The Queen v. Lee Yi Choi

CACC000131/1985

CRIME - EVIDENCE - CONFESSION INDUCED BY DECEPTION - WHETHER DISCRETION TO EXCLUDE AND IF SO WHETHER IT SHOULD HAVE BEEN EXERCISED - CORROBORATIVE EFFECT OF FALSE STATEMENT MADE BY AN ACCUSED OUT OF COURT - COMMUNICATION BETWEEN JUDGE AND JURY - WHETHER IRREGULARITY FATAL.

The applicant was convicted of murder. Evidence of a confession to the crime had been given by detective police constable who, after the applicant had been charged, was introduced into the applicant's cell under the guise of a fellow criminal. Another Crown witness had been identified as a man who, shortly after the probable time of death, had been observed carrying bags subsequently found to contain the dismembered limbs of the deceased. Before verdict an oral but unparticularised message had been conveyed from the jury in retirement to the judge. On appeal it was submitted that: -

Held, allowing the appeal, that:-

Application granted, hearing treated as the hearing of the appeal, conviction quashed and sentence set aside.

IN THE COURT OF APPEAL

BETWEEN

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

Date of hearing: 30th-31st, October, 1985; 1st, 5th & 6th November, 1985.

Date of judgment: 4th December, 1985.

___________

JUDGMENT

___________

McMullin, V.-P. :

1. LEE Yi-choi was convicted in the High Court on the 25th of March 1985 of the murder of LI Luk. He now applies for leave to appeal against that conviction.

2. The applicant was one of a number of men, most of them apparently sharing the clan name Lee, who over the last four or five years had come illegally to Hong Kong from the same area of Mainland China.

3. A number of these immigrants including the applicant and the deceased had congregated in a squatter area on a hill side in Tai Wo Ping, occupying the kind of makeshift dwelling places familiar in such locations.

4. Eventually the Squatter Control Authorities caught up with this settlement and the huts were demolished and their inhabitants were resettled. In this way the applicant, the deceased and two other persons, TO Hung-kei and LEE Siuhung found themselves sharing Hut No. 10 in the Lai Chi Kok Temporary Housing Area to which they had been moved in 1981 from the hut which they formerly had shared at Tai Wo Ping. There were two double-bunk beds in this hut. The applicant and TO were sharing the bottom bunk, the upper bunk being shared by the deceased, LI Luk and LEE Siu-hung.

5. All of these men would seem to have found employment of a somewhat irregular nature in the construction or decoration business. They were still living together in this fashion in September 1984.

6. On the 19th of September 1984, Detective Constable LAM Shu-fai, who was then attached to the Criminal Intelligence Bureau, went off duty at 6:00 p.m. and spent the evening in the company of his friend LAU Heung-kwong and the latter's girl friend, FUNG Pik-kwan. They were returning to Kowloon from the evening's entertainment at a late hour in a car driven by Mr. Lau and at about 2:00 a.m. while they were travelling along the Tai Wo Ping Road they saw a man walking ahead of them carrying two bags and heading towards the Chak On Estate. D.C. Lam became suspicious and told Lau to stop the car which he did. Lam then got out and followed this man who had left the road and was proceeding up a slope immediately off the road. Some distance up the hill, and before he had caught up with him, the constable found a red coloured bag lying on a rock and saw that the same man, then some distance above him, was still carrying one bag which was green in colour. He called out to him to come down. The man did so and the officer produced his warrant card and showed it to him as he approached and as the officer was about to intercept him. He said that the man, who looked "very fierce", suddenly and without warning struck him on the chest and then ran off down the hill in the direction of the motor-car.

7. The constable called out to Lau to assist him. Lau got out of the car and he and D.C. Lam tried to arrest the man who proved too strong for both of them and broke away. They pursued him and seized him again but once more he broke away and ran off, first along the Tai Po Road and then uphill off that road where he disappeared from view. They did not follow him.

8. A police emergency unit was then summoned and both of the bags were recovered. It was soon established that these contained parts of a human body and they were taken to Regional Headquarters where the contents of the bags were examined by Dr. HAU Kong-lung, the forensic pathologist.

9. The red bag was found to contain the upper two- thirds of a human torso while the green bag contained the lower one-third of the torso and two human thighs. Some marks on the vertebrae in the neck area of the upper torso indicated that the head had been removed by some implement such as a saw. A saw was found in the green bag, and from the red bag the police recovered a foreign currency exchange certificate bearing the name LEE Yi-choi.

10. According to Dr. Hau these gruesome remains were still warm when he examined them and in his opinion death must have occurred within 12 to 24 hours prior to his examination.

