HKSAR v. Tang Sau Leung

CACC000620/1996

CACC620/96

HEADNOTE

Criminal law - murder - attempted murder - approach to application to call fresh evidence under section 83V of the Criminal Procedure Ordinance, Cap. 221 - Court's discretion to examine witness under section 83V(1) for purposes of deciding whether evidence is likely to be credible under section 83V(2) of the Criminal Procedure Ordinance, Cap. 221 - The Queen v Tam Chung-shing and Others (1989) 1 HKLR 42 applied. (Ground 1 of application)

Preservation of evidence - tapes and other similar items capable of being recycled should be preserved where practicable - heavy burden on prosecuting lawyers to ensure preservation of evidence. (Ground 2 of application)

CACC620/96

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 620 OF 1996

(ON APPEAL FROM HCCC NO. 402 OF 1995)

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Coram: Hon. Stuart-Moore, V.-P., Gall & Pang, JJ.

Dates of Hearing: 12 March & 16 November 1999

Date of Handing Down Judgment: 29 November 1999

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J U D G M E N T

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Stuart-Moore, V.-P. (giving the judgment of the Court):

Introduction

1. On 9th October 1996, following a trial before Patrick Chan J. (as he then was) and a jury, the Applicant was convicted of attempted murder (count 1) and murder (count 2). He was sentenced to concurrent terms of fifteen years and life imprisonment respectively. The Applicant now seeks leave to appeal against conviction on both counts.

2. The offences were alleged to have taken place on 21 July 1995 at some time after 6 p.m. in the first victim's business premises at 43, Hung To Road in Kwun Tong. The whole incident leading up to the commission of these offences appears to have occupied a considerable period of time. The victim in count 1 was Tse Charm-por (Tse), who had been in business with the Applicant and knew him well. He was shot in the back with a pump-action shotgun.

3. Tse was present when the victim in count 2 (Chan Wai-to) was shot in the head and killed with the same weapon. Tse stayed very still after he was shot and he was in all probability assumed by the attacker to be dead.

4. After the gunman had left, Tse called the police at 7.36 p.m. This call was an admitted fact. It is accepted that nothing turns on an error in the Admitted Facts which shows the call as having been made at 7.35 p.m. It seems, therefore, that the shootings occurred at about 7.30 p.m. In due course, Tse identified the Applicant as the attacker who was responsible for these shootings.

The Prosecution's Case

5. The prosecution alleged that just after the offences had been committed, the Applicant went to meet Tse's wife, Ip Yee-kuen (PW2), with whom he was then having a sexual relationship. He told her that she should be his "time witness" and to say that he had been with her since 6 p.m. In fact, the evidence she gave at the trial was that the Applicant arrived "sweating" at about 7.50 p.m., having waited since 6.00 p.m. for him to arrive at their designated meeting place. They then spent the evening together until about 11 p.m.

6. In the course of the investigation which took place at the murder scene, police discovered several name cards of the Applicant which were found on the staircase in the same place as a number of unused shotgun cartridges.

7. The Applicant was arrested at his home about two hours after he had parted company with PW2. He told the police that he was not responsible for the shootings. While the police were with him, information came through to them that the victim in count 2 had died. At this point, the Applicant was re-arrested for murder. Initially, he was taken to Happy Valley Police Station. There, he allegedly said, "Ah Sir, I killed somebody". This resulted in a formal note being made of this answer and further questions being asked. The Applicant went on to say amongst other things that he had killed both victims at the business address with a gun he had bought on the mainland.

8. The most important evidence of all came from the first of the witnesses called by the prosecution, namely Tse himself, who had known the Applicant since 1993. Tse was the sole proprietor of Bagwin Handbag Manufacturing Company (Bagwin) with premises at 43, Hung To Road. After meeting the Applicant in 1993, Tse and two others started a business with the Applicant called Wing Kwong. This lasted for only about three or four months. Following this, the Applicant was employed by Tse at Bagwin, originally on a daily basis and later on commission. At the end of 1994, Tse and the Applicant decided to start another company called Longwin. This became a limited company in March 1995. The arrangement was that Longwin would send out handbag catalogues to overseas customers. When Longwin received the orders, Bagwin would make the handbags for Longwin to export. The Applicant gave Tse $200,000 in November 1994 which was to be used towards Longwin's expenses. The agreement was that the money would later have to be repaid by Tse to the Applicant and, by July 1995, Tse still owed the Applicant about $100,000. However, very few orders were received by Longwin and, in June or July 1995, it was decided that Longwin would have to be closed down. Just before this decision was made, in May or June 1995, the Applicant returned from the mainland and told Tse that he had bought a gun which he would use to do a robbery if he was desperate.

9. On 8 July 1995, at about 1.30 p.m., the Applicant came to the business premises in Kwun Tong. Tse, who was in the showroom, could hear a gun being loaded. The Applicant, who wore a plastic mask and a pair of gloves, then walked into the showroom and pointed the gun at Tse, saying that he wanted to kill him. Tse asked why, and there followed a conversation about money. The Applicant then spoke of his desire to commit robbery and Tse tried to talk him out of this. The Applicant then left and later in the day told Tse on the telephone that he had thrown away the gun.

10. On 21 July 1995, Tse was again inside his business premises. At 5.15 p.m., Tse was speaking to Chan Wai-to who had come to collect a trading debt on behalf of a company which employed him as a sales manager. A cheque (P.65) in the sum of $150,000, made payable to Chan Wai-to's company, was subsequently found together with some contract papers.

11. At about 6.15 p.m., Tse heard the sound of the metal gate opening, and he wondered who might be returning to the office at that time. When no one appeared, he went from the showroom to take a look. He saw the Applicant by a desk in the adjoining room. At that moment the Applicant was pulling down a mask over his face. Tse returned to the showroom followed by the Applicant. A discussion about the money owing to the Applicant then took place.

12. Chan Wai-to, who was still on the premises, asked the Applicant to take off his mask and some conversation followed to the effect that they had met each other before. The Applicant also asked the time and was told by Chan Wai-to that it was 7.05 p.m. After this, the Applicant asked Tse who he had told about the previous incident between them, referring to the threats he had made on 8 July 1995. Tse named two people to whom he had reported it, neither of whom being his wife. The Applicant accused him of lying. In doing so, it is not without significance that Tse's wife, PW2, said in evidence that she had scolded the Applicant for threatening Tse on some occasion prior to 21 July 1995.

