Cheng Pak-chang v. The Queen
|
CACC000061/1979
----------------- Coram: Roberts, C.J., Huggins, J.A. and Cons, J. Date of Judgment: 13 July 1979 ----------------- JUDGMENT ----------------- Roberts, C.J.: Facts 1. The appellant seeks leave to appeal against his conviction, before Mr. Justice McMullin and a jury, for the murder of a woman named SHE Sim-sun, on the 2nd May, 1977. At the same trial, he was also convicted of wounding with intent a 4-year old boy named LUNG Chun-sing, the son of SHE Sim-sun, but no sentence was passed on him on this count. 2. The notice of appeal does not refer to the second count. However, the evidence in relation to both counts was identical and the conclusions which we reached on the first ground must mutatis mutandis be equally applicable to the second. 3. The husband of the deceased woman, Mr. LUNG Ka-wo, and another man, established a business, called the Wo Kee Company, for producing woven cloth, at 174 Nam Cheong Street in the year 1970. The same premises were occupied for domestic purposes by Mr. Lung, his wife and their six children. 4. On the morning of the 2nd May, 1977, one of Mr. Lung's daughters, a girl called LUNG Wan-ying, who was born in June 1965 and was therefore just under the age of 12 at the time of her mother's death, was present in the flat with her mother and her small brother, LUNG Chun-sing, the subject of the second count. 5. At about 10.30 in the morning, LUNG Wan-ying was by herself in the middle room of the flat, where she was doing school work, when she heard the bell ring and the front door open. She heard a man talking to her mother, and looked out from her room. She later identified the man who was talking to her mother as the appellant. 6. LUNG Wan-ying described part of a conversation between the appellant and her mother, a somewhat confused conversation in which she recalled that the appellant referred to delivery of silk and said that he was having difficulty in parking his vehicle. 7. After a short conversation with the mother the man left. About half an hour later, there was another caller at the flat. The door was again opened and LUNG Wan-ying heard what she described as a voice very similar to that of the man who had called earlier, again talking about delivering silk. She then heard what she described as her mother being "muffled". She went outside but could not see her mother, her small brother or anybody else. She became frightened, because she thought the flat had been invaded by robbers and went out of the flat shutting the door behind her. She made a call to the police and phoned her father. 8. The police arrived soon afterwards, shortly followed by her father. A crowbar had to be used to break into the flat. As the police officers were trying to break in, one of them said that he had heard somebody move around inside and a man's voice saying something. When the police broke in they found no man there. The small son was standing just inside the doorway, covered in blood, and in the second room, in which the girl had been sitting, the mother SHE Sim-sun was found, lying on the ground in a moribund condition. The medical evidence was that she had died as a result of at least 25 blows to the head with a blunt heavy instrument, such as a hammer, a metal block or a metal stool-frame, all of which were found in the flat with bloodstains and traces of human hair on them. It is the inevitable inference from the appalling injuries sustained by the mother that the attacker must have intended to kill or to inflict grievous bodily harm. 9. During the next few months, the police made extensive inquiries, particularly among employees of the Kam Tat Weaving and Dyeing Company. 10. It will be recalled that Mr. Lung had formed the Wo Kee Company in 1970 to produce cloth. It had been usual for cloth produced by the Company to be sent for processing to the Kam Tat Weaving and Dyeing Factory and for employees of that company to come to the Wo Kee Factory premises to collect cloth. The police, in view of the girl's evidence that the man who had talked with her mother had said he had come to deliver silk, did not concentrate their initial inquiries on employees of the Kam Tat Weaving and Dyeing Company, because employees of that company only came to collect material not to deliver it. 11. However, having drawn a blank among those who were known to have visited the premises to deliver materials, the police switched their attention to ex-employees of the Kam Tat Weaving and Dyeing Company who used to visit the premises to collect goods. 12. The appellant had often visited the flat, when working for Kam Tat Weaving and Dyeing Factory up to the summer of 1976, when the business of the Wo Kee Company, conducted in the flat, was switched from the weaving of cloth to the manufacture of elastic. After this, the appellant did not visit the premises to collect goods. 13. In March 1977, the appellant left the Kam Tat Weaving and Dyeing Company and worked at a number of other jobs until March 1978, when he was re-employed as a casual worker at the Kam Tat Weaving and Dyeing Company. There is no evidence that he visited the flat after his re-employment in March 1977, before the day of the murder. 