11. The identity of this unfortunate victim did not become known to the police until two days later. At about 11:00 p.m. on the 22nd of September two fellow workers of the deceased, YIU Chung-shun and NG Wing-hong went to collect some tools from him at Hut No. 10. When they entered the promises they found nobody about and detected a foul smell. This led to the discovery of a red plastic container and a white drum which upon later forensic examination were found to contain the remaining portions of the human body, parts of which had already been examined by Dr. Hau. A human head which was found within the red plastic container was eventually identified as that of the deceased LI Luk and Dr. Hau was able to establish that the cause of death was damage to the brain resulting from multiple skull fractures. The nature of these fractures enabled Dr. Hau to say that they could have been caused by blows of considerable force applied with some object like a hammer.

12. Police enquiries had no doubt by then established the identity of the occupants of Hut No. 10. TO Hung-kei was arrested on the 23rd of September and the applicant was arrested at about 10 o'clock in the vicinity of Hut No. 10 on the following morning. They were interviewed separately and each made several statements under caution.

13. Initially TO Hung-kei denied being anywhere near Hut 10 on the night of the 19th of September. He maintained that he had spent the evening of the 19th with friends and had then returned to his work premises where he slept.

14. On the 25th of September an identification parade was held at Wong Tai Sin Police Station. There were 13 persons on the parade including the applicant and TO Hung-kei. The identifying witnesses were P.C. Lam, his friend LAU Heung-kwong and Miss FUNG Pik-kwan. P.C. Lam and Mr. Lau both made positive identifications of TO as the man they had struggled with on the 19th. Subsequently P.C. Lam came to the conclusion that he had made a wrong identification and in examination in chief he said that this had resulted from his seeing the name of TO in the newspaper and from seeing pictures of TO and another man in the Police Station on the 30th of September. In cross-examination, however, he said that he had been positive in his identification on the 25th. Lau said that he was 90% sure of his identification of TO.

15. After the second identification TO Hung-kei objected to taking further part in the' parade and he was removed from the line although he was told that the alternative would be a personal confrontation with the third witness.

16. Miss Fung was then introduced to the parade room and she viewed the line which still contained the applicant but not TO Hung-kei and she identified one of the actors on the parade. Thereafter she was permitted to confront TO and she also identified him. Her explanation was that both of these people appeared to be very similar to the man she had seen on the 19th.

17. Following these not entirely satisfactory identification procedures, TO Hung-kei made another statement under caution. This was made to D.P.C. LEE Chung-pak who interviewed TO at 2:10 p.m. at Wong Tai Sin Police Station. In this he admitted that he had returned to Hut No. 10 at 11:30 on the night of the 19th of September and said that, as he entered, the light which had been on was suddenly switched off and the applicant prevented him from entering and told him not to return that night but to go elsewhere. When he enquired why he was told that "someone has died" and that this had resulted from "a fit of anger". He added that he was warned not to report to the police and that if he did so the applicant would seek him out and chop him to death, but that if he did not report to the police the applicant might manage to escape. TO said that after this he returned to his shop premises where he slept for the night.

18. At this stage the applicant, although he had already been interrogated on a number of occasions, had made no admissions to complicity in the killing of LI Luk. He had given what purported to be a full account of his movements both on the 18th and 19th of September, an account which included reference to his visiting various massage parlours, a restaurant and a cinema. He had been taken to these various establishments for the purpose of testing his story.

19. On the 25th of September some five hours after TO had made his accusatory statement Senior Inspector Coalter charged the applicant with the murder of LI Luk.

20. It would appear that TO Hung-kei was still regarded as a suspect and held in custody thereafter. On the 29th of September he was further questioned and he made yet another statement under caution. In this, for the first time, he admitted to having taken part in disposing of the body of the deceased. He said he had done so out of fear and under grave threats to his own life made by the applicant. In this statement he gave a circumstantial account of how he had come upon a scene of carnage in Hut 10 when he saw dismembered parts of LI Luk's body on the bed and the applicant with a saw in his hand. Thereafter he had accompanied the applicant in a taxi with parts of the body bestowed within the two bags which were carried in the taxi's boot. They went to the Tai Wo Ping area and the applicant told him to take the bags up the hill to dispose of them while he, the applicant, would return to deal with the other parts of the body. TO then described how he had been detected by the off-duty police officer and described his escape.

21. In a further statement on that day and in another made on the following day, the 30th, he amplified what he had already said by describing the colour of the two bags and by saying that he had actually seen the applicant sawing some part of the body while the two bags already contained other parts of the body. Finally, he described the route he had taken in escaping from P.C. Lam and his companions in a manner which corresponded substantially with the description given by those witnesses of what they had observed on the 19th of September.

