The Queen v. Lee Chung-tin and Another

CACC000128/1985

BETWEEN

Coram: Hon. Li, V.-P., Kempster, J.A. & Nazareth, J.

Dates of Hearing: 2nd & 3rd January 1986

Date of Judgment: 4th February 1986

__________

JUDGMENT

__________

Li, V.-P.:

1. The two appellants, LEE Chung-tin and LAW Shing-huen, were convicted of murder. The indictment alleged that the two of them on the 1st of June 1984, together with YIP Ting-man, murdered HO Fat-wong. At the trial, Yip was granted an immunity to give evidence for the Crown.

2. At the commencement of this appeal the appellant, LEE Chuen-tin, through his counsel addressed this Court that he had no arguable ground in support of his appeal. Accordingly his appeal was dismissed. That left LAW Shing-huen, who was the 1st accused in the court below.

3. The evidence against appellant was that he was the boy friend of a girl HO Po-chu. They lived together in the year 1982/83. They broke up around mid-1983. Following that, Po-chu had another boy friend, Ah Wah, in August 1983 up to November 1983. Then she switched to another boy friend HO Fat-wong, nick-named Ah Fai.

4. Since his separation from Po-chu, the appellant had attempted to effect a reconciliation without success. When he learned Po-chu had other boy friends he became angry. He told his associates LEUNG Chi-tong and Po-chu's brother, HO Po-ming, to ask Po-chu and her boy friend for a settlement talk with him. His demand was that if Po-chu would not return to him then Po-chu or her boy friend would have to pay him $5,400. Otherwise he would hit her boy friend. Such threats were uttered from time to time. He also enlisted the help of HO Po-ming to find out the movements and whereabouts of Po-chu and her boy friend. In explanation of his ability to enlist the help of LEUNG and HO, evidence was adduced that the appellant was a triad member and that LEUNG, HO and other people who eventually went to his assistance to carry out the crime were all triad members. The Crown further adduced the evidence that on or about the 30th of May 1984 the appellant enlisted another triad member by the name of CHAN Hoo to go and hit Ah Fai, without success. On the 1st of June 1984 the appellant asked LEE Chuen-tin and YIP Ting-man to meet him in Mutual Aid Committee Room at Tse Wan Shan Estate with a view of enlisting their help to chop Ah Fai on the face so as to make him lose face if they could not persuade Ah Fai to go out to talk terms. Again the Crown adduced evidence that both Lee and Yip were triad members.

5. On the 1st of June the appellant asked LEUNG to inform him upon the movements of this Ah Fai. The appellant had been informed that Ah Fai would be going to Po-chu's home to have dinner. He gave LEUNG his pager number to call him once Ah Fai entered room 1447 on 14th floor, block 43 of the Tse Wan Shan Estate. There was evidence that LEUNG paged him no less than three times that evening and eventually informed him that Ah Fai had entered into room 1447, wearing a white shirt and was wearing spectacles. The appellant took LEE Chuen-tin and YIP Ting-man to various places and finally to a man by the name of Ah Sun to borrow two beef knives. He took LEE and YIP to block 43, up to the 14th floor and gave LEE and YIP each a beef knife, instructing LEE to chop the man in a white shirt, to guard the door of the room to prevent people from leaving. The appellant waited in the lift lobby of the 14th floor. LEE and YIP did as they were told. As a result, HO Fat-wong, alias Ah Fai was chopped in the head and the neck several times, suffering cut wounds which caused his death. After the chopping LEE and YIP joined the appellant. They left and went into a hiding for a few days.

6. On the 3rd of June 1984 the appellant met LEUNG again and told him not to tell the police anything about the incident. The appellant was arrested on the 7th of June 1984 at about 7.25 p.m. Under caution he made a statement in question and answer form.

7. The gist of his answers disclosed that Po-chu and Ah Fai refused to pay the settlement fee of $5,400 and refused to talk terms of settlement. He asked LEUNG to inform him of their movements on the 1st of June 1984. He also admitted that he instructed LEE and YIP to carry out the attack and that he, the appellant, gave them knives to do so.

