The Queen v. Wong Tak-lam and Others

CACC001120/1981

Robbery - conviction partly based on guilty plea of co-accused - misdirection in law - conviction quashed - proviso applied only if error is minor and would not have affected conviction.

Conviction quashed and new trial ordered in respect of 1st appellant. Appeals by 2nd, 3rd and 4th appellants dismissed. (In the case of the 2nd appellant proviso applied.)

BETWEEN

Coram: McMullin, V.-P., Li & Silke, JJ.A.

Date: 17th March, 1983

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JUDGMENT

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Li, J.A.:

1. The appellants were four of seven persons charged with the offence of robbery. The 1st appellant is Dl, 2nd appellant is D3, the 3rd appellant is D5 and the 4th appellant D6. I shall refer to them in their numerical order in the court below namely D1, D3, D5 and D6. Their co-accused D2 and D4 pleaded guilty before trial commenced and D7 was acquitted by the trial judge when it was held that he had no case to answer. D1, D5 and D6 appealed against conviction and D3 appealed against conviction and sentence.

2. At the end of counsel's address, we allowed Dl's appeal, quashed the conviction and ordered a new trial. We dismissed D3's appeal by applying the proviso and we dismissed the appeal by D5 and D6. We indicated that we would at a later date give our reasons. We now do so.

3. The allegation was that the appellants and their co-accused on the 24th of December 1980 robbed persons of the properties set out in the charge at Kwai Chung. The fact that a robbery occurred in a garage named the Wah Pong Garage at Shek Ying Path, Kwai Chung was not seriously challenged at the trial. Nor were the following facts challenged.

4. At 2 a.m. on the 24th December 1980, four to five males armed with choppers and one with a pistol like object forced their way into the cockloft of the garage where a game of "Pai Kau" was in progress. Amongst the gamblers was a Detective Police Constable. He was attacked by one of the robbers when he declared his identity. He drew his service revolver and shot at them. The robbers then fled. In fleeing, however, the police constable's shots hit at least two persons. One of the injured men jumped into a taxi with another participant and went for medical assistance at Queen Elizabeth Hospital. He was found dead on arrival. From his body was recovered most of the stolen properties. The other man injured was the 2nd defendant who managed to make good his escape and was not arrested until much later. The 4th defendant also was arrested later. Dl and D3, however, were arrested the same morning in Dl's car when that car was intercepted at a police road block at the Shatin end of the Lion Rock Tunnel. All of the defendants made cautioned statements after arrest.

5. The only issue before the trial judge was whether any of the defendants were amongst the robbers. In view of the course we took regarding the lst defendant the least said as to the details of disputed evidence the better. Nevertheless, for the purpose of this appeal it is necessary to mention that there was evidence that some blood stains were found on a box of tissue papers in Dl's car at the time of his arrest and that those blood stains matched the blood group of D2. Fibres were found in Dl's car which matched that of the clothing of the dead man and of D4.

6. In his reasons for verdict the trial judge said:

"The Government Chemist gave evidence. He said he examined a tissue box that came from car No. BG1173. It contained a small amount of blood. It was of the group B PGM 2.1. That blood he compared with a sample of blood taken from CHOI Wai-Lik that was D2. He pleaded guilty to the same charge. The blood group was the same. He came to the conclusion that it could be D2 CHOI Wai-lik's blood that was on the tissue box. He said the blood group was rare and that the chance was 0.1% in the Chinese population one in a thousand. Fibres he found in the car were similar to the fibres he found on the deceased's clothing and also D4 NG Kwai-tuen. He said that this meant that NG Kwai-tuen could be in the rear seat of the car BG1173. NG Kwai-tuen (D4) pleaded guilty."

