Li Wai-leung and Another v. The Queen
Read the full judgment text of CACC 549/1972 on BabelCite. This Court of Appeal judgment.
1. The two appellants in this case were found guilty by the jury on four counts. The first count charged that they together with others murdered one CHENG Chi-sang on the 21st January 1972 at the corridor on the ground floor of Buckingham Building, Nathan Road, Kowloon. The second was that at the same time and place they with others maliciously wounded CHENG Kwok-sum with intent to do him grievous bodily harm. The third was of assault occasioning actual bodily harm on LEUNG Chi-ho and the fourth
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CACC000549/1972 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 549 OF 1972 -----------------
----------------- Coram: Full Court (Rigby, C.J. Huggins & Leonard JJ.) Date of Judgment: 12th December, 1972. ----------------- JUDGMENT ----------------- Leonard J. 1. The two appellants in this case were found guilty by the jury on four counts. The first count charged that they together with others murdered one CHENG Chi-sang on the 21st January 1972 at the corridor on the ground floor of Buckingham Building, Nathan Road, Kowloon. The second was that at the same time and place they with others maliciously wounded CHENG Kwok-sum with intent to do him grievous bodily harm. The third was of assault occasioning actual bodily harm on LEUNG Chi-ho and the fourth of affray. 2. Five accused persons were originally charged with these offences. The first and second accused, being the first and second appellants respectively, were by the unanimous verdict of the jury found guilty on all four charges. The third and fourth accused in the course of the trial pleaded guilty to the third and fourth charges only - no evidence was offered against them in respect of the first and second charges of which they were accordingly acquitted. The fifth accused was, by the unanimous verdict of the jury, found not guilty on the first and second charges but guilty on the third and fourth charges. 3. It was the case for the prosecution that the deceased, his brother and a friend went to a nightclub in Buckingham Building at about 1.00 a.m. on the morning of the 21st January 1972. While watching the floor show there, CHENG Kwok-sum, the brother of the deceased, the victim in the second charge, bumped into a person who was a stranger to him to whom he apologised but who became abusive. After the floor show CHENG Kwok-sum returned to his table at which the deceased and LEUNG Chi-ho were sitting and saw the stranger at the next table with some 10 others, including three girls. After a few minutes the party, among whom was the stranger, left. About 10 minutes later the deceased, CHENG Kwok-sum and LEUNG Chi-ho left at about 2.55 a.m. When the three of them reached the ground floor they were attacked by some 10 Chinese males, of whom 2 were armed with knives, and a melee developed in the course of which CHENG Kwok-sum was cut on the left hand, his clothes were cut and he received blows on the head and body. During the melee he saw his brother rush out into the street pursued by a number of Chinese males. When he got out into the street he found his brother, the deceased, lying on the pavement suffering from many stab wounds, from which he subsequently died. CHENG Kwok-sum subsequently identified the first appellant as the stranger into whom he had bumped in the nightclub. LEUNG Chi-ho was also attacked on the ground floor of the building, was hit on the left eye, fell and was beaten. He identified the third accused as among his assailants but neither of the appellants. 4. The case against both appellants turned upon statements made by them to the police the voluntariness of which was in issue. In addition to these statements there was evidence to the effect that on the afternoon of the 22nd January (the day after the incident) the first appellant had gone to the Majectic Theatre carrying a parcel. He there asked a friend of his, an employee at the theatre, one CHAU Hon-shing, to put the parcel up on to a shelf for him telling him that the parcel contained knives. At that time the first appellant appeared to be suffering from an injury to his foot or leg. The first appellant had on the morning of the 21st January (the morning of the incident) been seen by another employee of the theatre at the theatre staff quarters suffering from a laceration of the left knee. It will be seen, however, that the evidence against the first appellant, apart from confessions made by him the admissibility of which was challenged, was minimal while that against the second appellant, apart from such confessions, was non-existent. The admissibility of these confessions was, therefore, a crucial question for the learned Commissioner and the weight to be attached to them was an equally crucial one for the jury. There is no doubt that in approaching the question as to the admissibility of these confessions the learned Commissioner instructed himself correctly as to his function stating :