8. The appellant elected not to give evidence or to call witnesses. However, in the course of trial, he relied on the evidence of his co-accused, LEE, who elected to give evidence to the effect that all the instructions that the appellant gave him, LEE, was to ask Ah Fai to go out of room 1447 to carry out a settlement talk. On that point LEE was attacked by Ah Fai and other persons inside room 1447. The chopping was done in the course of self-defence or, alternatively, because of provocation. LEE also denied that the appellant gave him the instruction to chop people or gave him or YIP the knife at all. On the contrary, LEE's evidence was that it was YIP who produced the knife for him to carry out his self-defense.

9. In the event the appellant was convicted. Hence this appeal.

10. The only ground of appeal was that the judge erred in law and in fact in finding that Exh. 4 (which was the record of a second interview after the appellant's arrest) - the words in bracket are mine - was a voluntary statement and admissible after a trial within the trial. It was argued that practically all the evidence against the appellant came from the mouth of accomplices or other unsatisfactory witnesses. In the words of the learned trial judge, those witnesses who were not regarded by him as accomplices were unimpressive witnesses. The judge went on to direct the jury quite properly as to the danger of convicting an accused on accomplices evidence without corroboration and also directed them that the only piece of independent evidence, which was capable of corroborating the evidence of Accomplice YIP would be the cautioned statement, Exh. 4, made by the appellant himself.

11. Having regard to the circumstances it was natural that at the trial the cautioned statement was hotly contested. The admissibility of the cautioned statement was subject matter of a voir dire heard in the absence of the jury and before the opening of the Crown's case. Since the issue of admissibility of that statement was a ground of appeal before us and that it was the only independent evidence against the appellant, the circumstances under which it was admitted required careful examination.

12. In the voir dire proceedings it was disclosed that the appellant was arrested at 7.25 p.m. on the 7th of June. He was cautioned by the sergeant who arrested him. He was told the reason why he was arrested. To that the appellant made no reply. He was taken back to the Wong Tai Sin Police Station where he was interviewed by one Senior Inspector Lam without a caution. Having revealed his identity and position, Inspector Lam went on to say:

"Now, I have something to ask you in respect of the case of homicide which occurred in your girl friend's house. I already know that you are the master mind in this case. Now, I want to know who are the two persons who chopped other person on that day."

To this the appellant declined to tell. The next question was:

"Q.	Why do you not want to tell?
A.	Because this person has helped me many times.
Q.	Now I want you to tell.
A.	He is called Fei Chai."

Then followed a series of questions by which the Inspector was trying to identify and to investigate the whereabout of this Fei Chai leading to another question:

"Q.	Why did you hack Po-chu's boy friend?
A.	I thought that he was Ah Wah, that guy of Sau Mau Ping.
Q.	Do you know Po-chu had already changed a boy friend?
A.	I did not know that she had changed a boy friend. All along, I thought that he was Ah Wah.
Q.	When did, you first thought of hacking Po-chu's boy friend'?
A.	I already wanted to hack him ten months ago."

13. The first episode of the first interview lasted until 8.20 p.m. when the appellant was taken to the duty officer in the station to make an entry in the book. Then he was taken to the cell for detention. At 10.06 p.m. the appellant was taken back to the office to be interviewed by Inspector Lam. However, before the interview recommenced the appellant's elder brother was brought in to the room at 10:10 p.m. to tell the appellant to tell the police the truth. The brother left the room at 10.14 p.m.

14. The second episode of the first interview commenced. The inspector asked the appellant whether he wanted some food or drink which the appellant declined. Next question was:

"Q.	Some of what you have just said are true and  some are false. Now, I don't wish to waste any more time. Ah Ming had told Ah Wah, Ah Ming and Ah Wah had said that Ah Fai wore spectacles. And you had said that all Po-chu's boy friends had to be hacked. Is that so?
A.	Yes."

There were some other questions directed to the investigation of CHAN Hoo. Then the next question was:

"Q.    In fact, who were the two persons who hacked person'?

A.    I now have thought it over carefully and I have a clear mind. I now tell you everything. I hope you can help me so that the offence I have committed will be lessened."

The appellant proceeded to give the name of YIP Ting-man and Ah Tin together with their telephone numbers. He, in answer to questions, gave details as to how Ah Tong informed him by telephone calls as to the whereabout of Ah Fai, the victim. After a few questions about the movements of YIP Ting-man and Ah Tin, there followed the question:

"Q.	Do you follow anybody?
A.	Yes, I follow 'Tai Chi' of Mongkok.
Q.	Does Tak Wah follow anybody?
A.	Follows 'Tai Chi' like me.
Q.	Did the three of you go away together after the incident?
A.	Yes."

