The Queen v. Chu Wan Choi

IN THE COURT OF APPEAL

1987, No. 142
(Criminal)

BTWEEN

THE QUEEN

and

CHU Wan-choi

______________

Coram: Hon. Silke, V.-P., Clough & Power, JJ.A.

Date of Hearing: 28th May 1987

Date of Judgment: 28th May 1987

______________

JUDGMENT

______________

Power, J.A.

1. The applicant was charged that he did on 6th July 1986 in wooden hut No.299, South District, Ngau Tam Mei Village, Lok Ma Chau, New Territories, murder LEE Ah-tim. After trial he was found not guilty of murder but guilty of manslaughter.

2. The trial judge when sentencing him summarized the facts as follows:

"No doubt, being in need of money with which to finance your rather vacuous life, style, you decided that you would try to obtain some from your granduncle and, in order to achieve this, broke into his hut on the night in question, and we are well aware of what happened thereafter. Your uncle awoke, am in an effort to keep him quiet, you suffocated him."

3. The applicant is before this court appealing against his conviction on the ground that it was unsafe and unsatisfactory because prejudicial evidence of no probative value was allowed to go before the jury.

4. The trial judge held a voire dire at the conclusion of which he refused to admit certain evidence but held that Ex. 11, a confessional statement, was admissibie. He said when making a ruling after the voire dire:

"That leaves us with the principal document, that's the provisional exhibit P.11 - the records taken by the sergeant of various questions and answers taken over a period of seven hours together with a confession apparently written by the accused in his own hand.

As far as this document is concerned, I am satisfied so that I am sure that the answers to the earlier questions, that is the questions before the written confession, the answers to those questions were made voluntarily as was the confession itself. I do not accept that there's any need to caution the accused before the sergeant did so, nor do I accept the circumstances that had been explained to me very carefully by counsel combined to overbear the accused's will.

So that part of P.11 down to and including the confession written in the accused's hands, I find it was being made voluntarily and I shall admit it in evidence before the jury, that part of the record, in particular the questions and answers which occur after the written confession, I shall exclude."

In fact after further argument the trial judge ruled that only the confessional statement itself, and not the questions and answers which preceded it, should go in written form to the jury. However, he allowed the sergeant to give oral evidence of the preceding questions and answers and to refresh his memory from his record thereof. It is those questions and answers which are the subject of complaint today.

5. The questions and answers occurred in an exchange between the applicant and the sergeant which took place in the two hours preceding the giving of the confessional statement. During this exchange the applicant admitted that he had lied to the police in an earlier statement in which he said he was innocently occupied on the 4th and 5th of July with, among others, a man called LAW Chi-wah. The significance of this matter can only be properly appreciated if it is borne in mind that the killing took place on the night of the 5th/6th July. The earlier statement was made to the police during their initial investigations on 6th July and the statement admitting the lies was made on 24th July.

6. In the earlier statement the applicant gave his version of his movements in the 2 days preceding the killing whereby he sought to explain that he was not in any way involved in thats killing. He said that on the 4th he had paged LAW Chi-wah and had later met him and played billiards with him. He admitted to the sergeant on the 24th July that this was a lie and said that he had, in fact, spent this time with a girl named Yee Wah from the Kam Hoi Shing Finger Press Centre. He also said in the earlier statement that he had met Mr. Law on 5th July and it was, when taxed on the 24th July with this matter by the sergeant's suggesting to him that it also was untrue, that he broke down and. made the confessional statement which was admitted as Ex. 11. Mr. Aiken, who appeared for the applicant, suggested that no evidence of the earlier statement and of the subsequent admissions of the lies in it should have gone before the jury on the basis that the statement and the admissions were not relevant either to the offence charged, as they referred to the accused's movements on the two days preceding the offence, or to the credit of the accused as he did not give evidence in the trial. He further submits that the evidence was so highly prejudicial that if admissible technically it should not have been led as the prejudice far outweighed the probative value.

