R. v. Man Bing Chou

CACC000383/1990

IN THE COURT OF APPEAL

1990, No. 383
(Criminal)

____________

____________

Coram: Silke, V.-P., Power & Macdougall, JJ.A.

Date of hearing: 8 December 1992

Date of judgment: 30 March 1993

_______________

J U D G M E N T

_______________

Silke, V.-P.:

1. The Applicant, Man Bing Chou, was on 17th July 1990 convicted, after trial before Hooper J. and a jury, of six counts of manslaughter and one count of arson. On 20th July 1990 he was sentenced to 8 years imprisonment concurrently on all of the offences. He seeks leave to appeal against his convictions.

2. All the counts on the indictment arose out of an incident on 7th July 1989 at the Sun Fook Kwok Restaurant, 89 Ma Tau Wai Road, Kowloon, when a fire was set severely damaging the second, third and fourth floors of the building in which the restaurant was situated and directly resulting the deaths of six persons whose names are set out in counts one to six.

3. The hearing of this application has an unfortunate history. The initial papers were supplied to the Director of Legal Aid, for the applicant applied for legal aid, on 8th October 1990. Further papers were asked for and sent on 30th August 1991 and 17th January 1992. A Legal Aid Certificate, assigning leading counsel and a junior, had been issued on 21st January 1991. The matter was first listed on 20th June 1991. The hearing was vacated at the request of the Director of Legal Aid. Various reminders were sent by this court with increasing frequency. The supply of additional papers was requested. The Legal Aid Certificate was discharged on 28th April 1992. The matter was then listed for hearing on 3rd June 1992.

4. When the application came on the applicant sought and was granted an adjournment for the purpose of providing himself with private legal representation. Notice to act by his present solicitors was filed on 19th June 1992 and the perfected grounds of appeal were filed on 25th August 1992. The matter was then listed for 8th December 1992 at which time this court heard submissions but reserved its decision.

5. The grounds of appeal are three in number and they are:

"GROUND 1

1. The Learned Trial Judge erred in law in directing the jury that 'lies would be evidence going to proof of' the Appellant's guilt".

"GROUND 2

2. The Learned Trial Judge failed or failed sufficiently to direct the jury clearly that:

(i) there is the important distinction between evidence to prove guilt and corroborative evidence;

(ii) they must decide not just whether the lies were told because of some 'innocent' purpose, but that they were told because of a realisation of guilt and fear of the truth; and

(iii) lies could never be evidence proving guilt but could only be used as corroboration to strengthen the inference of guilt to be drawn from other evidence."

6. The third ground is that, in the circumstances, the convictions were unsafe or unsatisfactory.

7. There was evidence from a chemist in the Forensic Science Division of the Hong Kong Laboratory, who was, and properly, treated as an expert, that the fire which caused the damage to the floors of the premises had been deliberately set. There were two seats of the fire which originated on the first floor. At the first seat a bucket was found, partly destroyed, which still contained unburnt waste soaked in paint thinner. There was some dispute between the Crown expert and an expert called by the defence, Miss Sheila Hamilton, as to whether a dropped cigarette could have initiated the conflagration. This had particular relevance to the contents of the applicant's cautioned statement to which we shall return later.

8. It was not seriously disputed that the deaths were as a direct result of the arson. The issue at trial was the applicant's attachment to the offence. There was evidence that the applicant had been on the premises on the night of the fire and had left at some time shortly before the fire came to the notice of the caretaker. The actual times of the applicant's presence and his leaving, as given by various witnesses, were, as the trial judge put it at page 49 of his summing up:

"very very approximate estimates."

He suggested to the jury that the only really safe time, of the times which were given, was that the fire notice was received in the fire station at 1:52 a.m. But while the estimates of time were approximate, nevertheless, the time span was a short one - in the region of between 1:15 and 1:45 a.m.

9. There was evidence that the applicant was a shareholder in the restaurant which had been losing money. It was suggested by the applicant that he was but a minor shareholder and that he was not fully aware of the monetary losses but he did accept, in the course of his own evidence, that he knew that there was no money available to pay the wages of the employees on 6th July. There was evidence that he was aware of the existence of insurance policies which named the restaurant as the beneficiary. It was therefore the Crown's case that the applicant had motive and opportunity.