The first interview ended at 11.20 p.m. when the questions and answers were read over to the appellant who signed it at 11.40 p.m.

15. The second interview started at 11.50 p.m. It was conducted by the same Inspector Lam who informed the appellant of the homicide which occurred on the 1st of June in room 1447 of block 43 Tse Wan Shan. He reminded the appellant of his arrest and the general enquiries which was the subject matter of the first interview. Then he cautioned the appellant in the following terms:

"Now, I have reason to believe that you are connected with this case. Now, I have some questions to ask you. But you are not obliged to answer these questions. You have the right not to answer. But what you say in answer of your own free will may be given in evidence in court. Do you understand?"

When the appellant replied that he understood, a few of the questions began. These questions were directed to the relationship between the appellant and HO Po-chu, how they separated, his feelings towards HO Po-chu and her other boy friends. At that moment Superintendent Morrison entered the room to make sure whether the appellant had any complaint in respect of his arrest and in respect of any complaint against the police for being i11-treated. This interlude took only 5 minutes and the second interview continued. By his questions the Inspector first established that the appellant harboured a hatred against his former girl friend and  her new boy friend. The next question was:

"Q.With regard to this kind of hatred of yours, in your opinion, what can you do so as to give vent to your feelings?

A. To find them to come out to talk it over.

Q.Did you have any chance to find HO Po-chu and Ah Fai to come out to talk?

A.No.

Q.Again, you did not even have a chance to talk about it. Then, what did you intend to do so as to vent your hatred?

A. Since I learned that she had found another boy friend, I wanted to hit; her/him.

Q.Do you know that Ah Fai is HO Fat-wong, the deceased in this case?

A. I know."

Then there was this question:

"Q.    Before this homicide case occurred, on 2 or 3 occasions when you had tea in a teahouse with CHAN Hoo and LEUNG Chi-tong, did you talk about getting somebody to chop Ah Fai?

A.    I did have tea with them, but I did not say that.

Q.     On one occasion when you met, did you ask CHAN Hoo to get you weapon? Is it true?

A.     Yes.

Q.    Why did you ask CHAN Hoo to get you weapon?

A.    Ah Wah said that Po-chu's boy friend had come up. The more I heard, the more angry I became."

Then the questions were asked as to how he enlisted the help of LEUNG Chi-tong to find out the movements of the deceased and HO Po-chu, leading to the following questions:

"Q. Is it true that on the night the case occurred, LEUNG Chi-tong rang you for the third time at 8.30 p.m. and left a message saying 'You can come up now.'

A. Yes.

Q. At that time, where were you and who were you with?

A. I was with Tak Wah and Wah Ching at the Mutual Aid Committee of Block 24.

Q. What are the real names of Tak Wah and Wah Ching and where do they live.

A. Tak Wah's real name is Ah Tin. He lives in Shum Shui Po. His telephone number is 875640. Wah Ching's real name is YIP Ting-man. He resides at Block 22, Tsz Wan Shan Estate and his telephone number is 276785."

16. Pausing at this stage, it is obvious that by his line of questioning.the Inspector was at all times. inducing the appellant to repeat under caution of what he had already told the Inspector in his uncautioned statement - a statement the inspector well knew might not be admissible by the court. The question as to what he intended to do so as to vent his hatred was totally irrelevant. The questioning did not stop there. Having established that the appellant instructed Ah Tin and YIP Ting-man to go and chop the deceased and provided the two of them with knives, the Inspector followed with this question:

"Q. In fact, you hate HO Po-chu, why did you tell Tak Wah and Wah Ching to chop Ah Fai?

A. I didn't want to chop HO Po-chu."

Despite these answers the Inspector's appetite was not satisfied. There were the following questions:

"Q. The police only found one knife at the scene, where was the other knife?

A. I don't know.

Q. You have told Tak Wah and Wah Ching to go there to chop Ah Fai, what was your intention?

A. I was so angry that my eyes were covered with fire. My intention was to chop him.

Q. Did you think of chopping Ah Fai to death?

A. No."

Then came the other questions:

"Q. Which triad society do Tak Wah, Wah Ching and you belong to?