7. Later he said in page 93:

"I am unable to understand the defendant's action in picking up a man after he heard the shots. He said this man intercepted his vehicle and he let him into the car at the request of D3 CHANG Kan-lok, Lok Tsai his informer without any questioning. He suddenly tells this man to get out of his car by saying 'Don't travel in my vehicle'. What inference can be drawn from this self admitted conduct of a serving detective officer, but that he wanted to get rid of the dangerous passenger who was possibly bleeding, as blood of one of the defendants D2 CHOI Wai-lik's blood group was found on a tissue box found in the defendant's car. D2 pleaded guilty to the charge, as did D4 NG Kwai-tuen, fibres of his clothes having been taken from the defendant's car. P.W.1 and P.W.2 did see four people in the car."

8. The 1st defendant filed three grounds of appeal. The first was that the judge erred in law in regarding the pleas of guilty of D2 and D4 to the same charge of robbery as providing evidence upon which he could find that the two robbers, namely D2 and D4, were in D1's car immediately after the robbery.

9. The second ground was that the learned judge erred in law in regarding the cautioned statements of D3, D5 and D6, containing admissions as to the part they played in the robbery, as evidence against him (D1).

10. The third additional ground was that the learned judge misdirected himself as to the evidence in finding that a stocking packet was found in the D1's car. There was no such evidence.

11. With regard to the first complaint, it is true that since D2 and D4 pleaded guilty before the trial of D1 commenced no evidence was led as to the role played by D2 or D4. There was no evidence at the trial of Dl that either D2 or D4 pleaded guilty or that they were among the robbers at the time. Nor was evidence led that either D2 or D4 was at the scene of the robbery or that D2 had been shot.

12. Counsel for the Crown while conceding that the evidence of guilt of one accused could not be evidence to prove the guilt of a co-accused (R. v. Rhodes⁽¹⁾; R. v. Moore⁽²⁾) nonetheless opposed D1's appeal on the ground that the trial judge did not rely on the evidence of guilt of D2 and D4 as evidence against D1. He contended that in the course of his judgment the comments of the trial judge were merely part of his references to the evidence in the case. These, Crown Counsel conceded, were misdirections of fact. However, this was not a jury trial. The judge's reason for convicting D1 is to be found on pages 95, 96 of the transcript. In page 95 of the reasons for verdict, the judge said:

"I found the defendant (D1) a most unimpressive witness. I simply do not accept his explanation. I am satisfied on his statement alone that he was a party to the robbery. There is no other inference that can be drawn.

From all the circumstantial evidence without the statement at all, the irresistible inference, indeed, the only inference that can be drawn is that the defendant played a leading role in this robbery."

At page 96 he said:

"I am satisfied from all the evidence that it was a very well planned robbery and that D1 WONG Tak-lam used his position as a detective officer to ensure that it was a success."

13. We find difficulty in acceding to Crown Counsel's argument. In his reasons for verdict it is not apparent whether the judge relied on either Dl's statement or the circumstantial evidence alone or both. He appeared to say either was sufficient. We are inclined to the view however that he had relied on both. We think the statement, of itself, to have been equivocal. Putting it at its highest it was a statement which would raise strong suspicion against D1. Taking the circumstantial evidence alone, that would amount to no more than suspicion unless there was taken into consideration the pleas of D2 and D4 and of the knowledge of D1 that D2 was bleeding: of which matter there was no evidence before the trial judge.

14. Crown Counsel conceded that there had been no less than three misdirections of fact. These were that:

1.    D2 and D4 were robbers;

2.    That the stocking packet was found in the car of D1; and

3.    That P.W.2 identified Dl and D3 in the car while chasing the robbers.

15. Having regard to these misdirections and the questionable nature both of the relevant evidence and the judge's reference to it the only question was whether we should apply the proviso as far as Dl was concerned. In this connection, Mr. Huggins drew our attention to the case of Corless⁽³⁾ in which there was a serious irregularity at the trial and the Court of Appeal refused to apply the proviso. In the course of his judgment, Orr L.J. cited two other such cases. In one of them the Court of Appeal refused to apply the proviso although it was of the opinion that the accused was obviously guilty. The learned Lord Justice also cited Lawrence ⁽⁴⁾ in which Diplock L.J. (as he then was) said at page 166:

"Nevertheless this is not a case in which the court would apply the proviso, for it is difficult to say that the jury must have convicted whether they saw the car or not..."