5. The first of the statements made by the first appellant was alleged by the Crown to have been made in Tsuen Wan Police Station and to have finished at 2.00 p.m. on the date of the arrest, Sunday, 23rd January 1972, and the second of them purported to have commenced at 2.15 p.m. at the Majestic Theatre in Kowloon. Much turned in the court below on the question as to how long it had taken to get from Tsuen Wan Police Station to the Majestic Theatre in Nathan Road. The first appellant called his brother as a witness and he stated that he had recently travelled over the same route at about the same time on a Sunday and the journey had taken from 26 to 30 minutes, while the police sergeant to whom the confessions were made said the journey had taken him 10 to 15 minutes. The question was of importance because in the first of the confessions the first appellant, having confessed to stabbing the deceased, allegedly concluded by saying :
The evidence adduced by the Crown was that 15 minutes later, after a fresh caution, he said :
The taking of this statement, preceded by a further caution and accompanied by the action of taking out the knives and handing them to the police sergeant, allegedly took 15 minutes, the same time the party took to go from Tsuen Wan Police Station to the Majestic Theatre. The evidence for the defence as to the making of the confessions of the first appellant was that they were written by the first appellant (not at Tsuen Wan Police Station and the Majestic Theatre as the Crown alleged) but at Yaumati Police Station on the dictation of the police sergeant concerned after veiled threats had been made. 6. There was considerable argument on the voire dire as to whether the confessions of the first appellant could have been as the prosecution witness averred and in the course of his ruling on their admissibility the learned Commissioner said :
7. Before us, placing emphasis on the use by the Commissioner of the words "but this is only one aspect of the evidence relating to the taking of these statements" Mr. Bokhary sought to suggest that the Commissioner was indicating a doubt as to whether the statements were made in the manner in which the prosecution witness concerned positively affirmed they were so made, his first ground of appeal being that before admitting them he had not satisfied himself beyond reasonable doubt that they were made in the manner in which the police sergeant alleged that they were made. In support of his contention that this was the proper test he cited LI Kar-wah and Another v. The Queen(1). We consider, as a matter of common sense rather than of law, that he was quite right when he argued that one cannot be satisfied that a statement is voluntary unless one is first satisfied that it has been made as the police officers affirmed that it had been made. It would be quite illogical, and indeed perverse, to be satisfied as to voluntariness but not as to the truth of the evidence to show voluntariness, because it is for the Crown to prove voluntariness affirmatively. We do not think this court intended to say more in LI Kar-wah's case. The question we must consider, since the learned Commissioner expressly says he was satisfied beyond reasonable doubt as to voluntariness, is whether he indicated in his ruling that he had doubts as to whether the statements were made in the manner in which the sergeant said they were made, for if he had such doubts he should have doubted their voluntariness. 8. Clearly, great emphasis was placed on the time element. There was, however, no detailed examination as to how the sergeant fixed the three important times mentioned in the statements i.e. 2.00 p.m. on completion of the statement in Tsuen Wan; 2.15 p.m. on commencement of the statement in the Majestic Theatre; and 2.30 p.m. on its conclusion. If the police sergeant who took the statements had in point of time fixed them by reference to his own wrist watch and had maintained that the times were accurately recorded in relation to one another one could say that there was room for doubt as to his veracity since it would be difficult, if not physically impossible, to leave Tsuen Wan Police Station, get into a motor vehicle, drive to the Majestic Theatre, park the vehicle, get down from it, enter the Majestic Theatre and commence to take a second cautioned statement all in the period of 15 minutes, even on a Sunday afternoon in winter time. 9. Mr. Bokhary in his address to us assumed that the sentence "but this is only one aspect of the evidence relevant to the taking of these statements" amounted to an indication by the learned Commissioner that he found it difficult to accept that the statements were taken as the sergeant said they were. This sentence, however, does not follow immediately on his statement that the sergeant had said that the journey from Tsuen Wan took only 10 to 15 minutes. It follows on his resume of the sergeant's evidence as to the traffic lights he encountered on the journey. It is not a necessary inference from the use of this sentence by the Commissioner that he had doubts as to whether the statements were taken in the manner the sergeant said they were. Although it is a possible inference we do not consider that we should attribute an illogicality to the Commissioner unless that is the only explanation for his use of the sentence under discussion. It is not strictly essential, although it may be eminently desirable, for a trial judge to give reasons for his decision that a confession was voluntary. A fortiori, it is not necessary for him to use the formula that he is satisfied that the confession was made as the prosecution witnesses affirmed that it was made. The learned Commissioner had advantages which we do not have. In default of a clear demonstration to the contrary we find ourselves unable to arrive at the conclusion that in deciding the question he was illogical. 10. Mr. Bokhary sought to provide this demonstration that the Commissioner was illogical in fact and incorrect in law in his finding by reference to a phrase used by him in summing up to the jury : he said "a person can make a voluntary statement under torture". Clearly, this was no more than a slip of the tongue and passed unnoticed by all counsel present. It certainly did not mirror the processes of thought he followed. 11. The third and fourth grounds of appeal advanced on behalf of the first appellant suggested misdirection of the jury in answering questions put by the foreman. 12. The relevant passage of the record reads :
