HKSAR v. Lo Yau Fuk
Read the full judgment text of CACC 355/1997 on BabelCite. This Court of Appeal judgment was delivered on 3 July 1998.
1. The applicant applies for leave to appeal against his conviction for murder. He was convicted not only of murder but also of robbery and preventing the lawful burial of a corpse on 3 June 1997 after a lengthy trial before Yeung J and a jury.
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CACC000355/1997 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL 1997, No. 355
------------------------------------- Coram: Hon Mortimer, V.-P., Rogers and Stuart Moore, JJ.A. in Court Date of Hearing: 5 June 1998 Date of delivery of Judgment: 3 July 1998 ---------------------- J U D G M E N T ---------------------- Mortimer, V.-P. (giving the judgment of the Court) : 1. The applicant applies for leave to appeal against his conviction for murder. He was convicted not only of murder but also of robbery and preventing the lawful burial of a corpse on 3 June 1997 after a lengthy trial before Yeung J and a jury. The facts 2. It was a gruesome murder. The victim, Madam Chan, was an insurance agent who had been introduced to the applicant in September 1995 with a view to him buying a policy. He never did so. He was unemployed. 3. At the end of January 1996, the applicant had a gun and some handcuffs at his home. It was a .22 hand gun converted from a starting pistol. The barrel had no rifling so that the missile when fired did not maintain its axis. He tested the gun by firing it into some fibreboard sheets. These were later examined and the unusual behaviour of the missiles was noted. 4. On 3 February 1996 the applicant went with Madam Cheung, his girlfriend, to Lantau for the weekend. On the ferry, he produced the gun and asked her to put it in her rucksack. When asked by Madam Cheung about the gun, he said it would be useful and she was not to ask further questions. She saw the gun again when she and the applicant went for a walk on Lantau. He had it in his waistband. 5. The applicant returned from Lantau on the evening of 5 February and stayed that night at his home. He left again on 6 February and at about 12.20 pm he, accompanied by the victim, boarded the ferry for Lantau. The victim never returned. 6. When later interviewed by the police, the applicant said that he had lured the victim to Lantau in order to rob her with his accomplice, Cheung Moon-keung. For this purpose the accomplice rented a flat where the victim was handcuffed and robbed. He said it was Cheung Moon-keung who killed the victim by shooting her in the head to prevent her from giving evidence. He had tried to dissuade Cheung. 7. About $5,000 was taken of which the applicant received $3,000 and the accomplice the balance. 8. After the murder, Cheung dismembered the body. The parts were put in black plastic bags and transported in a van borrowed by Cheung but driven by the applicant to the vicinity of the Po Lin Monastery. The bags were thrown down a hillside. Later, the applicant took the police to that place and the body was recovered. The evidence 9. In summary, the evidence against the applicant at trial consisted of:
10. The applicant did not give evidence at trial. His defence was that he was involved in the robbery and disposal of the body with his accomplice, but that he was not a party to the killing which was carried out by the accomplice in spite of his protests. This defence was advanced in a video interview with the police. The application 11. The substantial ground of appeal which the applicant, through his counsel Mr Stirling, seeks leave to argue is that the applicant's confession to presence at the killing in the video interview on 15 February 1996 and admissions the following day during the video reconstruction were inadmissible because they were the consequence of oppression from prolonged, aggressive and repetitive questioning and of inducements offered. 12. The judge considered this evidence on a voir dire. There were video interviews and a video reconstruction. The first interview took place on 14 February 1996. The applicant made no confessions during this interview. The second interview on 15 February 1996 started at 6.18 pm and ended at 8 pm. The reconstruction was from 11.56 am until 4.26 pm on 16 February. There was a final interview between 9.44 pm and 10.43 pm on the same day. 13. Mr Stirling's submissions concentrated upon passages in the second interview which we set out:
This passage was followed by repeated denials. Then at answer 898:
There followed the challenged admissions. 14. In these interviews the police were inquiring into the whereabouts of a person whom they believed had been kidnapped. They had the video of the applicant leaving for Lantau followed by the victim. Counsel at trial submitted that the police were pursuing their first duty to discover the whereabouts of the victim for the purpose of effecting a rescue. The inducements, it was said, were offered and the questioning was oppressive to achieve this purpose which may have been justified but rendered the consequential confession inadmissible. The judge's decision 15. The judge considered this and recognised the police's duty. However, having done so, he put the right question at 605D:
