Li Wai Keung and Others v. R.

CACC000361/1991

IN THE COURT OF APPEAL

1991, No 361
(Criminal)

___________

___________

Coram: Hon. Macdougall, V-P, Bokhary and Mortimer, JJ.A.

Dates of hearing: 2-4 November 1993

Date of delivering judgment: 11 March 1994

_______________

J U D G M E N T

_______________

Mortimer, J.A.: (Giving the judgment of the Court) On 27th June 1991 the three applicants were convicted of murder after a trial lasting three weeks before Duffy J. and a jury. They each apply for leave to appeal against conviction. The Crown case is that the victim - a young woman - was suffocated by them in her flat in Po Tai House, Tsing Yi, after which they left her body on the staircase to simulate a robbery. All three confessed to a part in the killing in cautioned statements and individually acted out video reconstructions of the crime. The admissibility of the confession statements and the video reconstructions which followed were unsuccessfully challenged at trial.

2. In a written statement under caution the 1st applicant (A1) admitted his own guilt and implicated the other two. Later when charged he replied "I admit". The 2nd applicant (A2) confessed in a cautioned statement to his presence assisting with the crime and implicated the 3rd applicant (A3). A3 confessed in writing to his own guilt and implicated the other two.

3. Additionally A1 wrote a letter to the victim's husband to make it appear to have been a contract killing.

4. At trial A1 and A3 gave evidence. A1 denied his involvement but admitted presence at the flat. He also attempted to exonerate A2, explaining that A2 had been in the bedroom at the time of the killing and had carried the body out onto the staircase from which he assumed his involvement. He gave evidence placing A3 in the bedroom at the time of the victim's death and spoke of A3's confessions to him of the murder.

5. A3 denied his guilt, denied presence in the flat (an alibi) and denied his confessions to the police and others.

6. A2 chose not to give evidence.

The Applications

7. Each applicant seeks leave to argue a number of grounds of appeal. Having heard argument on matters sought to be advanced, there are two matters of substance on which we give leave to appeal and treat the hearing as the appeal:

(a) Whether the judge's direction to the jury on how they were to approach any lies told by any of the applicants, either at trial or before the trial, was correct and/or adequate: and

(b) Whether the judge erred in law in directing the jury that if they rejected A1's evidence exonerating A2, the "allegation" made by A1 in his statement to the police against A2 was evidence against him which could support A2's written confession.

These matters are raised in grounds (4) and (5) of A1's and A2's Notice of Appeal and in grounds (3), (6) and (7) of A3's Notice.

The Judge's Direction on Lies

8. The judge directed the jury on lies as follows:

"The 3rd defendant denies that he was even at the scene. The 1st defendant denies that he laid a hand on the girl. Both said many other things in their evidence, and of course, there are the interviews of all three by the police. If you conclude that any of these defendants, or all of them, was lying, you 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."

9. The appellants contend that this direction is insufficient because although the jury is told not to convict simply because of any lies it is also instructed that it may ask why the defendants are lying, and then is not given any assistance as to how it should approach the many lies obvious in the evidence. In particular it is submitted that in the circumstances the jury may have relied upon lies as evidence supporting other evidence of guilt in the prosecution case when those lies, or some of them, would not satisfy the tests in R. v. Lucas [1981] QB 720. So, it is said it was incumbent upon the judge to give a full "Lucas" direction and he failed so to do. See R. v. Goodway (unreported) 92/4559/22 in the English Court of Appeal.

10. Mr Saw for the Crown submits that the prosecution never relied upon lies as evidence supporting the prosecution case but only as reflecting upon the appellants' credibility. So, he says a full "Lucas" direction was not required and the judge's direction was sufficient and fair in the circumstances. Further he submits that R. v. Goodway is not binding on this court and should not be followed.

