The Queen v. Lam Chi Ming and Others

CACC000058/1988

Headnote

Involuntary statement - conduct as statement - whether such statement admissible - not to prove the truth of its contents but to establish knowledge or state of mind.

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Coram: Hon. Yang, C.J., Hon. Silke, V.-P. & Hon. Penlington, J.A.

Dates of Hearing: 12 & 13 April 1989 and 4 May 1989

Date of Judgment: 15 June 1989

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J U D G M E N T

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Hon. Yang, C.J.:

1. The three applicants were convicted of murder.

2. In this application for leave to appeal against conviction we are concerned with one main issue only, namely, whether evidence of the gestures of the three applicants in pointing at the location of the murder weapon, i.e., a knife, was properly admitted before the jury.

3. The relevant facts are straightforward. The first and second applicants are brothers of a young woman called Lam Lai-shan. The third applicant is her boyfriend. On the evening of the 9th August 1987, Lam Lai-shan first informed the 2nd and 3rd applicants that the deceased had raped her on a number of occasions. There is the possibility that the first applicant became aware of his sister's allegation the same evening. In the small hours of the 12th August, the three applicants were seen together with the deceased at the Sea Dragon Billiard Hall, leaving the premises at 2.19 a.m. in a friendly manner. The deceased's bogy was discovered by a hill-walker by the side of the road at Devil's Peak at 4.45 a.m. that morning; the time of his death was estimated to be between 2.19 a.m. and 4.45 a.m. In the afternoon of the same day, the three applicants, having already been informed that their arrest was connected with the homicide of the deceased at Devil's Peak on the 12th of August, arrived with the police at the quayside at Ko Fai Road on the direction of the first applicant. At the quayside all three applicants separately pointed to a location in the water in that area, as a result of which the police diver found a knife which was the murder weapon. The police had no prior knowledge of the whereabouts of the knife. There was the evidence of the diver that if he had not seen the applicants pointing at the place in the water he would have had no idea where to start the search. He said it would have been like looking for a needle in a haystack.

4. Detective Sergeant Kwan Hing gave evidence that the 1st applicant directed the police along a route from Devil's Peak to the Ko Fai Road waterfront and there he pointed his finger downward. The sergeant indicated with a circle on the sketch plan produced in court the place at which this applicant had pointed.

5. Detective Sergeant Hui demonstrated in court how the second applicant gesticulated as if he was throwing things into the sea at the same spot.

6. DPC Lau also gave evidence to the effect that the third applicant made throwing motions towards the sea at this spot.

7. None of the applicants gave evidence on the general issue.

8. The chronology of events that led to the finding of the knife is as follows. The applicants were arrested on the 20th August at Aberdeen Centre and they all made statements to the police on the same day at the Airport Police Station. On the 21st the applicants re-enacted what their statements said they had done to the deceased at Devils Peak. The re-enacting was video-taped, with sound. The leading by the first applicant of the police to the quayside and pointings by the three applicants were similarly video-taped with sound. Objections were taken to the admissibility of the statements, the re-enacting, the videos and their audio attachment.

9. After holding a voir dire, the trial judge excluded the statements made to the police and all statements made during the re-enacting, the video of it and all sound on the video of the happening at the waterfront but not the actual depiction on video of what took place there including the gestures of the applicants. The prosecution witnesses were permitted to give evidence that the first applicant led them to the quayside and there each applicant pointed at the location where the knife was thought to be in the water. In his ruling the judge said that whilst he was unable "to bring in any findings" that there had been any improper treatment of the applicants by the police he was nevertheless not sure that the applicants statements were voluntary.

10. In admitting the evidence of each applicant's pointing, the judge ruled that the case under consideration was "on all fours" with R v Ng Wai-ming (1980) HKLR 228, 232.

11. In this connection, Mr. Sedgwick for the applicants argues that the judge having ruled all the applicants' statements inadmissible, it follows that the conduct of the police must have tainted the evidence of pointing and gesturing at the quayside. Further, the pointing and gesturing were tantamount to incriminatory statements which ought to have been excluded in the circumstances. Thirdly, the Ng Wai-ming case is distinguishable in that the defendant in that case led the police to his own house where the stolen money was recovered, thereby establishing a link between him and the money, such link being extraneous to any leading, pointing or gesturing. It is argued that such link is absent in the present case.

