The Queen v. Keung Sin Chi

CACC000965/1983

Voir dire - when held in the absence of jury - lies of the accused - desirability to direct jury thereon.

BETWEEN

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Coram: Sir Alan Huggins V-P, Yang and Barker JJ.A.

Date: 9 March 1984

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JUDGMENT

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Yang JA:

1. This is the applicant's application for leave to appeal against his conviction of three counts of murder and one-count of robbery.

2. On the 28th September 1982, a housewife and her two young children were murdered at her residence at Hong Lok Yuen, Tai Po. She was also robbed of some $4,000 in cash and a quantity of jewellery.

3. The applicant was a mason by occupation and it is not disputed that he worked at the victims' premises for a period of time in July 1982. The evidence against the applicant includes a Viceroy cigarette butt said to be left there by him, and a copy of the Oriental Daily News dated the 28th September 1982 and bearing his palm print. Both. of these items were discovered inside the victims' house. There were also a number of palm prints belonging to the applicant found in various parts of the premises. The main thrust of the appeal, however, is directed at two confession statements (Exhibits P85 and P86) which, counsel for the applicant argued, were improperly placed before the jury.

4. The record shows the following exchange between the trial judge, defence counsel Mr. Niamatullah and Crown Counsel Mr. Duckett:

"MR. NIAMATULLAH:    My Lord, the defence, of course, is objecting to this document P.85 and. also another document which, I take it, this witness would produce, namely, P.86.

COURT:          P ...

MR. NIAMATULLAH:     P.86.

COURT:          yes.

MR. NIAMATULLAH:      On the grounds which are pretty obvious from the questions that I had put to the last witness, namely, that the accused was threatened and assaulted prior to these documents ...

COURT:           Do you wish the objection to be heard in the presence of the jury?

MR. NIAMATULLAH:     I have already disclosed it. I am much obliged.

COURT:          Yes.

MR. DUCKETT:     In those circumstances I tender the documents, my Lord, and ask the witness to read it.

COURT:          Yes.

MR. DUCKETT:     It should be provisionally marked at this stage.

COURT:          PP85."

5. Then at the conclusion of the evidence of the accused and of his witness, and just prior to counsel's final addresses to the jury, Crown Counsel applied to mark the two provisional exhibits as exhibits, whereupon the judge ordered these to be marked Exhibits P85 and P86 respectively.

6. Initially it was argued on behalf of the applicant that in the light of defence counsel's objection the trial judge should have held a trial within a trial in order to determine the admissibility and voluntariness of the two statements, and that the judge not only failed to hold such a trial but also failed to make a ruling on the issue of admissibility. It was further argued that the judge wrongly permitted the applicant to give evidence on the general issue without first giving him the opportunity of giving evidence on the issue of voluntariness, and the judge therefore misdirected the jury by directing them to consider the truth of the statements.

7. In our judgment, the record quite clearly shows that defence counsel was content to have the issue of voluntariness tried together with the general issue and in the presence of the jury, and that by marking the statements as exhibits the judge by necessary implication held them to be admissible. Where objection is taken to the admission of evidence the normal practice is that any disputed facts relevant to the issue shall be decided by the judge on the voir dire. This will usually be done in the absence of the jury (Ajodha v. The State ⁽¹⁾)but it must be remembered that this is because it is assumed that counsel will not wish the jury to be made aware of the contents of the statement unless and until the judge has ruled that it is admissible. As was said in Anderson ⁽²⁾:

"It is difficult to imagine any circumstances in which, except at the request or with the consent of the defence, jury can possibly be asked to leave the box in order that statements may be made during their absence."

The better practice is, therefore, for a trial judge to ascertain categorically whether defence counsel is objecting to the production of a defendant's statement or merely seeks to challenge its truth, whether defence counsel wishes a trial within a trial to be held (and, if so, whether in the presence or absence of the jury), whether the defendant wishes to give evidence on the issue of admissibility and whether counsel wishes to address him on that issue. If a trial within a trial is held, the judge should then make a clear ruling as to the admissibility of the statement before hearing the defendant's case on the general issue.