A. No. 14.

Q. Who is your protector?

A. He is Mouse of 'Tai' character "group of No. 14, Mongkok.

Q. Do you know whether your 'Big Brother', Mouse knew this case before the incident?

A. He didn't know.

Q. Are you filled with remorse for the occurrence of this homicide case.

A. Yes."

Finally the question:

"Q. Tonight, before I took this cautioned statement from you, what you said during the general enquiries I made from you was at first not exhaustive and was false. Why did you tell the truth afterwards?

A. I feel what I have done is wrong. I will not be at peace with myself all my life if I don't tell.

Q. If HO Po-chu has a new boy friend or a husband, will you still get someone to chop him?

A. I won't."

These questions were obviously very prejudicial as well as irrelevant. The questioning of the second interview ended at 1.45 a.m. on the 8th of June. By that time the appellant had been in custody for over 6 hours without being told that he would be charged or warned that he would be charged. The record of the second interview was then read over to the appellant who signed it as correct at 2.10 a.m. on 8th June 1984.

17. At 2.30 a.m. the appellant was brought before Superintendent Morrison for an interview. He made the same inquiry whether the appellant had any complaint and asked the interpreter to read the record of the first interview - the uncautioned statement to the appellant. After that he instructed the police interpreter to read the record of the second interview (under caution) to the appellant again to confirm that it was a true record of what the appellant said. He asked the appellant to sign at 3.46 a.m. but the appellant declined.

18. The record of the first interview was originally marked Exh. 4A and that of the second marked Exh. 4B in the court below. In the course of the voir dire Inspector Lam, the interviewing officer, admitted under cross-examination that a substantial number of his questions were either unfair or irrelevant for the purpose of hie investigation. Indeed the question of fairness and relevance is one for the trial judge. Nevertheless such admissions were indicative of what was in the Inspector's mind when he interviewed the appellant. Having regard to the circumstances in which the interviews were conducted and the type of questions asked it was surprising, to say the least, that prosecuting counsel sought to produce both records of the 1st and the 2nd interviews.

19. Right at the beginning of the first interview the Inspector had sufficient evidence to charge the appellant. He knew the appellant to be the master mind of the murder. At an early stage of the first interview he had already an admission from the appellant. Instead of administering the caution he continued his questions, obviously hoping to obtain more admissions. In his own words the only explanation for failing to caution the appellant was that he had so many questions in mind that he forgot to caution him.

20. In the event the trial judge rejected Exh. 4A but admitted Exh. 4B which became Exh. 4 saying:

"As regards the two statements by the 1st accused, P.4(A) and 4(B), and having seen and heard Senior Inspector LAM and the sergeant and the brother and the other witnesses for the prosecution, and the 1st accused for the defence the prosecution have satisfied me beyond reasonable doubt that neither of these statements was obtained by force, threats or inducements.

I am also satisfied beyond reasonable doubt that P.4(B) was not obtained by oppression, and that it was voluntarily made. As for whether it was accurately recorded, that is a question of fact for the jury, and I will direct them to bear this aspect in mind when considering what weight to attach to the statement.

As for P.4(A), this was not made under caution, and I am not entirely satisfied that it was not obtained by oppressive questioning, or that the 1st accused did have a choice whether or not to answer the senior inspector. Accordingly, I decline to admit P.4(A) in evidence.

The result of all this is that I decline to admit P.4(A) in evidence, but I do admit P.4(B) and I decline to exercise my residual discretion to exclude P.4(B) on the grounds of unfairness."

21. Exh. 4B was admitted as Exh. 4. Pausing here I must confess my surprise that the judge did not find the record of the first interview was obtained by inducement. There was the help of the appellant's elder brother, there were so many of the unfair, irrelevant and incriminating questions.

22. Counsel for the appellant, as did defence counsel in the court below, contended that having regard to the proximity in time between the two interviews, that the interviews being conducted by the same officer, Inspector Lam and that the nature of the first interview which did not satisfy the judge that it was not obtained as a result of oppressive questioning, the record of the second interview, Exh. 4, albeit conducted after caution, should equally be excluded by the trial judge at the end of the voir dire. It was contended that the trial judge erred in law and in fact in finding Exh. 4 was a voluntary statement.

