Wong Wai Man and Others v. HKSAR

FAMC000028/1999

FAMC No. 28 of 1999

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 28 OF 1999 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 315 OF 1998)

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Appeal Committee: Mr Justice Litton PJ, Mr Justice Ching PJ and Mr Justice Bokhary PJ

Date of Hearing: 7 April 2000

Date of Determination: 7 April 2000

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DETERMINATION

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Mr Justice Bokhary PJ:

1. At their trial before Beeson J and a jury, these three applicants were convicted of murder. The Court of Appeal affirmed their convictions. They wish to appeal to the Court of Final Appeal. For that purpose, they asked the Court of Appeal to certify the involvement of a point of law of great and general importance. The Court of Appeal refused to do so. Now the applicants ask us to certify such a point and grant leave to appeal to the Court of Final Appeal. Mr Gerard McCoy SC for the applicants accepts that the most that they could obtain at the hands of the Court of Final Appeal would be a retrial.

2. As we see it, the question of law is as follows. Can the prosecution rely on differences between the confessional statements of co-accused for the purpose of refuting allegations that those confessions were concocted by the police?

3. The victim's body was never found. There were no eye-witnesses. Nor was there any scientific evidence. As against each applicant all that the prosecution had was his confession to the police in cautioned statements and records of interview. Each applicant said that his confession was untrue, had been concocted by the police and was made under torture.

4. In her summing-up the trial judge said this to the jury:

" There's one other matter in relation to the statements that you can take into account. I have told you, and I will be telling you again, that you cannot take into account in one defendant's statement what he said against other defendants. You can't look at the statements and compare them, to draw inferences of guilt against any of the defendants. However, for one purpose, you can compare the statements, and for one purpose only, and that is in assessing the question of how the statements were taken, and the question of the frameup; because the comparisons are valid in that context and in that context alone."

5. Having said that, the trial judge then gave the jury an illustration of what she meant. She did so by reference to what each accused had said in his confession as to the number of cartons used for disposing of the victim's body. These three applicants were the 1st, 2nd and 3rd accused respectively. There was a fourth accused who was convicted of manslaughter and is not before us. The trial judge pointed out that the 1st accused said in his confession that two cartons had been used while the 2nd, 3rd and 4th accused had all said that three cartons had been used. As to this, the trial judge said this to the jury:

"So you have to consider why, if the police are doing this frame-up, they allow such a major - - or what might be a major difference occur between the two statements, or amongst the three statements that they have been concocting."

6. In R v. To Kai Sui [1980] HKC 112 the Court of Appeal said this at p.117 C-E:

"A judge in a voir dire is required to look at the narrative of each confessional statement in order to judge whether or not there are similarities or inconsistencies between statements by different defendants which indicate that they were not made in the manner the prosecution say, see R v. Li Kar Wah [1970] HKLR 572, a case to which defence counsel referred the judge at the conclusion of the voir dire. We consider that a judge ought in the trial proper, when considering the weight to be attached to the confessional statement of a particular defendant, consider it together with the statements of other defendants, for the purpose of attacking but not supporting the case against the defendant." (Emphasis supplied)

7. Thus in R v. To Kai Sui, the Court of Appeal appears to have taken the view that it is not permissible for the prosecution to rely on differences between the confessional statements of co-accused for the purpose of refuting allegations that those confessions were concocted by the police. But in the present case the Court of Appeal (to which R v. To Kai Sui was not cited) held that it is permissible for the prosecution to do that.

8. The rule against hearsay is not engaged when the defence makes a comparison between the confessional statements of two or more accused. For example, in R v. Li Kar Wah [1970] HKLR 572 such a comparison was made for the purpose of showing that the similarity between the three accused's confessional statements was so striking as to suggest, as a matter of commonsense, that those statements were not made by each accused independently but rather that all the statements were, both in substance and in form, the work of a common author. (As it happens, the allegation there was that the statements had been concocted by a single officer; but the comparison exercise would be just as valid if the allegation were that the statements had been concocted by a group of officers acting together. )

9. Turning to the sort of comparison which the jury was invited to make in the present case, it may well be that the rule against hearsay is still not engaged but that the comparison is impermissible for a reason as simple as this. If the prosecution were to advance the argument that the differences suggest that the confessions were not concocted by the police, the defence could then advance an equal and opposite counter argument. This would be that if officers were wicked enough to concoct confessions, then they might well be crafty enough to work in some differences to hide their authorship. The matter would then run full circle to get nowhere in the end. It is a matter of great and general importance to have the Court of Final Appeal's decision on whether - and why - comparison exercises such as the one which the jury was invited to undertake in the present case are permissible or impermissible. It may well be possible to place this area of the law upon a simpler and surer foundation than the one upon which it appears to rest at the moment.

10. We certify the point raised by the question which we have identified. And we give leave to appeal to the Court of Final Appeal on both limbs of s.32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, i.e. both the "point of law of great and general importance" limb and the "substantial and grave injustice" limb.

Representation:

Mr Gerard McCoy SC, Mr Raymond Pierce and Miss Kennis Tai (instructed by Messrs Ng, Lie, Lai & Chan) for the applicants

Mr Andrew Bruce SC and Miss Anna Lai (of the Department of Justice) for the respondent