The Queen v. Yeung Kuen Chi and Another

CACC000052/1985

BETWEEN

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

Dates of Hearing:  6th & 7th August 1985

Date of Judgment: 27th August 1985

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JUDGMENT

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Li, V.-P.:

1. The 2 applicants were originally indicted for 2 counts of rape and 1 count of robbery with a 3rd co-accused. The three offences arose from the same incident which occurred on 15/10/83. It was alleged that on that day they robbed a couple, husband and wife, of $3,000 and raped the wife twice after the robbery in the victims' home at Flat 4A 1st floor Tsui Wah Court, Tai Po. At an earlier trial a 3rd accused was convicted on his own plea, sentenced to 5 years imprisonment and turned Crown witness. The present two applicants were also convicted. The 1st applicant was sentenced to a total of 14 years imprisonment. Both applicants successfully appealed against conviction in 1984 before another division of this Court and a re-trial was ordered. The re-trial took place in January/February 1985. After the cautioned statement made by the 1st applicant was admitted following a voir dire and after the opening of the Crown's case the 1st applicant changed his plea to guilty to the first count of rape and the third count of robbery and was sentenced to a total of 14 years imprisonment - the Crown offered no evidence against him on the second count of rape. The 2nd applicant was convicted after trial of all 3 counts and was sentenced to a total of 15 years imprisonment.

2. The applicants now apply for leave to appeal. The 1st applicant originally applied for leave to appeal against sentence only. On counsel's advice he now applies for leave to appeal against conviction and ask for a new trial. The 2nd applicant applies for leave to appeal against conviction and sentence.

3. Having regard to the 1st applicant. pleading guilty in the Court below and the difference in their respective grounds in support of their applications it is convenient to deal with their cases separately. At the trial in the opening in the Crown's case and in subsequent evidence given by witnesses the 1st applicant was described as the second man and the 2nd applicant as the first man. For convenience we shall refer to the 1st applicant (the second man) as D1 and the 2nd applicant (the first man) as D2.

Prosecution Evidence

4. On the 15/10/83 the victims, the husband and wife were by themselves in their own home at the above-mention address. About 6.30 a.m. the husband was coming out from his bathroom when he was confronted by an armed and hooded man (identified as D2). He yelled in surprise and quickly retreated to the bathroom to shut the door. D2 jammed the bathroom door with his knife and tried to push it open. In the meantime the wife heard the noise in the bedroom. She came out to enquire into the noise. She saw the struggle of the two at the door. Before she could do anything she felt a knife on the back of her neck and she saw the second hooded man (identified as D1) behind her. She also saw a third hooded man (the one who pleaded guilty at the original trial) to her left in front by the main door of the flat.

5. At that point the husband was subdued and dragged by the hair by D2 into their bedroom; The wife was made to crawl into the bedroom and back to the sitting room to get money for the robbers: eventually she was made to crawl back to their bedroom whilst the flat was ransacked and $3,000 was taken. The husband was put on the bed with his thumbs tied behind him, his feet tied and a blanket put on his head. The wife was told to lie down on the floor with her hands and feet tied.

6. There was an exchange of conversation between D1 and D2 and possibly the third man as well. The gist of this was whether they should rape the wife. In the event D2 said "You people go ahead. I am not interested." D2 then stood guard over her with a knife and threatened her.

7. Of the actual incident itself it is sufficient to say that the wife was subjected to a grossly humiliating, terrifying and vicious experience in the course of which she was repeatedly raped and had. sexual indignities heaped upon her;

8. It was the case for the Crown that Dl had raped her twice and that D2, whilst not perpetrating an actual rape, stood guard over her while the others did and that he assaulted her in a wholly indecent manner. In effect that he aided and abetted.