16. The judge saw the video tapes of the interviews and heard evidence from the witnesses. He concluded that there was no basis for asserting that the questioning was oppressive and then said:
This passage has been the focus of Mr Stirling's submissions. 17. The judge's later findings were:
The approach to admissibility 18. When deciding the admissibility of confessions challenged as not voluntary but the results of threats, oppression or inducements, the judge must exclude them unless he is sure that they were made freely and voluntarily. On a number of previous occasions, this Court has confirmed that a judge will not be criticised for not giving reasons for his decisions on admissibility after a voir dire in spite of the urging of the editors of Archbold (1998 Edn). See paragraph 15-440:
Here, however, the judge gave detailed reasons for admitting the evidence and we must consider them. 19. As is clear from Detective Senior Inspector Chan's evidence on the voir dire, he was faced with conflicting priorities. His first was to discover the whereabouts of the victim and secondly, if her disappearance was the result of crime, to gather admissible evidence to prosecute the offender. It is no answer to a challenge on admissibility that the police were fulfilling the primary duty in order to discover the truth. The judge must resolve the issue always on the same principle - has the prosecution established so that he is sure that the confession was made freely and voluntarily? The truth or falsity of a confession is irrelevant to admissibility. 20. We are told by Mr Stirling that this conflict arises from time to time during questioning by the police under the anti-terrorism legislation in the United Kingdom. The judge's reasons examined 21. The judge had the advantage of seeing and hearing the witnesses on the voir dire and also seeing and hearing the video interviews in which the challenged confessions were made. Having posed the correct question his decision was a question of fact on the evidence. 22. The challenge was twofold. First, that the questions were oppressive to the extent that the applicant's will was sapped and secondly, that the confessions were the consequence of inducements. In either case, therefore, it was said the confessions were neither free or voluntary. Also, the combined effect of oppression and inducements was relied upon. Oppression 23. The judge found that the Detective Chief Inspector's questioning was not oppressive in the circumstances. This was a decision open to him on the evidence. There is no indication that the judge applied the wrong test or misunderstood the evidence. Mr Stirling's submissions on this must fail. Inducements 24. His main thrust, however, related to possible inducements. He submitted that there were two. First, in question 647; the offer of a "special pardon" for "his hundred per cent cooperation". And later, the offer of assistance - which seems to have been related to him seeing his girlfriend - between questions 912 and 937. 25. We repeat the judge's initial reasons:
Mr Stirling says that having made this finding, it was not open to the judge to hold that the admissions were not the consequence of inducement or oppression. 26. If the judge found in these extempore reasons that the offer of a pardon was not a potential inducement he was wrong. Further, the judge's finding that the offer of the possible pardon was made with a view to persuade the accused to tell the truth by revealing the whereabouts of the victim would render inadmissible the confessions provided that they were made as a result of the offer. 27. However, the judge went on to find that "in any event" the accused confessed because he was:
Further, he found that the accused's evidence on the voir dire that he was hoping for a pardon when he made his confessions was not true. Consequently, he held that any inducements offered had no effect. So that in spite of the inducements the admissions which followed were not made in consequence and the confessions were free and voluntary. 28. On such a finding of fact, this Court will reverse the judge only if either there is no evidence upon which he could hold that the prosecution had established the admissibility to the requisite standard, or if it is demonstrated in some other way that his finding was wrong. Conclusion on the first issue 29. The first confession followed almost immediately after the Detective Chief Inspector's offer of assistance which seems to have been related to the girlfriend. The natural inference to be drawn from a simple reading of the transcript would be that the two were related and the confession was consequential upon the inducement. But this Court must not fall into the trap of trying the issue on the transcript. The decision on admissibility is for the judge. 30. An examination of the evidence demonstrates that the applicant's case on the voir dire was that his confession was induced by the promise of a special pardon. This the judge rejected. It is obvious even from the transcript that this offer had no immediate effect. The applicant persisted in his denials. The admissions came later after the applicant said that he would like to see his girlfriend. The offer of a special pardon was a much more powerful incentive to confess than the second somewhat vague offer of assistance. As the first offer had no immediate effect and the admissions only followed the second, it was open to the judge to find as he did. It is impossible for this Court to say that he was wrong. He was in a much more advantageous position to find the facts. 