HKSAR v. Ng Wai Man

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.309
(Criminal)

HEADNOTE

Criminal law and procedure - trial judge's refusal to stay proceedings - accomplice's pre-trial conduct and general unreliability - delay - adverse publicity.

Admissibility of evidence obtained by 'trick' - police pretending to be cell-mates - police acting as eavesdropping spectators - trial judge's refusal to exercise discretion to exclude evidence.

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.309
(Criminal)

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Coram: Chan, C.J.H.C., Power, V.-P. and Stuart-Moore, J.A.

Date of Hearing: 2 June 1998

Date of Judgment: 2 June 1998

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J U D G M E N T

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Stuart-Moore, J.A. (giving the judgment of the Court):

1. On 20th May 1997, this Applicant was convicted of murder following a trial before Leong J. and a jury. He now seeks leave to appeal against his conviction.

2. The allegation was that the Applicant agreed to pay Wong Tak-chuen (Wong) and another (Ah Fai) to kill the Applicant's wife (the victim) in return for a sum of money which would be forthcoming from a policy of insurance taken out in the sum of $1,000,000 on the victim's life.

3. The charge of murder against this Applicant was originally dropped by the prosecution at a stage before it reached the High Court on the ground that there was insufficient evidence in support of the allegation. This development took place on 20th December 1995.

4. The trial of Wong resulted in his conviction for murder on 4th September 1996. He had contested the charge on the basis that he had agreed with others to participate in kidnapping the victim but lacked the intention required to prove murder. The killing itself, according to Wong, was done by Ah Fai. This defence was in contrast to his alleged confession to police that he had joint responsibility with Ah Fai for the killing, having been hired by the Applicant to carry out this killing in return for money.

5. On 9th September 1996, Wong gave a fresh statement to police in which, broadly, he confirmed the accuracy of his original statement to police. He agreed that his defence at trial had been untrue and he explained that this had been advanced in the hope that his interviews might be excluded.

6. Pausing here, Mr. Matthews, on behalf of the Applicant, has drawn our attention in the summing up to a minor error of detail made by the trial judge, where he told the jury that this statement was made after the appeal had been dismissed. In our judgment this was of no consequence and may even have been marginally favourable to the Applicant in the way it was put to the jury.

7. On 3rd April 1997, Wong's appeal against conviction was dismissed. No reference was made by either of the parties to the appeal to the statement made on 9th September 1996 in which he had admitted for the second time killing the victim in a joint enterprise with Ah Fai. It was this statement which led to the Applicant's re-arrest after the conclusion of the appeal. The murder charge against the Applicant was entirely dependent upon Wong's evidence.

8. The Applicant's trial began on 2nd August 1997. An application for a stay of those proceedings was made at the outset. It was submitted on three grounds that it would be an abuse of the process of the court to proceed with the trial. In general terms, it was argued that a fair trial could not take place because of:

(1) Wong's conduct and his general unreliability before the commencement of the trial;

(2) the delay which had been occasioned in bringing the Applicant to trial; and

(3) the adverse pre-trial publicity caused by Wong's case in media reports and also in a lunch-time drama programme, serialized in five episodes and loosely based on the facts of this case, which was broadcast on the radio before the Applicant's trial started.

9. With this background, it is convenient to take the first ground of appeal upon which this application for leave is made. Mr. Matthews, who did not appear in the court below, has submitted that the judge was wrong in law to have asserted at page 237H-J in the appeal bundle that:

"To proceed on the basis of Wong's evidence cannot amount to an abuse of process. Neither is the delay in bringing the present prosecution against the defendant. The evidence of Wong is not such that its prejudicial effect outweighs its probative value. Whether Wong, in the light of what had happened will be believed is surely a question for the jury."

10. In so ruling, Mr. Matthews submits, the learned judge failed to apply the correct test and indeed, applied the wrong test. In considering whether there was an abuse of process, the learned judge had a discretion to exercise: it was his duty to balance the public interest in ensuring that those who are charged with grave crimes should be tried against the competing public interest of not conveying the impression that the court will adopt the approach that the end justifies any means. In particular, Mr. Matthews has submitted that:

"a) the judge was required to consider whether a fair trial was possible having regard to Wong's admitted lies before the jury in his own trial and his subsequent persistence in those lies on his appeal, together with the personal interest he had to serve in seeking a Governor's pardon following conviction. Even if the evidence was technically admissible, it should have been rejected on the ground that it would make the trial unfair, in which event the case for the prosecution would have collapsed for want of a prima facie case.

b) the judge was required as part of the balancing exercise, to assess the degree of prejudice caused by the discontinuance of the proceedings against the applicant and the delay in subsequently reinstating the charge of murder, caused by extensive press, radio and television publicity continuing up to three weeks before the trial;

c) even if a fair trial was possible, the judge had to apply broader considerations of the integrity of the criminal justice system. In particular, the judge ought to have considered the abuse to the integrity of the criminal justice system when the prosecution permitted Wong to pursue his appeal to the Court of Appeal on a basis entirely inconsistent with the statement upon which they relied to incriminate the applicant, and their failure to draw that statement to the attention of the Court of Appeal."