23. It was further contended that even in the course of obtaining Exh. 4 the Inspector had thrown the old Judges Rules out of the window. He was literally cross-examining the appellant after he had sufficient evidence to charge him.

24. Counsel for the Crown who, in all fairness I must state, was not counsel for the prosecution in the court below contended that the appellant repeatedly admitted, in the voir dire, that he was cautioned before Exh. 4 was taken and that he was aware that he did not have to answer any question. As such there was no oppression. The judge rejected the allegation of force or threat. Superintendent Morrison's inquiry in the course of the interview and after the interview whether the appellant had any complaint would diffuse any oppression even if it ever existed. The judge found that the statement was voluntary and found no oppression.

25. Both parties cited the case of Ping Lin ⁽¹⁾ in support of their respective arguments. That was a case where the objection to admissibility of the statement was based on inducement. Their Lordships held that:

"The issue whether a statement was 'voluntary' was basically one of fact and that in determining the admissibility of such statements the trial judge should approach his task by applying the test enunciated by Lord Sumner in Ibrahim v. The King⁽²⁾ in a common sense way to all the facts in the case in their context, and he should ask himself whether the prosecution had proved that the contested statement was voluntary in the sense that it was not obtained by fear of prejudice or hope of advantage excited or held out by a person in authority; that applying that test to the whole of the evidence in context the judge was entitled to find that the appellant's statements were voluntary."

Lord Hailsham said at p. 600:

"The trial judge should approach his task by applying the test enunciated by Lord Sumner in a common sense way to all the facts in the case in their context much as a jury would approach it if the task had fallen to them. In the light of all the facts in their context, he should ask himself this question, and no other:

'Have the prosecution proved that the contested statement was voluntary in the sense that it was not obtained by fear of prejudice or hope of advantage excited or held out by a person in authority (or, where it is relevant, as is not the case on appeal here), by oppression?' "

Lord Salmon said at p. 606:

"The somewhat pedantic approach which seems to have been adopted in some of the cases to which we have been referred should be avoided. These cases are of doubtful validity and of little, if any, value. The Court of Appeal should not disturb the judge's findings merely because of difficulties in reconciling them with different findings of fact, on apparently similar evidence, in other reported cases, but only if it is completely satisfied that the judge made a wrong assessment of the evidence before him or failed to apply the correct principle - always remembering that usually the trial judge has better opportunities of assessing the evidence than those enjoyed by an appellate tribunal."

Note (e) of the Practice Note (Judges' Rules)⁽³⁾ states:

"That it is a fundamental condition of the admissibility in evidence against any person, equally of any oral answer given by that person to a question put by a police officer and of any statement made by that person, that it shall have been voluntary, in the sense that it has not been obtained from him by fear of prejudice or hope of advantage, exercised or held out by a person in authority, or by oppression."

26. Admittedly "oppression" like "voluntariness" is a question of fact for the trial judge. The new Judges' Rules though not rules of law and not applicable to Hong Kong may be cited as guidance.

27. Rule II states:

"As soon as a police officer has evidence which would afford reasonable grounds for suspecting  that a person has committed an offence, he shall caution that person or cause him to be cautioned before putting to him any questions, or further questions, relating to that offence."

Rule III(b) states:

"It is only in exceptional cases that questions relating to the offence should be put to the accused person after he has been charged or informed that he may be prosecuted. Such questions may be put where they are necessary for the purpose of preventing or minimising harm or loss to some other person or to the public or for clearing up an ambiguity in a previous answer or statement."

28. In the present case, right from the beginning of the first interview the Inspector had enough evidence which would afford reasonable grounds for suspecting that the appellant had committed the offence of murder. He said he knew the appellant was the master mind. Instead of cautioning the appellant he proceeded to ask him incriminating and unfair questions. It is all very well to say that "it is not necessary, before a statement is held to be inadmissible because not shown to have been involuntary, that it should be thought or held that there was impropriety in the conduct of the person to whom the statement was made". Nevertheless in some cases the conduct of the person conducting the interview would indicate whether the statement or answer was in fact voluntary.

