautioned statements from Tse had lied at the voir dire. The officer who witnessed the taking of the statements realised the improbability of DPC 11675's evidence and sought to correct it. Then, when DPC 11675 gave evidence on the general issue, he changed his evidence to fit in with the evidence of the witnessing officer.

12. All these matters were canvassed in detail in the Court below. The judge was asked to reconsider his ruling made earlier at the close of the voir dire. Having reconsidered the evidence and counsel's submissions, the judge ruled that he did not consider that the discrepancies warranted a withdrawal of the statements from the jury. We cannot say he was wrong in so ruling.

13. In a careful summing up, the judge dealt with all the evidence. Mr Callaghan complained that the judge had not dealt with the inconsistencies fully enough. The judge said this to the jury (at p.61 N to p.62 D): -

" Now Mr CALLAGHAN has gone into some detail about the timing of the various -- the times that appear in the 2 statements -- the 3 statements in fact, relating to the final paragraph - you will recall that because it was just said to you this morning - and it is his point that in respect of those paragraphs, the officer who was recording the statement has given evidence that is in conflict with the witness as to when the statement was read over - that is in respect of the first statement - that that same officer has given evidence in the trial which is in conflict with the evidence that he gave in the earlier preliminary hearing; and that he has given that evidence, according to Mr CALLAGHAN's submission, simply because he was caught out at the earlier hearing and that it was not possible for the statement to have been read by him and read by the accused and signed, etc, etc, within the time specified."

14. Silke VP, in delivering the judgment in this case in R. v. KANG Hoi-tong, Criminal Appeal No. 585/1990 (unreported), said: -

" A judge is entitled to and normally should assume that a jury has a grasp of a case: per Acknee LJ (as he then was) in R. v. Wallace: The times Law Reports: 19th February 1982. As Sir Alan Huggins VP said in delivering the judgment of the court in The Queen v. WONG Kam-tong and others, Criminal Appeal No. 666 of 1981 at page 8:

' It has been said that it is wrong to treat a jury, which has been expected to absorb highly complex evidence, as being totally incapable of retaining points of importance and thus as needing reminder not only in the closing speech for the defence but also by the judge in his summing-up.'"

15. In the present case, defence counsel had taken the jury in great detail through the evidence, highlighting what he contended were the discrepancies and inconsistencies in the testimony of the police officers who were concerned in the taking of the statements from the applicant.

16. In our judgment, the summing up was adequate.

17. There is nothing in any of the Grounds of Appeal that caused us concern. The application is accordingly refused.

Representation:

Mr Peter Callaghan (DLA) for Applicant

Mr I G Cross QC and Ms Mary Sin for Crown/Respondent