Leung Lai Por and Others v. The Queen

CACC000657/1974

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 657 OF 1974

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Coram: Huggins, McMullin & Pickering, JJ.

Date of Judgment: 8th May 1975.

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JUDGMENT

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Huggins, J.:

1. On Christmas day 1973 one person was killed and another was wounded in an incident at Fa Yuen Street Playground, Kowloon. The case for the Crown was that these persons were the victims of a surprise attack by a gang of armed youths which included these Appellants. All five were indicted for murder, wounding with intent and affray. The first three Appellants did not give evidence but the fourth and fifth Appellants, while admitting that they were present at the scene, asserted that they were innocent spectators and that they took no part in the attack.

2. The first ground of appeal is based on apparent inconsistency in the verdicts returned by the jury and we must initially examine the verdicts against each individual Appellant, after which we shall consider those verdicts in the light of all the verdicts against all the Appellants.

3. Had the first and fifth Appellants each been tried alone it is conceded that there would be nothing inconsistent in the verdicts returned against them.

4. The second Appellant was found Not guilty of murder but guilty of manslaughter. That verdict is clearly inconsistent with a verdict of Guilty of wounding with intent, because, although both verdicts necessarily depend upon a finding of common intent, they depend upon a different common intent. It was suggested to us that the jury may have returned merciful verdicts on Count 1. Even assuming (but not deciding) that the quality of mercy is so unstrained that jurors have, as is sometimes claimed, an inherent "right" to break their oaths in pursuit of it, we cannot assume that this is what the jury did here. The common intent must have been less than grievous bodily harm, otherwise the proper verdict on Count 1 was Guilty. The only inconsistency, however, lies in the intent. Therefore it is the verdict which incorporates the higher intent which must give way, i.e. that on Count 2. Had the jury been informed of the possibility of an alternative verdict of wounding, it might have been proper for us to substitute the lesser verdict, but it was not so informed. The verdicts on Counts 1 and 3 are not inconsistent. It would, of course, have been wrong for the jury to convict of manslaughter on Count 1 and to acquit on Count 2 if the alternative verdict of Not guilty of wounding with intent but guilty of wounding had been left to them, but the verdict of Not guilty on Count 2 which we are bound to substitute is not to be treated, for the purpose of considering inconsistencies, as though it were a verdict returned by the jury.

5. The third and fourth Appellants were acquitted on Count 1 but found Guilty on Counts 2 and 3. The two verdicts of Guilty are not inconsistent, but the acquittal on Count 1 raises a difficulty, for if there was the necessary common intent for Count 2 these Appellants must, on the evidence, have been guilty of murder. The only justification for the acquittal on Count 1 would be that the jury were not satisfied as to the common intent to cause grievous bodily harm. Therefore the convictions on Count 2 cannot stand.

6. Then it is said that the direction of the judge to the effect that the third and fourth Appellants could be convicted on Count 3 and acquitted on the others only if the jury thought they were not present as part of the gang and not acting in concert with the other members of the gang prevents our allowing the verdicts on Count 3 to stand: the findings of guilt on Count 2 showed that the verdicts on Count 3 against these Appellants must have been based upon a common intent and not upon their presence in a capacity other than as part of the gang. It is argued that since common intent falls with the convictions on the second count and since the evidence did not support the notion of dissociated individual involvement in the attack the convictions of the third and fourth Appellants upon the count of affray must likewise go. That was such a plausible argument that at first we were persuaded it was sound. However, on consideration we think that it is not sound. It was conceded that, but for the finding of guilt on Count 2, the verdicts on Count 3 would have been unassailable. What causes the difficulty is the doubt as to the existence of any common intent at all. The submission is that if the jury had come to the conclusion that no common intent had been proved they might have acquitted these Appellants of affray. In truth the existence or absence of a common intent was immaterial to the third count: if the Appellants took part in a fight, as the jury's verdicts on Count 3 clearly showed that they did, it mattered not whether they did so in pursuance of a common design or, to use the phrase employed by the learned judge, by joining in of their own accord. That being so there is no direct inconsistency which should lead us to quash the convictions on the third count.

