Cheung Wai Bun and Others v. The Queen

CACC000301/1980

Coram: Li, J.A., Power & Barker, JJ.

Date of Judgment: 15th July, 1980.

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JUDGMENT

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Barker, J.:

1. The appellants were convicted of the murder of a Syrian businessman Mr. Ghaleb TEYFOUR on the 27th June of last year and they were also convicted of robbery and they now appeal to this court against their convictions. The brief facts of the case as alleged by the prosecution were that the deceased paid periodic visits to Hong Kong and when he did it was his custom to stay at the Hong Kong Hotel and to do much of his business from his room and also to have a considerable amount of cash in his room in order to pay out those people with whom he did business.

2. The 3rd appellant who was a representative of a firm in Hong Kong knew these facts and found out that the deceased had come to Hong Kong. By virtue of a gross lack of security at the Hong Kong Hotel the 3rd appellant was able to find out the room number at which the deceased was staying and he then conceived the plan to go and rob the deceased of some of his cash. It was however not possible for him to carry out the robbery on his own because were he to be seen by the deceased he would instantly have been recognized and so the agreement was made that the 1st and 2nd appellants should be the persons who would carry out the actual robbery.

3. On the morning of the crime the 3rd appellant saw the 1st and 2nd appellants with large knives and when he asked them what they were for, he was told that they were to be used if the necessity arose or if there was an emergency. And on being told this he took no steps either to withdraw from the enterprise or to try and dissuade the other two appellants from taking the knives with them but impliedly agreed to the knives being taken and used if necessary. And the necessity so far as the appellants were concerned only arose because when the 1st and 2nd appellants were in this hotel room which they had managed to get into without using the knives they were surprised by the deceased whom they then proceeded to stab at least eight times and I use the word "they" advisably because the forensic evidence was that two people used knives. They robbed him of US$400 and HK$412 and fled discarding the knives which were subsequently found and on one of the knives the palm print of the 1st appellant was found.

4. The prosecution case as far as murder was concerned rested almost entirely on confessions which the appellants made to the police. The 1st appellant went into the witness box as did the 3rd appellant; the 2nd appellant gave no evidence. I should have added for the purpose of completeness that not only was money stolen but some watches were stolen as well.

5. At the trial objections were taken on the voir dire to the statements made by the three appellants. The learned judge bore with patience and fortitude an interminable and unnecessarily long trial within a trial and eventually found as he was entitled to do on the evidence before him that the statements were voluntary. The attack on the statements was renewed before the jury as the appellants were fully entitled to do with unabated vigour but it is clear that by their verdicts the jury accepted that those statements were in fact true.

6. Each of the appellants now appeals against his conviction. Some of the grounds of appeal are common to all three appellants and I will deal with those first.

7. The first ground is that the learned judge erred in admitting the alleged cautioned statements into evidence. The notices of grounds of appeal give no reasons why it is alleged that the trial judge so erred but it became apparent to us when learned counsel for the appellants was arguing the case before us that he was saying that no reasonable judge could have come to the conclusion that the trial judge did as to the admissibility of the statements and that every reasonable judge would have a doubt as to the prosecution evidence. It was said for example dealing with the statements of the 3rd defendant that no reasonable judge could have found that the inducement in the form of a discussion with the 3rd appellant that he might possibly become a crown witness could have been made after the statements have been made rather than before. It was further said in regard to the 1st defendant's statement that no reasonable judge could have come to the conclusion that the 1st defendant who was admittedly very very upset and excited on his arrest and tried to jump out of a window and beat his own knee and was shouting could have calmed down so quickly after his arrival at the police station as to be able to make a coherent statement in the absence of some inducement. These arguments we found wholly unconvincing. The learned judge saw the witnesses, saw their demeanour, heard what they said and formed his conclusions thereon. He did not give detailed reasons for these conclusions but he did say that he found the defendants wholly unconvincing witnesses and he found the police witnesses convincing. This was a view which he was perfectly entitled to take and one with which this court will not interfere. We therefore reject that ground of appeal.