29. Here the second interview closely followed the first one. It was the same officer who practically dictated to the appellant to answer his questions. Despite the lack of positive finding that there had been oppressive questioning in the first interview, on fair readings of the questions put made oppression clear. The trial judge was in no better position than this court to decide the question where the allegation of oppression was founded on the line and approach of the Inspector's questioning. The questions put in the course of the second interview in which Exh. 4 was taken were largely a repetition of the questions asked in the first interview which was conducted without caution. They could hardly be said to have been put in accordance with Rule III(b) aforesaid. From beginning to end Inspector Lam was trying to compel the appellant to repeat under caution what the latter had said in his uncautioned statements. It is also apparent that the Inspector deliberately conducted the first interview without caution so as to enable him to obtain answers before the appellant was made aware of his right to silence. I do not accept for one second his explanation that he forgot the caution because he had too many questions in mind.

30. By the time he conducted the second interview when substantially the same questions were asked the Inspector was assured he would obtain the same incriminating answers. Even though the appellant was aware by then that he need not answer further questions the appellant was not told that his former answers were inadmissible as evidence. On the contrary the very fact prosecuting counsel attempted to produce his uncautioned statement negatived the position. The caution administered was only a sham to assure admissibility. The repeated inquiry as to whether the appellant had any complaint as to treatment and reading over Exh. 4 twice to the appellant was in my opinion, gilding the lily and made the effort more apparent. In my 30 years at the Bar and on the Bench this was the first occasion I have learned of a cautioned statement being read over to a suspect twice without request by the suspect.

31. In Rennie's case ⁽⁴⁾ Lord Lane said:

"In our judgment the argument is unsound. The question whether the confession had been shown to be voluntary raised an issue of fact. The evidence material to this issue consisted of (i) the evidence of the officer as to what was said and done at the interview, both by himself and by the accused, (ii) the evidence of the accused on the same matters, and (iii) the evidence of the accused as to his motives for making the confession."

That's why I have to decide, as the trial judge should, the question of "voluntariness" on the basis of what the Inspector and the appellant said during the questioning which caused the appellant to confess.

32. In the circumstances one is tempted to ask the rhetorical question: What could the appellant do? If he declined to answer he was under the illusion he had already admitted his involvement. If he denied the questions put to him he could be contradicted by his previous answers.

33. In findings of facts legal authorities are of little.assistance. However counsel for the appellant cited one or two decisions of this court which are worthy of note.

34. In HUI Lam-wing v. The Queen ⁽⁵⁾ where a suspect was questioned without caution it was held that a later caution would not turn the statement into being voluntary. Leonard J.A. said at p. 2:

"The appellant having been arrested was taken back to the police station and then what is referred to as a cautioned statement was taken from him. We need only to look at this document to know that it should not have been tendered nor accepted in evidence. This man was at the time the statement was made clearly under arrest. The statement is on a witness' report form and it was throughout conducted quite clearly by means of question and answer. The appellant was asked questions about his history and firstly about how he came to Hong Kong. He admitted that he was an illegal immigrant. There is recorded in the statement, quite badly, the question 'Have you any criminal record in Hong Kong? and the answer: I was arrested once either  in this March or April for the offence of robbery. I was allowed to bail out at $4,500 to wait for trial in San Po Kong Court.' The record of the statement continues:

'I have questions to ask you. But I remind (sic-there was no evidence of any earlier caution) you that you are still under caution, that you are not obliged to say anything, but whatever you say will be taken down in writing.'

He indicated that he understood and the interview thereafter proceeded by way of question and answer. The first question asked is a double question: It is 'With whom did you go to rob in Tsui Yuen Villa'. His answer was: 'I went to rob with Hing Chai, Keung Chai and an unknown dance hostess.' And then he asked a whole series of further questions. I cannot under-stand how the learned trial judge admitted such a statement as a voluntary statement. I certainly should not have done so and no member of this court would."

35. In the case of LAI Kin-ming v. The Queen ⁽⁶⁾ the issue of admissibility of a cautioned statement was raised. The applicant there was asked 41 questions which had been confirmed by the applicant as correct before he was cautioned. McMullin V.-P. said at p. 15:

"His principal objection therefore was that although Inspector C.O. Kwok had said that he had invited the applicant to make a statement, the applicant had not been allowed to make a statement but had instead been interrogated. This, Counsel said, was a breach of the former 'Judge's rules' which, although they cannot be said to 'apply' in Hong Kong, have nevertheless been honoured in these courts insofar as they are useful for preserving the integrity of the principle that a confessional statement must be shown to be voluntary before it becomes admissible in evidence.