9. The main issue for the jury was the participation of D2 and what, if any, part he played in the whole grossly unpleasant incident. While all these were going on the husband said the amah they employed would arrive at 7. D2 said "It is already 7" and told the others to disperse. Before they left D2 said "Remember this, I hadn't rape you. It is not you to blame, nor I to blame, nor the society to blame. It is God's fault. Ask God to save you''. After some effort to find the keys the intruders left.

10. A report was made to the police. In the event D1 and the third man were arrested in October 1983. Each of them were positively identified by the wife in two separate identification parades on different dates. As far as these are concerned it is sufficient to say that they were identified by their voice and build - particularly the third man more by his build. D1 was also identified because he wore on parade a pair of shoes which the wife recognised as those he had worn at the time of the incident.

11. D2 was arrested. on 6/11/83 at about 4.50 a.m. in Room 404 Choi Ping House, Choi Yuen Estate and cautioned to which he made no reply. After some formality of reporting the arrest at the local police station and eventually at Tai Po Police Station he was brought into the CID room of the Tai Po Police Station. Then he was asked about a totally unrelated offence. Immediately D2 smashed his head against the wall 3 times. Then he was told that the police had reason to believe. he was involved in a rape and robbery case -the subject matter of this case. He merely stared at the wall and said nothing. When Inspector Peasley was away for awhile D2 hit his head against the corner of a desk and was bleeding. He was sent to Queen Elizabeth Hospital for observation. On the 7/11/83 Peasley informed him that it was intended to hold a number of identification parades in connection with a series of offences. To this D2 said nothing. He was discharged from hospital on 10/11/83.

12. On the 11/11/83 D2 was put on an identification parade. The nature and purpose of the parade was explained to him. He had no objection. The actors and D2 were all hooded. The wife was brought in. She walked up and down in front of the parade, then did the same behind the parade. She then asked all on parade to say the following phrases:-

All of these were phrases which she could recall as having been spoken by the "first man" during the incident. Then she asked D2 and 2 other actors to repeat 2 of those phrases once more. After a pause she identified D2 standing in No.3 position. After she left D2 was told of the result of the identification and asked if he had any objection to the way the parade was conducted to which he replied that in the course of the parade one of the members had laughed and he considered that unfair. In this connection it is only fair to mention that in respect of the other 2 parades in which D1 and the third man were identified by the wife the same set of the above-mentioned phrases were said by each of the actors and the suspects before the identification and that the husband who also took part as a witness in all 3 parades could identify no one.

13. Then on the 12/11/83 Inspectors Li and Peasley entered the cell to see D2 at D2's request. D2 was reminded that he was still under caution. There was some conversation about D2's request to his family to ask for some warm clothing. D2 then asked Peasley whether the latter could tell him how long a sentence he would serve if he pleaded. guilty. He went on to ask what charges would be laid against him. Peasley told him that he would be charged with wounding, rape and robbery. D2 then asked "If I plead guilty, will I have to serve a sentence of more than 20 years?" Peasley said that it was not his decision, but he did not think that he (D2) would get more than 20 years. D2 then asked whether D9 would give evidence against him. Peasley said this would be decided by the Attorney General and he could not give him an answer then D2 said "I have to consider it very carefully this time. I am only 29 years old. If I have to serve a sentence of less than 20 years, I still have a few years to live. But if I plead guilty and the other two got away with it, then I would look damned stupid. In fact I did not fuck the woman. The other two did".

14. There was an application to exclude this conversation from evidence on the ground that its prejudicial effect outweighed any probative value and that the statement by D2 was equivocal. The trial judge rejected this application. In our opinion the judge was correct. I shall deal with this point later.

15. Such was the evidence against D2 in the Court below. D2 elected not to give evidence and called no witness. However, it was revealed in cross-examination that the wife had never seen or heard from D2 before and that D2 had no distinctive features in his voice.