8. Some days after the conclusion of counsel's submissions before this Court, and when we were about to resume for the purpose of delivering judgment, it was intimated that counsel on both sides had submissions to make before us. On the resumed hearing, therefore, and before delivery of  judgment, it was revealed that counsel for the defence in the court below had all along proposed to challenge the admissibility of the applicant's statements. It was common ground that in the course of the evidence relating to the circumstances in which the statements were taken both counsel saw the trial judge in chambers. Counsel for the defence was anxious that the trial judge should not make a ruling on the statements in the presence of the jury that might prejudice the defence, and Crown counsel indicated that he would merely ask that the statements (already marked as provisional exhibits) be marked as exhibits or that the jury be directed that they should disregard the statements. That was in fact the course that was adopted. Counsel for the applicant conceded before this Court that no injustice had been done in the circumstances. We agree, but we still would have preferred the trial judge to make a clear ruling on the issue of admissibility in open court, in the absence of the jury, so that a shorthand record could be kept.

9. Still in the context of the admissibility of the applicant's statements, it was submitted that the trial judge could not have properly held the statements to be voluntary in view of the "prevarication" of Sergeant Li (PW23) in the course. of his evidence. It is not in our view necessary to repeat the passages of Sgt. Li's evidence referred to by counsel. Suffice it to say that the Sergeant does not appear to appreciate the legal technicalities of a caution and an arrest. He said, for example, that he did not caution the applicant though he clearly did administer a caution but without using the term "caution". Again, he said after the police had searched the applicant's home, he agreed to return to Police Headquarters with the police for enquiries, and was not therefore at that stage under arrest.

10. On the evidence of another sergeant, Sgt. Mau (PW22), the arrest of the applicant was certainly contemplated at a police briefing conducted before the police party set out for the applicant's home, but both sergeants gave clear evidence that the applicant agreed to go to Police Headquarters with the police party. We are unable to say that Sgt. Li's evidence consists of any prevarication or that it should not be relied on by the trial judge or the jury. This ground of appeal therefore also fails.

11. There are six other grounds of appeal which counsel or the applicant described as "make-weights". Except for one of them, on the question of lies by an accused, counsel did not pursue those grounds. On the issue of lies, it is contended that a judge should in every case direct the jury that if they thought the accused may have lied on any material fact, and if they were satisfied that the lie was told deliberately for the purpose of avoiding a conviction and not for any other reason, they should consider the matter along the lines suggested by Lord Devlin in Broadhurst v. The Queen⁽³⁾, at 457:

"          It is very important that a jury should be carefully directed upon the effect of a conclusion, if they reach it, that the accused is lying. There is a natural tendency for a. jury to think that if an accused is lying, it must be because he is guilty, and accordingly to convict him without more ado. It is the duty of the judge to make it clear to them   that this is not so. Save in one respect, a case in which an accused gives untruthful evidence is no different from one in which he gives no evidence at all. In either case the burden remains on the prosecution to prove the guilt of the accused. But if upon the proved facts two inferences may be drawn about the accused's conduct or state of mind, his untruthfulness is a factor which the jury can properly take into account as strengthening the inference of guilt. What strength it adds depends, of course, on all the circumstances and especially on whether there are reasons other than guilt that might account for untruthfulness.

This is the sort of direction which it is at least desirable to give to a jury."

12. Whilst this is undoubtedly a desirable course for a judge to adopt, we do not think that it is imperative for a judge to direct the jury in this way in every case; indeed there is no authority that we know of which imposes such an obligation on a judge. He must, of course, avoid giving any impression that lies are necessarily indicative of guilt of the offence charged, as did the judge in the case cited. Each case must be dealt with on its own peculiar facts.

13. For the foregoing reasons, the applicant's application for leave to appeal is dismissed.

Representation:

Mr. Donnelly, Q.C. and Mr. Barretto (D.L.A.) for Applicant.

Mr. Duckett and Mr. Ricketts, Crown Counsel for Respondent.

(1) 1981 2 All E .R. 193, 201b

(2) (1929) 21 Crim. App. R. 178, 183

(3) (1964) A.C. 441