More importantly, though less prominently, Counsel relied also upon the common law :principle which is one of the several basic principles lying behind the English Judge's Rules both in their original and in their newer (1964) formulation. This is the principle that: 'When a police officer who is making enquiries of any person about an offence, has enough evidence to prefer a charge against that person for the offence, he should, without delay, cause that person to be charged or informed that he may be prosecuted for the offence.' He did not argue oppression as a separate category of objection to be considered by the Judge."

Then he said at p. 20:

"It is clear that from the outset of the interview in Room 904B, the purpose of C.O. Kwok was to obtain by a process of question and answer  from the lips of the applicant himself, confirmation of the abundant evidence he already had in his possession associating him with the drugs found within the premises. Indeed C.O. Kwok himself virtually admitted as much in cross-examination. He contended however that he had invited the applicant to make a statement and that the applicant had said that he was willing to do so and that he wished the Customs Officer to record it for him. He agreed that he had never recorded this and he gave unsatisfactory answers as to why that was so."

After referring to the cases of Holmes ⁽⁷⁾ and Hudson ⁽⁸⁾ he said at p. 22:

"The Court of Appeal (Criminal Division) identified the failure to warn or to charge under such circum-stances as an element of oppressive conduct which, coupled with the fact that, in that case, the arrest was considered to have been unlawful from the outset, moved the court to quash the conviction of the appellant.

In the present case it is clear that the applicant knew why he was being arrested, but he did not know, and he was not informed, that he was going to be charged with an offence in relation to the drugs found in Room A, although, as has been said, there was, on the face of it as matters stood immediately after his arrest, abundant evidence which would have supported that course being taken. In Hudson's case⁽8) the court considered the meaning of the words 'without delay' embodied in the common law principle which we are now considering, and at p. 168, Waller, L.J. says:

'As we have already said, it is difficult to say that there was not sufficient evidence to charge him and it is clear that once the officer had enough evidence to prefer a charge, he must without delay proceed in accordance with the rule and that means before asking an further questions'. (Emphasis supplied).

Mr. Mason-Parker suggests that such a rule would be greatly damaging to the investigative process in drug offence cases where special presumptions operate to transform a modicum of evidence into a sufficiency. With respect, the intention and the effect of the rule is not to call a halt to the process of investigation but only to inhibit the manufacture as distinct from the uncovering of evidence. Nor does it seem unfair that where the hand of the prosecution has been so formidably strengthened at trial there should at least be no relaxation of protective principle covering pre-trial custody."

Lastly he cited the case of MOK Kwok-sui v. The Queen ⁽⁹⁾ and said at p. 24:

"This court deprecated the practice of seeking to introduce in evidence statements which take the form of questions and answers. At page 5 of the judgment, the following appears:

'A person who has been charged or who the interrogating officer has decided to charge should not normally be asked questions even after caution, although there may be special circumstances which would justify a judge in admitting in evidence a statement which consisted of answers to questions, provided that they were not leading questions, that is to say, question which suggested the answers. Williams⁽10) is an example of a case where special circumstances existed and where a statement consisting of answers to questions was admitted in evidence. A person who has been arrested on suspicion should not, save in such special circumstances, be further questioned once the interrogating officer has made up his mind to charge the suspect. These observations should not, of course, be taken as inhibiting the asking of questions to clear up ambiguities in a statement previously made.' "

36. In the case of The Queen v. LEE Yi-choi ⁽¹¹⁾ where a confession was obtained by trick this Court had no hesitation to hold that the trial judge should have exercised his discretion to exclude it. McMullin V.-P. said at p. 11:

"By concealing the fact that his cell-mate was in fact a person in authority the police deprived the applicant of the opportunity to exercise this common law right and breached the English Judges' Rules of Practice propounded in 1912 which normally are and, as this Court indicated in R. v. Leung & Ors., ⁽¹²⁾ certainly should be observed in Hong Kong requiring a person in custody to be cautioned, and thus informed or reminded of his relevant right, before any attempt is made to question him in relation to the offence with which he has been charged. Their conduct made a mockery of the caution administered to the applicant on the occasions when a number of written statements had earlier been taken from him and when he was charged."