16. Counsel on behalf of D2 argued before us that as this was a voice identification the Turnbull warning and guideline is simply insufficient. The Turnbll guideline only applies to visual physical identification. The judge failed to direct the jury as to the peculiar weaknesses in this form of identification. It was established in cross-examination that D2 had not a very distinctive voice. Nor had the wife heard D2's voice before the incident. Counsel directed our attention to the case of Keating ⁽¹⁾ in which the Court of Appeal did not quash a conviction based on voice identification because the appellant had a detective palate and therefore had a distinctive voice. Similarly. in Lau Sik Chun v. The Queen ⁽²⁾ this Court allowed a voice identification to stand because a witness had heard the appellant's voice twice before. It is argued that at best a voice identification is tenuous, that the trial judge should have warned the jury as to the weaknesses of the identification and that they should not give weight to it in the circumstances of this case. He also contended that at the end of the prosecution case the judge should have withdrawn the case from the jury.

17. In this connection counsel also complained that the judge should never have allowed. evidence to be adduced that the wife had earlier made two correct voice identifications in respect of D1 and the third man. To aggravate the matter the judge directed the jury that they were entitled to rely on the correctness of the wife's earlier identifications when assessing her identification of D2.

18. Second: counsel submitted that the judge erred in failing to direct the jury that if they were not satisfied as to the primary evidence in the case i.e. the voice identification, they should ignore the corroborative evidence of the conversation with the inspectors as that by itself was insufficient to support a conviction. And further that the judge also failed to warn the jury of the equivocal nature of the conversation evidence and of the danger of placing too much weight on it.

19. Third: counsel submitted that the conviction of D2 is unsafe and unsatisfactory because the prosecution in opening alleged that D2 was the son of the victims' amah; that he made oblique reference to this in his closing address: that no evidence was called. to support the allegation; and that the Crown, improperly, were attempting to bolster the identification evidence.

20. Taking the second principal ground first we do not accept counsel's submission that the conversation between D2 and the two inspectors was not primary evidence. I have set out in full the circumstances under which it took place. I shall not repeat it.  Suffice it to say that at the time D2 spoke these words he knew what the charges were against him, he had been identified by the wife the day before and he was under caution. Having asked the question I have earlier set out D2 followed up with the remark "In fact I did not fuck the woman. The other two did" - which he might have thought to be exculpatory. We do not accept his conversation to be equivocal. It is of itself primary evidence and is capable of corroborating in the Baskerville sense. The judge was correct in his direction to the jury on this point.

21. As to the first principal ground we are of the opinion that evidence of the 2 earlier identifications should have been excluded. On the other hand these 2 earlier identifications were based on voice and build of the suspect whereas the identification of D2 was founded, as the judge put it, basically on voice.

22. In the course of the trial it was obvious to the judge that identification was one of the substantial issues. He gave a full Turnbull direction. Thus in his direction to the jury regarding the identification of D2 he said:-

Later he said:-

23. The judge did not tell the jury in so many words, to rely on the evidence of the earlier identifications in assessing the wife's identification of D2. Having warned the jury about the pitfalls of voice identification he went on in passage complained of:

"It is true, though, and in fairness to her, that she also pointed out the 1st defendant, YEUNG, and I believe, one other. Mr. Whitehouse, it was two other people she pointed out?''

Immediately following this he said:-

24. We feel that the judge should have given the jury a stronger warning more apposite to voice identification, adapting the Turnbull guideline by drawing their attention to the evidence as to how frequently D2 spoke in the course of the incident. He should have reminded them that D2 had no distinctive feature in his voice, that the wife had not heard D2's voice before and should have asked them to consider how clearly the wife could have heard the "first man" at the time and at the identification parade. However, the judge did leave the question of voice identity to the jury. It is a jury matter. Weak as voice identification maybe there was sufficient corroborative evidence. We cannot agree that the judge should have withdrawn the case from the jury at the end of the prosecution case. There was evidence fit to go to the jury. There was no application to him by counsel at trial to take that course. The judge was careful to warn the jury in the following terms:

"During my summing up, I shall offer some observation as to the quality and effect of various parts of the evidence and perhaps about the credibility of some of the witnesses and if I do so, please do remember that these are my personal views, and if you don't share them, then simply ignore them, and as part of your function, you have to try and assess the weight which you ought to give to the evidence of each witness, and this will oblige you to consider the extent to which you think each witness is truthful and reliable."

