Tsui Shing-yau and Another v. The Queen

CACC000364/1981

BETWEEN

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Coram: McMullin, V.-P., Li & Silke, JJ.A.

Date: 23 March 1982

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J U D G M E N T

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McMullin, V.-P. :

1. The two appellants were convicted, after trial by jury upon a single charge of murder. There is a triad background to the case. The case came to the notice of the police when the body of a person, who has been referred to throughout as 'Ah Luk' was found on a pathway in an area known as Cheung Hang Village. Subsequently, both appellants were arrested and both of them made statements under caution to the police.

2. The Crown case rested principally upon these statements which, in the case of the second appellant, amounted to a confession to the killing and, in the case of the first appellant, to an admission that he was present in the area and had struck blows with his fists against the deceased although he did not, in that statement, admit to being present at the time the deceased was killed.

3. This evidence was supported to some extent by one prosecution witness, named 'Ah Kwai'. It was he who gave the background to the case. That background discloses that a person called 'Ah Wun' had given Ah Kwai, who was an employee of some kind in his service, a sum of $18,000 to purchase dangerous drugs from the deceased.

4. Ah Kwai told the court that he had given this money to the deceased, deducting first a sum of $1,500 for himself by way of commission.

5. The deceased, however, was not forthcoming with the drugs and eventually Ah Wun became convinced that the deceased was cheating him in respect thereof.

6. The evidence of Ah Kwai disclosed that at different points of time between the 15th October, when these transactions began, and the 19th October, when the killing took place, the first and second appellants entered upon the scene and took part in a series of somewhat convoluted events which, according to Ah Kwai, concluded upon the 19th October by which time the deceased and Ah Kwai were both at Ah Wun's flat in Ngau Tau Kok.

7. In the evening of the 18th Ah Kwai was, as he had been for two days previously, a prisoner at that flat.

8. He described how he had been beaten up earlier, near a quarry site, in an effort to get him to disclose the whereabouts of Ah Luk, the deceased.

9. It is needless to refer in detail to the events described by him. Clearly he was under suspicion of being in league with Ah Luk. His evidence, in so far as it supported the Crown's case concluded with his description of how he was still incarcerated in Ah Wun's flat on the 19th, when the first and second appellant left those premises together with the deceased and some other people. Ah Kwai did not see him again.

10. Both appellants gave evidence. The first appellant pleaded alibi and was supported by a lady friend who said she had been with him on a shopping expedition between 8 and 11 p.m. on the 19th. The second appellant admitted having been present at the place where the deceased was killed but put the killing down to a fight between the deceased and two other men in which he did not take part.

11. Some ten grounds of appeal have been put forward on behalf of the first appellant.

12. We are indebted to Miss Toh (who did not prepare these grounds) for the expedition with which she has dealt with the case before us.

13. She abandoned the first six grounds of appeal and we have to say that she was perfectly correct in doing so. These grounds are without substance and no further reference need be made to them.

14. Of the remaining grounds, 7 to 10, she touches but lightly upon the first two, grounds 7 and 8.

15. It is clear that the first appellant, while in the custody of the police, and after he had made his original cautioned statement on the 5th November and had been charged with the offence and remanded in custody by a magistrate, was further interrogated by the police and this eventually led to the making of a second statement upon the 8th November.

16. Coupled with that, the complaint in ground 8 is to the effect that following upon that interrogation, the police officers wrongly and in breach of the Judges' Rules, conducted the appellant to show them the place where the body of the deceased had been left on the 19th and then to another place where a knife was found which, it was alleged, had been used to kill the deceased.

17. These two grounds allege a breach of the fundamental rule against self-incrimination and Miss Toh referred also to rule 3 of the Judges' Rules of 1968. She concedes, however, very properly, that the decision of the Court of Appeal in NG Wai-ming v. R.⁽¹⁾ is authority establishing that such a practice is not wrong provided no evidence is led as to statements made when an accused person is, at the request of the police, indicating a location or an object relevant to the case.