22. Notwithstanding his evidently suspect status TO Hung-kei was called as a witness for the prosecution. His evidence was very much to the same effect as what he had said in his second statement to the police, the statement in which for the first time he had implicated LEE Yi-choi in the killing of LI Luk.

23. As may be imagined he was closely pressed in cross-examination by counsel for the defendant on the widely discrepant accounts of his own movements which he had given to the police on these several occasions. He maintained that his final version was false and that he had only given that story for the purpose of stimulating the investigating officers to a more thorough investigation of the applicant's story and of the circumstances generally.

24. The judge reminded the jury of these deficiencies in the evidence of TO and that they must first consider whether he was a credible witness before relying upon his evidence to any extent. He reminded them that TO had been identified as the man seen on the hill-side on the 19th of September and he put it to them that anybody in that position must either be the person who had killed the deceased or had assisted in the killing of the deceased and was helping in the disposal of the body or - as a third alternative - was somebody who had taken no part in the killing but had from some motive of his own decided to help in the disposal of the body. He warned them that if they regarded TO not as the killer but as an accessory, on either of these alternative bases, then they must look for corroboration of his evidence. He then went on to point out what evidence could be corroborative of the testimony of TO Hung-kei.

25. There were two matters which he identified as affording possible corroboration. The first of these related to the applicant's attempt at providing himself with an alibi. Clearly it had not been a very successful attempt. Not one of the sixteen hostesses at the massage establishments which the applicant said he had visited on the night of the 19th identified him as having been a patron on that night. The restaurant to which he said he had repaired at 4 a.m. on the morning never opened its doors until six. Finally, the film which he said he had attended at the Golden Theatre was proved not have been showing on that night.

26. The judge was careful to warn the jury that they should not regard this as confirming TO's evidence unless they were satisfied that it was a false alibi and that it had been concocted solely for the purpose of concealing his guilt.

27. The second and by far the most important matter pointed to by the judge as affording corroboration of TO's evidence is that body of evidence which consituted the major issue upon the hearing of this appeal. It is, indeed, on its own, substantive evidence of guilt which, once accepted by the jury, must inevitably have led to the conviction of the applicant.

28. Counsel for the Crown at the trial and counsel for the Crown upon the appeal have uniformly and frankly admitted that the investigating officers, confronted with the sustained and resolute denials of complicity on the part of the applicant from the moment of his arrest up until TO had made his accusatory statement between 2 and 4 p.m. on the 25th, resorted to a ruse which in the event proved highly effective.

29. What the officer in charge of the investigation had done was to instruct one of his subordinates, D.P.C. LEE Shu-chun, to enter the cell in which the applicant was to be detained and upon the applicant's returning thereto to present himself to the applicant in the guise of a fellow prisoner who had been arrested for armed robbery and to attend thereafter to anything which the applicant might say bearing upon the death of LI Luk.

30. Inspector Lee entered the cell at 10:45 p.m. and some 15 minutes later the applicant, having by then been charged with the murder of LI Luk, was escorted back to that cell and found the D.P.C. already there. D.P.C. Lee said that his instructions were not to coax the prisoner to say anything but to listen to him and let him speak freely. In fact, according to the D.P.C., a conversation did occur which was initiated by the applicant who asked him why he was sent into that cell. He replied that he had been arrested for committing a robbery in which someone had been killed.

31. The conversation took about one hour after which they slept the night in that cell. On the following morning D.P.C. Lee was released from the cell and went at once to make a note of the conversation insofar as he could recall what had been said.

32. The note which he then made was never produced in evidence nor was it furnished to counsel for the purpose of cross-examination. What seems to have happened is that when the time came for the witness to make a formal statement for the purpose of the committal proceedings - that was on the 7th of November - he copied out what he had written in his note of the 26th of September. It was this deposition which was used by counsel for the defence in cross-examining the witness.

33. It must be said at once that the evidence of D.P.C. Lee at the trial was of the most damning character. In that evidence he purports to recall a whole series of exchanges in the course of which the applicant gave a full and circumstantial account of how he had done LI Luk to death. This account follows very roughly the pattern of the conversation as recorded by the officer in his deposition. No objection was made as to its admissibility. In cross-examination counsel for the defence appears to have been concerned primarily to highlight two things: firstly that these revelations resulted from a blatant deception on the part of the officer; secondly, that the deposition from which the officer had refreshed his memory prior to giving evidence - itself a copy from his original note made some 9 or 10 hours after the conversation had taken place - could not be regarded as reliable.

34. It was only when the Crown had closed its case that counsel for the defence sought to challenge this evidence by way of a submission of no case. Counsel's contention would seem to have been that the judge should rule that this evidence was unfit for consideration by the jury and that without it the evidence of TO Hung-kei on its own would be an unsafe and unsatisfactory basis for conviction.

