R. v. Cheng Shui

CACC000299/1994

IN THE COURT OF APPEAL

1994, No. 299
(Criminal)

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Coram : Hon. Macdougall, V.-P., Penlington, and Liu, JJ.A.

Date of hearing : 17 February 1995

Date of handing down of judgment : 7 April 1995

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J U D G M E N T

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Penlington, J.A. (giving the judgment of the Court):

1. This was an application for leave to appeal against conviction by Jerome Chan, J. and a jury, by a majority verdict of 5:2, on 28th May 1994 on two counts. The first count was possession of a firearm and ammunition and the second was conspiracy to murder. At the conclusion of the hearing we said that we would grant the application for leave and allow the appeal and that we would hand down our reasons for doing so. This we now do.

2. The Crown case was described by Mr. Andrew Macrae, who appeared here for the applicant but did not do so in the court below, as revealing an extraordinary set of facts. That does not appear to be an exaggeration. Essentially it was that the applicant had arranged for a man, Yiu Siu-ping (PW1), to be brought from the Peoples' Republic of China (PRC) in order to murder a business-man, Mr Lee Man-chan (PW3). This was to be done in broad daylight on a street in Wanchai. It was PW3's evidence that he did not know the applicant and that they had never had any business or other connection with each other whatever. No motive was ever suggested for the applicant's alleged intention to have PW3 murdered.

3. The main ground of appeal argued by Mr. Macrae was that the trial judge gave no direction as to how the jury should consider the question of lies. This he contended was essential because, after the defence evidence had been called, the Crown was allowed to call rebuttal evidence, which lasted for some three days, in an attempt to rebut the allegation that the applicant had been beaten up by police officers after his arrest and that he tried to tell his side of the story but the police officers were not interested. It is Mr. Macrae's contention that the effect of that was that by the time all the evidence was concluded, firstly the defence case was then three days old and secondly that those three days had been taken up by the Crown seeking only to demonstrate that the applicant was a liar. There should certainly then have been a direction along the lines suggested in R. v. Broadhurst (1964) AC 441 and adopted in R. v. Keung Sin-chi, Crim. App. 965 of 1983. It was further argued that there should have been a direction as to the manner in which the jury should consider the accused's character, as credibility was very much in issue.

4. Further grounds of appeal were that the trial judge wrongly permitted the Crown to cross-examine the applicant as to why he had made no attempt to secure the presence as a witness of his girl friend, Yuan Lau-sin, and that the trial judge went beyond fair comment in his remarks to the jury concerning the evidence given by the applicant.

5. The Crown's case depended substantially on the evidence of PW1. He said he lived in Shenzhen where he came to know a man called Yu Chun-ching (Yu), whom he met in a martial arts school. On 27th May 1992, Yu asked him if he would like to go to Hong Kong "to have some fun". As PW1 had never been to Hong Kong before, he agreed. He and Yu set off by speedboat, arriving in Hong Kong in the early hours of 27th May 1992. When they arrived, the speedboat driver waited in a wooden hut at Lau Fau Shan until the applicant arrived in a red Saab private car. He had never met the applicant before. The three of them then went to a flat in Tuen Mun which was occupied by the applicant's girl friend, Yuan Lau-sin. From there, the applicant took PW1 and Yu to a factory at Kwai Chung where PW1 was left to sleep. The following day, the 28th May, the applicant, his girl friend and Yu returned to the factory and had lunch there. PW1 was left locked in the premises that afternoon. In the evening, the applicant, Yu and the girl friend came back with rice boxes. There was a lot of conversation, some of it angry, between Yu and the applicant in Chiu Chow dialect which PW1 could not understand. Eventually the applicant and his girl-friend left the premises, and it was then that PW1 was told by Yu that the actual purpose for his coming to Hong Kong was that he would be paid $100,000 to kill somebody. Yu would also get a similar amount. He said that he became extremely worried about this and resolved that he would do no such thing. It was his evidence that at no time thereafter did he have the slightest intention of carrying out any scheme to murder anybody in Hong Kong.

