Wong Kwong-tin v. The Queen

CACC001012/1982

BETWEEN

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

Date: 25th January 1983.

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JUDGMENT

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McMullin, V.-P.

1. The applicant, Wang Kwong-tin, was convicted in the High Court upon. counts of murder, forcible detention, forced imprisonment and robbery. These charges all arise out of the kidnapping of a young married woman, Mrs. Tam Yat-hung upon the 15th December 1981.

2. On that day Mrs. Tam went to fetch her young son from the Kentville Kindergarten at the corner of Dorset Crescent and Devon Road in Kowloon. Her chauffeur, Yeung Woon-hung, dropped her immediately outside the school where she joined a number of other young mothers who were waiting for their children there. He then drove round the corner and harked the car as conveniently as he could and waited for Mrs. Tam. While he was waiting there Yeung was approached by two men. The Crown's case was that one of these men was the defendant Wong Kwong-tin. The other man had a gun with which he menaced Yeung. Both of the men spoke to the driver intimating to him that he must make no sign of alarm when Mrs. Tam would return with her child. It was the Crown's case that one of these men was the defendant Wong Kwong-tin.

3. A few minutes later Mrs. Tam appeared, leading her young son by the hand. She was at once approached by the two men and forced at gun point into the rear of her car together with the child.

4. Yeung, the chauffeur, was forced into the passenger seat and the applicant, according to Yeung's evidence, then drove the car along a route involving several roads and eventually it stopped at Tai Wor Ping and one of the men asked Mrs. Tam whether she or the boy should be released. Mrs. Tam chose to let the boy be released. He and the chauffeur were dropped at that point and the chauffeur was told that a ransom was to be demanded of $250,000 and he was given two hours to make the necessary arrangements. He went from that place to the Pak Tin Estate where he phoned to the office of Mr. Tam and spoke to the secretary there, explaining what had happened. He then took the boy back to the Tam family home and certain other phone calls were made Eventually at about 1:40 p.m. Mr. Tam arrived home and was given the whole story.

5. The police were summoned and Mr. Tam arranged for a sum of $250,000 to be sent from the Bank. It may be said that Mr. Tam is a man of some means and there was no difficulty in procuring this money. He then waited for the phone call which came at 3 p.m. The caller asked if the cash had yet been received - it appears that it had not yet been received, and the caller was told that it was difficult to get the cash so quickly.

6. Mr. Tam was then told that he had another hour in which to get it but in fact the next phone call came at about 5 p.m. Mr. Tan on this occasion said that the money was ready but somewhat strangely the caller said that he would give later instructions as to how it was to be delivered.

7. It would appear from the pathologist's evidence to which I will later refer that it may well have been the case that Mrs Tam was already dead by that time.

8. There was a third phone call which occurred at about 9 p .m. This was by the same caller who adopted an abusive tone and accused Mr. Tam of fooling with him. He said that the police were arriving at the various places shortly after he made telephone calls and he concluded by saying that he didn't want that sort of money. There were no more telephone calls.

9. The following day the dead body of Mrs. Tam was found in the boot of the Tam family car in a multi-storey carpark at Shun On in Clearwater Bay Road. Dr. Lee Fook-kay was present at the opening of the boot and he examined the body. At first the injuries which caused death were not observed and it was thought that asphyxia might have caused it. Further examination showed that Mrs. Tam had received two injuries on her head, both were bullet wounds one of the bullets had actually lodged under the flesh but had not penetrated the skull. The other had penetrated the skull and had caused massive damage to the brain. There were also signs of asphyxiation. The doctor's evidence was a little bit tentative on this matter but it would appear that the ultimate result of that evidence was that asphyxiation did have a part in causing death but the cause of death was effectively the massive injury caused by the bullet. It was said by the doctor that that very injury might have caused the final asphyxiation.

10. Thereafter, the driver Yeung appears to have been the prime suspect, and he was many times summoned for questioning by the police.

11. On the day after the finding of Mrs. Tam's body, when he was questioned he said that he was not able to recognise either of the men by reason of the fact that he was not allowed to glance at them. It appears however that on this day he was shown at the police station a number of pictures of suspected persons. At all events, so far as the police were concerned, no information was given to them about the identity of the kidnappers by Yeung on the day following the finding of Mrs. Tam's body.