11. R. v. Goodway (above) was an identification case. The appellant admittedly lied on relevant matters in police interviews. The prosecution relied upon those lies in support of identification and other evidence of the appellant's guilt. The judge reminded the jury of this and implicitly left the lies to the jury as relevant not only to credibility but also as support for other evidence of guilt. However he gave neither a "Lucas" direction nor any indication as to how the jury should approach the lies. The Court held in accordance with prior authority (lies supporting identification evidence) that a "Lucas" direction ought to have been given and allowed the appeal. But the court then considered whether a full "Lucas" direction was required in every case where lies are relied upon by the Crown, or may be used by the jury, in support of other evidence of guilt - not only for corroboration or in identification cases - as opposed to being relevant merely to credibility. Having reviewed relevant authority Taylor L.C.J. said at p.11:

"In our view there is no reason in principle or logic for drawing a distinction between corroboration and identification cases and any other case in which lies may be relied upon in support of prosecution evidence. Accordingly we consider ... that a "Lucas" direction should be given, save where it is otiose as indicated in Debar, whenever lies are, or may be, relied upon as supporting evidence of the defendant's guilt."

12. 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.

13. 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.

14. As lies or allegations of lying are a common feature of criminal trials the directions which trial judges must give raise points of considerable practical importance. This has been fully - if somewhat belatedly - recognised in Goodway and the authorities therein reviewed. However, the principle must not be purposelessly extended. Taylor L.C.J. did not mean by the words 'or may be' in the passage 'whenever lies are, or may be. relied upon' that the judge is to indulge in a guessing game as to what view the jury will take and on this basis decide what direction is necessary. Relevance is a question for the judge. Lies are relevant to the maker's credibility, or to support other evidence of the maker's guilt, or to both.

15. The recognised danger is that a jury may become confused and wrongly assume that all lies are relevant to support other evidence of guilt unless properly directed. Fairness requires that juries should be left in no doubt as to the relevance of lies. In cases where there may be doubt necessary directions are given on the issues to which lies are relevant and often - for the sake of clarity - on the issues to which they are not relevant. Once the relevancy of the lies is ascertained there is no difficulty in determining the directions on the approach to them which must follow. These are designed to indicate to the jury the ways in which it is open to them to act on lies they find proved. If the lies are relevant only to credibility the jury should be given the usual simple warning that an accused may lie for many reasons other than guilt. But if it is open to the jury to take lies into account in support of other evidence of guilt, then full "Lucas" directions are necessary.

16. The passage complained of must be considered in context. In this part of the summing-up the judge directs the jury on character and credibility. It deals with the relevance of lies only to credibility. Nowhere does the judge suggest that lies were relevant other than to the maker's credibility. It was not open to the jury to treat them otherwise nor is it realistic to assume it did so. This is unaffected by some ambiguity in counsel's remarks when addressing the jury. It is within the judge's province alone to determine relevance. On this the summing-up is clear. Further, the judge properly warns the jury that lies are told for many reasons other than guilt and the maker must not be convicted simply because he has lied.

17. In all the circumstances this was a fair and necessary direction which could not have misled the jury.

18. This ground of appeal fails.

The Judge's Directions on Statements by a Co-Accused

19. A2 contends that the judge misdirected the jury that it was open to them to consider an allegation against him in A1's statement to the police as support for his admissions in his confession statement Ex.66.

20. The passage complained of is at pp.36G to 37G. It is necessary to set out the whole of it:

"So far as the 2nd defendant is concerned, there is also the evidence of the 1st defendant which puts him at the scene. But in his evidence the 1st defendant also conceded that he had said to the police that the murder had been committed by the 2nd defendant and 3rd defendant. He explained that so far as the 2nd defendant was concerned, by saying that he knew that the 2nd defendant helped to move the body out of the flat, and so thought he was involved. Well, what do you make of that explanation, members of the jury? If you reject it, then you are left with a piece of evidence available against the 2nd defendant, being an allegation from the 1st defendant that the 2nd defendant committed the murder along with the 3rd defendant.