10. The statement made by the applicant on 14th July 1989, exhibit 114, and the answer to the charge which he gave on 16th July 1989, exhibit 118, were the subject of a voir dire and were found admissible by the trial judge. The allegations made were that these statements were not voluntary statements; were not the words of the appellant and, further, that the appellant had been subjected to assaults and inducements. All these issues were fully canvassed before the jury. No complaint is taken as to the trial judge's directions in this respect.

11. The applicant had been first interviewed on 7th July. He was then interviewed again on 14th July which resulted in the first contested statement. In that statement he accepted that he was a partner of the Sun Fook Kwok Restaurant and that he knew it was insured in the sum of $4 million against fire risks. He accepted that he was prestaurant on 6th July and that he had gone to the resent at the air-conditioning engine room on the first floor - where the fire originated - alone. He stated that he had gone there to collect some shoe samples. Questions were then put to him, in particular at p.27, as follows:

"Question (11): In the statement you gave to the police at 6.00 p.m. on 7th of July, 1989, you did not say that you had been to the air-conditioning engine room on the 1st Floor of Sun Fook Kwok Restaurant?

Answer: As fire broke out in the air-conditioning engine room on the 1st Floor, I dared not mention that I had been to the air-conditioning engine room on the 1st Floor.

Question (12): How do you know that the fire first started from the air- conditioning engine room on the 1st Floor of Sun Fook Kwok Restaurant?

Answer: Ah Sh'e (Sir) I am feeling deeply conscience-stricken. I tell you frankly that on that night, when I alone went into the air-conditioning engine room on the 1st Floor to take back some shoe samples, I accidently kicked and knocked down a bottle, as the light in the air-conditioning engine room was not on. I then smelt the odour of thinner. However, I continue to pick up the parcel of shoe samples, and while doing so, I dropped the cigarette stub I was smoking onto the floor. When I intended to pick up the cigarette, I saw black smoke rising from the floor and some newspapers on the floor had caught fire. I was depressed and frightened at that moment. Therefore, I was frightened and I left."

12. The applicant was then stopped by the recording constable, Detective Police Constable Lau Shing Tim, was arrested and was cautioned. Having had the answer 12 which we have just recited read over to him, the applicant then said that he did not set the fire intentionally and repeated that it was caused by his dropping a cigarette stub carelessly.

13. One the first charge - and the charges were then murder - being put to the applicant, the applicant replied and this was recorded by the charging officer, Superintendent Lau Wai Ming, the applicant asking him to write for him:

"I understand the charge, but I did not kill people. I, at that time, drank a lot of alcoholic drinks. (I) was not in my right mind and kicked over something carelessly and there was the odour of thinner. (I) wanted to cry out, but the cigarette which (I) held in the mouth dropped onto the newspaper. I was not in my right mind and (I) left and went home. That is it. This is an accident. I did not do it intentionally."

14. In respect of all the other charges, which were then successively put to him, the applicant simply indicated that he repeated what he said in respect of the first charge.

15. The applicant in his evidence accepted that he had been at the premises leaving by 1.20 or 1.25 a.m. at the latest. He denied all the admissions particularly those contained in answer 12 and in the answers to charge. He alleged that the idea of accident had been put into his mouth by the Detective Constable Lau and this had been written down on his behalf by the constable. He himself had never given any such answer. He signed that statement only because of the beatings and intimidation which he had received. The statement did not in the main contain his words. He had been told to say the same things when he came to be charged before Superintendent Lau and he simply repeated what Detective Constable Lau had told him to say. None of it was true.

16. He had become a shareholder in Sun Fook Kwok Restaurant, holding 200,000 shares but he did not have to pay for them immediately as the shares were to be paid for out of the profit of the restaurant. He stated that he knew of a possible offer for the restaurant by an outsider priced at $1.8 million. This had come through a cook in the restaurant. There had been a discussion concerning this while he was still at the restaurant at the early morning of 7th July.

17. He accepted, when making a complaint to the Complaints against Police Officers of the treatment allegedly meted out to him by the police and surrounding the taking of his statement, that he had intimated that he could read, write and understand Chinese. But he watered that down by saying that he had a serious eye problem, that he did not know many characters but that he could read and write a little.