12. A police team was set up and it would appear that fairly intense investigations were pursued but the next thing that happened was (this appears in the evidence of the driver Yeung) that on the 2nd January, Leung was having lunch at a restaurant called the "Fai Lung" in Waterloo Road with his wife and family when a man suddenly appeared at the doorway of the restaurant whom he recognised as the person who had driven the motor car. Yeung's evidence was that he was still so acutely afraid of the threats that had been made to him at the time of the kidnapping that when he saw the Defendant in the doorway, he, Yeung, actually bent his head down and did not look further. When the man disappeared he, Yeung, went to the door to see where he had gone but he had already gone out of sight.

13. On the 6th of January, Yeung was summoned once more for interrogation by the police. At this point the police were interested in the fact that there was another potential witness who had seen the Tam car being driven by somebody who was not the chauffeur but with Mrs. Tam in it shortly after the time of the kidnapping. This person described the route then being taken by the car in a manner which conflicted with the statement which had been made by Yeung. That was the matter being considered on the 6th of January but on this occasion the driver Yeung volunteered the information that he had seen the man who had driven the motor car in the Fai lung restaurant on the 2nd January.

14. Police investigations continued and on the 8th January, the applicant was arrested at his home and taken to Wong Tai Sin police station. His house had been searched but nothing incriminating was found there and thereafter he was interrogated on a number of occasions. It was lengthy interrogation in several different sessions amounting in all to about 8 1/4 hours, and on the same day an identification parade was held at Wong Tai Sin police station under the supervision of Supt. Whitley. The applicant and seven actors were put upon the parade and the chauffeur Yeung was summoned. He spent some 20 minutes examining the persons upon parade and eventually he identified the applicant as the person whom he had seen who had driven the motor car on the day of the kidnap. In the course of that identification he asked that the persons on the parade to turn their heads to both sides so that he could see them in profile and at some stage also it appears they were asked to turn their backs to the identifying witness and the supervising officer. He also requested that each of the persons on the parade would repeat a statement in the following terms: "I want cash, $250,000 in old bank notes, not in numerical order". Each of the eight persons on parade did repeat this phrase and Yeung then asked that the applicant repeat it again which he did seven times. It was after this fairly lengthy process that a positive identification was made. At that stage the applicant was charged with kidnapping.

15. The next important piece of evidence consists of something said by the applicant, according to Chief Inspector Strachan and Chief Inspector Lee, when they were interrogating him prior to the identification parade. According to their evidence, in the course of that interrogation the applicant suddenly made a remark which took them by surprise. The remark was roughly to the effect: "if a person killed for money on a number of occasions and then exposed the big fish behind the killings, how would he be dealt with?" There is no doubt that the officers both regarded this as being an oblique reference by the applicant to his own part in the affair. Clearly they were interested in what he had said because we understand that the matter was pursued further on the footing that possibly a letter of intention by the Attorney General offering conditional immunity from prosecution would be given. In fact such a letter was ultimately given. Nothing further transpired as a result of the presentation of the letter of intent and nothing further turns upon that point.

16. During the same interrogation, the question of reward was also mentioned. It appears that there had been already a reward of some $200,000 offered for information leading to the arrest of the culprits. The applicant (who gave evidence) would not admit that he had ever said anything in relation to being a professional killer or even mentioning a professional killer, but he did agree that the reward had been mentioned and he said that at that stage he was simply stalling for time. In dealing with this matter the trial Judge suggested to the jury that it was likely that the question of the reward and the question of possible      immunity would have been mentioned at the same time.

17. The next item of evidence of importance did not surface until the 27th April 1982. A prison officer, Mr. Kwok Leung-ming, who is the prison intelligence officer and whose duty it is to make enquiries amongst prisoners of various kinds, the object being to circumvent any possible trouble in the. prison, was on duty on that day. He discovered the applicant in the visiting room of the segregation unit at the prison, and he asked him what he was doing there. The applicant told him he was waiting for the police to come. Mr. Kwok said that the applicant then volunteered the information that he. had told the police that he, the applicant, was a professional killer. This was denied by the applicant in giving evidence who also said that he was not waiting for the police in that occasion but was waiting for his lawyer. It was shortly after that date that the murder charge was then preferred against the applicant.