35. The first ground of appeal is that Barnes, J. erred in admitting the applicant's oral confession.

36. It has not been suggested that the confession was irrelevant or induced by fear of prejudice or hope of advantage excited or held out by a person believed by him to be in authority, or by oppressive conduct in the sense outlined in R. v. Prager⁽¹⁾. In contrast to the case of the first appellant in Ajodha v. The State⁽²⁾ where a written confession had been signed under a misapprehension as to its character, he was the true author. The confession was, we are satisfied, voluntary. In Canada the Supreme Court has held that disapproval of methods used to obtain it it will not preclude the reception in evidence of a voluntary statement. Rothman v. R.⁽³⁾

37. While the learned judge found the stratagem employed by the police repellant to the ordinary and revolting to the judicial mind he held that he could not "as the law presently stands" exercise his discretion to exclude the confession. In coming to that conclusion he relied on authorities which demonstrate that conversations between prisoners in cells have been overheard and recorded and ruled admissible.

38. It was explained by Lord Reid in Commissioners of Customs & Excise v. Harz & Power⁽⁴⁾ that two lines of thought appear to underlie the principles applicable to the admissibility of confessions. "- first, that a statement made in response to a threat or promise may be untrue or at least untrustworthy and, secondly, that nemo tenetur se ipsum prodere. " As to the latter maxim and whether or not Jeremy Bentham was right in saying that "innocence claims the right of speaking as guilt invokes the privilege of silence" it is unquestionably the law that no inference adverse to an accused person is to be drawn from his failure or refusal to answer questions put by a police constable or other person in authority for the purpose of discovering whether he has committed a criminal offence. A suspect is, accordingly, entitled to elect whether or not to answer such questions. Different considerations apply when persons are speaking on equal terms. By concealing the fact that his cell-mate was in fact a person in authority the police deprived the applicant of the opportunity to exercise this common law right and breached the English Judges' Rules of Practice propounded in 1912 which normally are and, as this Court indicated in R. v. Leung & Ors.⁽⁵⁾, certainly should be observed in Hong Kong requiring a person in custody to be cautioned, and thus informed or reminded of his relevant right, before any attempt is made to question him in relation to the offence with which he has been charged. Their conduct made a mockery of the caution administered to the applicant on the occasions when a number of written statements had earlier been taken from him and when he was charged. This requirement is emphasized by the fact that Home Office Circular No. 89/1978 gives to the English police the administrative direction that when a person arrested without warrant is charged he should be furnished with a written notice containing a copy of the charge including some statement on the lines of the caution.

39. The foregoing considerations apart the confession was, by any reasonable standard, unfairly procured by a person, who was in fact in authority, as a result of a trick. As Lord Goddard, C.J. stated (obiter) in Kuruma v. The Queen⁽⁶⁾ at p. 204:

"- the judge always has a discretion to disallow evidence if the strict rules of admissibility would operate unfairly against an accused. -If, for instance, some admission of some piece of evidence e.g. a document, had been obtained from a defendant by a trick, no doubt that judge might properly rule it out. "

Lord Parker, C.J. referred to this discretion in Callis v. Gunn⁽⁷⁾ as did Lord Widgery, C.J. in Jeffrey v. Black⁽⁸⁾ alluding to behaviour by the police "which is morally reprehensible", and Lord Hodson in Herman King v. The Queen⁽⁹⁾ In R. v. Sang⁽¹⁰⁾ Lord Diplock, referring to the words of Lord Goddard, C.J. quoted above, said:

"- he no doubt also had in mind the discretion that had long been exercised in England under the Judges' Rules to refuse to admit confessions by the accused made after the crime even though strictly they may be admissible. - the document 'obtained from a defendant by a trick' is clearly analogous to a confession which the defendant has been unfairly induced to make - It is interesting in this connection to observe that the only case that has been brought to your Lordships' attention in which an appellate court has actually excluded evidence on the ground that it had been unfairly obtained (Reg. v. Payne^(ll)) would appear to fall into this category. The defendant, charged with drunken driving, had been induced to submit himself to examination by a doctor to see if he was suffering from any illness or disability, upon the understanding that the doctor would not examine him for the purpose of seeing whether he were fit to drive. The doctor in fact gave evidence of the defendant's unfitness to drive based upon his symptoms and behaviour in the course of that examination. The Court of Criminal Appeal quashed the conviction on the ground that the trial judge ought to have exercised his discretion to exclude the doctor's evidence. This again, as it seems to me, is analogous to unfairly inducing a defendant to confess to an offence, and the short judgment of the Court of Criminal Appeal is clearly based upon the maxim nemo debet prodere se ipsum. "