Of course, keep in mind what I said about any defendant's evidence about their co- defendants, and how you must be careful about accepting it, because of the danger that each defendant might well be serving his own best interests, rather than telling the truth. The 1st defendant's evidence about the events in the flat exonerate the 2nd defendant, and put all the blame on the 3rd defendant. You must make what you can of all that. I will deal with the 1st defendant's evidence later. For the moment, I tell you that if you decide not to rely on exhibit 66 you should acquit the 2nd defendant. It would not be right to rely on an allegation about the 2nd defendant made by the 1st defendant which he has later withdrawn. In other words, I direct you, you must not convict the 2nd defendant simply on the strength of that allegation alone. By all means, if you think it right, allow the allegation to confirm what you believe to be true of exhibit 66, but you cannot convict the 2nd defendant on that allegation alone if you choose not to rely on exhibit 66."

It follows earlier and clear directions at p.211-221 that one accused's statement is not admissible against another including:

"... when you come to deal with one defendant you should put the statements of the other defendant's aside. ... you should not be looking at them or consider them at all."

21. It is not immediately obvious to what part of the evidence the judge was referring when he used the words "the allegation" on p.37 in the passage quoted above. The case was argued on the basis that this was a reference to the allegation that the murder was committed by A2 and A3 in A1's statement Ex.58 and the transcript shows that A1 accepted in his evidence that he said the words recorded in Ex.58:

"Sir, you don't have to ask me (again) I'll tell you this matter. That case of murder was committed by Jackie (and) Key Tang" (A2 and A3)

In his evidence at trial when asked why he told the police it had been done by A2 as well as A3 he said (p.660C)

"That was because at the time of the incident I was inside the room, and saw the two of them there."

Also, at 705B to G.

"Q. Did the 2nd accused at any time seek to convince you that he was not involved?

A. At the time he said that he did not know why the game had ended up in such a state. He was merely standing there, watching them playing.

Q. Why, then, did you say to the police that the murder was committed by Jackie and Key Tang?

A. That was because Jackie told us that it was he who did the killing. As for Key Tang, he gave assistance in moving the body to the rear staircase.

Q. Moving the body to a rear staircase is different from killing, isn't it, somewhat?

A. But in my mind I thought that it seems that he had assisted him in doing it."

22. In other evidence, although A1 maintained that the passages in Ex.58 describing the killing and A2's part in it were inserted at the instigation of the police, he asserted that A2 was present in the room with the 3rd defendant at the time of the killing and helped A3 to move the body.

23. This was the background to the 'allegation' to which the judge was referring. Of course, the jury could not consider the evidence of A1 that he told the police that the murder was committed by A2 without considering also his explanation - even if the jury were inclined to reject A1's evidence (as they did) that he was outside the room and saw nothing of the killing.

24. The issue is whether having rejected the explanation "the allegation" itself was admissible evidence against A2 available to confirm A2's confession. This evidence given by A1 against A2 amounts to A1 saying "I agree I told the police that the murder had been committed by A2. I did so only because he was in the room with A3 at the time of the killing and I saw him help A3 carry the body out to the staircase."

25. Earlier in the summing-up at p.23M-P the judge said

"...Although that account did not appear to be consistent with the statement to the police which he adopts in his evidence, and so is evidence in the case, that it was the 2nd defendant and the 3rd defendant who committed the murder, remember that is what he said, members of the jury, when he first decided to make a statement. .."

It is apparent that the judge - and it would seem counsel as well - mistakenly thought that A1 had adopted the "allegation" in evidence against A2; that is that A1 not only agreed that he used the words but also testified that they were true. The transcript does not bear this out. A1 never conceded the truth of the allegation. He said the explanation was true. If the jury rejected the explanation the bare allegation made in A2's absence which A1 testified not to be true was not evidence against A2. Absent the explanation there was no evidence left against A2. The directions to the jury:

"Well, what do you make of that explanation, members of the jury? If you reject it, then you are left with a piece of evidence available against the 2nd defendant, being an allegation from the 1st defendant that the 2nd defendant committed the murder along with the 3rd defendant.

and

"By all means, if you think it right, allow the allegation to confirm what you believe to be true of exhibit 66......"

are wrong in law. They could also be said to be artificial and unnecessary.