13. At the stage when the Applicant accused Tse of lying, the Applicant stood up and lifted the gun. Tse immediately turned to his left and bent over. He then heard a shot and felt pain in his back. He fell to the ground in a kneeling position and he could hear Chan Wai-to say "you are crazy". Tse then heard a second shot followed by Chan Wai-to's cries of pain. Tse looked up and saw the Applicant shoot Chan Wai-to a second time. Tse immediately fell flat on the floor and did not move. He then heard the sound of a door closing. Tse checked that the Applicant had gone before calling the police.

Defence Case

14. The Applicant's defence at trial was that he had not been present at the shootings and had not been to the business premises at all during that day. He gave evidence at his trial that he had been with Tse's wife during most of the evening, having met up with her shortly after 7 p.m. He also testified to the effect that after his arrest he was subjected to threats, while hooded and handcuffed, that he would be beaten up unless he cooperated with police. He signed in the police notebook where he was told to do so but he testified that he had not said the things which were recorded in the book.

15. More generally, it was the Applicant's case that he had been framed by Tse and also by Tse's wife (PW2) who, on his case, had destroyed his alibi defence. The Applicant also denied any connection with a gun.

Voir Dire

16. A voir dire was held to determine the admissibility of the oral answers the Applicant had allegedly given to police. The trial judge ruled that the evidence was admissible, having decided that the signatures had been appended to the notebook voluntarily.

General Background to Delay in Appellate Proceedings

17. In the light of this background, it goes without saying that the case against the Applicant was based upon strong evidence that was both direct and circumstantial. However, the identification of the Applicant by Tse was put forward by the defence as a frame-up to gain revenge for the Applicant having had an affair with Tse's wife (PW2).

18. Before turning to the grounds of appeal, a brief word is necessary to explain the unusually lengthy history to the proceedings before this court. In summary, it comes to this. The Applicant originally put forward homemade grounds, following his conviction, dated 1 November 1996. He then applied for Legal Aid but a notice for the withdrawal of this application was filed on about 27 December 1996 after solicitors were privately instructed on about 18 December 1996. However, the time came when counsel who was originally instructed had to cease to act. After this development, Mr. Cheng Huan, S.C., leading Mr. Christopher Grounds, were instructed privately and fresh grounds of appeal were filed on 5 December 1997. Following a hearing on 25 March 1998, counsel and solicitors were given instructions to withdraw, leaving the Applicant once again representing himself. During the months that followed, the Applicant sought alternative counsel.

19. On 26 November 1998, the Applicant addressed the court, now differently constituted, at some length and raised what appeared to be two arguable points. Neither of them had ever been raised before.

20. Firstly, he contended that there were applications made by his trial solicitors for the transcript of 999 calls made by Tse to police, and that despite such applications no information as to the contents of those calls was supplied. He said that it was only after trial, when he wrote to the Commissioner of Police, that some information was supplied for the first time. It was his contention that in the period prior to trial when the information was sought, his legal advisers were simply told that tapes relating to the matter had been destroyed. Whatever material existed should, he argued, have been supplied to the defence for them to have made whatever use they desired to make of it.

21. Secondly, the Applicant said that a Mr. Ricky Tung, who worked as a clerk in the office of his trial solicitors, had in his possession a statement from a Mr. Liem Tan-keung, an employee of Tse, in which Mr. Liem spoke of a telephone call between himself and Tse on the evening of 21 July 1995, which was the day of the shootings. In the statement, Mr. Liem had said that this call occurred at some time after he returned from work. The statement which the Applicant alleged Liem had made was never, he suggested, brought to the attention of his trial counsel. He was, therefore, deprived of the opportunity of making use of it to cross-examine Tse about the call which, if it happened, must have taken place at about the same time as Tse had alleged that he was being menaced by the Applicant armed with a firearm.

22. At the conclusion of his address to the court, the Applicant was given an adjournment for Legal Aid to be given to him in order that these fresh grounds of appeal could be argued. The Applicant was also informed that he was at liberty to argue any further grounds which it was considered could properly be taken. The court had in mind that the matters to which he had referred should be fully ventilated and, if necessary, affidavits could then be prepared. In the event, the Applicant was granted Legal Aid but he decided once more to instruct solicitors and counsel privately.

23. It was by this circuitous route that Mr. Forrest came to be instructed. He has settled two grounds of appeal which it is convenient to deal with firstly as they encapsulate the matters which were raised by the Applicant when he addressed the court in person. However, Mr. Forrest relied also, although he placed little emphasis upon them, on the three grounds which had been settled earlier by Mr. Cheng. The hearing of the application began on 12 March 1999 but, for reasons which will emerge in the course of this judgment, could only be concluded on 16 November 1999.

Grounds of Appeal

Ground 1

24. The first ground, in a document entitled "Additional Perfected Grounds of Appeal", is to be found in a lengthy third paragraph, the effect of which is that a telephone call was made by Tse on the evening of 21 July 1995 to one Liem Tan-keung ("Liem"). Liem made an affirmation dated 11 March 1998. In paragraph 9 of the affirmation, Liem stated that some time after 21 July he made a written note of his recollection of the events of that date. In this note (which is the second document exhibited to his affirmation) Liem referred to a telephone call he received from Tse after he (Liem) arrived home from work. The first document exhibited to Liem's affirmation is a witness statement made to police on 22 July 1995. In paragraph 5 of that document, Liem stated that he left work at 6 p.m. The third document exhibited to Liem's affirmation is a signed record of interview with Liem conducted on 20 December 1997 by Kwok Wing-yip (a clerk employed by Yuen & Partners, the solicitors who now represent the Applicant). In answer to question 6 in that record, Liem stated that he received a telephone call from Tse at 7 p.m. or thereafter.