6. On the 29th, PW1 said that the applicant and the girl friend returned and that he and Yu went with them in the red car to Shatin where he was fitted out with new clothing. He said that he changed his socks in the applicant's car. In fact a pair of socks were later retrieved from that car by the police. After lunch, they all went to garage premises near the Kai Tak Airport where the applicant produced a loaded pistol which he gave to Yu who in turn gave it to PW1. Yu demonstrated how to fire it, as PW1 had never handled any sort of gun before. PW1 was also given $1,500 for transport. At this stage, according to PW1, the applicant left the premises at Kai Tak and PW1, together with the girl friend and Yu, went by taxi to Wanchai. The intended victim's car was pointed out to PW1 by Yu who said that the victim would come out of an office building and board his car and that, when he did so, PW1 should shoot him in the back and then, when he fell down, shoot him in the head. They then waited outside the building from which PW3 was supposed to emerge. The girl friend then went away and returned with two MTR tickets which she gave to PW1 saying "After you have done it, go away by taking the MTR." That was the only plan for PW1 and Yu's escape. She took him to the MTR station and explained how he was to use the tickets.

7. They then returned to the office building and went into a shop to have something to eat while they waited. The girl friend then left the scene, leaving PW1 and Yu. Eventually two people came from the building whom PW1 described as a tall man and a fat man, Yu pointed out one of them as the man PW1 was supposed to kill. However, instead of going to his car the intended victim turned and walked away from them. Yu told PW1 to wait by the car for PW3 to return. Having said this, Yu went towards the MTR station.

8. The next thing in this extraordinary story was that PW3 came back towards his car, got in it and drove away. Yu then came up to PW1 and asked him why he had not shot PW3. PW1 said he had not done so because there were policemen in the vicinity. That in fact was a lie. Yu became angry and told PW1 to return by taxi to Kwai Chung to the factory at which they had been staying. He said that he would follow in another taxi. However, he did not explain why they should use separate taxis.

9. PW1 then went back to Lau Fau Shan by taxi because he wanted to find the speedboat driver who had brought them to Hong Kong so that he could persuade him to return him to the PRC. While still in the taxi he was arrested by police officers in possession of the gun, the ammunition for it and the remains of the $1,500 that he had been given.

10. It was PW1's evidence that he was then beaten up quite badly by the police officers at Lau Fau Shan Police Station and that eventually he made several statements. At the trial, he was cross-examined extensively because those statements contained considerable discrepancies in his evidence. His explanation for that was that there was a language barrier as he only spoke Putonghua. The interpreter who was used was not called at the trial.

11. The applicant gave evidence in which he denied that he had ever produced a pistol and given it to PW1. He also denied that he had ever told PW1 or Yu to kill anybody. He said that he had provided shelter and food for the two men and had acted as their driver for some two and a half days because he had met them in Shenzhen and had told them that if they came to Hong Kong he would look after them. He had a business in Shenzhen and he felt that, if he refused them, harm might come to his business. His girl friend is a foreigner in Hong Kong and she always accompanied him. This accounted for her presence when he was with Yu and PW1.

12. He met PW1 in 1990 in Shenzhen when PW1 accompanied Yu to collect protection money. Yu had asked at first for $3,000 a month but it was reduced to $1,000. His evidence was that both PW1 and Yu were in fact local thugs in Shenzhen to whom he had to pay protection money. On 26th May 1992, he received a telephone call in Hong Kong from Yu, who said that he was in Hong Kong and requested the applicant to take them round and have some fun for a few days. There was also another man called Ho Kai to whom the applicant spoke on the telephone. As a result, the applicant met Ho, Yu and PW1 at a restaurant the following day. There he was told by Ho that PW1 and Yu had come to Hong Kong to locate the wife of their Kung Fu master because she had run away to Hong Kong with another man. Ho told the applicant that she was in a building in Lockhart Road, Wanchai, and that they had been waiting there for her to appear, but without success. Ho asked the applicant to take Yu and PW1 to the building to wait for the woman. The applicant agreed to do so, and eventually they went to his factory at Kwai Chung, after having had a meal at his girl-friend's flat.

13. It was the applicant's evidence that there was never any suggestion from him that PW1 should murder anybody, but that he was cooperating with Yu and PW1 in their search for the Kung Fu master's wife. In order to do so, the applicant took PW1 and Yu to Wanchai in his car on the 28th May. Later, the applicant was told by them that they had found her, but that they had to wait for Ho Kai to come back to decide what then to do.