When considering the possible effect of these directions they must be read in conjunction with the summing up as a whole. Firstly, when dealing with the question of possible drunkenness the learned Commissioner said :
In the above passage, read in conjunction with the passage we are about to quote the learned Commissioner clearly indicates the close relationship between voluntariness and the weight to be attached to a statement, for he went on to say, when dealing with the statements themselves :
Manifestly, the jury must have appreciated that if they were not satisfied as to the voluntariness of a statement it could have little weight. Voluntariness is, of course, the sole factor to be taken into account by the judge when deciding the question of admissibility; it is but one of the factors to be taken into account by a jury when deciding on the weight which they should attach to a statement. 13. The use by the jury of the words "invalidate" and "valid" in relation to a statement is admittedly puzzling. It is not a term that was used by the learned Commissioner; its use by the jury was perhaps prompted by a little knowledge of American law by some of the jurors. Under our law a statement is not "invalidated". It is either admissible or inadmissible. It had been admitted and the learned Commissioner's answer to the first of the jury's questions on this subject makes it immediately clear that the question for them was its weight. The second question whether they could take the "bits" they think "valid" and exclude the "bits" which they consider not "valid", with its repetition of the word "valid" is admittedly answered initially in the affirmative - presumably because at that stage of the proceedings the learned Commissioner did not wish to cause confusion in the minds of the jury. But that answer was qualified by a proper direction. Once again the foreman of the jury asks (in relation to failure to caution). "It doesn't invalidate the statement?" and is told it is a factor to be taken into consideration and that the main question for the jury is that of weight. Throughout this passage it is made clear that voluntariness affects weight but that an involuntary statement may be true. [This is clearly the message understood by all in court from the unfortunate phrase "a person can make a voluntary statement even under torture".] If it had not been so understood we have no doubt there would have been an immediate query from one of the counsel engaged. The whole direction of the passage, when considered in its entirety, is that weight is for the jury but that they should not give much weight to a statement they consider involuntary. 14. Having regard to the wording of the fourth ground of appeal :
It is necessary to reiterate that at the time that direction was given no question of admissibility could arise. The statements had been admitted. The only question on which the jury required to be directed was that of weight. On this the learned Commissioner gave an impeccable direction, except for the unfortunate slip of the tongue we have mentioned which, in the context in which it occurred, can have done no harm. These considerations answer not only the fourth but also the fifth ground of appeal of the first appellant and the first, third and fourth grounds of appeal of the second appellant. There are, however, certain aspects of the manner in which the statement of the second appellant was made which have caused this court considerable concern. The second appellant had been identified in the first appellant's statement as having struck the deceased with a knife. Up to the time the first appellant's statement had been made the evidence available to the police as to the complicity of the second appellant was, to say the least of it, sparse. He had earlier admitted his presence at the melee but had said that he had been involved in a "fist fight" only. It is clear that after his arrest the second appellant, having been questioned by the police, was confronted with the statement of the first accused in the office of the Detective Chief Inspector of Yaumati Police Station in which Chief Inspector Quinn and Inspector Tang then were. It is equally clear from the cross-examination of Inspector Tang that this confrontation was arranged in the hope that the second appellant would incriminate himself further: that, no doubt, is usually the hope of the police in such cases when they believe the person served to be guilty. He duly did so and wrote out the challenged statement in English. It is noteworthy that it is written in impeccably fluent handwriting which shows no signs of irregularity or shakiness. It is also noteworthy, however, that