12. Clearly the trial judge was bound to follow the decision in Ng Wai-ming unless it could be distinguished.

13. The facts of that case as they affect this appeal were that the Appellant (D4) made a statement admitting his involvement in a robbery in which he was the driver of a security van. That statement however was clearly obtained by an inducement and the Crown did not seek to introduce it as evidence per se.

14. However following his giving that statement, certain events took place on which the Crown relied. These are set out in the judgment (at 231).

"About 1 a. m. On the following morning, the 4th July, D4 again asked to see the superintendent. At this interview, he admitted to the Superintendent that he had been involved in the robbery and asked if he could be a prosecution witness. The Superintendent told him that he was in no position to make any promises about that, as this was a matter that would have to be referred to the Attorney General.

After seeing a solicitor, D4 was released on bail the following afternoon. However, he was re-arrested on the 7th July and charged with robbery. On the following day, the 8th July, he accompanied Supt. Lau to Happy Valley Police Station where two keys were taken from his property. D4 led the police to a car park in Great George Street where, on the second floor, was a motor vehicle, the door of which was opened by one of the keys which had been found in D4's property. Under the floor of the vehicle in front was found $36,000 in cash; another $150,000 was found under the back seat of the car.

On the same afternoon, D4 took the police to a flat which was occupied by his mother; in the presence of the police, he asked her for the things which he had left there and which she said she had given to someone. He next took the police to his flat in Kwai Ying Building, where he had a conversation with his wife. D4 and the police next went to the hone of an uncle of D4's wife, where a cash box was produced, containing $160,000 in notes.

Later that day, D4 returned with the police to his mother's home, where she poduced a paper bag containing $50,000 in notes. So the total of notes recovered, under the guidance of D4, was $396,000."

15. It seems clear from this that the first lot of notes were found in D4's car to which he had led the police before going back to his room. The second lot was not in his home but in a flat occupied by his mother and the remainder in a flat occupies by his wife's uncle. While police investigations could have eventually led them to the car and to both flats it could only have been done after very lengthy enquiries, particularly in the case of the car.

16. After referring to R v Ramasamy (1965) A.C. 1 and Thurtell v. Hunt (1824) Notable British Trials 55, and P. Kuruma (1955, A.C. 197) Roberts, C.J. went on:

"However, the law has been clarified by R v Sang. The effect of that case, as we interpret it, is that whore evidence is obtained as a result of a confession, which is inadmissible because the Crown has failed to establish its voluntary nature, such evidence may nevertheless be put before the court. However, there remains in the trial judge his overriding discretion to refuse to admit evidence if, in his opinion, its prejudicial effect outweighs its probative value. In this instance, the probative value was substantial.

Furthermore, it would also be open to the judge, in accordance with his duty to ensure a fair trial, to rule out such evidence if it were obtained by a trick or deception. In this instance, the only trick or deception suggested was that D4 might have been misled into believing that he might be given immunity and called as a prosecution witness.

As to this, the judge found as a fact that, after he was arrested and charged with robbery, D4 must have realized that his chances of being a prosecution witness were very slim''

17. It is true that in Ng Wai-ming the applicant gave evidence at the trial admitting that he received the money but giving an explanation for it. However on the question of principle as to the admission of his statement we do not consider Ng Wai-ming can be distinguished from the facts here.

18. Whilst the grounds of appeal relate only to the pointings and gesticulating at the quayside, we are in this application concerned with two aspects of the evidence, viz., the first applicant's leading of the police to the quayside, and the three applicants' pointings and gesticulating there. There are four essential questions to be examined. First, whether or not the first applicant's leading amounted to a statement. Second, whether the pointings amounted to statements. Third, were the leading and the pointings part and parcel of the police interrogation? Fourthly, what is the nature or effect of these leading and pointings?

19. A number of authorites were cited in argument, beginning with R v Warickshall (1783) 1 Leach 263 which is authority for saying that facts obtained as result of an inadmissible confession may be adduced in evidence provided it is done without calling in aid any part of the confession from which they may have been derived. On this basis, the finding of the knife in the waters by the quayside is clearly admissible evidence, but this does not answer the question as to whether the leading and the pointing are admissible. It is accepted that without the pointing, the finding of the knife adds nothing to the Crown's case against the applicants. In the footnote of Leach, Rex v Butcher (1798) was referred to, and a comment made that "the most that is proper to he left with the Jury is the fact that of the witness having been directed by the person where to find the goods, and his having found them accordingly." If that comment be right, then it may be said that the leading of the police by the first applicant is similarly admissible in evidence. Indeed, Mr. Duckett for the Crown argues, with some force, that the first applicant's leading and the three applicants' pointing were all one and the same conduct of ultimately leading or directing the police to the knife.

