Lam Tuk Yu v. The Queen
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CACC000111/1968 IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction) Criminal Appeal No. 111 of 1968 -----------------
----------------- Coram: Blair-Kerr J., Huggins J. and Pickering J. Date of Judgment: 22 July 1968 ----------------- JUDGMENT ----------------- 1. At 11 a.m. on 2nd November 1967, a police party raided 92 Wing Lok Street, 2nd floor. They found the 1st accused sitting at a table in the corridor of the flat scooping up some powder with a spoon. He was the only person in the flat at the time and the doors of the first and third cubicles were locked. When asked where he lived, he pointed to the middle cubicle. In this cubicle the police found other powders of various kinds lying on wax and cellophane paper spread out on the floor. The powders on the table in the corridor and on the floor of the cubicle were subsequently examined by the Government Chemist who certified that they consisted of potassium chlorate, sulphur, carbon, red phosphorus, and potassium nitrate all of which are explosive substances within the meaning of the Explosive Substances Ordinance Cap.206. 2. At 12.20 p.m. after caution, the 1st accused wrote out a statement in a detective police constable's note-book. He was then taken back to the police station. This statement was subsequently admitted in evidence as Exh.p33. 3. Certain members of the police party remained on the premises; and at 1.30 p.m. the 2nd accused knocked at the door of the flat. When asked by the police what he wanted, he pointed to the middle cubicle and said that he was looking for Chan, the person who occupied that cubicle 4. He was later taken back to the police station where he was interviewed at 3.10 p.m. by the police constable who had previously interviewed the 1st accused at 92 Wing Lok Street 2nd floor. The 2nd accused was told that he was going to be prosecuted for conspiring with the 1st accused "to prepare and manufacture bombs"; and, after being cautioned in the usual terms, he wrote in the notebook (Exh.p.35):-
Later, he was formally charged that on or about the 31st October 1967 at 37 Hill Road, ground floor, he conspired with Chan Shu Nam and another person unknown to cause by an explosive substance an explosion of a nature likely to endanger life or to cause serious injury to property. In answer to this charge he said: "I thought he was joking". 5. The indictment contained a number of counts, mostly against the 1st accused who has not appealed against his convictions. In this appeal we are concerned with the first count which charged both accused with conspiring together and with another person unknown to cause by an explosive substance an explosion of a nature likely to endanger life or to cause serious injury to property contrary to s.4(a) of the Explosive Substances Ordinance. Both accused were found guilty; the 2nd accused has appealed against his conviction; and his one ground of appeal is framed in these terms:-
6. Counsel for the Crown admitted to this court that his object in cross-examining the appellant in the manner complained of was not merely to discredit him but to incriminate him if possible and he sought to justify his cross-examination on two grounds. He argued firstly that all his questions were based on information in the 1st accused's voluntary statement (P.33) which was in evidence and which could properly be used for the purpose of cross-examining the appellant; and secondly that even if certain questions could not be said to fall within the ambit of P.33 there could be no objection to his cross-examining the appellant on a statement made by the appellant himself quite irrespective of whether such statement had been proved to be voluntary and admissible provided that the existence of the statement was not revealed to the jury by any act or gesture on his (counsel's) part. It was common ground, of course, that counsel for the Crown did not ask the appellant to look at any statement and that he studiously avoided doing anything or saying anything which could be described as a direct revelation to the jury of the existence of any statment made by the appellant which was not in evidence. 7. The voluntary statement (P.33) made by the 1st accused reads:
8. The cross-examination of the appellant to which exception has been taken begins with a reference to an alleged meeting between the 1st accused and the appellant at the factory where they were employed in September when the 1st accused is alleged to have said: "The Hong Kong British are so persecuting the Chinese that we must think out a way to make revenge." Counsel for the Crown submits that the jury might well have taken this question as being based on the 1st accused's assertion in Ex.P.33 that he did not plan to blow up Chinese police but that he did not mind blowing up Europeans. We find ourselves quite unable to accept that submission. The question put to the appellant alleged that the 1st accused, in the appellant's hearing, made a specific statement, and the question as framed was:
In P.33 the 1st accused had not admitted to having said anything like that either in September or at any other time; and no other witness had testified to having heard the 1st accused make such a statement. 9. The cross-examination then proceeded thus:-
Counsel for the Crown submits that the jury might well have assumed that these questions were based on the 1st accused's statement in Ex.P.33 that he "bought the bomb materials beforehand." Again, we find it quite impossible to accept that submission. In this part of the cross-examination counsel for the Crown put to the appellant the actual words of the alleged conversation between the 1st accused and the appellant at this alleged meeting in September at the factory where they were employed. 10. It was then put to the appellant that on 28th October in his own house he discussed with a person named NG Chun Nam how to blow up a policeman and his car, Ex.P.33 does not contain any reference to a meeting on 28th October. 