18. Secondly, she conceded that as the Court said in that case, it is a matter of the judge's discretion as to whether such evidence should be admitted.

19. We are satisfied that there is no substance in those grounds; indeed counsel did not seek to labour them to any degree.

20. The most substantial points put forward are those in grounds 9 and 10 and Mr. McNamara concedes that at least under ground 9 there is a point to be made.

21. In the course of the final speech by Crown Counsel, he referred to the statements of the appellant and told the jury that if the judge had not decided that they were admissible, these statements would not have been before them. This reference to admissibility, which is the judge's province only, was not a proper comment.

22. The issue of the voluntariness should only be considered by the jury in respect of the weight to be attached to the statements and such a comment might convey an impression that the judge's opinion was of especial importance in that regard.

23. Miss Toh, with admirable fairness, said that although this point stands in favour of the appellant, it might not by itself be of sufficient moment to require the conviction to be quashed. She adds to that, however, something further which is the burden of the final ground of appeal, ground 10.

24. In the course of cross-examination by defence counsel, one of the police officers who gave evidence in the case was asked about the arrest of the first appellant. He disclosed that the first appellant had actually been arrested twice in connection with the present case. The first occasion was on the 2nd November and the second was on the 5th November. That is an unusual circumstance in itself but no complaint is made in respect thereof.

25. However, defence counsel pressed the witness further on this matter and was given the reply - "In all, I arrested the defendant on three occasions."

26. What counsel for the appellant says is that this may well have indicated to the jury that the appellant had been arrested on another occasion in connection with some other offence.

27. An application was made by defence counsel for the discharge of the jury on this account. The application, however, was tenuous in its nature and it was refused. The passage to which we have been referred was not, to any degree, elaborated by the witness and it is difficult to think that the jury could have jumped to the conclusion that the third arrest related to something separate from the facts of the present case, especially as there had been two arrests already in respect of it.

28. In any event, this application to discharge was only made after a break in the hearing which extended over 1½ days. The evidence being in such a small compass and being of the kind which I have described, could hardly, after that period, have left the jury with an improper impression of the nature of the third arrest.

29. The judge directed the jury on this matter. He said :

"First of all, as a preliminary point, there was mention made by one of the police witnesses that the first defendant had been arrested three times. You should not speculate why he was arrested the third time. You have been told that he was arrested, I think, on the 2nd of November and again on the 5th of November by the same police officer, and he was arrested also a third time."

30. He went on to tell them that they should not speculate on the reason for this third arrest. He warned them that they were not in possession of any facts which would indicate that the appellant had been charged with, tried or convicted upon any other offence. He added -

"it is pure speculation or guess-work if you try and reach any conclusion on that, and I direct you to ignore that evidence altogether."

31. Miss Toh grasps this nettle by saying that perhaps the effect of this direction may have been to remind the jury of that evidence and therefore to revive any prejudicial effect which it might have had at the time that that evidence was first given.

32. She concedes that her position on this evidence is confronted with a difficulty; if a judge makes no reference to such evidence at all, it can subsequently be alleged that he overlooked a point of some importance; and when he does refer to it, it can be, as it has been in this case, regarded as reinforcing an improper impression in the jury's mind. Such a situation may be the legitimate result of a failure to discharge the jury where something has gone gravely wrong and the risk of prejudice is high. But it cannot be said that such was the case here.

33. We are satisfied that these two grounds, even taken together, do not have the cumulative effect for which counsel argues.

34. The direction given by the judge was very firm and, as Mr. McNamara remarks, we might in sustaining the objection come close to holding that no direction given by a judge in respect of such improper material could ever satisfy the requirements of justice.