20. In this connection our attention was drawn to a Scottish case, namely, Chalmers v H.M. Advocate (1954) Scots Law Times 177, 183; J.C. 66, 76, where the Lord Justice-General said:

"Again 'actings', in the sense of conduct, may be perfectly neutral as a communication of specific information; but 'actings', in the sense of a gesture or sign, may be indistinguishable from a communication by word of mouth or by writing."

21. The difference between the law in Scotland and the law in England on this issue is acknowledged (at p. 184 of the Scots Law Times and p. 76 of J.C. See also R v Sang (infra) at p. 948 F - G).

22. As a matter of commonsense it seems to us that "actings" or conduct may be a statement just as oral or written words may be a statement. The leading by the first applicant to the quayside is no different from a statement that "it is at the quayside at so and so place". Similarly the pointings are no different from the words: "It is at the bottom of the sea here". If Mr. A asks Mr. B how many/persons live with him and he raises four fingers, this gesture is the same as a verbal answer that four persons live with him.

23. In our view the leading and the pointing, together with the words uttered or written by the applicants, form part of the same transaction as the police interrogation which started at the Aberdeen Centre and the Airport Police Station. Our view is supported by the opening words used by the learned trial judge at his ruling on the voir dire: "I have to rule on the admissibility of a number of statements made by each of the accused in the form of signed statements in writing and video- recordings."

24. Before examining other authorities, it may be helpful to consider the rationale for excluding involuntary confession statements. In D.P.P. v Ping Lin (1976) A.C. 574, 607 B. Lord Salmon declined to be drawn into this question and observed that "for the present purpose it is only of academic interest".

25. Other authorities hold differing views in this respect: some lay down the principle of unreliability, then it is said that the police must be discouraged from oppressive or improper interrogations, and more recently, fairness and the principle that "no man can be required to be his own betrayer" have gained prominence (see Confessions and Related Topics in Criminal Evidence (1987) by Andrews and Hirst, at 19.25. See also R v Hars (1967) A.C. 760, per Lord Reid at 820 E-F.) In the most recent cases cited to us, R v Sang (1980) A.C. 402, Lord Diplock (at p. 436 D) stated:

"The underlying rationale of this branch of the criminal law, though it may originally have been based upon ensuring the reliability of confessions is, in my view, now to be found in the maxim nemo debet prodere se ipsum, no one can be required to be his own betrayer or in its popular English mistranslation `the right to silence'. That is why there is no discretion to exclude evidence discovered as the result of an illegal search but there is discretion to exclude evidence which the accused has been induced to produce voluntarily if the method of inducement was unfair."

26. Lord Scarman in the same case said (at p. 454 B) that in English law the confession is inadmissible, not because it is unreliable (its reliability is established by what has been found), but because to admit it would be unfair. See Lord Fraser at p. 448G. See also the case of Trump (1980) 70 Cr. App. Rep. 303, which seems to have been decided on the principle of fairness.

27. Whilst R v Sang was followed in R v Ng Wai-ming (supra), the rationale for excluding involuntary confession statements is not discussed.

28. It seems to us that there is not a single but a number of rationales which were relied on by the courts. Whatever they may be, we regard reliability as the major consideration.

29. The leading case of R v Sang (supra) does not deal directly with the issues in this application. The issue in that case was the judge's discretion to exclude evidence. Lord Diplock (at p. 436 B-C) limits the judge's discretion to exclude evidence to two imstances only, namely, (1) admissible evidence which would probably have a prejudicial influence upon the minds of the jury that would be out of proportion to its true evidential value; and (2) evidence tantamount to a self-incriminatory admission which was obtained from the defendant, after the offence had been committed, by means which would justify a judge in excluding an actual confession which had the like self-incriminating effect.

30. A more direct authority needs to be looked at, and it is R v Ramasamy (supra), where Lord Radcliffe, said (at p. 15 A-D) that if an inadmissible confession contains the allegation that certain stolen goods may be found at a certain place and they are found, the fact of finding proves the truth of the allegation, so that evidence may properly be given that the accused had given information which led to the discovery of the stolen goods, for that allegation is not related in any special way to the making of the confession. It qualifies for admission any such statement or information that might otherwise be suspect on the ground of a general objection to the reliability of evidence of that type. In our view, such information could well be given in the form of words, or conduct such as leading and pointing. In the present case, however, neither the Crown nor the applicants made any reference to the propriety or otherwise of the learned trial judge's order in excluding all verbal statements made by the applicants at the Airport Police Station, Devil's Peak and the Ko Fai Road quayside.