8. The next complaint was that the learned judge failed to direct the jury adequately as to the standard of proof. In relation to that counsel for the appellants said "I cannot say that the direction is wrong, but it is insufficient". It is therefore necessary to see what the learned trial judge said and he said this:-

9. Counsel for the appellants submitted that the jury might think on the basis of that direction that they could convict on the balance of probability. That in our judgment is an untenable submission. Indeed if anything the learned judge was too favourable when he talked about a lurking doubt but in our judgment that direction to the jury was entirely adequate and indeed apart from the one minor reservation I have made was in our view correct.

10. Then complaint is made at a direction of the judge in relation to the cautioned statements made by the appellants. He said at one stage, and I am referring to page 4 of the summing up in relation to the statements:-

"If you think that they do not substantially represent what a particular accused wanted to say or if you think that they were not signed voluntarily, you may think that they should be disregarded."

Counsel for the appellants said that amounted to a mis-direction in that what the learned judge should have said was "in that event you must disregard them". But that sentence has to be taken in the context of what preceded that direction. For the learned judge said two paragraphs earlier:-

And then on a number of occasions thereafter the learned judge made such remarks as in relation to the 2nd accused's statement "of course if you accept it as true" and so on and he was bringing home to the jury the whole time that they had to accept these statements as true before they acted on them and therefore in the judgment of this Court in the context of all that the learned judge said as to those statements, the phrase "you may think they should be disregarded" does not amount to a misdirection.

11. Then it was said that the learned judge misdirected the jury in his summing up in that he adverted to the fact that although the offence of murder carried with it the death penalty the likelihood of such a penalty being carried out was nil. And as I understand it the submission of the appellants was that that might be construed as an invitation to the jury to convict of murder rather than manslaughter. But again one has to look at the context in which these words were said. The judge was dealing with the question of majority verdict and what he said was this:-

"Now that brings me on to the matter of majority verdict. On the murder charge it being a capital offence that is to say an offence to which the death penalty must be imposed though as you all know the likelihood of it being carried out is practically nil in Hong Kong today you have to be unanimous to convict or acquit."

He then went on to deal with manslaughter and robbery in which he pointed out that a unanimous verdict was not required. It is of course common knowledge in Hong Kong that the death penalty has not been carried out for many years and all that the judge was doing was explaining to the jury why it was that they were required to bring in an unanimous verdict in respect of murder but if necessary a majority verdict in respect of manslaughter or robbery. It would be in our judgment wholly fanciful to think that such a piece of information, and it was clearly not a direction, could be construed as an invitation to convict of murder rather than manslaughter. So then we pass on to the individual grounds of appeal. It was said that the judge's direction on page 3 of the summing up could be construed as a suggestion that the jury could infer that the 1st and 3rd appellants were guilty of murder if their evidence was not accepted. The learned judge said this:-

"Sometimes it is said that the prosecution has to prove everything and the defence has to prove nothing. It might be asked, if that is so, why do defendants give evidence and call witnesses sometimes? The answer is clear, it is to try and convince you of their innocence or at least to cause you to doubt the prosecution evidence to such an extent that at the end of the day you are doubtful of their guilt. Sometimes, of course, the effect of an accused person's giving evidence back-fires on him and clinches the prosecution case, any little doubts that might have existed at the end of the prosecution case, any little holes that remained in the Crown's case are filled sometimes and removed by what the accused has said and by his demeanour in the witness box. It is very much a matter for you to consider in this trial whether that is what has happened in relation to the 1st and 3rd accused who both gave evidence and were cross-examined."