11. We can say at the outset that we have found not the slightest merit in the three matters raised in this first ground of appeal. The issues to be decided by the judge were matters calling for the exercise of his judicial discretion. The question for this court is whether the judge properly exercised his discretion when he allowed the trial to proceed.

12. The passage cited by Mr. Matthews at page 237 of the bundle is one extract taken from a ruling on the stay application which occupies about seven pages of transcript. It is abundantly plain that the judge had considered all the matters raised in argument. He had been referred to some of the relevant cases as to delay and as to adverse pre-trial publicity as grounds which might, in very extreme cases, found a basis to stay proceedings, and these had been taken into account. Before dismissing the application, the trial judge had said, at page 236M:

"It is accepted that there is no such principle as 'once a liar, always a liar'. That being so, whether an accomplice in a trial against a co-defendant who may at some time before have admitted that he had told a lie or committed perjury and should not be believed is a matter for the jury. An accomplice who gives evidence has always an interest to serve and that is a factor a jury, properly directed, would take into account when they come to assess the evidence. Whatever Wong did at the last trial could be ventilated at the trial against the defendant, and this will certainly be taken into account by the jury when they come to deliberate the evidence of Wong. I have not been shown any authority that such an accomplice cannot give evidence. The charge against the defendant was withdrawn because of insufficient evidence and the delay in not proceeding against him afresh until sufficient evidence is available is not the fault of the prosecution."

13. A little later, the judge went on to say, at page 237K:

"Regarding the authorities which have been referred to on adverse publicity, it suffices for me to say that these show that although delay and adverse publicity could amount to abuse of process and justify a stay, each case must be determined according to its own merits."

14. And later again, at page 240E:

"It is in the court's discretion to order a stay of proceedings, and such discretion should only be exercised in exceptional circumstances. The court has to be satisfied that the defendant suffered serious prejudice so that he cannot obtain a fair trial. I am not satisfied, on a balance of probabilities, that there was such adverse publicity generated by the reports and the radio programme that the defendant could not have a fair trial."

15. These passages, when set into the context of the detailed ruling of the trial judge demonstrate that the judge had properly considered all relevant matters before he made a ruling, in the proper exercise of his discretion, refusing to exclude evidence and permitting the trial to proceed.

16. The case before the trial judge had raised no new issues of law and was, so far as the stay application is concerned, decided by him upon well-recognized principles.

17. So far as Wong's conduct and general unreliability are concerned, the trial judge had an abundance of material on which to base his decision that Wong's evidence was admissible. Any decision to the contrary would have been truly remarkable. Clearly, Wong's evidence was a matter for the jury to consider. There was no question in the judge's mind of a fair trial being impossible because all the facts concerning Wong's "conduct and unreliability" had been disclosed to the defence. In a full knowledge of what the facts were, and with Wong in court for the defence to cross-examine, the evidence could be assessed by the jury in the normal way. There was nothing particularly unusual about an accomplice witness having been found guilty at his own trial, and subsequently giving evidence in the trial of another with whom the offence was allegedly committed.

18. As to delay, the only basis upon which it was argued that this could be a reason to stay the proceedings was on the footing that the delay permitted time for adverse publicity to be given to the case.

19. If delay is to be a proper foundation for a stay application, then it must be established in its own right as having made it impossible to hold a fair trial. Delay in the present circumstances failed altogether as a ground for seeking a stay. The Applicant could not be charged until there was evidence to support the allegation. Almost as soon as Wong's appeal was concluded, the Applicant was charged, and he was charged without delay.

20. So far as adverse publicity is concerned, one aspect of this can be dispensed with straight away. At page 238I of the appeal bundle, the judge said:

"The radio story consists of five episodes. I can here say that I have been asked to listen to them and I eventually have agreed, and I listened to all five episodes yesterday. It is a drama on a similar plot to the evidence in the case of Wong, but it is not a drama that is similar (sic) to any other such crime sequences in Hong Kong. The husband there was a man who worked in advertising business. One of the killers was a taxi driver while the other was a smuggler. These are fictitious characters and the story ended with the husband protesting his innocence when he was arrested. The story passed no judgment on whether the husband was guilty or not, nor was there anything which impliedly showed that the defendant was the husband in the plot. This programme was aired in January 1997 at lunchtime. In Hong Kong, lunch time is short and precious and how many people listened to that is uncertain and how many would have a memory about this programme is also doubtful. This was aired some time after Wong's trial so that how many would have linked this programme to Wong's trial is also dubious. The impact, if any, on any potential juror by this programme would have been minimal by the time this trial starts before this court."