35. It should be added, in respect of the ninth ground, that there was a direction by the judge to correct the improper comment by Crown Counsel. That appears at page 910 of the record where the judge said -

"....... there is one other thing I would like to mention on this aspect and that is Crown Counsel suggested to you, ........ that you might be surprised that these statements were before you at all if they were not made voluntarily. Now with the greatest respect to him, he should not have told you that. You are not concerned with the question of admissibility. It is a fact that these statements are before you for your consideration; you should not speculate as to why these statements are before you."

36. That direction was sufficiently firm and clear to have left the jury in no doubt about their proper duty. We cannot simply assume that the jury would have disregarded such a warning.

37. We find, therefore, that there is no substance in the grounds advanced on behalf of the first appellant and his appeal is dismissed.

38. We did not call upon the Crown to answer in respect of the second appellant. Once again, with an admirable regard for the time of the court, Miss Toh has not sought to press the first two grounds of appeal. The third and fourth, which concern matters of minor importance, are really one ground only.

39. After the arrest of the second appellant, on the 8th November, he was taken in a jeep to the area in which the body had been recovered. On that date he pointed to place where there was a large rock and some scrub growth but said nothing, or at any rate nothing that was advanced in evidence. The Crown case was that he was pointing to the exact place in which the body had been first placed.

40. There was, it would appear, a misapprehension on the part of all counsel at this point. A soil sample had been taken from this place at an earlier stage. It was not taken as a result of what the appellant pointed out to the police on the 8th of November.

41. The body had, in fact, apparently rolled down the hill from the place where it was first put to the point of final rest where it was discovered, on a pathway below the hill on the 22nd October by some passers-by. The soil sample was taken shortly after that. It disclosed traces of blood of the same group as the blood of the deceased.

42. Miss Toh makes the point that this is not in the same category as the evidence led in respect of the first appellant who pointed out the position of the knife. That was something which was previously unknown to the police. Although it is proper, she concedes that a person in custody should be asked to locate a particular object which may be of relevance to the case and which has been mentioned in his statements after arrest and interrogation, what was done in respect of the second appellant was merely to confirm evidence the police already had in their possession by virtue of his statement which was produced at the trial. His pointing out of this general area added nothing to the prosecution case but was merely confirmatory of what had been said by the defendant already.

43. That is evidence of the kind which was reproved in TAM Wing-kwai⁽²⁾. In that case the accused had made a number of confessional statements and he was then asked to enact a reconstruction of the crime which was videotaped and produced in evidence at the trial.

44. This was disapproved in the Court of Appeal as being an endeavour to bolster the Crown's case with evidence which did not fall into the category of matters discovered by the prosecution after the arrest of the defendant and as a result of his statements to the police.

45. The court said at p.407 -

"A video-tape merely extends the record to the sense of sight and it is a record which is much more difficult to tamper with than is a tape of the sound alone. In our view such evidence may as a general rule properly be admitted. However, we think it was wrong here to try to obtain confirmation of the fourth statement in this way and we think that the sixth statement ought to have been excluded in the exercise of the judge's discretion."

46. The court found, however, that no injustice had resulted from the admission of that evidence and the proviso was applied.

47. Notwithstanding therefore that there is some validity in the point that counsel makes, we cannot think that in this case, any more than in TAM Wing-kwai⁽²⁾, can it be said that injustice has resulted from the admission of such evidence.

48. The appellant, when he indicated this point in the terrain, was pointing generally to an area in which, as the blood sample had already showed, the body must have rested. It was the sample and not his gesture which indicated the exact location.

49. In his evidence, he had admitted being present in the course of a fight, although, of course, he denied being part of it and in his statement, which was put in evidence, he admitted being one of the persons who actually stabbed the deceased.

50. We think, therefore, that although this evidence did not add anything material to the Crown's case, neither can it have detracted from the force of any defence being put forward on his behalf.

51. The appeal against conviction by the second appellant must also be rejected.

(1) (1980) H.K.L.R. 228

(2) (1976) H.K.L.R. 401

Representation:

Miss E. Toh (D.L.A.) assigned for both appellants

J. McNamara for respondent/Crown