25. Finally, it is true that there was no evidence of any relationship between D2 and the victims' amah. The judge should have told the jury to ignore prosecuting counsel's remarks on the ground that there was no evidence to support it. We do not consider this to be a material non direction.

26. We are of the opinion that notwithstanding these omissions and non directions the jury would have come inevitably to the same verdicts against D2. Accordingly we grant leave to D2 to appeal, treat the application as the appeal proper and. dismiss his appeal. There was no miscarriage of justice and the proviso may be applied.

27. The application by D1 for leave to appeal against conviction is founded on different grounds. It is contended that his pleas of guilty to counts 1 and 3 were the result of "duress, coercion, inducement and undue persuasion" and were involuntary, rather over egging the pudding as Mr. Sedgwick conceded. In support were filed affirmations of D1 and of a law clerk of the Legal Aid Department, affidavits by his then defence counsel Mr. Mackenzie Ross, defence counsel of D2 Mr. Mackay and Corwn Counsel Mr. Whitehouse. In addition we have the comments of the trial judge together with the transcript as to what transpired in open Court immediately before D1 pleaded guilty. All of these were considered by the Court.

28. The following is a fair summary of the sequence of events:

29. On 24/1/85 Voir Dire proceeding relating to cautioned statements came to an end when the judge held that those statement were admissible in evidence. Before prosecuting counsel opened his case Mr. Mackenzie Ross on his own initiative asked to see the judge together with Mr. Mackay and Mr. Whitehouse. Mr. Mackenzie Ross sought an indication from the judge as to the sentence his client could expect in the event of a plea and as to what the sentence would be on conviction after trial. He informed the judge of the sentence D1 had received in the original trial. The judge pointed out that he was not bound by the sentence previously imposed and that how his client should plead was for the client to decide, and that in the event of a guilty plea D1 would receive the normal discount.

30. On the afternoon of the 24/1/85 Mr. Mackenzie Ross interviewed D1 with Mr. Choy as interpreter. He told D1 that as his cautioned statements had. been admitted in evidence he should consider pleading guilty and the Crown would drop the second count of rape. D1 insisted he would not plead guilty.

31. On the 25/1/85 the Crown's case was opened. Having heard the opening address' and impressed by the atrocious character of the incident as thus described, the judge was anxious that counsel for D1 should not enter a guilty plea on behalf of D1 with an expectation that D1 would received a much reduced sentence. He thought the case should be fought. This time the judge invited all counsel to his Chambers and told Mr. Mackenzie Ross that if the facts in the opening were proved D1 could. expect a sentence of 18 years after trial and that on a plea of guilty the sentence would be as high as 15 years depending on mitigating factors. The judge suggested that he might do better by contesting the case.

32. About noon on 25/1/85 Mr. Mackenzie Ross saw D1 again with Mr. Choy and discussed a plea with D1. On receiving a negative reply he told D1 that if D1 pleaded not guilty he would probably receive a sentence of 18 years if convicted indicating that those were his own thoughts on the matter. D1 said he would consider since the case was adjourned to 28/1/85, a Monday.

33. Over the weekend D1 consulted his wife who told him (D1) that Mr. Choy on Mr. Mackenzie Ross' instructions and said to her that it was advisable for D1 to plead guilty.

34. As a result, D1 according to himself, in a note given to his counsel, had lost all confidence in Mr. Mackenzie Ross as well as in himself. He had further told his counsel that he felt the effect of a re-trial was to force a person to plead guilty.