7. Mr. Bernacchi, who appears for first and fifth Appellants, then argues that there was no justification for differentiating between his clients and the other three Appellants in respect of the first count. It is true that there was some evidence that the fifth Appellant could have been the one who struck the fatal blow, but the judge suggested that that evidence was not sufficiently reliable for the jury to convict him otherwise than on the basis of a common intent. If one assumes that the jury adopted that suggestion and did not find that the fifth Appellant was the killer, then one has to see what was the common intent which they found proved: certainly the other Appellants could be convicted only on the basis of a common intent. The convictions on Count 2 showed that the jury believed that all the Appellants did have a common intent and there was, in truth, no evidence that any one of them entered the playground with an intent different from that of the others. However, the acquittal of the third and fourth Appellants on Count 1 casts doubt even on that finding. When, the argument continues, one looks at all the verdicts on Counts 1 and 2 together it is clear that the jury, even if they were satisfied that all these Appellants had a common intent, were not clear what that common intent was: it was perverse to convict two of murder and one of manslaughter and, a fortiori, it was perverse to convict two of murder and to acquit two entirely.

8. We think there is much force in that argument, for again it is not right for us to speculate that, regardless of the law as explained to them by the judge, the jury was seeking to differentiate between the Defendants on the basis of an assessment of their moral culpability. But for the acquittal of the third and fourth Appellants on Count 1 it might have been proper for us to record against the first and fifth Appellants convictions of manslaughter and affray only. However, with considerable reluctance we have come to the conclusion that none of the convictions on Counts 1 and 2 can stand.

9. That leaves the convictions of affray against all the Appellants. There is one final argument as to these, namely that the inconsistencies in the verdicts returned against the individual Defendants showed this jury to have been so perverse (though, possibly, merciful) or so incompetent that even those verdicts which we have not already said must be quashed are unsafe. No case has been cited to us where the court has felt compelled to act in so sweeping a manner, but it must be remembered that the power of the English appellate courts to order a new trial has been much more restricted than that given to this Court and the English courts may therefore have been less willing to set verdicts aside than they would otherwise have been. Even so we do not think it would be right in the present case to say that the jury so conducted itself that none of its verdicts can safely stand.

10. In view of our conclusion concerning the inconsistencies in the verdicts it is unnecessary for us to say more about the three alleged misdirections by the learned judge than that, although one of his analogies was open to criticism, we think there was nothing here which would have required us to interfere.

11. We are, therefore, left with the convictions of affray and as to those against the first, second, third and fifth Appellants it is contended that they depended upon confessions which were either inadmissible or ought to have been excluded. Exclusion of statements by accused persons used always to be a matter of discretion but in relation to confession statements it has come to be a rule of law that a statement must be excluded unless it is proved to be voluntary, with the result that confessions not proved to be voluntary are now said to be "inadmissible". A confession is not involuntary simply because it was not spontaneously volunteered. It may be voluntary even though it might not have been made at all if there had been no questioning, but where a man is questioned as a suspect any admission which he makes against his own interest stands in need of a narrower scrutiny for the very reason that his will to confess has apparently moved under the impulse of an influence external to himself. It then becomes necessary to examine the nature of that influence. The manner of the interrogation and the circumstances of it generally may be such as to show that he spoke against his will. A confession is not voluntary if the accused person has been led by a person in authority to feel that he cannot remain silent without some temporal disadvantage to himself. There may be oppressive conduct which falls short of obvious threats or promises and what is oppressive to one person may not be oppressive to another. Once the position is reached that the accused person might reasonably feel that he cannot remain silent the danger exists that he will say something just for the sake of satisfying the investigator. In such circumstances what he says is as likely to be untrue as to be true, because under pressure human sensibilities are very varied. This demonstrates the importance of the judge's being satisfied that any confession is truly voluntary and it is the only rational basis for the rule that in deciding the facts upon which the admissibility of a confession depends, as distinct from the facts upon which the admissibility of other types of evidence depend, the degree of proof required is proof beyond all reasonable doubt.