25. This ground of appeal continued by stating that Ricky Tung was employed as a clerk by Paul Kwong & Co., the solicitors who represented the Applicant at his trial. Ricky Tung was responsible for dealing with the Applicant's case and, on 17 March 1998 (approximately 17 1/2 months after the Applicant's trial had ended), he made an affirmation in which he exhibited the note to which Liem had made reference in his affirmation. Ricky Tung admitted in his affirmation receiving this note from Liem and, having read it, he stated that he took no further action. Instead, he "put it back into the file".

26. It was further contended in this ground that defence counsel at trial were not given any instructions about this significant phone call from Tse, thus preventing any pursuit of what might have been a fruitful line of inquiry in cross-examination. Moreover, according to Ricky Tung's affirmation, Liem was available to give evidence at the trial. However, he was not called to testify because of his personal failure to pass on these instructions to the Applicant's counsel. In such circumstances, it was submitted that the convictions should be set aside on the ground that they were unsafe and unsatisfactory.

27. There are numerous points which have been made in this ground of appeal and it is necessary to deal with them in some detail. However, the hearing of this application on 12 March 1999 had to be adjourned part-heard because the Court was invited to hear fresh evidence, under the provisions of section 83V of the Criminal Procedure Ordinance, Cap. 221, from Liem and Ricky Tung, neither of whom were in attendance on that day. All remaining grounds of appeal were argued on 12 March 1999.

28. The hearing resumed on 16 November 1999, when Mr. Forrest renewed his application for Liem to be heard as to his alleged telephone conversation with Tse at, or soon after, 7.00 p.m. on 21 July 1995 and with regard to his failure to testify as a witness for the defence during the trial. Mr. Forrest indicated at the same time that Ricky Tung had not been located, despite all the efforts that had been made to find him.

29. Mr. Bruce, S.C., on behalf of the Respondent, objected to evidence being received under section 83V(2) of the Criminal Procedure Ordinance. He submitted that before such evidence could be received, it had to be credible evidence and that there had to be a reasonable explanation for the failure on the part of the defence to adduce Liem's evidence during the trial. He accepted, however, that the court could permit an examination of Liem in its discretion under section 83V(1) in order, amongst other things, to consider whether Liem's evidence could be regarded as credible for the purposes of section 83V(2).

30. The terms of section 83V, so far as they are relevant to the present application, are:

"83V. Evidence

(1) For the purposes of this Part, the Court of Appeal may, if it thinks it is necessary or expedient in the interests of justice -

(b) Order any witness who would have been a compellable witness in the proceedings from which the appeal lies to attend for examination and be examined before the Court of Appeal whether or not he was called in those proceedings; .....

(2) Without prejudice to subsection (1), where evidence is tendered to the Court of Appeal thereunder the Court of appeal shall, unless it is satisfied that the evidence, if received, would not afford any ground for allowing the appeal, exercise its powers of receiving it if -

(a) it appears to it that the evidence is likely to be credible and would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and

(b) it is satisfied that it was not adduced in those proceedings but there is a reasonable explanation for the failure to adduce it."

31. Mr. Bruce invited our attention firstly to the terms of Ricky Tung's affirmation dated 17 March 1998. It is the fourth paragraph which is of particular importance, but the earlier paragraphs set this into context. Ricky Tung set out how he was instructed to be the clerk to take instructions from the Applicant and to handle the case, after the Applicant had given formal instructions that he wished Paul Kwong and Company to defend him. The Applicant (referred to in the affirmation as "Tang") gave instructions that he was not present at the time of the murder. Following one particular line of enquiry, Ricky Tung stated that it was concluded that a "road test" should be performed in relation to the timings (which were so crucial to the alibi put forward). It was at that stage that the Applicant suggested that Ricky Tung should find "Mr Lien Tang Keung ("Lien") who was Tang's "colleague". (It is accepted on all sides that Ricky Tung's reference to "Lien" is the person known generally as Liem.) The affirmation continued by stating:

".... so Tang requested me to ask Lien whether he would help us. Tang also requested me to ask Lien whether there was anything special happen on that day. Tang then gave me the phone number of Lien. Then I began to find Lien".

32. Ricky Tung's affirmation then stated that he eventually contacted "Lien" by telephone and he asked him to assist and:

"I also asked him whether he remembered there was anything special happened, if any, I asked him to write down. Lien told me that he needed sometime to consider and asked me to find him later".

33. The affirmation then went on in paragraph 4 to say:

"After sometime, I found Lien again, Lien consented to perform the road test. Thus, I invited him to come to my office to explain what we should do. When Lien arrived our office, I explained to him that the aim of the road test was to check out the travelling time from the factory to Tang's home. Then, I asked whether he could recall whether there was anything special happened on the day of murder. He showed me a piece of paper there is now marked exhibit ('THKR-1') and told me what had happened on that day. He talked to me for a while and then he left. After I read through the paper, I found that there was nothing special, thus, I ignored it and put it back into the file. When I met Tang again, I told him that Lien agreed to assist us to perform the road test and Lien did not recall anything new. Then, we concentrated on the evidence of Alibi. After that, we instructed Gary Plowman Q.C. and Michael Delaney as defence Counsel. One day, we decided Lien to lead me and other counsel to perform a road test and marked the time in order to use in Court. I gave the time record to the counsel."

34. The fifth and concluding paragraph of Ricky Tung's affirmation was to the effect that "Lien" was asked to attend the trial in order to give evidence but that counsel had not called upon him to do so.

35. Exhibit THKR-1 referred to in the affirmation is a short document written by Liem that read:

"On the day when the incident took place, I went back to company to work as usual at 9.00 a.m. Everyone worked as usual. (I/We) worked as usual in that morning. (I/We) had lunch at the company. Then, (I/we) went to have tea at a restaurant nearby (deletion). (I/We) returned to the office at 2.00 p.m. Sometime after 4.00 p.m., a male (deletion) came to look for (a wrong character) Mr. Tse. That male went to the showroom together with Mr. Tse. At that time, I did not know him. I then asked Tse Lok Bor who was next to me. He told (me) that he was the raw materials supplier Ah To Chan of Man Wai. All along, Mr. Tse and Mr. Chan were talking inside the room. Before going off duty, I went into the room to talk to Mr. Tse in order to brief him some office matters; they were still in conversation. Afterwards, the time was up and we went off work, but they were still in the factory not leaving yet. When I reached home, Mr. Tse telephoned me and asked me the matter about telling (those in) the Mainland to return the leather back to Hong Kong. After the meal, I went swimming with (my) family member(s)."