31. We have examined the reasoning of the judge and the evidence in some detail because the principle that confessions will only be admitted into evidence if they are made freely and voluntarily is so fundamental to our system that it must be jealously protected and rigorously applied. However, the judge considered the voir dire with great care. He chose to give reasons. In the special circumstances of the case he was right to do so because of the apparent close relationship between the second inducement and the admission. In spite of his apparent error that the offer of a pardon and assistance could not amount to an inducement, his finding on the facts that the confessions were made freely and voluntarily is unassailable. 32. The application to argue this ground fails. Remaining submissions 33. Mr Stirling advanced a number of other grounds which he seeks leave to argue. He helpfully summarised these submissions to cover the grounds in the notice. Was the defence left to the jury? 34. He complains first that the defence was never properly left to the jury. In particular he contends that the jury were not directed upon the possibility that the accomplice Cheung was the "sudden and sole" killer. Also, he relies upon the possibility that the jury may have thought that they should ignore Cheung's role altogether as a result of the following passage in the summing-up:
But with respect, this is an impeccable direction. The jury could not have been misled by it. They were told to focus on the real issue before them. They cannot have understood that they were to ignore Cheung's acts as described by the applicant in his interview when considering the issue. 35. Mr Stirling accurately submits that the judge did not summarise the defence case in one cohesive passage in the summing-up. Ideally, this ought to have been done for the jury's assistance but they cannot have been in doubt having heard the whole of the summing-up about the nature of the defence they had to consider. Although the applicant did not give any evidence to contradict the prosecution case, his defence to murder was conveniently set out in his interview and his answer to the charge. 36. There is no basis upon which we can give leave on these submissions. Misdirections 37. Next, it is contended that the judge gave some inappropriate and unnecessary directions upon unintended killing during robbery amounting to joint manslaughter. It is not necessary to consider these submissions. They are not relevant to the question whether the verdict on the murder count was the consequence of a material misdirection or was otherwise unsafe. 38. Also challenged are the judge's directions on lies. He told the jury that in certain circumstances "lies could be evidence to support the prosecution case". The complaint is that lies in relation to the lesser charges may have been accepted by the jury as supporting the prosecution case on murder. Whereas we accept that save in a very limited category of cases, it is unnecessary and confusing to the jury to give a direction that lies may support the prosecution case and that this stricture applies with greater force when there are a number of separate counts, the judge here was careful to indicate that the jury were to act only "if you are sure that the lies are relevant to the allegation made against him but are not prompted by any innocent explanation ...". 39. This was sufficient to indicate to the jury that they were not to act upon lies relevant to one count in considering another count. The jury cannot have been misled in the way suggested. 40. With respect there is nothing in these submissions. The gun 41. There is one remaining submission which we need to consider. It is suggested that as there was no proof that the gun test-fired by the applicant into the fibreboard and taken to Lantau was the same gun which was used to kill the victim. Therefore, the evidence about the gun ought to have been excluded as its prejudicial effect outweighed its probative value. 42. This Court will rarely interfere with a judge's discretion to admit probative evidence, but leaving that aside, this evidence was highly probative and properly admitted. The gun used by the applicant to test-fire into the fibreboard had unusual characteristics. The forensic evidence showed that the victim was killed by missiles from a gun of the same calibre with the same unusual characteristics. Further, there was evidence that the applicant took the gun to Lantau shortly before the murder and was present during the killing. The evidence about the gun was an important part of the prosecution case, it was highly probative and there is no basis upon which such evidence could have been properly excluded. Conclusion 43. For these reasons the application for leave to appeal against conviction is dismissed.
Representation: Mr A.A. Bruce SC and Mr Francis Lo (DPP) for Respondent Mr William Stirling (DLA) for Applicant |