7. We cannot agree. We are satisfied that the evidence of the statement of his movements in the 2 days preceding the killing and of his admissions that he told lies therein must be looked at together and that, for two reasons, both were relevant and admissible. First, because in his admissions he withdrew his innocent version and, second, because the evidence as to the making of the admissions explains how the applicant came to make his confessional statement. It was important that the jury, when assessing the weight that they should give to that statement, have before them the full circumstances of its making. The evidence of the making of the admissions completed and explained what occurred and was, in our view, properly placed        before the jury.

8. Mr. Aiken argues that, even if it was admissible explanatory evidence, though he does not concede that it was, it was so prejudicial, showing as it did that the accused had lied, had committed the offence of misleading the police and t hat it should have been excluded by the trial judge. It is his argument that once these lies were before the jury irrepairable damage was done to the defence case. He further objects saying that the questions eliciting the admissions that lies had been told were put in an. improper way by the sergeant to the applicant.

9. In the latter regard the trial judge made explicit findings, to which I have already referred, that there was no need for the sergeant to caution the applicant before he did and that the circumstances did not overbear the applicant’s will. Nothing has been raised which would make it proper for us to go behind those findings.

10. We turn to the contention that the evidence was so prejudicial that the judge should have excluded it. We cannot agree that he should have done so. The evidence was, as we have said, relevant and admissible. It, of course, 'lay upon the trial judge to give a proper direction and it would have been quite wrong had the jury been left with the impression that the lies inevitably pointed to guilt. This was, however, not the case. The trial judge was in our view very fair in the direction which he gave to the jury as follows:

"There was a suggestion - indeed I think it must be clear to you - that the accused told some lies in that earlier statement. Lies, as Mr. Aiken has told you and as I now emphasize, prove nothing. So you should disregard them completely. You should not let them prejudice you in your assessment of the evidence in this case.

There could not, in our view, have been a clearer or more concise direction. The jury could have been left in no doubt, when it came to proof of the offence, that the lies had no probative value and that they should disregard them completely. The evidence was, however, properly left before the jury to explain how the accused had come to withdraw his innocent version and to make his confessional statement.

11. Indeed, we cannot help but remark that it might well have been proper for the trial judge to have given the jury a direction that an inference adverse to the accused could have been drawn from the lies if they were satisfied that there was no explanation for them other than a consciousness of guilt, i.e. an awareness on the part of the applicant that he could not, consistent with innocence, tell the truth. We are not satisfied that anything has been raised which calls for our interference.

12. The application to appeal against conviction is dismissed.

13. We turn now to the matter of sentence.

14. On the evening of 6th July 1986 the applicant went to steal from his elderly granduncle. He was not armed at the time. It appears that in the course of the theft his granduncle awoke and in the words of the applicant:

"Then he shouted once. I went up to stop him and pressed his mouth and neck as well as the nose with hand in the hope that he would not be able to shout. He then put up a struggle and hit me with hand. I was frightened and so pressed him hard. Later he and I fell down from the side of the bed to the floor. He fainted. I paid no attention to him, continued to look for money, later found a bunch of keys, took out from a drawer at the bed side the identity card and some money and took out from a drawer on the other side."

While it may be that not a great deal of force had to be used clearly, on his own admission, there was force sufficient to render the granduncle completely immobile. While it is clear that t he applicant's actions in subduing his granduncle were deliberate ones we accept, given the verdict of the jury, that they were not done with the intent to cause death or grievous bodily harm. They were, however, done in the course of a theft which could properly be categorized as a burglary. It was a serious offence which warranted a heavy sentence and we see no grounds for interferring with the sentence of eight years which was passed..

15. The application is dismissed.

Mr. A Duckett, Q.C. & Miss Mary Sin (Crown Prosecutors) for the Respondent.

Mr. Nigel Aiken (D.L.A.) for the Applicant.