36. It will be immediately apparent from the terms of Ricky Tung's affirmation that Liem was not only available to give evidence at the trial but that he was also told to be at court in case he was required. Mr. Bruce contended, while not accepting for one moment the truth of the affirmation so far as it related to the production by Liem to Ricky Tung of Exhibit THKR-1 before trial, that if the affirmation was true on this aspect, it followed that at least one member of the defence team was in possession of potentially important information on an issue that was vital to the defence. Mr. Bruce submitted that even accepting the affirmation at its face value, there is, following the wording of section 83V(2)(b), no "reasonable explanation for the failure to adduce it". Everyone in the case was aware of the significance of events between about 6.15 p.m. and 7.30 p.m., during which time Tse and Chan Wai-to were allegedly under constant threat from the Applicant.

37. In considering whether or not to allow Liem to be examined before us under the terms of section 83V(1), we had regard to the judgment in The Queen v Tam Chung-shing and Others, (1989) 1 HKLR 42 at 47G, where Silke V.-P., in dealing with the meaning of section 83V said:

"In my judgment the scheme of the section is first to provide for an order to be made, if the court thinks it necessary in the interests of justice so to do, for the attendance of witness(es) and their examination. This examination can take place - s.(4) - before a judge of the Court of Appeal or a person appointed by the Court of Appeal or it may take place before the Full Court.

The examination having concluded there is then power to receive that evidence when it is tendered.

Sub-section (2) imposes a duty upon the court to receive further evidence, if the conditions of the sub-section are met, but, of itself, does not restrict the discretionary power of the court under sub-s. (1) to receive further evidence if the interests of justice require. The conditions in sub-s. (2) are not imported into sub-s. (1) but a court should, in the exercise of its discretion, have regard to them without treating them as decisive in that exercise. The court will not receive inadmissible evidence nor will it receive evidence under sub-s. (1) if it is satisfied that it 'would not afford any ground for allowing the appeal' or it is unlikely to be credible for there must be some curb on the reception of fresh evidence to avoid the indefinite prolongation of the legal process. (R. v. Lattimore (1976) 62 Cr App R 53; R. v. Parks (1962) 46 Cr App R 29; R. V. Stafford and Luvaglio (No. 1)(1969) 53 Cr App R 1.)

If an order is made for examination, and further for the reception of the evidence, the question this Court will have to ask itself is: Under all the circumstances of this case as it now stands in the light of the additional evidence, are we satisfied that the verdict of the jury was safe and satisfactory? (R. v. Lee (Bruce) [1984] 1 WLR 578.)"

38. In the light of this helpful guidance to the approach to be taken, we were disposed to allow the examination of Liem under section 83V(1) with a view to deciding whether his testimony should be received under section 83V(2).

39. Liem then gave evidence in general accordance with the note which he said he had provided to Ricky Tung (Exhibit THKR-1) about three or four months after 21 July 1995. He said, in effect, that he was providing help to Ricky Tung who had asked him to set out what had happened on the day of the shootings. He said that Tse had telephoned him a few minutes after 7.00 p.m., which was approximately the time when he arrived home, and that there was nothing special about his voice. The conversation related to leather samples required by Tse, and lasted about two minutes. He confirmed that he had also done a number of road tests in the company of others and that he had attended the Applicant's trial in order to give evidence. In the event, he was not called upon to do so.

40. In cross-examination, Liem said that he was a "good colleague" of the Applicant and had trusted him enough in the past to have given him a loan of $20,000, most of which has been repaid. Liem agreed that he was aware of the importance of time as a factor in the Applicant's defence and that this was why the road tests were being carried out. He was then asked about a statement he had made to police (Exhibit LTK 1) on 22 July 1995 at about 11.00 a.m. in which he had answered questions put to him about the events relating to 21 July 1995. He accepted that nowhere in this statement had he ever mentioned a telephone call from Tse after he had arrived home that evening. He explained that he was merely answering the questions police put to him, and that it did not occur to him to mention the call. Liem accepted that the only topic in the note he had given to Ricky Tung (Exhibit THKR-1) which was not already covered by the statement he had made to police (Exhibit LTK 1) was the telephone call.

41. On the strength of Liem's evidence, it was clear that he was aware of the importance of timings to the Applicant's defence. This was also abundantly plain to everyone in the Applicant's legal team because of the importance of the period between approximately 6.15 p.m. and 7.30 p.m. on 21 July 1995 to the Applicant's defence of alibi. The legal team, composed of leading and junior counsel and Ricky Tung, were also well aware of Liem's existence as a potential witness. Mr. Michael Delaney, in his affirmation, confirmed this when he said in paragraph 8:

"To the best of my recollection and belief Liem Tan Keung was not called as a witness because that was the decision of Tang Sau Leung himself. It was accepted by counsel, solicitors and the defendant himself that Liem Tan Keung was unable to give any useful evidence on any material issue at trial."

42. In the light of Liem's evidence, and following the submissions of counsel, we ruled that the criteria under section 83V(2) had not been met and that we were not satisfied a reasonable explanation existed for the failure to adduce this evidence at trial. This ruling was closely linked to the view, which we expressed at the same time, that the evidence was in any event plainly not credible.

43. Our reasons for so concluding can be put shortly. Set against the large body of evidence with which we have already dealt, that implicated the Applicant as the gunman responsible for these shootings, Liem's evidence that he provided a note about a telephone conversation which had taken place at about 7.05 p.m. between Tse and Liem was, if true, indicative that there was no trouble at that time in the office. Ricky Tung has now disappeared and cannot be traced, and his affirmation in support of Liem's evidence has to be viewed with grave suspicion. It provided, for what it is worth, no reason for filing away important information on a central issue, assuming the information to have been in the file before the conclusion of the trial. It is apparent that if Liem's account had been available as to the timing of Tse's call, it could not have been overlooked and would have been adduced in evidence before the jury.