14. Among those interviewed by the police during March 1977, was the appellant, from whom three statements were taken by Inspector Chan on the afternoon of the 20th March, 1978. 15. The first statement dealt with the background and brief life history of the appellant. It described the work which he had been doing since he came to Hong Kong about 1968 and referred to his employment by the Kam Tat Weaving and Dyeing Company. 16. Having completed this statement, the Inspector cautioned the appellant and recorded a short second statement in which the appellant admitted that he had killed SHE Sim-sun and that he had hit the son. 17. After he had completed this statement the Inspector asked him a few supplementary questions designed to clarify matters in the second statement, and these and the appellant's answers were incorporated in a third statement. 18. All three statements purported to have been written by read over to and signed by the appellant. 19. The following day, the appellant was identified, at an identification parade, by LUNG Wan-ying as the man who had visited the flat on the morning of her mother's murder. No complaint has been made by the defence as to the manner in which this parade was conducted. In May 1977, the girl had attended two other identification parades (at neither of which was the appellant present). At neither parade had she identified anybody, though she had said that one of those present was similar to the visitor. 20. This is a case in which the evidence against the accused depended wholly upon two types of evidence, identification and a written confession. Both are kinds of evidence which must be examined with great caution and subjected to the most careful scrutiny. There is no other evidence of any significant probative value. Grounds of Appeal Provocation 21. There are four grounds of appeal which raised objections of some substance with which we must deal. 22. The first relates to a possible defence of provocation. It was submitted by counsel for the appellant that the trial judge should have directed the jury as to the possibility of a defence of provocation. He submitted, ocrrectly in our view, that it is the duty of the judge to leave all issues to the jury upon which there is evidence fit for their consideration, whether or not these issues had been adverted to during the course of the trial. 23. Provocation was never a serious issue at the trial. The only evidence on which any defence of provocation could possibly be based is to be found in the second statement made by the appellant to Inspector Chan on the 20th of March. 24. In the course of that statement the appellant said
25. We cannot concede that any reasonable jury would have seriously entertained a defence of provocation, based solely on an assertion by the appellant that a refusal to lend him money had provoked him into the murderous attack which is disclosed by the medical evidence. Indeed, had counsel for the accused mentioned provocation, we believe that the judge could have done nothing else but to withdraw the issue from the jury, as too tenuous to merit their consideration. 26. We have no hesitation in dismissing this ground of appeal. Admission of statements 27. The second main ground of appeal was that the trial judge was wrong in admitting in evidence the statements made by the appellant to the police. 28. In support of this contention, it was argued that the judge misdirected himself in two ways, firstly as to the effect of the evidence given by Dr. David Ho and secondly as to the scope of his discretion to exclude such a confession, even if in law the confession were admissible. 29. Before the main trial began, there was a long voir dire in which the admissibility of the statements made by the appellant was contested. Police witnesses were cross-examined in an attempt to show either that the appellant had written the statements because he was induced to do so by threats and physical assault; or that the mere presence of the police, on a man of his relatively low intellect, itself constituted unfair pressure, so that he thought that he had no other choice but to make the statements. The alternative objection was that the statements, although acknowledged to be written by him, were in fact copied by him from a statement written out for him for that purpose by Inspector Chan, the senior investigating officer. 30. Dr. HO Yau-fai, who is the Senior Lecturer in Clinical Psychology at Hong Kong University, described tests which he had conducted on the appellant in December 1978. 31. He assessed the appellant as a man with an intelligence level which falls within the mentally defective range but near the top of that range. He conducted tests designed to assess the general ability of the appellant to write Chinese characters, and in particular his ability to write those characters which appear in the statements. 32. Dr. Ho made it clear that inability to write Chinese characters is not of itself evidence of a lack of intelligence, since it may equally be attributable to a poor standard of education. 