21. It is perfectly true that there were media reports about Wong's trial and his subsequent appeal but the trial judge considered the effect of this. His reliance upon R. v. West, (1996) 2 Cr.App.R. 374, illustrates that he was fully aware of the principles to be applied.

22. There were other arguments that were to be advanced on this application but we do not need to consider them so far as adverse publicity is concerned.

23. We should perhaps add for clarification that the defence at the trial stage made no attempt to produce any evidence of the extent to which the publicity, such as it was, may have reached the general public. There was no foundation of any kind for the defence assertion that the public would have been so prejudiced by the publicity given to this case that no fair trial could take place. Putting no finer point on it, this aspect of the application for a stay never got off the ground.

24. It is true that the trial judge did not take into account what Mr. Matthews terms "the abuse to the integrity of the criminal justice system" by making no reference in his ruling to the failure on the part of the prosecution to refer the Court of Appeal, at Wong's application for leave to appeal, to the statement which incriminated this Applicant. We are left in no doubt that it was unnecessary for him to have done so. The question for the trial judge, as he clearly recognized, was not what effect this may have had on the Court of Appeal in Wong's case. On the contrary, it was the Applicant's case the judge was considering, and the prosecution of course made full disclosure to this Applicant of the statement made by Wong.

25. Turning now to the second ground of appeal, Mr. Matthews submits that the judge:

"was wrong in admitting the evidence of PW15 and PW16 before the jury in that it was evidence obtained against the applicant after he had been charged, by means of a trick. The evidence was relied upon by the prosecution in support of their case that the applicant was the 'mastermind' of the murder. The effect of the evidence was summarised by the Learned Judge in the summing up at page 27P as follows:

'Members of the jury, what evidence you believe is a matter for you. However, you may find the evidence of the police officers that there was a conversation and Wong's response to what the defendant was seen to have been saying to Wong may render support to Wong's evidence, but the matter is entirely for you.'"

26. The judge, Mr. Matthews goes on to submit, was wrong to rule that the case of R. v. Lee Yi-choi, (1985) 1 HKC 578, was to be distinguished on the grounds that the principle therein enunciated, is confined to confessions. The discretion, he submits, is not confined to confessions.

27. Lastly, on this ground, Mr. Matthews submits that the judge failed to consider properly and to exercise his discretion fairly to exclude this evidence which, on the authority of Lee's case in virtually identical circumstances, ought to have been excluded.

28. The evidence given by the two officers (PW's 15 and 16) needs to be set in a slightly wider context in order to make sense of this ground and, turning to the summing up to page 26I, the judge reminded the jury of the evidence in these terms:

"You have heard evidence from Wong that when he was in the cell at Kwun Tong Magistracy on 10th November 1995 after he was charged with murder, the defendant came over to him and told him to go to a corner to speak. The defendant then told him not to point his finger at him and he promised that he would have the charge changed into one of manslaughter. He also offered to give Wong $500,000 and he would take care of his wife and child until he was released if Wong did not point his finger at him. Wong told you the defendant also taught him a defence of killing in the heat of the scene made by the deceased after the deceased found out that she was tricked in order to make it a case of manslaughter. He also told Wong to ask for a remand to Lai Chi Kok so that they could discuss the matter in detail. He also showed Wong his own statement.

Members of the jury, you heard the evidence of two police officers (PW's 15 and 16) who posed as prisoners and they were in the cell at the time. They told you that they saw the defendant approach Wong and the defendant showed Wong a wad of papers which Wong read one after another, page by page.

One of the officers, PC 46571, told you he saw both talk and he heard Wong say he would think about it and that he had been 'put on the table' and the mention of Ah Fai was nowhere to be found. Later he heard the defendant tell Wong not to say anything to the lawyer.

The other officer, 47384, told you he saw the two had a conversation but he could not hear what it was about except that he heard the mention of Lai Chi Kok. Both officers did not hear anything else. The defendant admitted that he had approached Wong in the cell, but he said he only asked Wong what it was about. He was angry about Wong killing his wife. He admitted that he had asked Wong to seek remand at Lai Chi Kok but he did so because he wanted to beat Wong to death when they were remanded in Lai Chi Kok."

29. There then follows the passage which was cited in the second ground of appeal in which the trial judge commented that Wong's response to what the Applicant was seen by the police officers to have been saying might render support for Wong's evidence if they accepted their evidence.