12. However, the involuntariness of a statement was never the only matter which might lead to its exclusion and that was not altered after it became a rule of law that statements must be excluded unless proved to be voluntary. It was because of the uncertainty as to what other circumstances might lead to exclusion that the police in England sought the advice of the judges and the judges suggested to the police guidelines for their conduct which have come to be known as "the Judges' Rules". These "rules" have bedevilled the law for over sixty years despite repeated efforts to remind practitioners that these "rules" have not altered in any way the discretion vested in the judges before 1912. We repeat: "the Judges' Rules" are guidelines for the conduct of the police: they are not rules of law, nor are they rules of practice in the sense that the courts are in any way bound by them. In so far as they are rules at all they are rules of conduct adopted by the police, but which they may at any time reject, for the judges have no power to legislate for the manner in which the police shall conduct their affairs.

13. Because "the Judges' Rules" have never been embodied in a statute in Hong Kong, either directly or indirectly, they have never become part of the law of Hong Kong. We know of no resolution by the judges in the Colony that they would give to the Hong Kong Police (now the Royal Hong Kong Police) the same advice as was given in England in 1912, but it has long been assumed that the advice given to the police in England should be regarded as having been given to and accepted by the police in Hong Kong and we have acted accordingly. It is, however, certain that the advice given by the English judges in 1964 and now known there as "the new Judges' Rules" has, after due deliberation, not been repeated in Hong Kong and that when the possibility of such advice's being given came under discussion the Commissioner of Police indicated that that he would not then have been disposed to act upon such advice. Whatever effect "the Judges' Rules" may have in Hong Kong it is abundantly clear that "the new Judges' Rules" of England have no effect at all in Hong Kong.

14. That there is still a discretion to exclude a statement which is admissible can be inferred from the judgment of the Court of Criminal Appeal in R. v. Voisin⁽¹⁾ where, in reference to R. v. Best⁽²⁾ the Court said:

"We read that case as deciding that the mere fact that a statement is made in answer to a question put by a police constable is not in itself sufficient to make the statement inadmissible in law. It may be, and it often is, a ground for the judge in his discretion excluding the evidence; but he should do so only if he thinks the statement was not a voluntary one in the sense [that it has not been obtained from the prisoner either by fear or prejudice or hope of advantage exercised or held out by a person in authority], or was an unguarded answer made under circumstances that rendered it unreliable, or unfair for some reason to be allowed in evidence against the prisoner".

When reading that judgment one must remember that the exclusion of involuntary statements was originally a matter of discretion only. Now that involuntary statements must be excluded as a matter of law the words "if he thinks the statement was not a voluntary one in the sense [etc.]" in the passage cited must be disregarded in relation to the judge's discretion. It is easy to see that conduct which could possibly be described as "a breach of the Judges' Rules" might persuade a judge that a statement was not voluntary, but we cannot see that if it does not have that effect it could in some way show that the statement was "an unguarded answer made under circumstances that rendered it unreliable, or unfair for some reason to be allowed in evidence against the prisoner". That being so, we think that if a voluntary statement is to be excluded in the exercise of the judge's discretion the basis for such exclusion must be, or at least include, something other than a failure to follow the advice given by the judges to the police.