16. We may observe that it is settled law that before this court does apply the proviso we have to be satisfied that without the misdirection or irregularity the judge (or jury) must inevitably have convicted the appellant. The test is: had the inadmissible evidence not been before the jury and if a proper direction had been given to a jury whose mind had not been affected by such inadmissible evidence such a jury would without doubt have convicted. Richards⁽⁵⁾; Stirland v. D.P.P. ⁽⁶⁾.

17. Learned counsel for the Crown relied on a passage in the decision of this court in the case of Wai Man⁽⁷⁾ and contended that the proper test for quashing the conviction in the event of a misdirection was there correctly stated in these terms:-

"Misdirection as to the evidence to be of any avail to an appellant must be of such a nature and the circumstances of the case must be such that it is reasonably probable that the jury would not have returned their verdict had there been no misdirection. The burden of establishing this lies upon the appellant."

18. That proposition is taken from paragraph 9(1)(a) of the 40th edition of Archbold which cites, in support, the case of R. v. Wann ⁽⁸⁾

19. In Wann's case, ⁽⁸⁾ Alverstone L.C.J. said at page 139 as follows:

"The effect of the cases on this subject is stated in Ross on The Court of Criminal Appeal, at p. 113, as follows: 'To have any effect in itself the misstatement of the evidence, or the misdirection as to the effect of the evidence must be such as to make it reasonably possible that the jury would not have returned their verdict of guilty if there had been no misstatements.' With the alteration of the word 'possible' to 'probable', we think that this statement is correct."

20. That court quashed the conviction, Alverstone L.C.J. saying at page 140:

"It would have been better if the judge had pointed out more fully to the jury what the consequences would be if they accepted the appellant's date of the visit. The verdict might not have been the same if those consequences had been sufficiently brought to their attention. It is more important that an innocent person should not be convicted than that a guilty person should go free. The difficulty of this case is very great, and we only give this judgment after very great doubt and hesitation. The Court is of opinion in this particular case that the conviction must be quashed."

21. The passage cited by Crown Counsel from the judgment of this court in Wai Man ⁽⁷⁾ reflects the fact that we accepted the principle upon which Counsel was relying and which appears in the passage from Archbold where the case of Wann⁽⁸⁾ is cited in support. The matter was not fully argued in Wai Man⁽⁷⁾ .

22. In Wai Man ⁽⁷⁾, at page 20, we said:

"Many of these cases in which convictions were quashed will be seen to amount to either a grave misrepresentation or else a total failure to put the defence to the jury or a total misrepresentation thereof. We do not consider that the present misdirection went anything like as far as that. We are satisfied that the case is one justifying the application of the proviso."

23. There is nothing there to support the idea that the proviso was applied upon a test less stringent than that the jury must inevitably have convicted if they had been properly directed. We now, however, must consider that test to apply to the other question, viz., did the Jury convict because of the misdirection.

24. In the case of Wann⁽⁸⁾, prior to the reference to Ross on The Court of Criminal Appeal, the learned Chief Justice said at page 138 as follows:

"In a summing up the facts may not be stated fully or may be stated incorrectly, without a misdirection on any question of law. A mere misstatement is clearly not a misdirection when the case has been fully heard by the jury, and as to omission, we must be satisfied that it is such that it is reasonable and probable that the jury were misled, in which case there might be a miscarriage. of justice.' But the objection of omission seldom succeeds. As I said in delivering the judgment of this Court: 'One has to be very careful in dealing with the case of alleged misdirection to appreciate the lines on which a case is conducted, as omission to direct the jury on a point which was not taken at the trial may not matter if no injustice is done."

