Tsui Shing-yau Alias Ah Yau and Antoher v. The Queen
Read the full judgment text of CACC 512/1980 on BabelCite. This Court of Appeal judgment.
1. TSUI Shing-yau and CHENG Hok-ling were jointly charged with the murder, between 19th and 20th October, 1979, of WONG Chun-leung.
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CACC000512/1980 [Use of statements as between co-defendants.]
----------------- Coram: Roberts, C.J., O'Connor and Liu, JJ. Date of Judgment: 30th September, 1980. ----------------- JUDGMENT ----------------- Roberts, C.J.: Summary of Crown Case. 1. TSUI Shing-yau and CHENG Hok-ling were jointly charged with the murder, between 19th and 20th October, 1979, of WONG Chun-leung. 2. The Crown case was that the killing arose out of a dispute, a few days before Wong's death, about an arrangement entered into by the deceased WONG Chun-leung (known as "Ah Luk") and CHAK Wun-chun ("Ah Wun") for the purchase of drugs. 3. On 15th October, 1979, Ah Wun paid the deceased $18,000 for heroin, which was to be supplied by Ah Luk. WONG Hon-kwai ("Ah Kwai") who acted as intermediary between the buyer and supplier, gave evidence for the Crown (P.W. 1). However, Ah Luk did not deliver the drugs for which he had been paid, asserting that they had been seized from him by the police. 4. Ah Wun did not believe this story and arranged on 19th October for D1 to fetch Ah Luk to Ah Wun's flat in Ngau Tau Kok. At this meeting Ah Wun accused Ah Luk of swindling him out of his money. Ah Luk did not admit having done so, but nevertheless promised to repay the money. Ah Wun and the two defendants thereafter assaulted Ah Luk, and also Ah Kwai who had been kept in the flat since 18th October. Ah Kwai saw that Ah Luk had been badly beaten up. 5. Ah Wun announced that Ah Luk and some of the others would go to Ah Luk's home to get his property as part compensation for the swindle. The two defendants were present. D2 was carrying a beef knife which he had wrapped in paper and D1 saw that he had it. 6. D1, D2 and the deceased left the flat, with others. Ah Wun, Ah Hing and Ah Kwai stayed behind. Ah Luk was not seen again alive by anyone, so far as is known. On 22nd October, his body was found on road near Cheung Hang Village, North Kowloon. 7. There were about 40 stab and cut wounds on it and the deceased's throat had been cut from ear. A pathologist estimated that death had occurred three to five days earlier. 8. D1 made several written statements to the police, in one of which he admitted that he and others had taken the deceased to the hillside near Cheung Hang Village and that he had been present when D2 and "Chun Chai" killed Ah Luk. D2 made a statement in which he admitted murdering Ah Luk by cutting his throat on the instructions of Ah Wun. 9. At 589, the judge observes "You may think that, without these confessions there isn't much left; or what is left is entirely circumstantial". He was therefore of the opinion that if the confessions were ruled out, the remaining evidence might be insufficient to establish the guilt of the defendants. 10. The statements were therefore of crucial importance. Some of them were admitted by the judge after an extensive voir dire, during which both defendants asserted that the statements were extracted from them by physical assaults, threats and inducements. 11. Of the statements made by D1 the judge admitted Exhibits 37 and 42, but rejected Exhibits 38, 39, 41 and 43. The Crown did not seek to introduce another (Exhibit 40). 12. Of the statements made by D2 he admitted Exhibit 44, but rejected Exhibits 45 and 46. The Crown did not seek to introduce another (Exhibit 47). Summary of Defence. 13. D1 gave evidence that he left Ah Wun's flat at about 8.00 p.m. on the evening of 19th October, believing that the matter had been settled, and that he spent the evening shopping with his girl friend and her cousin. The latter gave evidence to this effect, but his girl friend did not. 14. When he got back to his home at about 11.00 p.m., he found D2 there with some injuries on him. D2 told him (D1) that Ah Luk had failed to raise the money and that there had been a fight, started by Ah Luk who had a knife. 15. According to D1, D2 later pointed out to him where he had left the knife, which was why he was able to show the police where it was. 16. D2, who also gave evidence, testified that he was summoned to Ah Wun's flat at midnight on 17th/18th October by a phone call from D1. He arrived there after 1.00 a.m. on 18th October and was told about the swindle by Ah Wun. He was asked to help Ah Wun by running odd errands for a day or two. 17. He was in Ah Wun's flat when the deceased arrived there with D1 on 19th October. He denied that he ever had a beef knife in his possession. He was present when Ah Luk asked to be allowed to go to fetch some property as part payment of what he (Ah Luk) owed to Ah Wun. D2 said that he left the flat with others intending to go to Ah Luk's flat to get this property. 