15. The extent of the discretion to exclude admissible evidence has long been a subject of debate. It is commonly said that it is the duty of a judge "to ensure a fair trial", but that still leaves the question What constitutes a fair trial? Clearly it must be a trial at which the judge enforces the rules of practice and procedure "in order to ensure that the court's process is used fairly and conveniently by both sides": see Connelly v. Director of Public Prosecutions⁽³⁾. Moreover, it is probably now generally accepted that there can be no "fair trial" if evidence is admitted the prejudicial effect of which greatly outweighs its probative effect (see Reg. v. Herron⁽⁴⁾; and Reg. v. Wray⁽⁵⁾, where the Supreme Court of Canada held that the discretion was limited to such cases): such evidence is of dubious quality and is better excluded in view of the prejudice which may result from it. Where the evidence is a full, voluntary confession to the crime charged it is difficult to visualise a case where the probative value would not clearly outweigh any possible prejudice, although we do not say such a case could not occur. The disagreement arises as to the exclusion of evidence which, though not "unfair" in the sense that the possible prejudice outweighs the probative effect, has been obtained in a manner which some might consider unfair. English judges have frequently claimed a general discretion to exclude such evidence, but it has been pointed out with much force that this is to introduce "vague considerations of fairness or fair play to the accused" which tend to defeat the administration of justice: see The People (Attorney General) and O'Brien v. McGrath⁽⁶⁾. Thus some may think it unfair to trick a suspect into confession even though the trick involves no actual dishonesty on the part of the police and though the circumstances are such as to raise no doubt as to the truth of the confession: they take the view that it is legitimate for the judges to discipline the police by excluding such evidence. Others emphasise that the police are not engaged in a game or, to use the metaphor appearing in the judgment of McGonigal, J. in Reg. v. Clarke⁽⁷⁾, in a tea-party conversation. We find it unnecessary to express a concluded view upon this vexed question in the present case and we will assume that such an extended discretion does exist, but we would draw attention to Keeton⁽⁸⁾ and the cases there cited, which show that even evidence which has been obtained by a false representation or trick does not necessarily have to be excluded.

16. Since failure to observe "the Judges' Rules" is not something which renders a resulting confession inadmissible or which compels the judge to exercise his discretion to exclude the evidence, it cannot be a valid ground of appeal that such a breach has occurred or that the judge has not considered whether such a breach has occurred. That is not to say that conduct which some might choose to describe as a "breach of the Judges' Rules" is irrelevant or can properly be ignored. Mr. Bernacchi in the early part of his argument suggested that such conduct was irrelevant to the issue of admissibility, but he later conceded that it was relevant, and we think, rightly so: such conduct may tend to show that a confession was not voluntary.

17. Having stated once more these basic principles we can turn to the circumstances of this case. The issues which we have allowed to be raised before us are these:

18. The arguments relating to the admissibility of the confessions are based first upon the absence of any explicit assertions by the police witnesses that the confessions were obtained without improper inducement and, for his part, Mr. Bernacchi agrees that the real question was whether evidence that the Appellants had been duly cautioned was, in the absence of any objection to the admission of the confessions, sufficient to prove affirmatively that the confessions were voluntary. Counsel for the Crown has not sought to question the observations of Pickering, J. in Wat Kwok Leung v. Reg.⁽⁹⁾ as to the necessity for such affirmative proof and we fully endorse them as, indeed, this Court did in Kwok Kwan Lo v. Reg.⁽¹⁰⁾. That no objection is taken to the admissibility of a piece of evidence does not constitute an admission of any fact upon which the admissibility of that evidence rests: an absence of objection must be clearly distinguished from an admission that the evidence is admissible, which in a criminal case can now be made under the provisions of s.65C of the Criminal Procedure Ordinance. We believe that in England evidence of a proper caution would, in the absence of objection to the admissibility of a confession, be regarded as a sufficient foundation for the admission of the confession in evidence. The only reason for that must be that where a caution has been administered and there is no evidence tending to show that the subsequent confession was, none the less, involuntary the absence of objection will be taken as some evidence that it was an effective caution. If one makes the assumption, which (as we have indicated) is generally made, that the onus on the Crown is to prove the voluntariness of a statement beyond all reasonable doubt, then as a matter of pure logic this reasoning may be open to objection, but it avoids the necessity for an incantation consisting of the words "the defendant was not subjected to any form of inducement to make a statement". It becomes a matter of practicality - where there is some evidence upon which the judge has been able to find that a confession was voluntary, then if the maker did not object to its admission in evidence he will not be allowed to complain on appeal that the confession was not admissible. We have considered whether conditions in Hong Kong require us to insist on a heavier weight of evidence to discharge the same burden of proof. The only justification suggested for such a course would seem to be the alleged fact (which has neither been proved to us nor is to be presumed) that confessions are more frequently obtained by improper means in Hong Kong than they are in England. Upon consideration we do not think we are entitled to say that a judge who has been satisfied by the evidence of a caution that a confession to the admission of which no objection is taken was voluntary is necessarily wrong. On the other hand, prosecutors should bear in mind that it does not necessarily follow that judges in Hong Kong will always be satisfied by such evidence, because there may be other evidence which suggests that the caution may have been nugatory. Although it is true that Sergeant Lam Yiu, who took the statement of the first Appellant, did not say and was not asked to say whether or not he had used any violence against the Appellant or uttered any threats or the like yet in view of the fact that no objection was made to the admission of the statement and the further fact that the first Appellant's counsel in cross-examining the sergeant actually put it to him that the boy appeared to be perfectly willing to make a statement we can find no good reason for saying, as counsel would have us say, that that statement ought to have been excluded for lack of affirmative proof. The second Appellant was interrogated in the presence of his mother and a caution was administered to him (admittedly somewhat belatedly) and it was suggested on the appeal that what he then said was said under the combined pressure put upon him by Detective Senior Inspector Ng and his own mother. These factors were fully considered by the learned trial judge and we can see no reason to say that he wrongly exercised his discretion in admitting the statement.