26. This is a serious misdirection. A2 did not give evidence. He was entitled to have only admissible evidence considered against him, however remote his apparent chance of acquittal.

27. In the particular circumstances of this case however the point is itself artificial. The jury did reject the explanation. They found that A1 was not observing outside the bedroom at the time of the killing - as he would have the jury believe - but was inside taking part. The judge's misdirection is hedged with warnings and falls to be considered with the firm and proper directions given on the non- admissibility of a co-accused's out-of-court statements.

28. As the misdirection is on the evidence a wrong decision of law leading to a material irregularity prima facie A2 is entitled to succeed. The Criminal Procedure Ordinance Cap.221 s.83(1) reads:

"... the Court of Appeal shall allow an appeal against conviction if it thinks -

(b) that the judgment of the court of trial should be set aside on the ground of a wrong decision on any question of law, or

(c) that there was a material irregularity in the course of the trial ..."

29. The next question for our consideration is whether in spite of this the court ought to apply the proviso and allow the conviction to stand on the basis that "no miscarriage of justice has actually occurred.". The test can be simply stated - on the admissible evidence would a reasonable jury properly directed undoubtedly have convicted? Stirland v. DPP [1944] AC 315, 321 applied in R. v. Edwards(1983) 77 Cr.App.R. 5.

30. This question we answer without hesitation. The "allegation" as left to the jury had minimal weight whereas the totality of evidence against A2 was overwhelming. Not only did he clearly confess but this was supported by a video reconstruction and other evidence placing him at the scene assisting. Despite the misdirection by the judge this is a case where without doubt a reasonable jury, if properly directed, would on all the evidence have convicted. We apply the proviso and dismiss this ground of appeal.

31. Although it forms no part of our reasoning, as did the Court in R. v. Edwards (above) p.8, we take some comfort from the fact that counsel for the defence failed to draw the misdirection to the attention of the judge. He has no duty to the court to do so. But it was his duty to act in the best interests of his client. If the impact of the misdirection had been of importance undoubtedly he would have raised the matter discreetly with the judge at the end of the summing-up.

32. In related submissions (ground 6) Mr Chandler for A3 contends that the same passage coupled with others relevant to his client's case may have led to the jury to think that it was open to them to consider the allegations in his co-accused's statements as evidence against him. For example at p.37 K-M the judge said:

"His account of the events leading up to the death of Hung Lai-kwan is somewhat different from the accounts given by both the 1st and 2nd defendants in their interviews."

This comparison is, in our judgment, no more than narrative which also must be read in its full context. There is no sound reason for suggesting that the judge misled the jury in the manner suggested. His directions on the evidence against A3 were unequivocal and fair.

The Challenge to the Admissibility of the Confession Statements by the 1st and 2nd Applicants

33. We turn to Mr MacKenzie-Ross' submissions that the judge was wrong to admit the confession statements of the 1st and 2nd applicants.

34. In so far as this Court has been invited to reconsider the judge's decision on the facts and the evidence he heard we reject these submissions as being without substance or merit.

35. Additionally the Court was invited to consider exchanges between judge and counsel in the course of argument and conclude that the judge misdirected himself, for example, by taking into account the truth of some of the statements made by the applicants in deciding whether or not they were made voluntarily.

36. These submissions are also without substance. The judge gave short reasons for his ruling. They appear at p.1288T of the transcript. He began in this way:

"I have given the evidence that I have heard in these proceedings serious consideration both on an on-going basis and in the course of counsel's submissions; and the points raised by counsel are matters which have exercised my mind throughout these proceedings. Obviously, I have now given them fresh consideration and I take them into account before I make this ruling."