25. In Cohen v. Bateman⁽⁹⁾, Mr. Justice Channell said at page 207:

"A mistake of the judge as to fact, or an omission to refer to some point in favour of the prisoner, is not, however, a wrong decision of a point of law, but merely comes within the very wide words 'any other ground' so that the appeal should be allowed according as there is or is not a 'miscarriage of justice'. There is such a miscarriage of justice not only where the Court comes to the conclusion that the verdict of guilty was wrong, but also when it is of opinion that the mistake of fact or omission on the part of the judge may reasonably be considered to have brought about that verdict, and when, on the whole facts and with a correct direction, the jury might fairly and reasonably have found the appellant not guilty. Then there has been not only a miscarriage of justice but a substantial one, because the appellant has lost the chance which was fairly open to him of being acquitted, and therefore, as there is no power of this Court to grant a new trial, the conviction has to be quashed."

In that case the proviso was applied.

26. In Bateson⁽¹⁰⁾ , where the misdirection complained of was a suggestion that the defendant had never told his story before the trial, Salmon L.J. said at page 18:

"We do not of course know at what conclusion this jury would have arrived had the summing--up not contained the passage (suggesting that the appellant had never told his story before the trial) to which we have referred. They might still have found him guilty.. But it is quite impossible to say that it is not at any rate on the cards that they would have found him not guilty. This passage does constitute a misdirection. It is not supported by any evidence. It is clearly contrary to what we now know to be the true facts."

27. The court of Appeal there allowed the appeal on the ground that the verdict was unsafe and unsatisfactory.

28. In R. v. Sauter⁽¹¹⁾ where the complaint was a misdirection of fact in that, despite evidence that the appellant had made all effort to prevent people using drugs in his premises, the jury was directed to the effect that if the defendant had reasonable cause for suspicion that was sufficient to support a charge of permitting premises to be used for the smoking of cannabis Edmund Davies L,J., as he then was, in quashing the conviction, said at page 1192:

"Unfortunately this evidence was never referred to in the summing up. On the contrary, the jury were told in express terms that he did nothing but put up the notice. We regard this unfortunate error as on one of substance. It might well have induced the jury to take the view which the deputy chairman himself seems to have formed that the notice was but part of a charade calculated to shield the accused in the event of his unorthodox actions becoming the subject matter of investigation.

In the result, we have come to the conclusion that this conviction ought not to stand. We therefore quash it by allowing the appeal."

29. In Wright ⁽¹²⁾,the gravamen of the complaint was that the judge exercised unreasonable pressure and rushed the jury into returning a majority verdict. Dismissing the appeal Scarman L.J., as he then was, said at page 450:

"Nevertheless I have indicated that there is the presence of one, possibly two, errors in the summing-up, and there is the minor blemish to which I have referred in his description at one stage of the character of the burden of proof. Do these matters loom so large that this Court takes the view that the verdict reached in this case was unsafe or unsatisfactory?"

30. Later he said at page 452:

"At the end of the day, when the appellant's case is not that the judge erred in law but that the judge erred in his handling of the facts, the questions must be, first of all, was there error, and secondly, if there was, was it significant error which might have misled the jury? If this Court has a lurking doubt it is its duty to quash the conviction as unsafe, but this Court, having considered all the evidence and all the formidable and well argued submissions of Mr. De Piro, has reached the clear conclusion that this verdict was safe and satisfactory."