19. In relation to the third Appellant there are two matters which have caused the Court great anxiety. The first is the unexplained fact that the first twenty-one questions put to him were identical as to the order in which they were put and, for all intents and purposes, identical as to the language in which they were couched to the first twenty-one questions which had previously been asked of the second Appellant. There may be a perfectly innocent explanation but once the point was raised one would have expected counsel for the Crown to put any such explanation before the Court. Unfortunately when Detective Police Constable Lee Kwok Hung was asked if he could explain the coincidence the judge prevented him from answering. That has resulted in allegations of dishonesty against the constable and there is strong ground for suspicion, although it may be arguable whether the indications are such that it was not open to the judge to believe him. At least, it is said, the failure to explain the coincidence left it uncertain how the confession of the third Appellant was obtained and that uncertainty made it impossible to find that the burden of proving his confession to be voluntary had been discharged. We think there is substance in that argument. The learned judge was of opinion that the similarities were sufficiently explained by the fact that the inspector in charge of the case had indicated in general terms to his subordinates what questions should be asked of the suspects, but, with respect, we doubt whether that was sufficient explanation, while we think that the presence of the father was not a sure protection against oppression. This alone would have been enough to lead us to hold that the confession of the third Appellant was wrongly admitted. The second matter was that his father actually struck the third Appellant when the police first said that he was under suspicion of involvement in the murder. The father continued to whisper to the boy throughout the interrogation and we do not know what he said. It is possible that, like the mother of the second Appellant, the father was merely exhorting his son to tell the truth without offering any inducement of a temporal nature, but it is equally possible that the third Appellant's will was being overborne. The slap might well have led the boy to think that he must confess or run the risk of being struck again. On that ground also we would have held that the judge should not have been satisfied that the confession of the third Appellant was voluntary.

20. The basis of the complaint that the judge failed to exclude the confessions although they were found to be voluntary is that the judge did not consider matters relevant to the exercise of his discretion and that, if he did consider them, he did not give them sufficient weight. Once again we emphasise that the discretion is to exclude vidence and not to admit evidence, so that where a piece of evidence has been admitted it would be absurd to say that the judge has not exercised his discretion at all. Just as there is no obligation on a judge to give detailed reasons for holding a confession to be admissible, so there is no obligation upon him to give detailed reasons for declining to exclude evidence, even when he is formally asked to exclude it. But what is said here is that in giving his reasons the judge has indicated that he did not consider a matter which he ought to have considered, that is to say the fact that very young defendants were questioned when they were in police custody. It is true that he did not in so many words repeat his finding that there had been improper questioning, but in our view it was no more necessary that he should do so than it was necessary for the Lord Chief Justice of England to make a comparable finding in Prager⁽¹¹⁾ in relation to the issue of admissibility. Nevertheless, if it should appear, as Mr. Bernacchi has submitted it does, that the judge thought improper questioning of the Appellants would be irrelevant to the exercise of his discretion, then he was in error. His ruling was complicated by the fact that he dealt with the issue as though advice similar to "the new Judges' Rules" had been given by the judge in Hong Kong, for he said:

"The new Judge's Rules (sic) are not so stringent. They require that police officers should caution a suspect only when they have evidence which affords reasonable grounds for suspecting that the defendant has committed an offence".