18. However, Ah Luk led them to a place near Kwun Tong/Kwai Chung, there he pushed D2 to the ground, whereupon a man called "Ah Ming" pushed Ah Luk. D2 tried to separate them but was pushed aside. He saw Ah Luk and Ah Ming with knives. He ran back to the car, where he was later joined by Ah Ming and Ah Yau. He had nothing to do with the attack on Ah Luk. Admission of statements made by person charged. 19. Counsel for both appellants advanced several grounds of appeal. We propose to deal only with those which appear to us to be of substance. 20. The first was that the judge was wrong in admitting the statement made on the 8th November, 1979 by D1, because it was obtained after the first defendant had been charged and brought before a magistrate's court. 21. Counsel cited CHENG Chung-yat v. Reg.(1), In which the Full Court expressed the opinion that it would generally be wrong for an antecedent statement, taken by the police from a person awaiting trial, to be used in a court of law for the purpose of proving guilt. At p.273
22. It was submitted that this passage (although obiter because the Full Court was required to deal only with an antecedent statement) should be construed as being of general application and that no statement obtained by a police officer as a result of questioning a person who has been charged with an offence is admissible in evidence. 23. We do not consider that the Full Court meant its observations on the propriety of using antecedent statements to apply generally to all answers to questions put to a person charged. 24. In any event, the later appeal of TAM Wing-kwai v. Reg.(2) removes any doubt on the matter. TAM decided that there is no rule of law which renders a voluntary statement inadmissible merely because it was taken after the accused had been charged and brought before a magistrate. 25. The same question was also considered recently in NG Wai-ming v. Reg.(3), in which statements made by an accused person after he had been charged were admitted. In NG's Case, this court deprecated the practice of interrogation of accused persons after they had been charged. There was in our lists for last week another case in which a suspect was subjected to extensive interrogation after he had been charged and brought before the court. 26. It appears therefore, as if our strictures in NG's Case have not been heeded sufficiently. So far, the courts have been prepared to admit a statement taken in such circumstances, if the Crown establishes its voluntary character beyond reasonable doubt. But we repeat that the practice of interrogating a suspect after he has been charged, and even more so after he has been brought before a magistrate, is improper and should be adopted only in exceptional cases. Inconsistency in Admission of Statements. 27. It was objected that the judge was inconsistent, and therefore wrong, in admitting two statements made by D1 but excluding four others made by him and in admitting one statement made by D2 and rejecting two others made by him. 28. When, at the end of a long voir dire, the judge admitted the three statements in question, he stated that he was satisfied beyond reasonable doubt that the Crown had established their voluntary nature. He gave no reasons for excluding the others. 29. It is well established that there is no duty on a judge to give reasons for his decision to admit a confessional statement as voluntary. A fortiori, he is not obliged to give reasons for exercising his discretion to admit. We would not interfere save on the usual, and limited, grounds on which an appellate court will review the exercise of a trial judge's discretion. 30. The judge did not state whether he excluded the other statements because he was not satisfied of their voluntary nature or in the exercise of his discretion. He merely said-