35. On the 28/1/85, before the first witness was called and in open Court in the absence of the jury Mr. Mackenzie Ross addressed the judge confirming the conversation in Chambers between the judge and himself. This was done in the presence of D1. Mr. Mackenzie Ross informed the judge of Dl's loss of confidence and the extreme pressure D1 felt himself to be under. The transcript reads:

"MR. MACKENZIE-ROSS : My Lord, the position is this

36. D1 said that, in the circumstances, the judge was prejudiced against him when the judge confirmed the scale of sentences. He also felt his counsel was in no mood to defend him. Hence the pleas of guilty.

37. Having regard to the aforesaid it is obvious that by the 24/1/85 Mr. Mackenzie Ross fully realised the strength of the Crown's case. He was quite entitled to advise D1, even in strong terms, to plead guilty in the hope of obtaining a discount of the sentence - provided that D1 accepted that he was guilty of the offence charged. If he did not so accept then the trial should have continued. It does not appear from the papers before us that this was ever made clear to D1.

38. He should have realised also that his then position was practically identical with that of the defence counsel in the case of Regina v. Turner ⁽³⁾.

39. In that case a plea of guilty was ruled to be nullity by the Court of Appeal on the ground that the defendant in the Court below was given the impression, albeit mistakenly, that the judge had indicated that he would impose a custodial sentence if there was a conviction after trial but impose a fine in the event of a plea. There was nothing to show that the defendant had been disabused of the impression that counsel was repeating the views of the judge. Delivering judgment of the Court Lord Parker C.J. at p325 said:-

"The matter, however, does not end there, because albeit it may be sufficient in the majority of cases if it is made clear to a prisoner that the final decision is his, however forcibly counsel may put it, the position is different if the advice is conveyed as the advice of someone who has seen the judge, and has given the impression that he is repeating the judge's views in the matter. As I have said, the court is quite satisfied Mr. Grey was giving his own views and not the judge's at all. But it had been conveyed to the appellant that Mr. Grey had just returned from seeing the deputy chairman. What was said gave Mr. Laity the impression that those were the judge's views, and Mr. Grey very frankly said that in the circumstances the appellant might well have got the impression that they were the judge's views. Accordingly one asks: was he ever disabused of that, did anything happen to show that these were not the judge's views on the case?"

Later at p327 he said:-

"The judge should, subject to the one exception referred to hereafter, never indicate the sentence which he is minded to impose. A statement that on a plea of guilty he would impose one sentence but that on a conviction following a plea of not guilty he would impose a severer sentence is one which should never be made. This could be taken to be undue pressure on the accused, thus depriving him of that complete freedom of choice which is essential. Such cases, however, are in the experience of the court happily rare. What on occasions does appear to happen however is that a judge will tell counsel that, having read the depositions and the antecedents, he can safely say that on a plea of guilty he will for instance, make a probation order, something which may be helpful to counsel in advising the accused. The judge in such a case is no doubt careful not to mention what he would do if the accused were convicted following a plea of not guilty. Even so, the accused may well get the impression that the judge is intimating that in that event a severer sentence, maybe a custodial sentence would result, so that again he may feel under pressure. This accordingly must also not be done.

The aforesaid principle was confirmed in a practice direction from Lord Widgery C.J. dated 26/7/76⁽⁴⁾

40. In view of the aforesaid authority Mr. Mackenzie Ross should have known better than to seek any indication from the judge as to sentence, and the judge should have refused to comment. He could hardly expect a probation order or a fine in a case of such nature. What is even more unfortunate is that the judge, albeit with the best of intentions, later invited counsel to Chambers and indicated the quantum of sentence he had in mind. He did not and clearly he could not resile from what was said in Chambers when his views were made known to D1 for the first time in open Court.

41. This case goes further than the circumstances of Turner. There, there was only the possibility of pressure from the judge. Here there was, through a series of misadventures, the clearest possible undue pressure of the kind Turner condemned. The plea entered in these circumstances was a nullity. If so, then the proper course for this Court to take is to quash the conviction and make an Order in the nature of a venire de novo.