44. We also concluded that Liem's evidence was to be regarded with the same degree of suspicion. He was closely associated with the case, having assisted Ricky Tung with the road test timings and seemingly also defence counsel in this regard, as Mr. Forrest duly accepted. Ricky Tung's affirmation says in terms that:

"We concentrated on the evidence of alibi. After that, we instructed Gary Plowman, Q.C. and Mr. Michael Delaney as defence counsel. One day, we decided Lien to lead me and other counsels to perform a road test and marked the time in order to use in court."

45. Liem's account, that he provided Ricky Tung with the undated note (THKR-1) about the alleged telephone call prior to trial and within 3 or 4 months of the shootings, was inconsistent with what he had told police in his statement less than sixteen hours after the shootings where he made no reference to any such telephone call having been made. We did not find Liem's evidence credible and accordingly rejected it.

46. In the light of the court's ruling that Liem's evidence could not be received , this ground was not further pursued.

Ground 2

47. The second ground in the Additional Perfected Grounds of Appeal (set out in paragraphs 4(a) to (c)) which has been advanced by Mr. Forrest concerns the telephone messages which were recorded by police in the form of what have been described as police console printouts. These were not shown to the jury and were not used in cross-examination of Tse. It is these documents which recorded Tse as having called the police at 7.36 and 7.49 p.m. It is clear from the affirmation of Kwok Wing-yip (the clerk of the firm of solicitors now representing the Applicant) that the printouts were in the possession of counsel during the course of the trial. This was confirmed by Mr. Michael Delaney who was led during the trial by Mr. Gary Plowman, S.C.

48. Whilst the second ground of appeal does not specifically say so, because it is set out more as an argument than as an appeal ground, the complaint is that, because there was no reference in the trial to the police printouts, this may have worked to the disadvantage of the Applicant. The way that Mr. Forrest put the matter was that the Applicant, before the trial began, had been led to understand that the printouts no longer existed. The basis for this contention comes from paragraphs 3 and 4 of the Applicant's affirmation. The interest that the Applicant had in these printouts is also confirmed by Exh.TSL1 which is exhibited to his affirmation. This was a letter which was sent by Messrs. Paul Kwong and Company to the Chambers of the Director of Public Prosecutions on 8 July 1996 requesting, amongst other things, "particulars of the person(s) who dialled 999 for the police and the transcript of any taped conversation between the informant and the police."

49. When the firm of Yuen and Partners (solicitors) took over the conduct of the appellate proceedings during the course of 1998, they wrote to Messrs. Paul Kwong and Company. The affirmation of Kwok Wing-yip, the clerk employed by Yuen and Partners, indicated that they received from Messrs. Paul Kwong and Company a reply to the effect that no copy of the police records had been retained in their possession but the letter invited Yuen & Partners to make inquiries of junior trial counsel. Following this line of enquiry, Mr. Delaney's affirmation, dated 10 March 1999, indicated that the console printouts (Exh.KW4) were obtained prior to the start of trial. He said in his affirmation:

"I believe the printouts were amongst unused material supplied by the police prior to the commencement of trial. The asterisk markings in the margins are my markings. To the best of my recollection and belief these printouts were supplied to leading counsel and the contents were discussed with him. Further, I recall being aware that the printout was an imperfect and not a verbatim account of anything recorded as having been said by Tse Charm-por, the victim.

To the best of my recollection, I believe that Tse Charm-por was not cross-examined upon the contents of the printouts because: (a) it was known that it was not a verbatim account and (b) the defendant was named in a later part of the printout (21.25 hours). It was anticipated that prosecuting counsel was most likely to re-examine upon the later part, and the impact of the apparent failure to name the defendant in the first phone call would be overshadowed by the impact of the victim's consistency as regards that he told the police at the hospital (transcript page 92I to N). What he told the police at the hospital is reflected in the 21.25 hours entry."

50. It is apparent from a reading of the Admitted Facts, dated 8 October 1996, that the Applicant himself must have been aware of the existence of a log recording the 999 call, despite his protestations to the contrary which are contained in his affirmation. The log is specifically referred to in paragraph 1 of the Admitted Facts where it was admitted Tse made a 999 call to police at "7.35 p.m." (sic) on 21 July 1995 as shown in the "Incident Log of Royal Hong Kong Police Records".

51. For the sake of completion on this aspect, it is also clear that Messrs. Yuen & Partners wrote to the police in a fax dated 23 December 1998 (Exh.KWY5) asking whether the audio tape that recorded Tse's conversations with the police had been destroyed, kept secret or was missing. The faxed reply from the police (KWY6), bearing the same date, stated:

"Please be informed that the audio tape which recorded the material report to the 999 console had been re-used two months after the offence. The recorded conversation in question was deleted during the re-use hence cannot be retrieved."

52. We pause here to observe that apparently it is regular police practice for tapes to be recycled after a period of about two months regardless of the importance of the case to which the tapes are relevant. We are concerned that for crimes, particularly of this gravity, potential evidence is allowed to be destroyed before all avenues of appeal have been exhausted, let alone before the trial has concluded. We can merely express the strongest disapproval of the present system and respectfully suggest to the powers that be within the police force that urgent improvements should be made to the system to ensure that evidence of this potential importance is not destroyed or erased in future. A heavy burden must also be borne by lawyers engaged in the prosecution of offences where tapes or other similar items, which are capable of being recycled, are involved to ensure that such evidence is preserved until the conclusion of all legal proceedings where this is practicable.

53. Having said this, Mr. Forrest candidly observed that the decision taken by trial counsel not to cross-examine on the contents of the console printouts could in no sense be described as "flagrantly incompetent". Plainly, trial counsel had thought about the matter and decided not to do so. This court is well aware that decisions of the kind which had to be made on an issue such as this can never be easy. Mr. Forrest also accepted that this was so. There are all kinds of tactical considerations to be taken into account. The Applicant was fortunate to have had the advantage of a highly experienced and competent defence team which, for the tactical reasons given by Mr. Delaney in his affirmation, caused them to decide not to make use of the police console printouts.