Viscount Dilhorne made similar observations at p. 440 and on p. 453 Lord Scarman referred to the discretion to exclude a voluntary confession obtained in breach of the Judges' Rules and to evidence obtained where the defendant has been misled into providing it:

"- too many distinguished judges have said that the discretion exists for there to be any doubt that it does. "

And at p. 455:

"The Judges' Rules, for example, are not a judicial control of police interrogation, but notice that, if certain steps are not taken, certain evidence, otherwise admissible, may be excluded at the trial. The judge's control of the criminal process begins and ends with trial, though his influence may extend beyond its beginning and conclusion. It follows that the prosecution has rights, which the judge may not override. The right to prosecute and the right to lead admissible evidence in support of its case are not subject to judicial control. Of course when the prosecutor reaches court, he becomes subject to the directions as to the conduct of the trial by the judge, whose duty it then is to see that the accused has a fair trial according to law.

What does 'fair' mean in this context? It relates to the process of trial. No man is to be compelled to incriminate himself; nemo tenetur se ipsum prodere. No man is to be convicted save upon the probative effect of legally admissible evidence. No admission or confession is to be received in evidence unless voluntary. If legally admissible evidence be tendered which endangers these principles (as, for example, in Reg. v. Payne^(ll)), the judge may exercise his discretion to exclude it, thus ensuring that the accused has the benefit of principles which exist in the law to secure him a fair trial; but he has no power to exclude admissible evidence of the commission of a crime, "unless in his judgment these principles are endangered. "

Obiter at p. 456 Lord Scarman continued:

"If an accused is misled or tricked into providing evidence (whether it be an admission or the provision of fingerprints or medical evidence or some other evidence), the rule against self-incrimination - nemo tenetur se ipsum prodere - is likely to be infringed. "

40. We believe that more often than not unfair evidence will be excluded as involuntary. Further, we would emphasize that while subterfuge is a recognised and often indispensable weapon in the police armoury for the detection of crime stricter standards must apply when a suspect is in custody. Public confidence in the integrity of the judicial process must not be prejudiced.

41. Applying the approach outlined by the House of Lords in R. v. Sang and of this Court in R. v. Leung & Ors. it is apparent to us that the admission in evidence of the applicant's confession did endanger the principles which exist in law to secure fair trials and that the administration of justice was thereby brought into disrepute. The end, being the conviction of the applicant, did not justify the means employed. The learned judge was wrong both in directing himself that he could not, as the law presently stood, exclude it, as he apparently wished, and, sequentially, in failing so to do.

42. In reaching our conclusion we have throughout borne in mind the brutality and cold-blooded sequelae of the crime under investigation and the dilemma in which the police were placed. The test of unfairness is not that of a game and evidence bearing upon the commission of crime and necessary to enable malefactors to be brought to justice should not withheld merely on formal or technical grounds.

43. Having found that this evidence ought not to have been let in it follows that the conviction cannot stand - that of itself is sufficient to dispose of the appeal. But the argument of counsel raised several other points of general interest and importance on which we feel obliged to give our views.

44. The second ground of appeal is to the effect that the learned trial judge misdirected the jury as to the status of the exculpatory parts of the applicant's written statements made to police officers. In the course of his Summing-Up Barnes, J. told the jury:

"The law makes a distinction as regards evidence between what is said in court and what is said out of court. When an accused out of count makes an admission, that is evidence even if he doesn't say it in court. But in the statements which he is alleged to have made, there are a number of other things which he is alleged to have said. As regards those matters which are not admissions, the documents are evidence only as to what he said. They are not evidence that what he said is a fact.

In other words, when he says, 'I was at the place where it was alleged that the crime was committed. ' that being an admission, that is evidence. When he says, 'I was at a massage parlour. ' that not being an admission, that is not evidence but merely part of the context in which he made the admission if you find that he did make an admission. -

Well, you have heard the evidence of what the accused said to the police. Remember I said to you it is not evidence of the facts which he said, not evidence that he went to the massage parlour, but it is evidence of what he told the police. "

Mr. Keane, who appeared for the applicant, accepts, rightly in our view, that the statements were "mixed" in that they included both an admission of the applicant's presence at the scene for a short part of the time during which the murder and the dismemberment of the body probably took place and a lengthy description of his activities during the balance of that time, which was exculpatory. Relying principally on the decision of the English Court of Appeal in R. v. Duncan⁽¹²⁾ Mr. Keane submitted that the jury should have been directed to consider the whole of the statements as evidence of their truth albeit the exculpatory parts might carry less weight than the admission. R. v. Duncan is in conflict with the earlier decision of the English Court of Appeal in R. v. Donaldson⁽¹³⁾ but in Hong Kong the position in relation to "mixed" statements has already been determined by this Court. While an admission is evidence of its truth other material is not and falls to be considered by the jury only in the sense that it was part of the maker's overall reaction when questioned and was what he had said at or about the time when he made the admission. R. v. Peter Liu Po-shing & Anor. ⁽¹⁴⁾ following the guidance provided in Leung Kam-kwok v. R.⁽¹⁵⁾. The direction of the learned trial judge in relation to the applicant's statements, which were exhibited and put before the jury in their entirety, cannot be faulted.