31. His use of the phrase "I see no reason to exclude," suggests that he must have already reached the conclusion that these exhibits were voluntarily given and that he excluded them in exercise of his discretion to do so. 32. It is apparent from an examination of the allegations of the appellants that their stories of threats, inducements and physical violence, which were clearly put before the judge and rejected by him, would have influenced all the statements and not merely those which were admitted. Therefore, in finding that some were voluntary, he must have found that all were. Failure to direct the jury to consider the case against the two defendants separately. 33. It is well-accepted that it is the duty of a judge, where co-defendants are charged, to warn the jury that the evidence against each defendant must be considered separately and that the Crown must establish the case against each defendant individually and separately. 34. Nowhere in the summing-up was a direction given in such terms. However, counsel for the Crown and counsel for each of the defendants, when addressing the jury, made it clear to them that this was the proper course. 35. Nor is there anything in the summing-up which could be interpreted as suggesting that the jury were entitled to consider the evidence on the basis that either both defendants must be convicted or both acquitted. 36. At page 590, the judge directed the jury that -
37. The implication from this phrase is that the charge has to be proved separately against them. Also, in many portions of the summing-up, the judge deals with the evidence against each defendant separately. We do not think that the jury can have been left with any misapprehension as to their proper approach to the evidence in this respect. 38. We have had to consider, however, whether the absence of a specific direction of the kind mentioned would be fatal to a conviction. There can be no doubt that it is desirable for a judge to warn a jury to consider the evidence against each co-defendant separately. 39. But we do not regard the omission to do so as a material irregularity unless there is a possibility that the jury might, in the circumstances of the case, have given weight, as against one of the defendants, to evidence which was not applicable to him. 40. In this instance, the bulk of the prosecution evidence consisted of statements, made by the two defendants. The contents and effect of them were separately considered by the judge in the summing-up. Subject to the comments which we make below in relation to another ground of appeal, the absence of an express warning to consider the evidence separately cannot have given rise to any danger that the conviction of one defendant may have been thought by the jury to lead to the conviction of the second. Comparing the statement 41. It is well-established that a confession made outside the witness box is evidence only against the person who makes it and not against any other persons who may be mentioned in it. 42. The judge directed the jury on this matter in the following terms -
43. Counsel for the appellants argued that the last two paragraphs weakened and vitiated the earlier paragraphs, which had correctly summarized the law, and must have been understood by the jury as an invitation to them to compare the statements made by the two accused. To tell the jury "one thing you might consider in comparing the statements" must indicate to them that they have a right to compare the statements and that they may do so for various purposes, one of which is the extent to which they agree. 44. There must, we fear, be some danger that, having been told that they might compare them "in order to see whether they agreed", the jury would have assumed that they could compare them so as to decide which parts of each were true and which parts were untrue. If the jury did so, and found a similarity, they might decide that this indicated that the statements were true. If they found a discrepancy, they might decide to accept the version in statement 1 as more likely than that in statement 2 and so decide that statement 1 as true. This would mean, in effect, that the statement of one co-defendant was being used as evidence against the other. 45. The last sentence of the passage "And you might ask yourselves whether they seem to be talking about the same events." is difficult to interpret and, we feel, must have left the jury in some confusion. Perhaps the sentence was a slip and the judge meant to suggest that the jury could properly compare the two statements made by D1. If he did, it was a proper direction. But we are apprehensive that the terms which he used may have misled the jury, in spite of his earlier warning against using the contents of one statement as evidence against another defendant, into thinking that they were, nevertheless, entitled to compare the two statements to assist them in reaching a conclusion as to the credibility of the defendants. 46. We were therefore driven to decide, with considerable regret, since it seems to have been no more than a slip of the tongue by the judge, that it would be unsafe to permit the convictions to stand. Provocation 47. The last main ground advanced on behalf of D2 was that the judge was wrong not to leave the issue of provocation to the jury. 48. The following oft-quoted passage from the opinion of the Judicial Committee in Bullard v. The Queen (4), sets out the correct approach to be adopted -