11. Up to this point counsel had retorted to almost every negative answer a further "question" in the form "I put it to you that he did". This practice is never helpful and in the present case it had the effect of fortifying the impression that counsel had positive evidence upon which his questions were based. The judge felt constrained to interrupt with the observation: "You have got to accept his answers. He said 'No'". The judge was, indeed, placed in a delicate and embarrassing position by this whole line of cross-examination. At an early stage he interjected "This does not appear in the evidence anyway". We think he probably said "anywhere" but, be that as it may, the implication is clear. He followed this up by saying "You are going a bit far; you can only put things to him in general terms". Unfortunately this warning was not heeded and the judge was left with the impossible task of conveying to counsel the impropriety of this line of questioning without there being revealed to the jury the very matter which ought to be kept from them. He could have asked the jury to retire while he explained the impropriety to counsel, but he would know that juries are notoriously sensitive when they think something is being kept from them by the judge and may be excused for not taking that course. 12. It was then put to the appellant that on 31st October he took NG Chun Nam to see the 1st accused and that they had lunch with the 1st accused in his room. There is no reference to this lunch in Ex.P.33. 13. It was then put to the appellant that on this occasion in the 1st accused's room they discussed how to make bombs and blow up police cars. There is no reference in Ex.P.33 to that discussion. 14. The next part of the transcript of the cross-examination reads as follows:-
15. In Ex.P.33 the 1st accused does say that at the request of the appellant and the Chiu Chau man he did give a demonstration of an explosion. But in using the words: "The 1st accused showed me.......", counsel for the Crown was clearly reading from some document and omitted to change the pronoun 'me' into 'you'. Counsel for the appellant places great reliance on this and submits that at this stage any last lingering doubt the jury night have had whether counsel had in his possession not only a first-hand record of the conversation but a record made by the appellant himself must have been dispelled. 16. In Ex.P.33 the 1st accused had referred to two occasions when there was a discussion about blowing up a car and snatching a revolver. It would have been perfectly proper for counsel for the Crown to put this in detail to the appellant, but it is submitted on behalf of the appellant that the use of the word "us" again points to an undisclosed statement by the appellant........ 17. On the hearing of the appeal counsel for the Crown informed the Court that in fact he cross-examined the appellant on an 'uncautioned' statement made by the appellant while he was in police custody; and counsel for the appellant suggested that the Court should look at this statement. We disagreed entirely with this approach and we refused to look at the statement. Counsel for the Crown did not inform the jury expressly that he was cross-examining from a document which had not been proved to be admissible in evidence and our problem was to try, so far as this is possible on an appeal, to put ourselves in the position of the jury and to decide whether the jury might well have concluded that counsel was basing his questions on some statement made previously by the appellant. It simply confused the issue to be told by counsel that this was in fact what had happened and the position could only have been made more difficult for us if we had looked at the statement. 18. However, having regard to the way in which counsel for the Crown framed his questions, and the sequence of those questions, we are clearly of the opinion that, although the appellant's answers were a series of denials, the jury may well have concluded that he had in truth made a statement to the police in which he gave specific details of conversations which he had had with the 1st accused on occasions not mentioned by the 1st accused in Ex.P.33. We do not agree that there can never be any objection to cross-examination on an inadmissible document provided counsel does nothing to reveal expressly to the jury that such a document exists: a jury may well come to the same conclusion from the way in which the questions are framed. In this case it seems abundantly clear that counsel for the Crown simply took the appellant through his statement from beginning to end, sentence by sentence. 19. We were asked to express our disapproval of cross-examination of any kind on the part of counsel for the Crown in a criminal case which is based on facts contained in a document which has not been proved to be admissible in evidence. We refuse to do any such thing. It is perfectly proper for counsel for the Crown to cross-examine an accused person on information derived from an induced, or otherwise inadmissible, statement. But what he must not do is to reveal to the jury that the information is contained in such a statement. As Winn J. said in R. v. Rice & Others(1):
It is not enough for counsel to say: "I did not ask the accused to identify his signature on the statement and I did not wave it about in my hand." He must take care so to frame his questions that no jury could reasonably infer from the form of the questions and their sequence that the accused has made an incriminating statement which has not been proved to be voluntary and admissible. 20. We have therefore come to the conclusion that there was an irregularity and the question arises what effect it had on the jury. The only evidence against the appellant was: (1) his presence at 92 Wing Lok Street shortly after the 1st accused was caught red-handed mixing explosive substances, (2) the rather thin story which the appellant told the jury in evidence viz. that he had come to collect some gramophone records from the 1st accused, (3) his cautioned statement in the police constable's notebook (Ex.P.35), and (4) his statement in answer to the charge. The appellant said that he made the cautioned statement under duress. The learned trial judge admitted it in evidence, but he very properly told the jury that the truth of the statement and the weight to be given to it were matters entirely for them to decide. Without the cautioned statement no jury could reasonably have convicted the appellant and in making up their minds as to the truth of the statement