45. The third ground relates to the judge's directions on corroboration. The evidence of the accomplice TO, although it was in conflict with the statements in which he had admitted helping to dispose of the body, was nevertheless, on its own, if believed, capable of identifying the applicant as the killer of LI Luk. The jury were told that they might find corroboration of this highly suspect witness's story not only in the evidence of PW53 (DC LEE Chu-chun) but also in the fact, if they found it to be so, that the applicant had advanced a false alibi. Having reminded them of the evidence on which the Crown relied as destroying the alibi viz.: that relating to the restaurant, the cinema and the massage establishments to which the applicant had referred in his statements, the judge said:

"But the evidence, members of the jury, can be considered by you in this way: Does it lead you to the conclusion that the accused was fabricating an alibi? If you say to yourself: "Well, no, he wasn't. "  "Maybe he was but I am not sure," then forget about this part of the evidence because it could not be the type of evidence you would need to confirm the evidence of TO.

If you were sure that he was fabricating the evidence, in other words that he was telling a deliberate lie - not just making a mistake about the day that, for instance, he went to the cinema - and that that lie was being told not because of the panic that he found himself in through the embarrassing situation that these events enclosed him in, not through stupidity, but telling that lie through a consciousness of guilt arising from his being implicated in the commission of this offence, arising from his own knowledge that since he had done it he had to tell a lie about his whereabouts to cover his tracks, if you came to that conclusion, that could be regarded by you as the type of confirmatory evidence I am talking about. "

46. Of three separate points taken by Mr. Keane concerning this evidence, and the directions given thereon, one only appears to us to be of su ficient substance to oblige extended consideration. The proposition is this: if the exculpatory parts of the applicant's out of court statement cannot be regarded as evidence of the truth of their contents the jury should not have been invited to consider whether they were true or false, and therefore such statements could not be relied upon as affording corroboration of the accomplice's evidence.

47. Counsel upon both sides have read the decision of this court in The Queen v. YU Wing⁽¹⁶⁾ as supporting the idea that a jury cannot be asked to consider the contents of an exculpatory statement at all when considering whether or not the evidence of an accomplice has been corroborated. If that were part of the ratio decidendi of that case it would indeed be in conflict with the opinion of the English Court of Appeal in Reg. v. Lucas⁽¹⁷⁾ and the earlier English cases, as well as with many decisions of the courts in Hong Kong including that in HO Kam-sum⁽¹⁸⁾.

48. We are however satisfied that there is no such conflict and that the argument of counsel for the applicant proceeds upon a fallacy which may have drawn its substance from some of the expressions used in YU Wing.

49. Mr. Keane put it that if the contents of such a statement are not evidence of the truth of what is said therein neither are they evidence of its falsity. But this is to misconstrue the principles underlying the decision in Reg. v. Lucas which extended the corroborative potential of lies to statements out of court, and would be in conflict also with the principles laid down in the earlier cases in which the corroborative effect of lies told in court had been established.

50. The reason why it is not necessary to look further than the contents of a confession or admission statement is because the law presumes that such a statement is self-validating because it is against interest. Its truth is borne upon the face of it, assuming it is genuine. But the opposite holds for a self-exculpatory statement. It is not evidence of its own truth and its falsity must be proved by evidence aliunde. That is all that was meant in YU Wing when, in relation to a notice of alibi containing no admissions against interest, we said: "The notice itself has no probative value in relation to its own contents. "

51. The confusion which appears to have arisen in the present case concerning the true ratio of YU Wing has possibly come about partly because the opinion of the court is thus stated immediately following upon a summary of counsel's argument, which was generally to the same effect as Mr. Keane's present proposition, coupled with the fact that the direction given by the trial judge in that case uses the phrase "corroborative of the guilt" of the defendants in what was obviously intended to be the non-technical sense of "probative" of their guilt. That would seem to follow from the fact that no issue arose in that case concerning the evidence of an accomplice which would require corroboration in the strict technical sense. This court was certainly not adopting counsel's argument in YU Wing as a proper statement of the law.