31. In each of these cases, the court was confronting a situation in which misdirection or other error had been demonstrated and the question under primary consideration was whether the conviction must be quashed or the proviso applied. The test for the resolution of that question is beyond doubt. Where the error has been of such a kind as to necessitate consideration of the proviso, the court will only consider that course if satisfied that without the misdirection the jury must inevitably have convicted. If the court is not assured of that, it is bound to conclude that there has been a miscarriage of justice and that the conviction is unsafe and unsatisfactory and must therefore be quashed. The question with which we are concerned however is one which, although very closely bound up with that primary question, is preliminary to it. First of all, the court must decide whether the error of which complaint is made was the effective cause of the conviction for it is only when that question is answered affirmatively that it becomes strictly necessary to consider the proviso in resolving the primary issue: was there a miscarriage of justice. That at any rate is the logic of the matter although of course in practice the proviso is often applied to absolve minor errors which are not perceived as likely to have caused the verdict. In each of the several cases quoted already, since miscarriage was the matter primarily at issue, and perhaps because the two questions are so closely bound together, we find a certain looseness in the language used to indicate the test for resolving this preliminary question: Was the error the cause of the verdict?" We have seen that 'reasonably probable' was preferred in Wann⁽⁸⁾ to the textbook writer's "reasonably possible". In Cohen v. Bateman⁽⁹⁾ it is whether the omission may reasonably be considered to have brought about the verdict. In Bateson⁽¹⁰⁾ it is whether, in view of the error, "It is impossible to say that it is not at any rate on the cards that the jury would have found him not guilty. In Sauter⁽¹¹⁾ it is whether the error "might well have induced the jury" to their conclusion, while Wright⁽¹²⁾ suggests: a 'significant error which might have misled the jury' into convicting. On the whole, it may be said that all of these cases support the idea that the court must regard the conviction as the probable result of the error. At all events, we think that this is an area in which it would be wise to avoid the semantic difficulties which can arise in opposing the ideas of possibility and probability to each other. We think the proper test should be: whether the misdirection is a significant error which might have misled the jury to such an extent that because of it they returned a verdict of guilty.

32. When the court considers that the error has had that effect it must then go on to consider whether to quash the conviction or apply the proviso. For the reasons given, however, we do not think that the proviso can be applied in the present case.

33. In Hong Kong, this court has a discretion to direct a new trial upon the quashing of a conviction. Mr. Huggins contended that it would be grossly unfair to the appellant if the court here were to order a new trial. He gave two reasons which were basically one. He argued if a new trial were ordered the Crown would be able to fill up the gaps in its evidence: calling for example evidence that D2 and D4 were robbers. Further the Crown contributed to the error by referring to the "evidence" that "the blood example in Dl's car was that of D2 who pleaded guilty." Mr. Huggins cited in support of his contentions Reid v. The Queen ⁽¹³⁾ in which the Privy Council allowed an appeal against the Jamaican Court of Appeal's order for a new trial. Lord Diplock said at page 907:

"It would conflict with the basic principle that in every criminal trial it is for the prosecution to prove its case against the defendant if a new trial were ordered in cases where at the original trial the evidence which the prosecution had chosen to adduce was insufficient to justify a conviction by any reasonable jury which had been properly directed. In such a case whether or not the jury's verdict of guilty at induced by some misdirection of the judge at the trial is immaterial: the governing reason why the verdict must be set aside is that the prosecution having chosen to bring the defendant to trial has failed to adduce sufficient evidence to justify convicting him of the offence with which he has been charged. To order a new trial would be to give the prosecution a second chance to make good the evidential deficiencies in its case, and, if a second chance, why not a third? To do so would, in their Lordships' view, amount to an error of principle in the exercise of power under s.l4(2) of the Judicature (Appellate Jurisdiction) Act 1962."

34. That was a case where there was a defect in the prosecution evidence on identification. To have ordered a new trial would have been to enable the prosecution to correct the error and to have a second chance.

35. In the instant case Mr. White, for the Crown, gave an undertaking that in the event of a new trial being ordered the Crown would not fill in the gap by calling evidence about D2 or D4 taking part in the robbery.

36. Our attention was also drawn to the case of Au Pui Kuen v. The A:G. ⁽¹⁴⁾ where this court ordered a near trial on misdirection of law by the trial judge. In this instant the Privy Council refused to interfere with this court's discretion. In his judgment Lord Diplock said at page 19:

"The discretion whether or not to exercise the power to order a new trial in any particular case is confided to the Court of Appeal of Hong Kong and not to their Lordships' Board. To exercise it judicially may involve the court in considering and balancing a number of factors some of which may weigh in favour of a new trial and some may weigh against it. The interests of justice are not confined to the interests of the prosecutor and the accused in the particular case. They include the interests of the public in Hong Kong that those persons who are guilty of serious crimes should be brought to justice and should not escape it merely because of a technical blunder by the judge in the conduct of the trial or his summing-up to the jury.