31. The present case seems to deal with precisely the same circumstances as is thc Canadian case of R v Wray (1970) 4 .C.C.C. 1. In that case during the trial of non-capital murder the trial judge ruled that a statement signed by the accused was inadmissible as it was not voluntary. In the statement the accused told the police that he threw the murder weapon into a swamp and after the statement was taken he directed them to the locality where the rifle was found the following day. It was held by Martland, J. of the Supreme Court of Canada, on appeal from the Court of Appeal for Ontario, (at p. 12):

"The confession of the accused was improperly obtained and was rightly excluded as being involuntary. In spite of this, evidence of the fact that the accused told the police where the murder weapon could be found was legally admissible under the rule in R. v. St. Lawrence, but because the manner in which he was induced to indicate the location of the weapon was as objectionable as that in which he was induced to make the confession, it was open to the learned trial Judge to hold that the admission of evidence of that fact would be so unjust and unfair to the accused and so calculated to bring the administration of justice into disrepute as to warrant his rejecting the evidence in the exercise of his discretion; and, finally, there being evidence on which it was open to the learned trial Judge to exercise his discretion in the way the did, the propriety of that exercise is not open to review on an appeal by the Crown."

32. Judson, J. also adopted the conclusion reached in R. v. St. Lawrence (at p. 23).

33. In St. Lawrence 93 C.C.C. 376 McRuer C.J.H.C. said this (at pp. 390-391):

"After the most earnest consideration that I have been able to give the whole matter in the time at my disposal, I have come to the conclusion that my decision must rest on this fundamental principle:

Were the discovery of the fact confirms the confession - that is, where the confession must be taken to be true by reason of the discovery of the fact - then that part the confession that is confirmed by the discovery of the fact is admissible, but further than that no part of the confession is admissible. Of all the authorities referrad to, Taylor most nearly agrees with this view of the law.

It is therefore permissible to prove in this case the facts discovered as a result of the inadmissible confession, but not any accompanying statements which the discovery of the facts does not confirm. Anything done by the accused which indicates that he knew where the articles in question were is admissible to prove the fact that he knew the articles were there when that fact is confirmed by the finding of the articles, this is, the knowledge of the accused is a fact, the place where the articles were found is fact. If he does or says something that indicates his knowledge of where the articles are located, and that is confirmed by the finding of the articles, then the fact of his knowledge is established. On the other hand, it is not admissible to show that the accused said he put the articles where they were found, as the finding of them does not confirm this statement. The finding of them is equally consistent with the accused's knowledge that some other person may have put them in the place where they were found.

34. The learned Chief Justice stated himself to have come to this conclusion from his reading of a passage in Taylor on Evidence, 12th ed., para. 902, which states that when, in consequence of information unduly obtained from the prisoner, the property stolen, or the instrument of the crime, or the body of the person murdered, or any other material fact, has been discovered, proof is admissible the such discovery was made conformably with the information so obtained. As the Chief Justice explained it (at p. 383), the finding of the articles verifies the knowledge of the prisoner that the article was there.

35. In such a case an involuntary statement is admitted, not to prove the truth of its contents, but to prove the knowledge or state of mind of the accused. Thus a statement which amounts to an expression of knowledge of some fact of the crime and is relevant to show or suggest guilt is a question of fact, and that fact may be established irrespective of whether the statement asserting the fact becomes evidence of knowledge by being confirmed by a subsequent discovery or by on already known fact: vide Involuntary Confessions and Illegally Obtained Evidence in Criminal Cases -II, by J.A. Andrews, in (1963) Cr. L. Rev. 77-86, whose arguments we adopt.

36. In the absence of direct authority in England, we are content to accept, with respect, the reasoning in the judgment of Chief Justice McRuer in St. Lawrence (supra) and or Martland, J. In R. v. Wray (supra).

37. We are here only concerned with one question: whether the trial judge correctly ruled the leading and pointings admissible. Our answer is in the effirmative. Having so ruled, he considered whether be should exercise his discretion in excluding that evidence. He decided not to exercise that discretion. We cannot say he was wrong in adopting that course.

38. For the reasons stated above, the application is refused.

Representation:

Mr. A. Sedgwick, QC & Mr. G. Alderdice (William Au & Co.) for Appellants

Mr. A.P. Duckett, QC & Mr. S.E. Stone for Crown/Respondent