52. Such substance as this point may have claimed is seen in the end to depend upon a reading of the decision in YU Wing which we are satisfied is incorrect.

53. Finally, counsel raises a point which concerns, as he maintains, a serious irregularity in the conduct of the trial.

54. At the conclusion of the summing-up the jury retired at 11:07 a.m.. At 2:55 p.m. the Court resumed and the trial judge indicated that he had had a message from the jury showing them to have difficulty in reaching a unanimous decision.

55. He then went on to give them a direction in relation to unanimous verdicts to which no exception is taken. The jury retired again at 2:57 p.m..

56. At 4:17 p.m. the Court again resumed and the trial judge said this:

"Members of the jury, the message I have received is that you have reached a decision but that you are unable to be unanimous about a certain matter. "

57. He gave them further directions as to a unanimous verdict at the conclusion of which the Foreman of the jury said:

"My Lord, we have reached a decision on one point. Really I suppose we should say we are unanimous now. "

58. The jury retired at 4:20 p.m. and at 4:50 p.m. returned to deliver their verdict.

59. After the verdict had been rendered Mr. Duckett, who then appeared for the Crown, asked that the questions from the jury should be incorporated in the record and stated that counsel had not seen what those questions were. To this the trial judge replied:

"Oh, I didn't either. "

He went on, in answer to Mr. Duckett, to state that no written questions were shown to him and continued:

"I was informed of what the jury's problem was and I decided that I would come into court and ask them because from the indication it seemed that if I got any further information it might have been helpful. "

60. In the course of his summing-up the trial judge had given wholly unexceptionable directions to the jury to the effect that if they needed further guidance on the law then they could pass a message to the usher. He told them it would be helpful if they drafted any question they wished? to ask because if they did so that would enable him to show it to counsel and for him have the benefit of any comment counsel wished to make before he made answer to the question.

61. This course was not followed: as a result counsel were never aware of the nature of the questions from the jury nor of the nature of the communication made by whoever carried the jury's message to the judge; the accused did not know nor was counsel in a position to comment.

62. While the Crown suggested otherwise, this was clearly a material irregularity: R. v. Lamb⁽¹⁹⁾; R. v. MAN Ching-ip⁽²⁰⁾ and R. v. FONG Chun-wai⁽²¹⁾.

63. The issue raised by this ground is whether or not this irregularity would, of itself, be sufficient to vitiate the conviction. It was, as we have said, highly unfortunate that no one seems to have known exactly what the message was - and that includes the trial judge. No one was clear as to the difficulties being encountered by the jury. However the trial judge did give quite unexceptionable directions on both the occasions when he found it necessary to address the jury and they did not ask for any further guidance.

64. Was there a miscarriage of justice? In Lamb where, after the jury had retired,, a message was sent through the jury bailiff that the jury were unable to reach a unanimous verdict, the Clerk of the Court, acting upon the directions of the Judge, went into the jury room and instructed the jury that they must continue to try to reach a unanimous verdict. The Enlish Court of Appeal thought it right that the proviso should be applied. The irregularity here is not so serious as was the one in Lamb nor is it as serious as that in MAN Chin-ip where the jury had, without consultation with counsel, been given a volume of The Laws and it was impossible to know which portions of the material Ordinance they had perused. We think that there was no miscarriage of justice and would in any event have applied the proviso in respect of this ground.

65. The fifth ground of appeal concerns particulars of the alleged unsatisfactory and unsafe nature of the conviction additional to all the other matters canvassed before us by counsel.

66. It relates, first, to the witness TO Hung-kei (PW21) and his "manifest unreliability"; and, second, to a direction given by the trial judge as to the acquittal of the applicant if they came to the conclusion that TO was the only killer of the deceased.

67. Counsel also submitted generally on the unreliability of the evidence of the "conversation constable" (PW53) D.P.C. LEE Shu-chun. This last aspect was not heavily pressed.

68. TO was clearly a witness of the most dubious character. He had made a series of statements, each conflicting with the other and had given evidence in court stating that only that evidence was the truth. He admitted he was prepared to tell lies in order to place the blame on the applicant. He had been identified as the man on the hill with the bag by "a trained observer", the off-duty constable. He had been identified by another member of that constable's party and there was a weak identification by the girl in that party. The off-duty constable resiled from his identification, but only after the applicant had had his conversation in the cell. The applicant himself had never been identified as the man with the bag. The jury clearly could have come to the conclusion that TO was implicated. These were matters fully canvassed before the jury by counsel and referred to, although there is a complaint that the reference was not in sufficient detail, by the trial judge in the course of his summing-up.