14. On 29th May the applicant said that he met PW1 and Yu again and that, as a result, he purchased some clothing for PW1 which PW1 changed into inside the applicant's car. He then went with PW1 and Yu to Tai Wai to have some repairs done to his car. Eventually, he gave Yu $1,000 and told his girl friend to take him and PW1 to Wanchai on the MTR. They left and he did not see them again. That evening he set out for to Lo Wu via Sheung Shui. On arrival at Sheung Shui he saw a police road-block and understood there had been a gold-smith shop robbery. He then entered the PRC.

15. The following day the applicant's wife phoned him and told him that he was wanted by the Police in Hong Kong in connection with the Sheung Shui robbery. He told her he had nothing to do with it. However, when he eventually returned to Hong Kong on 10th April the following year, having had problems with the police in the PRC, he thought that he would be arrested in connection with the Sheung Shui robbery and arranged to have a lawyer present at the Tai Po Police Station to await his return from the PRC. His evidence was that when he arrived at the Tai Po Police Station he was severely assaulted, for which allegation there was some evidence in support given by a solicitor's clerk.

16. While the evidence of PW1 was extraordinary, it is clear that the applicant's version of events was also strange and that it could well have been the case that the majority of the jury thought that he had not told them the whole truth.

17. The allegation by the applicant that he had been beaten up and had not been allowed to give an explanation to the police at Tai Po Police Station formed the basis of an application by the Crown to call rebuttal evidence . Surprisingly that application was granted. The sole purpose was to show that the applicant was a liar. However, although there was some suggestion in discussions between the judge and counsel in the absence of the jury that a direction should be given as to the way in which the jury should consider the matter of lies in relation to the credibility of the applicant, no specific direction was given.

18. The central issue to be decided by the jury was whether they believed the evidence given by PW1 that not only had he come to Hong Kong with Yu and had met the applicant, which was not in dispute, but that, having met him, he was given a gun and told by the applicant to shoot PW3. As against that, they had the sworn evidence of the applicant, which was supported to some extent by other witnesses, that while he had met PW1 and Yu, had looked after them and taken them in his car in an endeavour to locate the alleged run away wife of the Kung Fu master, he had not given PW1 a gun and had not conspired with him and Yu to murder anybody. In the light of that evidence, it was submitted by Mr. Macrae that, if the jury came to the conclusion that the applicant had not been telling them the truth, there was indeed a grave danger that they might conclude that he must therefore be guilty of these offences. This was not a situation such as that in R.v. Dehar [1969] NZLR 763 where once the accused's account was rejected, the inevitable result was that he would be convicted. It was the contention of Mr. Grenville Cross Q.C., who appeared in this court for the Crown, that a direction along the lines set out by Lord Devlin in R. v. Broadhurst [1964] A.C. 441 at 457 was not always required even if the accused person gave evidence. In R. Cheung King-kwong, Crim. App. 583/91, Macdougall, J.A. said that a mere conflict in the evidence between the prosecution and the defence does not inevitably call for a Broadhurst direction. The circumstances of different cases varied infinitely. In that case, there was no real danger that the jury might have made the erroneous assumption of guilt because of the applicant's lies. However it was also held that the judge there had made it plain to the jury that if they considered the applicant had lied, they should not convict him simply on that account. It was also submitted by Mr. Cross that the following direction by the judge as to the applicant's alleged lies about being assaulted was sufficient :

"And the other relevance, perhaps, of this aspect of the case goes to the credibility of witnesses and whether he is a truthful witness who can tell us what went on straightly and directly without exaggeration. That is the only relevance."

19. We were referred, both during the course of the hearing and subsequently by agreement between counsel, to various Hong Kong authorities in connection with the question of what is a proper direction on the question of lies. In R. v. Wong Kwai-fun, [1993] 2 HKCLR 171, it was held that the jury was clearly directed that the matter was to be resolved by determining whom they believed and whom they did not believe. While there was no Broadhurst direction given, the court did not see any danger that the jury might have made some improper use of lies.