49. This principle was restated in similar terms in section 4 of the Homicide Ordinance (Cap. 339) (which reproduces section 3 of the U.K. Homicide Act 1957) -
50. In R. v. Gilbert (5), Lord Dilhorne, delivering the judgment of the English Court of Appeal, stated that there were two questions which had to be considered by a judge when deciding whether to leave the issue of provocation to the jury, as required by section 3 of the English Act. 51. The first question is "Was there any evidence of provocation of the accused?" The second is "Was there any evidence that the provocation caused him to lose his self-control?" Only if both questions are answered in the affirmative should the issue of provocation be left to the jury. At p.242, Lord Dilhorne observed -
52. Counsel for D2 was able to draw our attention to only one part of the record, which could amount to evidence of the provocation of D2 by the deceased. D2 described how he was pushed to the ground by the deceased and how, as a result of this fall, he suffered an abrasion of his elbow. He added that somebody (whom he did not identify) shortly afterwards pushed him against the hillside. 53. Dr. Lam, a forensic pathologist, found D2 to be suffering from multiple small abrasions on the inner-side of his right forearm, on the back of his right index finger and on the front of both shins. These in juries might have been sustained at about the time of the death of Ah Luk. 54. Could it be said that this was evidence on which a jury might have found that the accused was provoked? Not without hesitation, we have concluded that the answer is Yes, even though we regard it as unlikely that a reasonable jury would have so found on that evidence. 55. The second question is "Was there evidence on which a jury might have found that the accused lost his self-control?" 56. There is a passage in Gilbert which suggests that the failure of the accused person to give any evidence that he lost control of himself may be the most important factor to be taken into account in determining this issue. 57. But R. v. LEE Chun-chuen (6) a Privy Council appeal from Hong Kong, makes it clear that such failure is not conclusive and that loss of self control can be inferred. As Lord Devlin observes at p. 453 -
58. Thus the fact that the defendant gives evidence that he was not angry, or gives no evidence one was or the other, should not of itself prevent the answer to the second question posed being "Yes", though it is a factor to be taken into account in answering it. 59. In this case there was no evidence as to the state of mind of D2. There was nothing to indicate that he was at any time in a state of rage, let alone in such a state of rage as to induce a loss of self-control. Nor is this the kind of case in which the nature of the wounds inflicted may themselves, taken in conjunction with the other surrounding circumstances, show a loss of self-control by the accused. 60. The terrible wounds suffered by the deceased were inflicted by at least two weapons wielded by two or more people. The nature of the wounds, therefore, does not lend support to a loss of self control by D2. 61. Our answer to the second question is that there was no evidence fit to be left to the jury that the provocation caused D2 to lose his self control. Thus it cannot be said that the judge was wrong not to put the issue of provocation before the jury. Re-trial 62. It was submitted to us by the prosecution that this was a proper case in which to apply the proviso, or alternatively, that a re-trial should be ordered. 63. We decided that the material irregularity in the course of the summing-up was such that we could not feel satisfied that the jury, if they had been properly directed, would necessarily have come to the same conclusion, though we thought it likely. So we decided not to apply the proviso to section 83 of the Criminal Procedure Ordinance. 64. However, this seemed to us to be an appropriate case in which to order a re-trial under section 83(e) of the Criminal Procedure Ordinance, in the interests of justice, since this appeal had not succeeded because of any weakness in the Crown case but because of an error in the summing up. Representation: A.A. Hoosen (S.T. Poon & Co.) for 1st appellant K. Ramanathan (D.L.A.) for 2nd appellant F. Wong for the Crown/Respondent (1) 1970 H.K.L.R. 269 (2) 1976 H.K.L.R. 401 at p.405 (3) Cr. App. 400/1979 (4) (1957) A.C. 635 at p.644 (5) (1977) Cr. App. R. 237. (6) (1962) H.K.L.R. 450. |