33. Dr. Ho selected from the appellant's statements about 30 characters, which he asked the appellant to reproduce for him. Dr. Ho testified that the appellant was either unable or unwilling to write about 10 of these 30 test characters. He expressed the opinion that if the appellant received assistance he would be able to write more characters than if he were left to write entirely by himself; and he did receive assistance from Inspector Chan, who gave evidence that he had written in the margin of one of the statements a number of Chinese characters, at the request of the appellant, who then reproduced them in his own handwriting in the body of the statement. Dr. Ho also gave his opinion that the accused was likely to perform better in an atmosphere of authority i.e. before the Inspector or the court - than in a more informal one, as when he was with Dr. Ho. 34. During the course of the reasons which he gave for admitting these statements in evidence, the trial judge commented, after rejecting the appellant's allegations of physical assaults and threats, that Dr. Ho had "professed surprise that the defendant was unable, or professed himself to be unable, to reproduce so many characters when asked to do so." 35. Nowhere in his evidence does Dr. Ho express such surprise though there are passages in which he comments that he was not surprised by various aspects of the accused's conduct. The effect of Dr. Ho's testimony was that, in his opinion, the performance of the accused in writing Chinese characters would very according to the circumstances in which he was asked to write them. He accepted the likelihood that there were a number of characters which the appellant could not write but he did not necessarily accept that they could be many. 36. It appears to us that the reference by the judge to supposed surprise which he attributes to Dr. Ho was a slip. How important could such a slip have been? 37. In the passage in his decision to which objection is taken the trial judge said:
Therefore, the view of Dr. Ho was only one of the elements which led the judge to his finding. He specifically refers back to "what I have already said." Earlier in the judgment he had rejected the appellant's allegations that physical assaults and threats had been made against him and had correctly described the substance of Dr. Ho's evidence as being that the capability of the accused varied. He had earlier in his judgment rejected the allegation that the accused had merely reproduced characters at the instance of the Inspector by saying that he was satisfied that there was no impropriety in the taking of the statement. 38. We are satisfied that, whatever weight the judge had given to Dr. Ho's purported surprise, in view of the tenor of the earlier part of his decision, he would inevitably have come to the same conclusion. Discretion to exclude 39. It was further submitted (and this was a matter which was fully argued during the trial) that there remains in a trial judge an inherent discretion to exclude from evidence a confession which satisfies all the proper tests of voluntariness and so is admissible in law, if nevertheless the judge is of the view that its admission would be unfair whether by reason of a weakness of intellect of the accused, or for any other reason. 40. We were referred to the case of The Queen v. Isequilla (1975) 1 W.L.R. 716 as authority for the proposition that a confession made by someone of low mental capacity might be excluded if it were thought that it was of such unreliability that it would be unfair to admit it, even if the statement was otherwise admissible in law. Isequilla has been followed in two other English cases: The Queen v. Davis, a summary of which is to be found at page 167 of (1979) Criminal Law Review and The Queen v. Williams a summary of which is to be found at page 47 of the Criminal Law Review for 1979. 41. In both cases, statements which were under caution were not admitted by the trial judge. In one because the confession was made by a woman described as of border line subnormal intelligence and in the other by an accused who was still affected by a drug Pethidin administered to him some hours before the interview in order that serious injuries sustained by him could be treated. 42. It is clearly established that there is in a trial judge a discretion to exclude in such circumstances. The appellant's counsel, however, argues that the trial judge misdirected himself in that he did not follow Isequilla, but gave greater importance to the Australian case of Sinclair v. The King reported at 73 Commonwealth Law Reports page 316 which he submitted gave a narrower discretion to the judge. 43. In his decision to admit the statement the judge quotes from Sinclair's Case a passage which reads:
In Isequilla, the Lord Chief Justice accepted a passage from Cross on Evidence as correctly representing the law. The passage reads