18. Those are the principal elements in the evidence led by the prosecution against the applicants. The Judge pointed out also that there were other smaller incidental factors which they might regard as pointing towards guilt. There was the fact that Mrs. Tam's body had been found in the boot of her car on the 3rd floor of a carpark which was the closest public carpark to the place where the applicant himself lived; and there was the fact that the applicant himself admitted that he was a person who frequented the Fai lung restaurant. The principal evidence was, of course, the identification evidence, and also the evidence of what, according to the police, was said by the applicant when he was being interrogated and later when he spoke to Mr. Kwok.

19. Mr. Mackay who appears for the applicant upon this application has adhered to three of the grounds originally presented by the applicant himself. The first point taken was that in the course of the voir dire which was held to inquire into the statement made to the police by the applicant, reference was made to the fact that the chauffeur Yeung had seen a photograph of the applicant in the course of Yeung's interrogation by the police. The point was made that this would have given an impression of the applicant's appearance to Yeung so that when he came to the identification parade he was given assistance in identifying the applicant which had not been disclosed and which would have been unfair. This matter was not ventilated before the jury.. We have, however, to consider it now in view of the possibility that it may in some way redound to the advantage of the applicant in making this application.

20. Defence Counsel was confronted with a somewhat difficult situation. We understand that the driver Young did see a photograph of the applicant. It was in a volume of such photographs relating to persons who had been convicted o?crimes. This occurred upon the day after the body of Mrs. Tam had been found, but we understand - and it is. not in dispute - that Yeung, the driver, thought that he had recognised a picture of the person who had driven the Tam motor car but did not tell the police of that on that occasion.

21. On what is now before us we understand that this information. was given to the police at a later date. That came about when on the 6th of January Yeung was summoned once again, as I have already mentioned, to one police station when being questioned on the matter which was then of interest to the police, he revealed to them not only the fact that he had, as he claimed, seen the applicant or somebody he recognised as the applicant in the Fai Lung restaurant on the 2nd of January, but also that he had recognised the picture of the applicant on the day after Mrs. Tam's body was recovered. He volunteered this information on the 6th January and he mentioned the page number in the volume of photographs in directing the attention of the police to the particular picture which he said was that of the applicant.

22. Mr. Mackay has made what he can of this particular point but we cannot consider that it is one of any substance. It is clear that throughout, the driver Yeung maintained that he was in great fear as a result of what had happened to him on the 15th December. He had been afraid to mention the incident of the 2nd January because, knowing that he was a suspect, he felt that if he merely said that he had seen the driver and could give no further details the police might think that he was prevaricating and endeavouring to divert suspicion from himself. He had not revealed his impression of the photograph for the same reason that is to save fear which at that date was of course a matter of much more lively impression on his mind. We regard that as a reasonable explanation of his failure to speak tip sooner.

23. Complaint is then made of the fact that the persons upon the identification parade were asked to turn their backs to the identifying witness and the supervising officer. The suggestion here is that something might have been done while neither the applicant nor the actors could have seen it; some indication given to the identifying witness which enabled him to pick out the applicant. This however was one of the many matters fully canvassed in the course of the trial.

24. Finally it is said that it was not proper for the Judge in dealing with the alleged age of the person who had driven the motor car as described by the witness Yeung, to say to the jury that they might think that the applicant was a rather youthful thirty. This arose from the fact that Yeung had given a description of the person he had seen which did not tally altogether with the appearance of the defendant, according to what was put before the jury, and had said also that he thought the man was of about 20 years of age. It is common ground that the applicant is in fact 30. That comment is to be read in the light of the initial direction given by the Judge, to the effect that his own comments upon the evidence were not to be considered of especial weight and that questions of fact were wholly for them to decided. We cannot say that it was improper.

25. In all, we are satisfied that there has been no miscarriage of justice.

26. We would like to add, before parting from the case, that this was a summing-up of an unusually clear, concise and accurate nature and we cannot think that anything addressed to the jury by the Judge could have diverted their minds from their proper task which was the evaluation of all the evidence including those parts of it which told so strongly in the direction of the guilt of the applicant. For these reasons the application must be refused.

Representation:

G. Mackay (D.L.A.) assigned for the Appellant.

J. Duffy for Respondent/Crown