the evidence of Chief Inspector Quinn differs from that of Inspector Tang (which the learned Commissioner describes as having been given with "refreshing candour") in that Chief Inspector Quinn denies that any prior discussion as to the best way of getting further evidence against the second appellant had taken place between Inspector Tang and himself. The evidence given by the second appellant as to events preceding his writing this statement was to the effect that he had been cruelly tortured by Inspector Tang in the presence and with the tacit approval of Chief Inspector Quinn. Clearly, these allegations were wholly disbelieved by the learned Commissioner, and with reason, as the handwriting and wording of the statement indicates that it was written quite calmly. It gives the time and date of the occurrence, gives and repeats the name of the first appellant in capitals and ends "and Lee gave me his knife. After taken (sic) his knife, I also gave the man a few stabs." 15. When giving his reasons for admitting this statement the learned Commissioner stated :
The majority of this court has no doubt that the taking of the statement conflicted not only with the letter but also with the spirit of the Judges' Rules. There was no reason why the second appellant should not have been served in the cells with the first appellant's statement. The proper course to follow is to leave such a statement with the co-accused without comment. "Parading" him in the Chief Inspector's office was entirely unnecessary unless, as alleged by the second appellant but denied by the police, the police wished to question him about an array of knives which had been placed there. It clearly amounted to a confrontation and an invitation to the second appellant to say something in the hope that he might incriminate himself. The learned Commissioner would have been amply justified had he exercised his discretion to exclude the statement. However, the discretion is his, to be exercised judicially having availed himself of the advantages "sometimes broad and sometimes subtle" of having heard and seen the witnesses. On the trial of an issue as to admissibility dependent on the exercise of discretion, an "atmosphere" impossible to convey on paper, can develop so as to persuade the trial judge to admit or reject a statement in exactly the same way as the "atmosphere", which enables him to decide whom to believe, develops. We are, therefore, extremely loth to interfere with the exercise of such a discretion however strongly we may deprecate the preliminaries attending the giving of the statement, as the majority of us do in this case. Our courts are so bedevilled by trials protracted to almost intolerable lengths by controversial and sometimes justifiable, issues as to the admissibility or otherwise of statements allegedly voluntarily made that some might think that trial judges could be forgiven if they decided, as an invariable rule, to reject all statements made by an accused person encouraged towards self-incrimination, however voluntary the ultimate self-incrimination may prove to be. We all think, however, it would be wrong to adopt such an invariable rule as to do so would be to reject the discretion clearly conferred on them. The temptation to adopt some such rule of thumb would be increased if confrontation of the kind that occurred in this case became more common. Be that as it may, we have come to the conclusion, albeit not without some hesitation on the part of the majority, that in this case the learned trial judge exercised a discretion peculiarly his and we do not think there are sufficient grounds which would justify this court in interfering with the discretion. 16. It is correct that the learned Commissioner did not remind the jury of a number of pieces of evidence mentioned in the second of the grounds of appeal of the second appellant. It would be well nigh impossible for him to have reminded them of all the evidence, and confusing rather than helpful of him to have done so. At the outset of his summing up he specifically warned them as to this in the following terms :
This is a copy book direction, trite perhaps to lawyers but nevertheless a clear indication to the jury that all the matters particularized by the second appellant in the second ground of his appeal were open to the jury. We do not accept that the omission of reminders on the matters mentioned, taken either individually or collectively, was such as to amount to a misdirection. The jury had been addressed at length by counsel on the facts. It remained only for the Commissioner to remind them of the salient features of the case put forward by both the prosecution and the defence : this he did. 17. The only other ground of appeal to which we consider it necessary to refer concerns the ruling of the Commissioner that the committal proceedings were not null and void. This question arose from the evidence of the principal eye-witness of the affray CHENG Kwok-sum. Although Mr. Cheng was an eye-witness of the incident he was not called as a witness before the magistrate on the taking of the depositions and the accused were committed for trial, the magistrate relying in part on a statement recorded in the English language and allegedly made by him to the police on the 28th January 1972. 18. He was cross-examined as follows :