44. We see no significant difference between the test applied by the High Court of Australia in Sinclair's Case and that followed by the English Court of Appeal in Isequilla. Each describes a broad principle that a confession may be excluded if the accused's state of mind is such as to make it unsafe to admit it. Both authorities make it clear that it must be a matter for the discretion of the judge as to whether or not he admits the statement in the particular circumstances. 45. In this case the trial judge directed his mind carefully to the issue and decided that, on the evidence put before him, there was nothing "which comes within measurable distance of suggesting that the matter contained in this statement should be regarded as coming from a source either so unreliable in itself or so tainted with unfairness through a combination of the circumstances of mental weakness and fear of the surrounding presence of policemen that it should upon that ground either be excluded from consideration by the jury." 46. We see no grounds to disagree with this conclusion, reached by the judge after a careful consideration of the submissions put before him by counsel for the appellant. Indeed, the judge had already heard the appellant give evidence at length during the voir dire and had ample opportunity to form a view as to the capability of the appellant to give evidence of a reliable kind. A reading of the transcript adds no support to the suggestion that his mental capacity was anywhere near the low standard which would justify the use of the discretion to exclude as expounded in Isequilla. Forensic Evidence 47. The third principal ground relied on by the appellant was that the judge had misdirected the jury as to the effect of the forensic evidence adduced at the trial. 48. Soon after the killing, the police carefully examined the flat for finger prints, palm prints, blood and any other scientific evidence which would help to identify the murderer. Many finger prints and thumb prints were found there and all were identified as belonging to persons who normally lived in the flat or who were known to have visited it shortly before the killing, with the exception of one palm print which was discovered on the window ledge of the kitchen. 49. It seemed likely from marks which were found on the drain pipe leading from outside that window to the ground that it was by means of that window that the killer escaped from the premises. 50. Unfortunately no palm print was taken from the deceased. It is therefore possible that the unidentified palm print may have belonged to her. Certainly that palm print did not match that of the appellant. 51. In the course of his summing-up the judge dealt with the evidence of finger prints and palm prints. Having pointed out that no finger prints of the accused were found anywhere in the premises, he adds that there is one palm print unidentified, but that this must not be taken as evidence against the accused. He adds -
52. It is submitted by counsel for the appellant that the judge should have directed the jury to consider the possibility that the absence of any finger or thumb print of the appellant in the premises was a factor which they should take into account in his favour. 53. Counsel did not argue that the inadequacy of the judge's direction on this matter would of itself be sufficient grounds for upsetting the conviction but urged that it was a factor which the jury should have been directed to take into account when they were considering the difficult question of identification. 54. The judge reminded the jury that no prints of the appellant were found anywhere on the premises. And shortly before, they had been invited by counsel for the appellant to give weight in the accused's favour to the absence of his prints from the premises. 55. The jury, as the judge reminded them earlier in his summing-up, were the judges of fact. It was for them to give such weight as they thought fit to the absence of the accused's prints from the premises, taking into account the submission of counsel and the comment of the judge that the evidence was negative. 56. It is surely unlikely, in those circumstances, that the jury would have taken a view of the absence of prints which was adverse to the accused. Nobody at any stage had suggested this as a possibility. 57. It would have been better if the judge had indicated to the jury that they should consider giving such weight to the absence of prints in favour of the accused, as they thought fit. But we are satisfied that any sensible jury must have done so anyway. Identification 58. The fourth ground was that the judge failed adequately to direct or warn the jury of the weaknesses or dangers of relying on the evidence of LUNG Wan-ying. 59. It was a vital issue as to whether the identification of the appellant was certain and reliable. This imposed upon the judge an obligation to direct the jury with great care and to deal specifically with the evidence relating to identification. 60. In his direction, he made it clear to the jury that identification evidence must be approached with particular caution and counsel for the appellant makes no complaint as to this aspect of the judge's direction. In addition, the judge explained in clear and unmistakable terms some of the reasons why evidence of this nature should be regarded with the utmost care. This ground of appeal is founded primarily on the criticism that the judge did not sufficiently direct the jury as to inconsistencies in the testimony given by LUNG, whose evidence he reviews in detail from pages 480 to 484 of the transcript. 