The judge heard the witnesses and considered the submissions. We are unable to fault his reasoning or his decision to admit the statements. We reject the submissions made to this Court as groundless and unarguable.

Additional grounds argue which A3 seeks to

37. The principal thrust of Mr Chandler's submissions for A3 concern the judge's direction on lies and the admissibility of out-of-court statements made by his co- accused. But he seeks to argue a number of other matters. These can be summarised as a contention that A3 was not accorded a fair trial and the verdict is unsafe because additionally:

1. Prejudicial, irrelevant and inadmissible evidence was introduced which adversely affected A3.

2. That Counsel for the Crown was permitted to cross-examine on matters which amounted to an attack on A3's character; or, which the judge ought to have stopped as not arising ex-improviso and which the Crown had not elected to make part of its case.

3. That the judge failed to give the jury proper directions on the proper approach to good character and false alibi.

4. Finally that documents were introduced into evidence which were not strictly proved.

Evidence said to be inadmissible and cross-examination relating to character

38. Mr Chandler sought to mount a major attack upon the Crown's cross- examination which was designed to demonstrate A3's financial stringency before the killing and a financial motive as A3 was the beneficiary of insurance policies on the deceased's life.

39. The relevance of A3's financial situation before the killing is not in doubt. The Crown's case was that the killing was planned and executed so that A3 could benefit from the proceeds of those insurance policies. His financial position was therefore highly relevant to the proof of motive and the relevant history of events which the Crown alleged led to the killing. Often such evidence reflects upon the character of the accused. Sometimes it amounts to evidence of the commission of other offences not charged. Neither of these matters of itself is a ground for excluding the evidence although the judge has a discretion to do so. But there were no circumstances on which it can be successfully argued that the judge ought to have exercised his discretion to exclude it.

40. Nor can the cross-examination of A3 by the Crown on his financial situation be validly criticised. The applicant dealt at length with this in chief. (Incidentally he raised the issue of the cheque for $112,000 which is one matter complained of as not arising ex-improviso.) For the most part the cross-examination was conducted without objection. When objection was made by the applicant's counsel to the introduction of a document which had not been previously disclosed or put in evidence the judge upheld it (see 839M). The cross-examination included the questions (challenged in ground 4) about the applicant's general financial indebtedness (see 832 onwards). Clearly this was hostile but it was relevant and not objected to at the time.

41. Challenges to the admissibility of two specific passages in the evidence merit specific consideration:

1. The evidence of A1 that A2 had told him in A3's absence that A3 had killed for the insurance money.

Mr Chandler submits in ground 9 that the judge ought to have ruled this "inadmissible" because it was so highly prejudicial to A3 and further the judge ought not to have reminded the jury of this passage in his summing-up. This is unrealistic and wrong in law. Unrealistic. because counsel for A3 never asked the judge to exclude the evidence. Wrong in law because the evidence was admissible - even if not highly probative - against A2. In summing-up the judge referred to this in his narrative of A1's evidence. It was never suggested that this was evidence against A3 and the jury were warned about this inadmissibility of out-of-court statements of one accused implicating another.

2. The evidence of A1 that A3 said before the killing that "all women were troublesome and sooner or later he would kill them all."

It is submitted also that this evidence ought to have been ruled out by the judge and not mentioned in the summing-up. Considered out of its setting such a general statement is not admissible against the maker. It proves nothing. However, the context here is significant. The conversation reported by A1 related to the 19th January, the date of the killing. It was as follows: (p.613S-614M)

"A. He then asked me whether or not I had anywhere to go the following evening.

Q. That is the evening of the 19th.

A. Yes.

Q. What did you say?

A. I thought for a while and then I said 'No'.

Q. What did he say?

A. He then asked me whether or not I would go to Hung Lai-kwan's place to have meal. I then asked him who was going.

Q. Yes?

A. I also asked him why or for what reason we were going there to have meal.

Q. Yes?

A. He then said that he would ask Tang Sheung-chi to see if he would like to go as well. He went on to say that just then it was Hung Lai-kwan who had phoned him, asking him to go to her place to have meal the following day.