18. Close to the conclusion of the summing up, the trial judge said at page 61:

"Don't forget the burden of proof is on the Crown. If you believe the defendant, you must acquit on all charges. Even if you do not go so far as to believe the defendant but you are not sure of all the essential ingredients of the offences, you must acquit the defendant. Only if you are satisfied beyond reasonable doubt, in other words, that you are sure of his guilt on any count, will you find him guilty on that count."

19. The judge dealt with the issue of lies at an early stage of his summing up when outlining, generally, the issues in the case that lay for the consideration of the jury. He started those directions at page 5 by saying:

" Now, a very important part, you will appreciate, of the Crown's case in this case against this accused is based on the statements allegedly made by him when he was in police custody. Indeed, without it there's nothing much left. There is no doubt that the defendant signed Exhibit P114 many times and there is no doubt that he made the answers which appear in the answers to the charge, Exhibits P118 to 123, and signed on those documents. There's no doubt about that.

There is, however, an issue between the Crown and the defendant as to whether the defendant made the incriminating admissions in Exhibit P114 at all, and there is an issue as to whether he was coached what to say in the answers to the charges before the superintendent; and there is also an issue in the circumstances in which he came to sign all those documents."

20. The reference to "incriminating admissions" clearly stems from the fact that while the applicant had been originally charged with murder the counts in the indictment were of manslaughter only.

21. The trial judge went on:

" Now, what you've got to think about in relation to those alleged statements is whether they came from the mind of the defendant, and if so, whether they are true or false, or partly true or partly false, bearing in mind your conclusions as to the circumstances in which they were made. That is very important - bearing in mind the circumstances in which they were made."

22. The jury were then correctly told how to deal with a mixed statement and they were specifically directed that they must be satisfied that the several statements were the defendant's own statements and that they were true before they could rely upon them. The judge then went on at page 6:

"And I do tell you this: that if you were to ignore them, there just simply wouldn't be enough evidence upon which you could convict the defendant in this case. If you were to ignore those statements, then the only verdict you can bring in would be a verdict of 'Not Guilty' on each count."

23. He drew to their attention that it was a case for the prosecution that the admission that the defendant started the fire was true but that the explanation that it was an accident was a lie. Further, that the Crown had, as we have already indicated, led evidence to the effect that the fire was deliberately started.

24. And then comes the passage which is the subject of criticism by Mr. Ching Y. Wong, who with Mr. Richard Wong appeared for the applicant in this court, and is the subject of the first ground of appeal:

"Well, it's a matter for you, members of the jury, but I must direct you on the subject of lies. If you do accept the defendant had lied, you are entitled to ask yourselves, 'Why?' The mere fact that he tells a lie is not, in itself, evidence of guilt. You must ask yourselves what prompted him to do so. A defendant may tell a lie for various reasons: for example, to protect someone else or to save himself embarrassment, out of panic or confusion, or other matters of that kind. If you think there is or may be some innocent explanation for lies, then pay no attention to the fact that they are lies at all. But if you are sure that his lies were relevant to the allegations made against him and were not prompted by any innocent motive of that kind, then those lies would be evidence going to proof of his guilt. (Emphasis supplied)"

25. Mr. Saw, who appeared here but not below, for the Crown accepts that this is a misdirection but he urges us that in the light of all the evidence - and in particular of the denial by the applicant in the course of his evidence

that he was in any way connected with the fire - this is a proper case for the application of the proviso. He does not therefore adopt the same stance here as was taken by the Crown in R. v. Patrick David Wong and Yu Mo Ling, Criminal Appeal No. 433 of 1990. That had stemmed from the decision of this court in R. v. Tam Chung Shing and Others [1991] 1 HKLR 458. Both Wong and Tam Chung Shing were concerned with a direction in very similar terms to the one given here. Leading counsel for the Crown in Wong formed the view that the appeal should succeed and intimated that view to the court.

26. Briefly, the sequence of pronouncements by this court in relation to the proper direction on lies starts with R. v. Harris [1991] 1 HKLR 389 where it was said at page 399:

"It is not suggested that he [the trial judge in Harris] considered these lies of themselves to be probative of guilt. Lies can in conjunction with other evidence tend to support an inference of guilt. They can support it in the sense that they can confirm or tend to support other evidence which of itself is indicative of guilt."