61. It cannot be said that he failed to direct the jury to any of the inconsistencies in the girl's evidence. For example, he comments at page 482 that LUNG had in evidence "fortified" the testimony which she had previously given in statements to the magistrate, to the police, and at the earlier trial in September 1978. This was in relation to her testimony that the man who had come to see her mother was outside the flat and her mother inside at all times. During the second trial, she changed her story and asserted that the man actually came inside and walked up and down for a few paces. 62. The judge directed the jury that it was for them to estimate whether they thought that the explanation given by her was satisfactory. 63. He also considered the effect of her evidence that she had told the police in May 1977, at an earlier identification parade, that she had only seen the defendant at the flat on the 2nd May, that is the date of the killing, whereas in evidence at the trial she said that she had seen the appellant deliver or collect materials from the flat at some time before the 2nd of May. Once again, the judge left it to the jury to decide whether or not they accepted the explanation which she gave, which was that she had time to reflect after the identification parade and thinking back considered that the defendant was one of those who used to deliver or collect materials. 64. The judge also mentioned that, when describing the wanted man to the police for the purposes of search, she had described the defendant as a man of 5 foot 6 inches with a slim figure, a long face and ordinary complexion, although it was apparent at the trial that the defendant was a very small man, only 4 foot 10 inches. Once again, the judge puts this inconsistency clearly before the jury. Furthermore, the judge warned the jury in clear terms, at page 481, that this was a young girl and that they must take into account the fact that identification may be fortified by the fact that the person identified was previously known to the identifier. 65. We cannot accept the suggestion that it is the duty of the judge to take the jury in detail through every single possible contradiction or weakness in the evidence given, even on a matter as delicate as that of identification. In this instance, we are satisfied that the judge gave the fullest care to this difficult matter and that he gave to the jury the most valuable help in assessing the evidence on identification. 66. Consequently, we see no grounds for finding that the judge's direction was inadequate on the question of identification. 67. We would not wish it to be thought that we are criticising the conduct of counsel for the appellant on the appeal. He argued with skill, clarity and fairness. And, very properly, he argued every reasonable point which was available to him. 68. We are therefore using this appeal as an excuse, rather than a reason, for expressing a general view as to the duties which lie upon a trial judge in summing-up to a jury. 69. The task of summing-up in a manner which both satisfies the stringent requirements of the law yet has some chance of being of assistance to the jury is one of the utmost difficulty. 70. We do not think that more can be required of a judge, in the course of his summing-up, than that he should remind the jury of the principal issues faced by them in reaching their verdict and draw their attention in a fairly balanced manner to the main features of the defendant's case. It must not be assumed that a jury is composed of idiots. They have heard the evidence, and have been told that they are the judges of fact. If they have been correctly directed as to the law, the judge is not obliged to remind them of every piece of evidence which is capable of an interpretation favourable to the defence. If such an obligation were conceded, judges would play safe by reading out large pieces of the evidence and leave the weighing of it to the jury, virtually unaided. 71. Every year, courts of appeal place heavier burdens on judges. Summing-ups are picked to pieces by courts and counsel like vultures gnawing at a carcass. There is a danger that the summing-up which is of most help to the jury, because the judge summarizes and guides, is the most likely to be upset. But if the judge takes no chances and leads the jury again through all the evidence, a process unlikely to help the jury much in their difficult role, he is far less likely to be upset on appeal. 72. We would like to make it clear that we do not favour a minute dissection of a summing-up, in an effort to identify failures by the judge to deal with minor inconsistencies or to put constructions favourable to the accused on every item of testimony. It must not be forgotten that facts are for the jury, and remain so in spite of any view which the judge may have advanced as to the facts and whether or not he has referred to particular pieces of evidence in his summing-up. 73. For the reasons given above, leave to appeal against conviction is refused. Representation: B. Downey (D.L.A.) for the appellant. F. Stock for the Crown/Respondent. |