Silke, J.A.:

42. I have had the opportunity of reading in draft the judgment just delivered by my Lord Justice Li. I am in respectful agreement with its conclusions and the reasoning therefor.

43. I would add only this as to Yeung Kuen Chi's application. This Court has, in the recent past, found it necessary to remind Judges and counsel that visits to the judges' chambers in the course of a criminal trial should be rare indeed. I would emphasize that by "course of a criminal trial" I mean up to and until sentence has been passed.

44. The first visit in this case was quite unnecessary. Counsel must have been aware that the only sentence which could have been passed, whether there be a conviction after trial or conviction upon plea, was a lengthy custodial one. He further must have been aware that the trial judge was not bound by any sentence previously passed upon the applicant. The fact of such sentence having been passed would be a matter to be drawn to the attention of the trial judge in the course of mitigation. Pleas of guilty normally attract a discount. Such pleas are to be encouraged for they save not only a great deal of time and a great deal of expense but, and particularly in cases of this nature, avoid the ordeal that a witness must face in retailing the events which have occurred. The Deputy Judge, with respect, should have refused to entertain any discussion about sentence. Indeed, for a judge even to go as far as to refer to the discount which is normally given upon a plea of guilty could well be thought, upon a strict reading of Turner,⁽³⁾ to amount to undue pressure.

45. The second meeting at the Deputy Judge's invitation - and I have no doubt at all that this meeting was convened with the best of intentions - resulted in the clearest breach of the Turner guidelines.

46. Once it was made perfectly clear to the applicant in open court that the quantum of sentence to which he had been referred by his counsel was a quantum which emanated from the Deputy Judge, then there was, and clearly, undue pressure. And such judicial pressure, however inadvertent or however well meaning, can nullify a subsequent plea. I further note that at neither of the meetings in chambers was there a shorthand writer present. There should have been and should always be. Again, we have had occasion to comment upon this before. It is essential that there be a record of that which transpires as between judge and counsel in chambers in the course of a trial. If, as in the District Court, no shorthand writer is available then the trial judge himself should keep a record.

47. The foregoing is not intended to create a bar upon meetings between counsel and the judge. But, as was said in Grice ⁽⁵⁾ - following Turner - on the matter of sentence:

"(1) that the only permissible communication of an intended sentence is that whatever happens about plea, a sentence will or will not take a particular form, (2) that the judge must not indicate what he will do on a plea of guilty; and say nothing about a conviction after pleading not guilty."

There can clearly be occasions when such meetings are not only proper but necessary. The confidentiality which does and must continue to exist between counsel and the judge, and the trust underlying that confidentiality, should not be diminished. It is an essential part of the true and proper administration of justice.

48. That which occurred necessitates this Court making an order in the nature of a venire de novo.  I would however urge the Attorney General to give the most earnest consideration, and I have no doubt that he will, when coming to consider any new trial to the fact that this courageous woman would find herself having to retell the humiliating details of the incident for a third time. I accept, and it shines from the pages of the transcript, that she gave her trial evidence with great resolution. While there are no merits as I see them on the applicant's side as to why he should not be retried, the necessity of putting the wife through her ordeal yet again is one which must weigh heavily in the balance.

(1)    [1909] 48 Criminal Appeal Reports 48

(2)    [1982] H.K.L.R. 113

(3)    [1970] 2 Q.B. 321

(4)    [1976] 1 W.L.R. 799

(5)    [1978] 66 Criminal Appeal Reports 167 at 171

Representation:

A.W. Sedgwick, Esq., Q.C. & K.Y. Thong, Esq. (Munro & Co.) assigned for D1.

G. Plowman, Esq. (David Ravanscroft & Co.) for D2.

F.C. Whitehouse, Esq. for Respondent.