54. Although the printouts did not provide a verbatim account of what was recorded on the tapes, we have proceeded on the basis that Tse never identified the Applicant by name until he reached the hospital. We mention this because it is now Mr. Forrest's submission that the omission by Tse to name the attacker, who it was accepted he knew well, was of such crucial significance that it undermined the whole basis of the prosecution's case. He submitted that Tse would instinctively have mentioned the name to the police and would not simply have given a description of the clothing of the attacker. He pointed out that in the second telephone call, and later when the police came to the murder scene and found Tse in his wounded condition, there was still no identification by name of the attacker. It was submitted that this omission on the part of Tse was consistent with a frame-up of the Applicant by Tse who had, by the time he reached the hospital, had time in which to work out how to frame the Applicant because of the affair between Tse's wife and the Applicant.

55. In these circumstances, Mr. Forrest submitted, following R v Clinton, (1993) 97 Cr.App.R. 320, that the verdicts had been rendered unsafe and unsatisfactory even though trial counsel's conduct could not be described as flagrantly incompetent. It was held in Clinton (at page 326) that:

"The Court was rightly concerned to emphasise that where counsel had made decisions in good faith after proper consideration of the competing arguments, and, where appropriate after due discussion with his client, such decisions could not possibly be said to render a subsequent verdict unsafe or unsatisfactory. Particularly does this apply to the decision as to whether or not to call the defendant. Conversely and, we stress, exceptionally where it is shown that the decision was taken either in defiance of or without proper instructions, or when all the promptings of reason and good sense pointed the other way, it may be open to an appellate Court to set aside the verdict by reason of the terms of section 2(1)(a) of the Act. It is probably less helpful to approach the problem via the somewhat semantic exercise of trying to assess the qualitative value of counsel's alleged ineptitude, but rather to seek to assess its effect on the trial and the verdict according to the terms of the subsection."

56. The circumstances in Clinton, which involved a combination of factors which caused the court's "grave concern", are easily distinguished from the instant case. We are satisfied that the present situation was brought about by a properly considered decision by leading and junior counsel then representing the Applicant, having balanced the competing arguments for and against using the information contained in the printouts. It would not be right for this court to speculate as to what decision the court might have reached had it been confronted with this issue. Counsel had seen and heard the evidence and they were clearly alive to this issue before reaching their decision not to cross-examine on the console printouts. Furthermore, applying the Wednesbury test, there was nothing unreasonable in the approach adopted by counsel which can be said to have shown significant fault on their part.

57. This ground must therefore fail.

Remaining Grounds of Appeal

58. Turning now to the remaining grounds of appeal. Mr. Forrest adopted, without much amplification or further argument, the grounds and written argument which had been filed by Mr. Cheng. In the first of these grounds, it was submitted that the trial judge erred in law in that he misdirected the jury or failed to direct the jury properly in respect of the name cards which were found on the staircase. The ground was further particularized in this way:

"(1) The fact that the name cards were dropped by the killer was a possibility in this case.

(2) That the name cards were dropped by the person whose name was set out on the cards is a hearsay assertion.

(3) That the name cards were dropped by the persons whose name was set out on the cards and that that person was also the killer is a hearsay assertion.

(4) There were therefore 2 crucial hearsay assertions existing in the case.

(5) The learned Judge's directions wrongly reflected these 2 distinct hearsay assertions.

(6) Thereby the learned Judge wrongly allowed the Jury to use the name cards as direct evidence that the Appellant had dropped or discarded the name cards on the staircase and/or that the Appellant was the killer.

(7) The learned Judge failed to direct the Jury in proper terms as to the true evidential value of the name cards, namely that name cards bearing the Appellant's name were found on the staircase and the fact that they were so found in the manner described by the police and that they bore the Appellant's name did not mean that they could be used to prove that the Appellant had dropped or placed them there, nor that the Appellant was the killer."

59. As the sixth point raised under ground 2 relates to the same passages from the transcript, it is convenient to deal with this at the same time. Ground 2(6) reads:

"The Judge's directions upon the name cards wrongly and unfairly strengthened the prosecution case and/or undermined the defence case."

60. The pages in the transcript which are complained about in these grounds are to be found at 53L to 55Q in the Appeal Bundle. These read:

"There are five name cards belonging to the defendant found at the staircase. You will remember that the officers were asked a lot of questions about why they did not count the cards and why they did not make a record of the cards. The issue is either the cards were there or they were not there, and either the police found the cards there or they did not find them there.

You will notice that it was not suggested to the officer that the cards were never there, but the police said that they were there. It was not suggested that the police had deliberately put the cards there. The officers were asked about how they handled the name cards after they had found them. Most of them did not pay much attention to them; they did not count them and did not make any record in their notebooks about these name cards.

You may think that since it was reported as a shooting case, the police would pay particular attention to things which were connected with the shooting. This may be why many of them did not pay attention to the cards or even count them or record them. But the fact remains there was no record in the notebook about these name cards. At that time, probably no one thought that these cards might have any significance or importance and these officers might have overlooked their importance. And when one officer paid attention only to the bullets and informed the officer who took over from him about the bullets, then the second one would naturally pay attention to the bullets and this might continue one after another.

In any event, there was no evidence that the name cards were not there. So you may accept, if you like, as a fact that the five name cards were in fact there at the place where the twenty-three bullets were found. These name cards were the name cards of the defendant.

Why were these name cards there? Were they deliberately put there or were they put there as the man was going past by the staircase in a hurry? Who put them there? On the one hand, you would not expect a murderer to put his name cards to tell the world that he was connected with the case. On the other hand, if the murderer was not a professional killer, it might be not surprising at all that he might have left some clues behind.

You will note that the shot gun was dropped on the floor at the doorway. The spent bullets were also on the floor of the showroom. This may suggest that the person, whoever he was, who had shot Mr. Chan and Mr. Tse might be more concerned with getting away quickly rather than destroying the evidence of the crime. If that was his state of mind at that time, it would not be surprising for him to drop the 23 bullets and other things along the way.

If the name cards were put there, who would have done so? It was not alleged that the police did it. Mr. Tse was shot and injured and you can see from the photographs the amount of blood. You may think that it was unlikely to be him. Who would then have done that? So, were the cards deliberately put there to confuse the police and to frame up the defendant, or were the cards there left by the killer in a hurry? That is a matter for you."