they no doubt considered the words alleged to have been used by the appellant, viz. "I did agree with Chan Nam to make bombs to blow up police car and snatching revolver." The phraseology is remarkably similar to that used by the 1st accused in Ex.P.33. The jury were very properly warned by the learned judge that Ex.P.33 was only evidence against the 1st accused, and that nothing in that statement was evidence against the appellant. But the task of banishing from their minds the contents of Ex.P.33 in considering the guilt or innocence of the appellant was not an easy one. There was not a great deal of admissible evidence against the appellant and it was particularly important that the jury's task should not have been made harder for them as a result of a series of questions which obviously implied that the appellant had made another statement not in evidence which amounted to a confession that he had conspired with the 1st accused to make and use bombs in a particular way. 21. This is not a case in which it can be said that the jury would inevitably have reached the same verdict oven if there had been no irregularity at the trial and we therefore have no alternative but to quash the verdict of guilty against the appellant on the first count. 22. Under S.81(3) of the Criminal Procedure Ordinance this court has power to order a new trial. It has been urged upon us that we should not order a new trial in this case because the mis-trial was not due in any measure to the fault of the defence. That is undoubtedly a factor to be considered, as is the nature of the evidence adduced against the appellant. If the evidence had been over whelming we might have come to the conclusion that the irregularity could not have affected the verdict. Clearly, therefore, we need not be satisfied that the conviction of the appellant is inevitable: a re-trial is not a mere formality. What we ask ourselves is whether having regard to all the circumstances, including (in addition to those we have mentioned) the seriousness of the charge, it is just that the appellant be made to stand trial a second time. We are of opinion that there ought to be a new trial and the appellant is remanded in custody to the next criminal sessions of the Supreme Court. 23. Although the court declined to look at the so-called "uncautioned" statement of the appellant, at the conclusion of the appeal counsel for the appellant suggested that the court should take judicial notice of the fact that police officers frequently question accused persons in custody after they have been formally charged; that on such occasions the accused is sometimes not cautioned that he need not answer any questions; and that the statement embodying the answers to such questioning is usually put on the police investigation file which is handed to counsel for the Crown together with the magistrate's depositions to enable him to prepare the Crown's case for presentation in court. Counsel for the appellant asked us to express our views on the propriety of such police questioning in view of Rule 3 of the Judges' Rules which reads:-
24. The Judges' Rules date from the year 1912. The original Rules were formulated by the Judges as a result of a letter which the Lord Chief Justice, Lord Alverstone, received from the Chief Constable of Birmingham. In that letter the Chief Constable sought advice because of the fact that on the same circuit one judge had censured a member of the Birmingham Police Force for having cautioned a prisoner whilst another judge had censured a constable for having omitted to do so. The Judges of the Queen's Bench Division met; and a number of rules were formulated for the guidance of the police. 25. There is no doubt that over the years those Rules have caused a great deal of misunderstanding in the courts. A number of common law jurisdictions seem to manage very well without them and there are judges today who seriously doubt whether such practice rules serve any useful purpose. There may be many good reasons why police officers, in the discharge of their difficult and all-important public duty of maintaining law and order, consider it necessary to question persons in custody without administering a caution or, if a caution has previously been administered, without reminding the accused of the terms of the caution. If a police officer breaks the law in any respect he is answerable before the law like any other citizen, but it is not the function of courts of law to pontificate on the desirability or otherwise of police questioning. Judges and magistrates have no duty or right to lay down general police practice though adverse comment on the procedure adopted in regard to the obtaining of a particular statement in an individual case may sometimes be justified. However, courts of law are primarily concerned with the admissibility of evidence and to ensure that every accused person receives a fair trial. 26. The law relating to the admissibility of statements made by accused persons to persons in authority is clear. No statement by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised on held out by a person in authority or by oppression. If the prosecution demonstrates to a court of law that there has been no duress or inducement of any kind, the mere fact that there has been a breach of the Judges' Rules does not, ipso facto, render a statement made by an accused person inadmissible. There is no rule of law or practice which would preclude the police from attempting to satisfy a court of law that an "uncautioned" statement was freely and voluntarily made in the technical sense in which the word "voluntarily" is used in this branch of the law. On the other hand, if the accused has made an incriminating statement and it has not been proved that this statement was voluntary and admissible, the courts must ever be on guard to ensure that the contents of such a statement are not in effect introduced into evidence against an accused person by the back door under the guise of cross-examination as to credit. 22th July, 1968. Representation: H.C. Miu (Lau Chan & Ko) assigned for the Appellant Michael WONG, crown cousel, for the Respondent. ...(illegible) O'R Mayne, Q.C. appeared as amicus curia. Written judgment handed down (1) (1963) 1 A.E.R. p.832 at p.839G. (2) (1964) 2 A.E.R. p.229. |