27. Then came Tam Chung Shing where, of a direction which contained the phrase "then those lies would be evidence going to prove his guilt", the court said:

"Again while the passage started out with a perfectly proper direction that portion of it emphasised is, at best, ambiguous. On its face it is in direct contrast to the passage's opening. It was not open to the jury to find that lies by themselves would be evidence going to prove guilt and it is possible that they may have been misled."

28. That is precisely the type of passage which we have for consideration here.

29. But we note that the judgment in Wong went on at page 8 to say:

"The appeal in Tam Chung Shing was not allowed on that ground alone. There were other matters which drove the court, with reluctance, to consider the conviction to be unsafe and unsatisfactory."

30. In fairness to the trial judge it should be emphasised that this particular form of direction comes from specimen directions issued by the Judicial Studies Board in the United Kingdom and which have been circulated for the assistance of judges in Hong Kong. It is unfortunate that these specimen directions, many of which do not reflect either the law or the practice in Hong Kong, have had such a wide circulation. This is not the first appeal which has had to be considered by this court resulting from the incorporation of certain of those specimen directions in a summing up. We very much hope it will be the last.

31. In our judgment, Mr. Saw was entitled to take the stand he did. This was the only reference made to lies in the course of the lengthy summing up. We are not unmindful of Mr. Ching Wong's second ground, not developed to any extent in argument before us, but have formed the firm view that if the direction which he suggests should have been given by the trial judge that is: lies as corroboration strengthening an inference of guilt to be drawn from other evidence: this would have been to the disadvantage of the applicant. Lies as corroboration did not enter into this matter. No such consideration arose. In any event, it was the case for the Crown that these lies, if the jury so found them to be, were an attempt at confession and avoidance. They were not, it would appear, advanced by the Crown - if the jury found them to be lies told because of the realisation of guilt and fear of the truth - as being corroborative of the inferences to be drawn from the rest of the evidence. This we can understand in the light of the appellant's specific denial in evidence of being in any way associated with the starting of the fire.

32. The jury had the benefit, as we have indicated, of hearing the applicant and of assessing his credibility. It is Mr. Saw's submission that the use this jury could make of lies was very limited. The evidence given by the applicant on oath was wholly inconsistent with the case for the Crown and with the contents of the statements. It was a matter for the jury to believe or disbelieve his evidence. In any event, the forensic evidence made it quite clear that the fire was started deliberately. Whatever may have been the difference between Dr. Wong for the Crown and Miss Hamilton for the defence as to whether or not a dropped cigarette could have caused the conflagration, that deliberateness was manifest. Mr. Saw goes on to suggest that the Crown's case was cut and dried and that the sole issue for the jury was whether the applicant had started the fire.

33. Each case depends on its own circumstances and we have in mind particularly the decisions in Tam Chung Shing and Wong. We accept that the trial judge did lay emphasis on the importance of the statement of 14th July and on the answers to charge. This he was certainly entitled to do.

34. The judge directed the jury that the statement in which the applicant admitted starting the fire was an important part of the Crown case. If they rejected the innocent explanation - accident - then they were left with an admission that he had started the fire which without else was an admission of guilt. The lies, if established, removed the innocent explanation. They were not lies peripheral to the central issue. Lies in such circumstances do not prove guilt but, once the jury is satisfied that they are lies thereby removing an innocent explanation of the act which constituted the offence, a finding of guilt will almost certainly follow.

35. These were, as we have said, not lies as to peripheral matters, as were the lies in Tam Chung Shing. While it was wrong to say that they were evidence going to proof of guilt it would not have been wrong to have told the jury that if they were sure that the applicant had lied when giving the innocent explanation that he had accidentally started the fire then they were entitled, if they accepted his admission that he did start it, to be satisfied as to guilt. The jury were clearly satisfied, as they were entitled to be considering all the evidence, that he lied in his innocent explanation.

36. In all the circumstances here, we do not think the situation to be the same as that which pertained in Wong. We do not think that the undoubted misdirection made these convictions either unsafe or unsatisfactory in the sense that it occasioned any miscarriage of justice. In the event, we would grant leave to appeal, treat the hearing of the application as the hearing of the appeal but dismiss the appeal.

Representation:

Ching Y. Wong, Esq. and Richard Wong, Esq. (Paul T.S. Lam & Co.) for Applicant

D.G. Saw, Esq. for Crown/Respondent