61. It seems to us that this was a fair and balanced summary of the evidence concerning these name cards. In particular the judge left the jury to decide whether these were put at the murder scene as part of a frame-up or whether they were left by the killer as he made a hurried departure. Whether the Applicant was the killer was for the jury to decide, but the name cards were perfectly legitimate and relevant evidence which formed one part of the very considerable body of circumstantial evidence against the Applicant. These grounds must fail.

62. In ground two, it was submitted that the judge, in summing the case up to the jury, made a number of comments on the evidence which unfairly favoured the prosecution and diminished the Applicant's case. Again, several particulars are given in support of this ground. These are:

"(1) The judge unnecessarily

(a) queried why the Applicant should have taken the Mass Transit Railway to Kowloon Tong and yet had taken a taxi back;

(b) directed the jury that they might think that 'if there had been an agreement to go to the hotel at 6 p.m., the Applicant would not have left home at 5.45 p.m.'.

(2) the judge's comments regarding Tse's state of mind in May 1995 as to whether he knew or believed that the Applicant was Madam Ip's lover undermined the defence:

(a) The judge's clear view was that Tse 'did not know or believe' that it was the Applicant who was having an affair with his wife. This opinion was not qualified by the expression 'that's a matter for you'. Further it had been controverted by Madam Ip's note which disclosed the identity of the relevant person.

(b) The judge followed the matter set out in sub-paragraph (a) above with the comment that 'suspicion is one thing' and 'actual knowledge is another'. Accordingly, 'if Mr. Tse did not know of that affair in July 1995, you may think that it is less likely that Mr. Tse had a reason, or a motive to frame up the defendant. He did not know'. There was no qualification 'but it's a matter for you'. Furthermore belief had now ceased to be relevant." (Emphasis added.)

63. Taking each of these points in turn, as to (1), these were perfectly sensible comments upon evidence which the jury had to face in their approach to this aspect of the case. The timings were crucially important because, if the Applicant was making his way to the appointed meeting place at Kowloon Tong MTR from 5.45 p.m. onwards until he reached the station at about 7 p.m., he could not have been the culprit responsible for the shootings. Madam Ip's version was that the Applicant was expected at 6.00 p.m. but that he had arrived about an hour and 50 minutes late. She said they then took the MTR to Causeway Bay, eventually arriving at the Applicant's house at about 8.20 p.m.

64. The judge said in summing up (at page 41 line H in the appeal bundle):

"You will recall that he said he waited for a taxi between 5.45 and 6.05 p.m. in Causeway Bay, but he could not get a taxi, and so he ran to the Causeway Bay Station and took the MTR to Kowloon Tong Station. When he left with Madam Ip in the Kowloon Tong MTR Station, he was inside the pay zone area. Yet, he decided to get out of the station and took a taxi to Causeway Bay. It was a trip at a busy time and it involved crossing the Tunnel. Why did he take the MTR to Kowloon Tong in the first place and yet take a taxi back, even though he was already inside the MTR station? The ticket showed that Madam Ip exited the Kowloon Tong MTR shortly before 7.15 p.m. Was she going to the toilet a second time as she described, or was she leaving with the defendant as the defendant said? That is a matter for you.

Madam Ip denied that she agreed to go to Kowloon Tong MTR at 6 p.m. because she had arranged with the defendant to go to a hotel for an hour before going to play mahjong. You will recall that the defendant said he arrived at Kowloon Tong MTR at about 7 p.m. So you may think that if there had been an agreement to go to the hotel at 6.00 p.m., the defendant would not have left home at 5.45 p.m.

Madam Ip said that she had made a phone call to the defendant's home, but there was no one there. However, the defendant's mother said that she was at home, but did not receive any call. So, that is a matter for you."

65. The judge was very properly directing the jury's attention to questions they might wish to consider. There is nothing in this point.

66. As to point (2) in this ground of appeal, if Tse had no reason to have any sort of grudge against the Applicant, he would equally have had no reason to frame his innocent friend for shootings for which he bore no responsibility. The complaint in (2)(a) misses the point entirely and is without foundation as can be seen from the text in the summing up (at page 43J):

"On another occasion in May 1995, Madam Ip had lunch with the defendant. The defendant went with her two sons to play snooker. She then walked with the defendant in the streets of Mongkok. She said that the defendant put his hand on her. In the evening, her husband asked her who was the person who was walking with her in Mongkok. She did not answer him and he was very angry. After a while, her husband left the house.

She said that her husband did not ask the sons about this. But a day or two later, she left a note at home for her husband saying that the defendant held her hand to avoid a car hitting her and that there was nothing special between the two of them. After this, they did not discuss the matter any more. She thought that her husband did not believe that the defendant was her lover."

67. Dealing with the Applicant's account on this topic, the judge carried on by saying:

"On the other hand, Mr. Tse said that while he was travelling in Mongkok, he saw his wife going out with someone, but he did not see who that person was. In the evening he asked his wife about that. His wife did not tell him. He was angry and after a while, he left the house and he went to have a drink. He did not ask his sons about this matter.

So, on the one hand, it was easy to seek confirmation from the sons, and you may think that Mr. Tse might have done that, and he might have come to know about the affair. But on the other hand, you may think that some couples might not want their children to know about their disputes, particularly a dispute of this nature, and this might be the reason for Mr. Tse not asking his children. So, you may think that he did not know or believe at that stage that it was the defendant." (Emphasis added.)

68. It is apparent the judge was pointing out to the jury that Tse might well not have asked his children about something which amounted to a very personal matrimonial difficulty in his endeavours to discover with whom his wife was going out.

69. The complaint in ground 2(2)(b), with particular reference to the part emphasised by Mr. Forrest taken from the extract in the summing up, is said to be that the judge gave an unqualified direction that Tse was unaware of the Applicant's affair with his wife. In the full context of what the judge said, it is plain that the judge was saying that if Tse did not know of an affair between his wife and the Applicant he would have had less reason to frame him because he did not know of it. The passage where this evidence is dealt with in the summing up (at page 45E in the appeal bundle) reads:

"You will recall that Madam Ip said that Mr. Tse was a person with a temper. Mr. Tse also said in evidence that if he had known about the affair earlier, he would have beaten up the defendant. So, if Mr. Tse had known about the relationship between Madam Ip and the defendant in May or June, would you expect such behaviour from Mr. Tse? You may think that such behaviour, discussing about the business, giving advice to him, having dinner with him, driving him home, this behaviour was not consistent with Mr. Tse having actually known the defendant was his wife's lover. Suspicion is one thing. Actual knowledge is another. Whether Mr. Tse actually knew in July 1995 that the defendant had an affair with his wife is a matter for you.