30. Lee Yi-choi's case was concerned with a confession made to a police officer posing as a cell-mate who pretended to be a robber whose crime had led to a killing. This was done in order to obtain a confession from a suspected murderer (Lee) who had denied complicity in the offence. Lee was alleged to have then given a full account of how he had committed the murder. McMullin V.-P. observed in the course of his judgment at page 586D:

"By concealing the fact that his cell-mate was in fact a person in authority the police deprived the applicant of the opportunity to exercise this common law right and breached the English Judges' Rules of practice propounded in 1912 which normally are, and, as this court indicated in R. v. Leung & Ors (Crim.App. 964/83, unreported) certainly should be, observed in Hong Kong requiring a person in custody to be cautioned, and thus informed or reminded of his relevant right, before any attempt is made to question him in relation to the offence with which he has been charged. Their conduct made a mockery of the caution administered to the applicant on the occasions when a number of written statements had earlier been taken from him and when he was charged. This requirement is emphasized by the fact that Home Office Circular No.89/78 gives to the English police the administrative direction that when a person arrested without warrant is charged he should be furnished with a written notice containing a copy of the charge including some statement on the lines of the caution.

The foregoing considerations apart, the confession was, by any reasonable standard, unfairly procured by a person, who was in fact in authority, as a result of the trick. As Lord Goddard C.J. stated (obiter) in Kuruma v R [1955] A.C. 197 at 204:

'... the judge always has a discretion to disallow evidence if the strict rules of admissibility would operate unfairly against an accused .... If, for instance, some admission of some piece of evidence e.g. a document, had been obtained from a defending by a trick, no doubt that judge might properly rule it out.'"

31. The trial judge in the case presently before us correctly distinguished Lee's case. He recognized that the police officers had in no sense induced a confession by trick or otherwise. They had merely acted as eavesdropping spectators in a case of the utmost gravity. As Mr. Bruce, S.C., for the Respondent, has pointed out in the course of his very helpful submissions, subterfuge and eavesdropping are recognized as legitimate weapons of the police. This was also the situation in R. v Bailey, (1993) 3 All E.R. 513. The robbery suspects in that case had declined to answer questions whereupon police placed listening devices in a remand cell and recorded the words that were spoken between the suspects. Some element of deceit on the part of the police had been necessary to convince the suspects that they needed to be kept in the same cell. The English Court of Appeal held, following a line of authority, that the trial judge in that case had correctly exercised his powers in admitting the tape-recorded conversation. As Mr. Bruce reminded us not very long ago, in a passage from Bailey, Simon-Brown L.J. said, at page 523J:

"Manifestly this is not a stratagem to be used with any frequency: nothing would be more obviously self-defeating; it should be used only in grave cases. And manifestly nothing should be done oppressively or so as to render unreliable any admissions made - grounds in either case for objection under s.76 of the 1984 Act. But where, as here, very serious crimes have been committed, and committed by men who have not themselves shrunk from trickery and a good deal worse, and where there has never been the least suggestion that their covertly taped confessions were oppressively obtained or other than wholly reliable, it seems to us hardly surprising that the trial judge exercised his undoubted discretion in the way he did ........"

32. As Mr. Bruce has pointed out, there are several other reported cases in recent years which illustrate that the English courts do not regard every "trick" employed by the police in order to catch criminals as rendering evidence unfair and therefore, under the terms of the Police and Criminal Evidence Act 1984 (PACE), liable to be excluded.

33. Lord Taylor C.J. in R. v. Christou, (1992) 4 All E.R. 559 at 564, in the course of his judgment, said:

"It is not every trick producing evidence against an accused which results in unfairness. There are, in criminal investigations, a number of situations in which the police adopt ruses or tricks in the public interest to obtain evidence. For example, to trap a blackmailer the victim may be used as an agent of the police to arrange an appointment and false or marked money may be laid as bait to catch the offender. A trick, certainly; in a sense too, a trick which results in a form of self-incrimination; but not one which could be reasonably thought to involve unfairness."

34. In that case, the police had set up a shop in order to catch those who dealt in stolen goods.

35. It is unnecessary to consider other English cases which have been cited by Mr. Bruce. They are largely concerned with "unfairness" as a test for exclusion in the context of PACE and no such provisions apply in Hong Kong.

36. This court has, however, said that there is a residual discretion to exclude evidence obtained "unfairly or by trickery". (See R. v. Lam Ka-fai, Cr.App. 724/93.) There was, in the circumstances of the present case, nothing which causes us to consider interfering with the judge's refusal to exercise his discretion to exclude the evidence.

37. We are satisfied that there was nothing in the conduct of the police officers which could be described as "unfair" in the sense that it would give rise to any discretion to exclude this evidence. This ground, therefore, fails.

38. Accordingly, the application is dismissed.

Representation:

Mr. A.A. Bruce, S.C. & Mr. Winston Chan, G.C. for D.P.P./Respondent

Mr. Jerome Matthews instructed by Messrs. Wong & Partners for Applicant.