Q. Not for any particular occasion.

A. Right.

Q. Did he say anything about what he would do after he got there?

A. No. He said that he would like to ask us to go along so that it would be easier for him to leave after the meal. He did not want to be detained there by Hung for the night.

Q. Did he say anything else?

A. He then asked me if I would go. I said that I would think about it and would decide that the following day. Then, suddenly, he said that women were troublesome and said that sooner or later would kill them all."

Later (614P-Q) he was asked:

"Q. Did you think for a moment that he was serious in saying this - that all women should be killed?

A. He was not serious. Just like making jokes."

Strictly the context makes the statement admissible. However, even if the jury accepted that the words were spoken, they have little probative value.

42. Counsel for A3 at trial (not Mr Chandler) must also have considered the statement admissible because it was introduced without objection but was challenged as not having been made - both in cross-examination and in A3's evidence. Mr Saw for the Crown submitted to this Court that had counsel asked the judge to rule the words out in his discretion he would have done so. We think this likely but not relevant to the application.

43. The words were admissible. The judge was not invited to rule them out so the evidence was given. Their probative value was small. As A1 considered the words were said in jest it is unrealistic to think that they affected the outcome of the trial in any way having regard to the other evidence against A3. The point is unarguable and fails.

The Judge's directions on Character and False Alibi

44. Counsel seeks to argue that the judge failed to direct the jury fairly to take his good character into account when he invited it to compare A3's evidence with his statement to the police in assessing credibility. This is misconceived. The judge gave a full direction on character - both as to credibility and propensity - and he put A3's defence fully before the jury. He left the issue whether he was lying about the behaviour of the police in forthright terms but he was fully entitled so to do.

45. Although not raised in the grounds of appeal, Mr Chandler submitted that when the judge dealt with lies and the alibi defence he ought to have given a further direction that even if the jury found that he was advancing a false alibi this would not entitle them to convict as it is for the Crown to disprove the alibi. Again this is a submission devoid of merit. The directions are tailored to the case. Sometimes an extensive direction on the danger of an accused inventing a false alibi to bolster a genuine defence may be required. This is not such a case. The important direction is that the burden never shifts and it is for the Crown to disprove the alibi. The judge dealt with this at 58N:

"Remember though, the 3rd defendant's evidence is an alibi - that he was not there in other words. There is no onus on him to prove that. The onus is on the Crown to establish that he was there"

This was an impeccable direction.

Documents introduced into evidence not strictly proved

46. The final submission is also quite without foundation. The documents concerned were produced without objection by witnesses who could speak to them. Even the underlying facts were agreed. Some other documents were objected to and were properly ruled out by the judge.

Summary

47. Other grounds in the notices of appeal were either not pursued or simply do not merit specific mention.

48. The evidence was complex. Not only was it lengthy but there were detailed challenges by each of the three appellants to the admissibility of confession statements. There were numerous inconsistent written statements. Each took part in a video reconstruction. Additionally there was evidence of out-of-court oral statements, and finally, two of the appellants gave evidence inconsistent with their earlier written statements. It was a difficult case to handle and for the judge to sum- up. A substantial challenge to the judge's conduct of the case and of his summing- up has been mounted. In one respect the summing-up was flawed but otherwise it was careful, accurate and fair. The case against each appellant was overwhelming and on the evidence the verdicts were inevitable.

49. For the reasons we have given, the grounds fail or are unarguable. In each case the appeal is dismissed

Representation:

Mr D. MacKenzie-Ross, Miss E.C. Longmore (M/s Anthony Kwan & Co) for 1st and 2nd Applicants

Mr J.P. Chandler (M/s So & Co) for 3rd Applicant

Mr D.G. Saw for Crown/Respondent