12. In our judgment although many judges would not have made those remarks to a jury it is a wholly unexceptionable exposition of what in fact occurs from time to time. Sometimes an accused in the witness box makes admissions which are damning to his case and assist the prosecution case greatly. On other occasions an accused's demeanour may be such in the witness box that any doubt that the jury may have had about the prosecution witnesses' veracity and accuracy are dispelled and that was all that the judge was saying in this case, namely that it was a matter for them to consider whether that is what had occurred in respect of the evidence given by the 1st and 3rd appellants. Then it was said in respect of the 1st appellant that there was a material irregularity in the course of the trial in that counsel for the prosecution alleged in his opening address to the jury that a palm print found on a knife left near the room 1175 Hong Kong Hotel was traced to the appellant prior to the appellant's arrest thereby, so it is submitted, indicating to the jury that the 1st appellant had a criminal record. It is to be observed that although counsel for the prosecution made such a statement in his opening speech there was no evidence of this before the jury; only counsel's opening which of course is not evidence. No objection was taken to that opening at the time; no application at the time was made for a retrial. At a much later stage in the trial an application was made for retrial by counsel for the 2nd and 3rd appellants on other grounds and almost by way of comment counsel for the 1st appellant who incidentally was not counsel appearing for the appellants today, got up and pointed out that these matters had been said by counsel for the prosecution in opening but he did not expressly apply for a retrial and none was granted. In our judgment such a remark, sandwiched as it was amongst so many other remarks in counsel for the prosecution's opening could not have had the prejudicial effect contended for by counsel for the 1st appellant. Moreover, it is in our judgment in any event far too late to take that objection. It should have been taken, if at all, at the trial.

13. So then I go on to consider the 2nd appellant's grounds which are that there was a failure on the part of the learned trial judge to direct the jury adequately or properly as to the 2nd appellant's right not to give evidence. He dealt with this on page 3 of the summing up and it has to be remembered that this was a case in which the 2nd defendant by his counsel vigorously contended the admissibility of his statement in cross-examination but thereupon elected not to give evidence himself in the witness box and it was against that background that the learned judge made the remarks he did and he said this:-

"The 2nd accused chose not to give evidence, and you will make of that fact what you will. All that I must say about that is of course that we do not know what his story is, he hasn't told us and his counsel very rightly didn't purport to tell you what his story was when he gave his final address, and you can only decide in his case upon your evaluation of the evidence of the prosecution witnesses as they emerged after being cross-examined."

14. The sentence that is complained of is "and you will make of that fact what you will". It may well be that the judge in making that observation was referring to the conduct of the trial on behalf of the 2nd defendant in making this attack on the police officers with regard to the statement that they said he had given and then not giving evidence himself. Of course in one sense it is not for the jury to make anything of the fact that an accused had not gone into the witness box at all because he is not obliged to do so and Mr. Mayne for the 2nd appellant relies on the case of Reg. v. Pratt⁽¹⁾ where the judge said:-

"you might have thought that Pratt would have gone into the witness box and told you what he had been doing and explained his actions and seen fit to give his version on oath and to allow you to have the opportunity of seeing him cross-examined so that you could assess his evidence. He has not chosen to do so. So you have not heard from Pratt and he has not seen fit to answer the evidence in this case. It is a matter for you as to what inference you draw."

And on those remarks the Court of Appeal quashed the conviction because they were of the view that the effect of what was said suggested that the jury could infer guilt because the defendant had not given evidence. But nevertheless it is open to a trial judge to make comment about the fact of an accused having not given evidence and in R. v. Sparrow⁽²⁾, all the earlier decisions were reviewed and it was stated that what is said must depend on the facts of the particular case and in that in some cases stronger comment is called for than in others. The judge must exercise discretion in ensuring that the trial is fair and his discretion is not to be fettered by laying down rules for its exercise. We are not satisfied in this case that what the judge said in any way rendered the trial unfair nor are we satisfied that the words "and you will make of that fact what you will" were in any way prejudicial to the 2nd appellant. In our judgment therefore that ground of appeal also fails.