20. We have now been referred to R. v. Li Wai-keung and others, Crim. App. No. 361 of 1991. There the question of lies was very much in issue and it was the case for the appellants that the judge's direction was insufficient in that he had not directed the jury in accordance with the decisions in R. v. Lucas [1981] QB 720 and R. v. Goodway 98 Crim. App. Rep 11. Giving the judgment of the Court, Mortimer, J.A. said:

"Another division of this Court considered Goodway in R. v. Chu Tai Hwa and Tang Pak Chiu (unreported) 1992 No. 321 and fully applied it without reservation or dissent. It is therefore part of Hong Kong law by which this Court is bound in spite of submissions to the contrary.

In this we see some difficulty which requires resolution. Trial judges already have to wrestle with a multiplicity of directions consequent upon statute or laid down by appellate courts which have to be given to juries with the increasing danger that they will be overlooked or given pursuant to a discretion later found to be wrongly exercised. This Court is acutely aware that increasing the technical requirements of a summing-up makes cases more difficult for both judge and jury with added risk of artificiality and error. The fundamental aim is to achieve a trial which is both fair and according to law."

21. The court held that the direction given was sufficient, and the appeal was dismissed. The direction given was in these terms :

"If you conclude that any of these defendants or all of them was lying it must not convict them just because of that people lie for reasons other than that they are guilty. They may lie because they think telling the truth will not persuade people of their innocence or they may lie because they are ashamed of something and are trying to hide from their family and friends. So just keep in mind that people are not necessarily guilty because of lies. You are of course if you think the defendants are lying entitled to ask yourselves why are they lying. But do not convict them simply because they are lying."

22. Here there was no such direction. The Crown was permitted to call evidence for some three days in rebuttal of the applicant's evidence solely on the question of whether, as he said, he had endeavoured to give an explanation to the police at Tai Po Police Station or, as was alleged by the police officers, he had declined to say anything at all. It was evidence directed entirely to the applicant's credibility. We have no doubt that the Crown should not have been allowed to do so but if the jury concluded from all that evidence that the applicant was in fact lying and had not offered any explanation at the Tai Po Police Station, contrary to his evidence in Court, they may well have concluded that it was evidence that he had committed this offence. The jury were told clearly that there was no corroboration of PW1's evidence but they were also told in relation to the question of whether or not the applicant remained silent at Tai Po Police Station:

"There is, of course, no legal obligation either to explain anything to the police. The Prosecution's only purpose in referring to this aspect of the case is to invite you to include that an innocent man would try his best to explain to the police his innocence though he is under no legal obligation to do so. That is the only relevancy."

23. Prosecuting counsel rightly expressed grave concern as to the correctness of this direction. As a result, the jury were recalled and given this further direction.

"I have mentioned to you as to what relevancy the prosecution has placed on this saga about the cautioned statement of the accused that he remained silent and about all these assaults. I have wrongly put the prosecution's case to you as I had been corrected by Mr. Coghlan that it is not his intention to rely on the accused's cautioned statement to ask you to consider whether an innocent man would like to explain his innocence to the police that is not the intention.

If you recall the court of statement was produced as part of the examination in chief of the accused himself and he alleged that he tried to explain it to the police but the police beat him up and would not allow him to explain. It was only in response to prove to that that the prosecution has called rebuttal evidence to prove there was no assault and I have told you earlier on that there is no legal obligation for one to assist the police. There is a positive legal right for one to remain silent. That is the reason why Mr. Coghlan says that he is not relying on it to ask you to say that an innocent man should explain to the police his innocence. That is obviously not the case and there is no such legal obligation."

24. That direction was a perfectly correct and proper direction. It did not however make it clear to the jury that, if they concluded that the applicant had been lying in his evidence regarding his failure to make a statement to the police, that was not a matter to be taken directly into account as evidence of his guilt.

25. As so much evidence had been called by the Crown that was relevant only to the question of whether or not the applicant had lied to the jury in his evidence, there was a real danger that the jury might have decided that he had lied and that such was direct evidence of his guilt. In the light of the other evidence called in relation to this extraordinary story and, bearing in mind that the jury verdict was by the barest majority, we regarded these convictions as unsafe; we granted the application for leave to appeal, allowed the appeal, quashed the convictions and set aside the sentences. We did not consider there should be a re-trial.

Representation:

Mr. I.G. Cross Q.C. with Miss Louiza Lai for Crown.

Mr. Andrew Macrae instructed by M/S Chan, Wong & Lam for the applicant. (Cheng Shui)