His reference to the detainee as both "suspect" and "defendant" reveals the possible danger of applying rules made in one territory to another ter itory where conditions are not identical: a person "in custody" in England must (if his custody is lawful) have been charged with a crime, whereas in Hong Kong the police have power to detain persons on suspicion without charging them. The nature of the custody may be material in deciding whether a caution ought to be adminstered before questions are put. It was considered in England formerly that where the police were questioning a suspect there was no obligation to administer a caution until they had evidence which would have justified their charging him: on the other hand a defendant should not be questioned without a caution's having first been administered. That is substantially the position still obtaining in Hong Kong, although a confession made by a suspect who has been detained by virtue of the power conferred by s.54 of the Police Force Ordinance may more readily be thought to be of less weight than one made by a suspect who knows that he is free to go if he wishes. There is an infinite variety of circumstances which may affect the probative value of a confession. Thus in the present case we have suspects who were not in fact in custody at all but who, the judge thought, probably believed themselves to be in custody. He proceeded on the basis that they were in custody and then said:

"In that case the old Judges' Rules would discourage general interrogation and demand that, if any questions are to be put, a formal caution shall first be administered".

His ruling was ultimately contained in the words:

"I was satisfied that the statements had been voluntarily made. I saw nothing in the matters I have previously mentioned to warrant their exclusion".

One of the matters "previously mentioned" was that these boys were questioned without caution when they believed themselves to be in custody and we do not see how it can be maintained in the face of this ruling that that matter was not considered by the judge. He was right to say in effect that it mattered not whether, if "the Judges' Rules" had been contained in a statute, that conduct would have amounted to a breach of those rules, but, in his own words, "the trial judge is to be left free to exercise his discretion according to the dictates of the particular circumstances". It follows that the fact that, having clearly been satisfied that there had been a breach of what he called "the old Judges' Rules", he did not say whether there had been a breach of "the new Judges' Rules" (which in fact did not apply in Hong Kong) does not invalidate his ruling.

21. We still have to decide whether the judge, although he duly exercised his discretion, came to a manifestly wrong conclusion. It is not enough that it was a conclusion which another judge might not have reached: before we substitute our own discretion we must be persuaded that it was one which no reasonable judge could have reached in the circumstances. The judge thought that it was "a breach of the old Judges' Rules" for the police to question the defendants at all without first administering a caution. We would not have put it in that way but we agree that the second Appellant (and indeed the third Appellant) should have been cautioned before he was. It does not follow that it was wrong not to have excluded his confession and we are not persuaded that we ought to interfere with the judge's exercise of his discretion in relation to the first, second and fifth Appellants.

22. Against some of the Appellants there was evidence apart from their confessions which would have supported a conviction on the counts of affray, but in the case of the third Appellant, whose confession we have said should not have been admitted, there was no other evidence upon which the jury could reasonably have convicted.

23. Counsel did not put before us any argument in support of the contention (contained in para.1 of the Amended Notice of Appeal of the fifth Appellant) that the alleged wrongful admission of the first Appellant's confession could in some way justify our quashing the conviction of the fifth Appellant. We merely remark that had we thought the confession of the first Appellant was wrongly admitted we would have seen no reason for interfering with the conviction of the fifth Appellant in consequence.

24. The final result is that the convictions of all the Appellants on Counts 1 and 2 and the conviction of the third Appellant on Count 3 must be quashed. The convictions of the first, second, fourth and fifth Appellants on Count 3 will stand.

8th May 1975.

Representation:

(1) 1918 1 K.B. 531, 539

(2) 1909 1 K.B. 692.

(3) (1964) 48 Cr. App. R. 183, 259

(4) 1966 2 All E.R. 26

(5) (1970) 4 Can. Cr. Cas. 1.

(6) (1965) 99 Ir. L.T. 59

(7) 1973 N.I. 45, 54

(8) (1970) 54 Cr. App. R. 267.

(9) Cr. App. No. 880 of 1972

(10) 1973 H.K.L.R. 231.

(11) (1971) 56 Cr. App. R. 151.