15. So far as the 3rd appellant is concerned there are two linked grounds of appeal, namely that the learned judge directed the jury that they might find the last two pages of the 3rd appellant's alleged cautioned statement and in particular the matters contained in page 11 of that statement were totally damning if true when in fact there was equivocation in the 3rd appellant's answers on page 11 of the statement as to the extent of the joint enterprise, and also that the learned judge failed to direct the jury adequately as to the basis on which the jury should consider whether the 3rd defendant was part of the joint enterprise involving the 1st and 2nd appellants. What page 11 of that statement said was as follows:-

And then there were discussions about how the money was to be divided up. They were indeed damning words so far as the 3rd appellant was concerned.

16. The learned judge dealt with this question of the involvement of the 3rd appellant in two places. He said at page 7 of the summing up:-

"As Crown counsel told you, the ambit of the crime of murder includes persons who are parties to a plan to kill or to do grievous bodily harm whether they are present at the infliction of the harm or not, provided that what was done was within the scope of what had been agreed by the various participants. So that if three persons decided that somebody was to be robbed and that two of them were to go and do it and they were to take knives and they were to do whatever they thought necessary if they met with resistance in the way of using those knives, not only the two persons present but the third person who was part of the plan and stayed behind would be equally guilty of murder."

And then later he dealt with this matter again when he was dealing with the 3rd appellant's statement "of course, that last few pages of the 3rd accused's statement, if true, are totally damning". And then he read the statement out, then he said this:-

"You have got to make your minds up about these very serious allegations that are being made. The Crown says that this 3rd accused knew perfectly well that highly dangerous weapons were going to be taken on a robbery, and might be used if necessary to effect the robbery or to effect an escape, and that that might involve doing very serious bodily harm, if not worse."

Pausing there, although the learned trial judge does not say so explicitly, it was of course the Crown case that the 3rd accused was guilty of murder and it was perfectly clear and must have been perfectly clear to the jury that the learned judge was referring in that passage to murder. And he goes on:-

"If you thought that the 3rd accused knew that these weapons were being taken on a robbery, but that they would not be used to do serious harm, but only to do rather minor bodily harm, something less than serious bodily harm, you could convict him of manslaughter."

I pause there to say that that then is the second tier manslaughter, then he goes on to deal with the third tier.

"If you thought that he only imagined they would be used to threaten, if you could believe that, then I think you should acquit him on the murder charge altogether, and of course, you would be free to convict him on the robbery charge."

That we think was unduly favourable to the accused because if he knew and agreed that knives would be used to threaten and they were used but more was done then he would be guilty of manslaughter. Perhaps those words are not as felicitously expressed as they might have been. But in our judgment and bearing in mind the previous direction to which I have earlier adverted with regard to the necessity for knowledge and agreement in the mind of the 3rd appellant before he can be found guilty of murder, taking it as a whole that direction is not objectionable and was not in any way confusing to the jury nor were they confused because in fact they did find him guilty of murder. It is of course the appellant's intention that was relevant and that is why we say when the judge expressed himself "If you thought that the 3rd accused knew that these weapons were being taken on a robbery but that they would not be used to do serious bodily harm", of course it ought to read

"He knew or thought that they would not be used to do serious harm."

But nevertheless taking the matter as a whole it is perfectly clear what his intention was with regard to directing the jury and the direction as a whole we find was quite clear. In those circumstances that ground of appeal fails also.

17. There is one final ground of appeal which I have left until last and it is one which is relied on by all the appellants namely that the verdicts of the jury against each one of them were unsafe and unsatisfactory. In view of the fact that this Court has found nothing in any of the grounds of appeal which have been advanced before us there are no grounds for our saying that the verdicts of the jury were either unsafe or unsatisfactory. For these reasons the appeals of all the appellants against conviction are dismissed.

Representation:

Ronald Mayne (D.L.A.) for the 1st and 2nd appellants

Ronald Mayne (Lau, Chan & Ko) for the 3rd appellant

F. Wong for Crown/respondent

(1) [1971] Crim. L. Review at p.234

(2) [1957] Crim. App. Reports 352