If Mr. Tse did not know of that affair in July 1995, you may think that it is less likely that Mr. Tse had a reason, or a motive to frame up the defendant. He did not know. You may think that owing the defendant $100,000 is even less likely a reason for framing up the defendant for murder and attempted murder, and you have heard the defendant say that there was no argument about money."

70. This was not an easy case for the jury because of the large number evidential conflicts for them to resolve. The judge was on this aspect helpfully and fairly setting out the issue which they needed to consider in the course of their deliberations. There is no substance to these points.

71. In ground 2(3), it was submitted that the comments made by the judge about the allegation of a frame-up were hostile to the defence. In particularizing this point, reference is made to pages 46 and 48 of the transcript. There is no necessity to read out these passages. All that needs to be said is that the judge was spelling out the case as it had been presented against the Applicant and leaving his comments upon the case for the jury to consider.

72. It is next complained in ground 2(4) that the judge weakened the Applicant's attack on the police evidence concerning his oral admissions by suggesting that, if the police had behaved as the Applicant alleged, the police would have invented a longer admission. The particular passage at which this criticism is directed is to be found at page 50A to C which reads:

"If they had taken the trouble of doing that, one would expect them to make up a longer admission rather than just a short notebook statement with three short answers."

73. Standing on its own, the criticism may seem to have some merit to it, but this short passage was followed by the trial judge setting out the Applicant's side of events and, at page 50D he said this:

"On the other hand, it seems that when the defendant was in the presence of his family and his lawyers, he had denied involvement and yet when he was alone with the police, he was said to have made a confession. Why would he admit in the police station in Happy Valley? It is also clear that he had also lodged a complaint shortly after the events.

You will recall that according to the Admitted Facts, he said he complained that he was threatened and he confessed. The report did not say what it was that he had confessed. In his evidence, the defendant said that when the Sergeant asked him whether he knew he had killed somebody, he said he had no choice but to say yes, he knew. Was that what he meant by confessing?

As I said, the first question you have to decide is: did he make this verbal admission? If you are not sure that he did, then you ignore this evidence. If you are sure that he did, then you consider whether it is true and how much weight you should attach to it, taking into account all the circumstances of this case."

74. The comment of the judge was equally balanced and there is nothing in this ground.

75. It was submitted in ground 2(5)(a) that the judge had undermined the importance of the Applicant's complaint about the police.

76. Dealing with this aspect, the passage cited above, taken from the summing up at page 50, demonstrates that the judge had expressed the issue clearly and we can find no fault with the directions he gave upon it.

77. In ground 2(5)(b), it was submitted that the judge analysed the contents of the notebook in such a way that the prosecution's case was given further support. This submission related to pages 51M-52N in the appeal bundle where the judge in summing up to the jury said:

"It was suggested that the officer made up or fabricated all these answers. You may also like to look at the questions and answers. The first question was: 'Who was killed by you?' The answer was: 'I shot to kill Tse Charm Por and his friend.' The second question was: 'Where did you kill them?' The answer was: 'I killed them in the company.'

You can see that the answers referred to two persons having been shot and killed. It can be said that there is a doubt or there may be a doubt in the first answer by the words 'I shot to kill', because it may not mean 'I killed', but the 2nd answer is clear. At that time, the officer knew that Mr. Chan had died and Mr. Tse was still alive. He had just earlier informed the defendant at his home about this. If the officer was making up the answers, why would he make up such answers?

Further, the first answer referred to Tse Charm Por's friend. The officer knew the name of the dead man to be Chan Wai To. If he was making up the answer and could not remember the name, it would be easy for the officer to refer to the earlier passage in his notebook for the full name of Mr. Chan. On the other hand, the defendant was not familiar with Mr. Chan and might not remember Mr. Chan's full name. You will also recall the defendant said that the officer had asked him whether he knew Chan Wai To. So, why was the name, Chan Wai To, not put in the notebook answer? Was it a make-up by the police?"

78. Once again, in our view the judge's comments were perfectly valid and the jury were at liberty to accept or reject them as they saw fit.

79. As to all of the matters raised in ground 2, the jury had in any event been properly directed as to the approach they should adopt towards comment made by the judge himself and by counsel. At page 2Q in the appeal bundle, the judge said:

"You have heard counsel for the prosecution and for the defence express certain views on the evidence. In this summing-up I shall also express my opinion on certain parts of the evidence. But you must bear in mind that whatever views or opinion we express to you, you are not bound by them unless you agree with them. You should form your own views and draw your own conclusions.

If you do not agree with our views, you can ignore them. If I have mentioned or emphasised any evidence which you think is not important, you can ignore it. If I have left out any evidence which you think is important, by all means take that into account. You should use your common sense and apply it to the evidence. You should draw your own conclusions based upon the law to be applied."

80. In the third and final ground, it was submitted that the judge made comments which, taken as a whole "detrimentally undermined" the fundamental basis of the defence case, namely:

"(a) that Mr. Tse framed the Applicant because he knew he was having an affair with his wife; and

(b) that Mr. Tse put his wife up to support the frame-up by destroying the Applicant's alibi, and such comments further undermined the defence case upon the police evidence."

81. This ground relied on the same passages in the summing up with which we have dealt already. In the light of what we have said, there is nothing of substance in this ground.

Conclusion

82. There is nothing about the verdicts which, in our judgment, suggests that the verdicts were unsafe or unsatisfactory. The application is accordingly dismissed.

Representation:

Mr. A.A. Bruce, S.C., S.A.D.P.P. & Miss Anthea Pang, S.G.C. (for the hearing on 12 March 1999) for D.P.P./Respondent

Mr. A.A. Bruce, S.C., S.A.D.P.P. & Miss Ada Chan, G.C. (for the hearing on 16 November 1999) for D.P.P./Respondent

Mr. Robert Forrest instructed by Messrs. Yuen & Partners for Applicant.