On the basis of this evidence it was submitted that the committal was bad because what was before the magistrate was not the witness's statement but an English translation of it made on a later date. The translation, it must be noted, had been signed by the witness. It was further alleged before us that the evidence of two other (less important) witnesses had been similarly admitted before the learned magistrate. 19. It should first be noted that the evidence of CHENG Kwok-sum and of the other eye-witnesses, if regularly before the magistrate, would not have been sufficient to have enabled him to commit the appellants for trial and secondly that on the other evidence before him it would have been quite open to him to have found a prima facie case against the appellants. The evidence admitted before the magistrate, then, was not essential to enable him to commit. 20. The section enabling the magistrate to admit statements on committal proceedings is Section 81A of the Magistrates Ordinance the relevant portions of which read as follows :
21. Mr. Ming Huang advanced an attractive argument in support of his claim that the committal was bad. He pointed out that it was apparent immediately from the documents themselves that the statements in them, although they might have been signed by those making them, could not be said to have been "read over" to those making them. To "translate" was not to "read over" because what were used were not ipsissima verba. What had happened was that the original statement (in Chinese) had been translated into English and the only thing that could have been read over was a translation back into Chinese. Such a procedure is attended by a double risk - the risk of mistake in translation into English from the original and the risk of mistake in translation back into Chinese. The difficulties of the defence were, he suggested, compounded because it was impossible to hold the witness to a particular version of events. When he sought to do so the witness would call for the original statement (which was no longer available) he had made in Chinese. In passing we would say that we sympathise with the first part of this submission. This court has on many occasions commented on the undesirability of recording in English statements made in Chinese. Statements made in Chinese should be recorded in Chinese read back in Chinese and the Chinese version should be signed. It should then be translated and the translation certified. Only in that way can mistakes be avoided. From the second part of his submission I would withhold any sympathy for it has been my experience that in these courts lengthy and tedious cross-examination of the "thats-not-what-you-said-before" type is all too common. It is my experience that such cross-examination is generally a complete waste of time. 22. Be that as it may, Mr. Ming Huang's argument before us was that the action of the magistrate in admitting the statements was irregular and that that irregularity vitiated the committal. In support of that contention he relied on CHAN Kam-chau & Another v. The Queen(2). In that case the appellants were charged jointly in the magistrate court on a number of charges of robbery. They pleaded guilty and were committed to the Criminal Sessions of the Supreme Court. The magistrate before accepting the pleas failed to record that the offences and the ingredients which at law constitute them were explained to the accused in compliance with Section 81B of the Magistrates Ordinance. 23. It was held that the committal was bad and the applicants were ordered to appear again before the magistrate to take their trial according to law, this court (differently constituted) observing :
Mr. Ming Huang contended that the peremptory requirements of the statute had once again been ignored and the committal therefore bad. 24. It was not contended by Crown Counsel that the statements were regularly admitted by the learned magistrate in compliance with section 81A but he suggested that their admission was not fatal since the committal would have been valid had the statements not been before the learned magistrate. In many cases magistrates admitted inadmissible evidence although its admissibility was challenged before them, and the committals were none the less regular. In our view the present case is clearly distinguishable from Reg. v. CHAN Kam-chau & Another(2). It could not be said that the "proceedings before the magistrate were so defective that there was no committal for trial here at all". That was the test accepted in Reg. v. Gee(3). The committal would have been good and effective had the statements in question not been accepted by the magistrate if he had nevertheless found that a prima facie case existed. Furthermore, since the statements that were before the magistrate and of which the appellants therefore had notice contained the gist of the evidence given by the witnesses in question there was no duty on the Crown to give notice of additional evidence. For these reasons we are of the opinion, and we so hold, that the learned Commissioner was right in refusing to hold that the committal was bad. 25. The applications in respect of both appellants for leave to appeal against their convictions must accordingly be dismissed. Representation: Mr. Bokhary (K.Y. Woo & Co.) assigned for 1st Appellant Mr. M. Huang (David Tsang & Co.) assigned for 2nd Appellant Mr. Marshall, c.c. for Crown/Respondent (1) 1970 H.K.L.R. 572 (2) 1971 H.K.L.R. 383 (3) 1936 2 All ER 89 |