69. The judge had warned the jury that TO was a witness whose evidence they would have to look at very carefully.  He described the differences in the several statements which TO had made as "inconsistencies" and then altered that description to "contradictions". He would have been entitled to use somewhat stronger language. He told the jury that the matter was entirely one for them, that TO, in evidence, had given an explanation for the contradictions. They were fully aware that the matter of the credibility of TO lay for their decision. The Crown undoubtedly took a risk in placing a person such as TO before the jury, in particular after his identification as the man with the bag. We are not in a position to speculate as to the grounds upon which the jury based their conclusion of the guilt of the applicant. They could, and certainly would have been entitled to, have disregarded TO completely except where there was some independent evidence to give support to his story.

70. We do not think it would have been right for the judge to have withdrawn TO completely from the consideration of the jury nor was he asked to do so at trial. It would have been preferable had he dwelt upon the deficiencies of TO to a somewhat greater extent. But the jury could have been under no illusion as to the nature of this witness and the issue was one for them.

71. On the second aspect of this ground the judge had given a full and proper direction to the jury as to the onus and standard of proof. He gave a general direction as to the man-on-the-hillside issue and said the following (in relation to the identification evidence):

"Now the importance of that evidence is this. That the man on the hillside, whoever he was, must have been, don't you think, one of these three: the man who did the killing and was disposing of the body himself, a man who assisted somebody else in the killing and was assisting to dispose of the evidence or disposing of it himself, or was somebody who took no part in the killing but for some motive, whether it be from fear, from friendship, hope of reward, for some reason such as that, was helping the actual killer to dispose of the evidence. "

He went on:

"In view of that, if you came to the conclusion that TO could have been filling any one of those roles - of course, if you came to the conclusion that he is filling the one as being the only killer, you wouldn't be considering the matter any further because you wouldn't be sure that this man was the killer. "

72. In the context of this passage it is clear that the trial judge was indicating to the jury, that if they thought that TO was the only killer then the accused must be acquitted. There was no suggestion in the course of the evidence that other persons were involved with either the actual killing or with the disposal of the body. The jury were aware that the applicant had not been identified as being the man on the hillside. We do not think that the directions were confusing nor do they merit the criticism made.

73. D.P.C. Lee (PW53) certainly appeared to be a man of remarkable powers of memory. He had slept upon the early evening conversation for a full night, he had had a further short conversation in the early hours of the 26th before leaving the cell and he then purported to record verbatim and in detail the actual questions he asked of the applicant and the answers the applicant gave. He, some six months later, gave evidence at the trial without any attempt to refresh his memory from the notes which he had said he had made after his release from the cell. He was cross-examined by Mr. Ming Huang on the basis of his deposition. His original note was neither referred to nor produced. When his evidence concluded his deposition was left at the request of the Crown before the jury. We are in some doubt as to the propriety of the Crown's application in respect of this though we appreciate that one of the defence planks, not supported by evidence, was fabrication.

74. The constable's purported feat of memory might well be regarded as phenomenal. But his evidence of the conversation involved a recital of events of such horror that they would be likely, if made, to stick in anyone's mind. This particular issue was not pressed in the course of this appeal and it may be taken that the reason for this was that credibility was entirely for the jury, that these matters were, in some measure, canvassed before them and that they were entitled to form their own view. It was not a point which on its own would have afforded a reason for finding the conviction unsafe.

75. For the reasons given at the outset in our consideration of the grounds of appeal, however, the application is granted and the appeal allowed. The conviction is quashed and the sentences set aside.

(1) (1972) 1 W.L.R. 260

(2) (1982) A.C. 204

(3) (1981) 59 C.C.C. (2d)30

(4) (1967) 1 A.C. 760 at p. 820

(5) Cr. App. No. 964 of 1983

(6) (1955) A.C. 197

(7) (1964) 1 Q.B. 495 at p. 502

(8) (1978) Q.B. 490 at p. 498

(9) (1969) 1 A.C. 304

(10) (1980) A.C. 402 at PP.434-435

(11) (1963) 1 W.L.R. 637

(12) (1981) 73 Cr. App. R.359

(13) (1976) 64 Cr. App. R. 59

(14) (1984) Cr. App. No. 520 (unreported)

(15) Privy Council appeal No. 36 of 1983 (unreported)

(16) Cr. App. 510 of 1984 as yet unreported

(17) (1981) Q.B.D. 720 at 724

(18) Cr. App. 695 of 1983 - unreported

(19) (1974) 59 Cr. App. R. 196

(20) (1980) H.K.L.R. 890

(21) unreported Cr. App. 198/1982

Representation:

Mr. D. Keane, Q. C.& Mr. Ming Huang (D.L.A.) assigned for the Applicant.

Mr. J. Duffy, Q.C. & Mr. J. Halley for Respondent/D.P.P.