It would not, in their Lordships' view, be helpful to attempt a catalogue of the various factors which the Court of Appeal should take into consideration in determining how to exercise their discretion, still less to make any suggestion as to the relative weight to be given to them. The factors that are relevant and their relative importance may vary greatly as between one case and another. These are matters which call for the exercise of the collective sense of justice and common sense of the members of the Court of Appeal of Hong Kong, who are familiar, as their Lordships are not, with local conditions. Their Lordships would not interfere with that court's exercise of its discretion in such a matter unless they were satisfied that it must have reached its decision as to whether or not to order a new trial by taking into consideration matters to which it ought not to have had regard or by failing to take into consideration matters to which it should have had regard, and that in consequence a substantial injustice had been done."

37. In the case of the misdirection here, both on fact and on law, affecting the 1st defendant, upon which the trial judge apparently relied in convicting him, the conviction of D1 must be quashed. Having regard to the totality of the evidence we have come to the conclusion that we should in the interest of justice, in the Au Pui Kuen⁽¹⁴⁾ sense, order a new trial. Further the objection that the Crown could fill up gaps in evidence has been avoided by Mr. White's undertaking.

38. We now come to the case of D3, D5 and D6. The only evidence to connect them with the robbery was their cautioned statements.

39. With regard to D3, Mr. White conceded that whatever misdirection there was affecting Dl must equally have affected D3. D3 was found in the same car with and arrested at the same time as Dl. Had this been the only consideration D3 would have to be treated on the same basis as D1. But in his statement, Exhibit P16, he made a full confession of his part in the planning and carrying out of the robbery in detail. It is not necessary to go into its contents. Suffice it to say that the statement would support his conviction.

40. The admission of this statement as voluntary by the trial judge was made a ground of appeal. However, this statement was admitted after a full enquiry in a voir dire. The 3rd defendant did not give evidence in the court below. The trial judge having heard the evidence at first hand was the best judge to decide the question of admissibility. We are not inclined to interfere with his discretion. Indeed it appears that the judge convicted the 3rd defendant solely on the statement. In the event we are of opinion, having regard to his confession the judge must inevitably have come to the same conclusion even if there had been no misdirection. We were satisfied that there had been no miscarriage of justice and accordingly his appeal is dismissed.

41. D5 and D6 were arrested some months after the robbery. Each of them gave cautioned statements. Each in their statements, P11 and P12 respectively, admitted their part in the robbery in detail. The judge convicted them solely on those statements which he admitted as voluntary. Whatever misdirection there were vis-a-vis Dl and D3 would not have affected either of them. D5 and D6 advanced five grounds in support of their appeal. It is not necessary to set them out. Suffice it to say that there was no substance in grounds 1, 2, 3 and 5 and ground 4 was abandoned. In the circumstances, we find that there was no merit in the appeal and the appeal is dismissed.

(1)    (1956) C.A.R. 23

(2)    (1960) C.A.R. 50

(3)    (1972) C.A.R. 341

(4)    (1968) 52 C.A.R. 163

(5)    (1967) C.A.R. 266

(6)    (1944)A.C.R. 315

(7)    Cr.App.No. 705 of 1981

(8)    (1912) C.A.R. 135

(9)    (1909) 2 C.A.R. 197

(10)    (1969) 54 C.A.R. 11

(11)   (1971) 1 W.L.R. 1187

(12)   (1974) 58 C.A.R. 444

(13)   (1979) 2 A.E.R. 904

(14)   (1979) H.K.L.R. 16

Representation:

Adrian Huggins (Jenkins, Oliver & Au) for 1st appellant

Miss Theresa Trien (Jenkins, Oliver & Au) for 2nd appellant

Miss Theresa Trien (Jenkins, Oliver & Au) assigned for 3rd and 4th appellants

C. White for respondent/Crown