Again at p. 13 he said:

"We believe that more often than not unfair evidence will be excluded as involuntary. Further, we would emphasize that while subterfuge is a recognised and often indispensable weapon in the police armoury for the detection of crime stricter standards must apply when a suspect is in custody.....   Public confidence in the integrity of the judicial process must not be prejudiced.

Applying the approach outlined by the House of Lords in R. v. Sang⁽¹³⁾ and of this Court in R. v. Leung & Ors. ⁽¹²⁾it is apparent to us that the admission in evidence of the applicant's confession did endanger the principles which exist in law to secure fair trials and that the administration of justice was thereby brought into disrepute. The end, being the convictioin of the applicant, did not justify the means employed. The learned judge was wrong both in directing himself that he could not, as the law presently stood, exclude it, as he apparently wished, and, sequentially, in failing so to do."

By analogy I am of the opinion that repeating the questions of the first uncautioned interview after caution was equally a trick practised on the appellant.

37. However, that is not the end of the story. It will be observed that near the tail end of Exh. 4 were a few questions and answers disclosing the appellant being a triad member - highly incriminating prejudicial evidence. This is so because triad membership per se is a criminal offence and that it is common knowledge that triad societies are societies of vice and violence. It was improper to adduce such evidence since the appellant had not been charged being a triad member. Instead of expunging the answers from the contents of Exh. 4 prosecuting counsel aggravated this by adducing evidence of the appellant's membership and of his being protector of LEUNG Chi-tong. His justification was that such would explain why LEE and YIP was so ready to help the appellant in this murder and that in any event the appellant had admitted being a triad member in Exh. 4. The judge ruled in the face of defence objection that:

"It seems to me that this triad connection is most relevant in the present case and helps to explain how the 2nd accused and the other man, YIP Ting-man, came to be involved in the killing of the 1st accused's exg-irlfriend's new friend. It is true that the evidence is prejudicial but so is most direct prosecution evidence, and in this case it is also probative. So I don't propose to exercise my discretion to exclude it on the ground that it is more prejudicial than probative, or whatever the exact test is.

Finally, the prosecution do not have to prove any triad offence and it does seem that all the people involved admit their triad membership.

So I don't accept the other point that Mr. Young makes for excluding it.

Yes, of course, the test is whether its prejudicial value outweighs its probative value but in this case that is not the case. Its probative value is just as high."

With due respect I do not share this view. Evidence of triad membership was totally irrelevant to a charge of murder. In any criminal trial the Crown never have to prove motive, least of all the motive for one criminal helping another. A misguided person could also be induced to commit murder for a friend. If the reason advanced by prosecuting counsel were valid then the prosecution would be allowed to induce evidence of triad membership to prove any crime. This proposition is certainly untenable. The fact that the appellant admitted triad membership merely served to beg the question.

38. In my opinion such evidence could not advance the Crown's case. That being so the only reason it was adduced was to influence the jury to the prejudice of the appellant. Throughout his direction to the jury the judge never balance this prejudice by telling them the fact that the appellant was a triad member did not necessarily make him a murderer. Instead he poured oil into the fire by saying at p. 421:

"Well, no doubt the 1st accused might have got over this, like most other young men do who are jilted, either sooner or later. But of course there was the further factor, you might say the triad complication. For it was said, I think, that he is a member of 14K; Ah Wah certainly admitted that he was a member of the Fook Yiu Hing Triad society; and Po-chu said that Ah Fai was also a triad society member.

Well, I will not repeat the evidence of the detective Station Sergeant, who was the expert, and who told you about triad matters generally. But I think it was quite clear that disputes over girls may be handled by triads and may be dealt with by settlement talks, and a payment of a settlement fee may be demanded and that the common figure is $5,400, which of course is the figure that was demanded here."

39. Defence counsel in the court below was so engrossed in the allegations of force, threat and oppression in the voir dire proceedings that he did not canvass this point. So was counsel for the appellant. It was not until I raised this question that counsel for the appellant asked for leave to add this as yet another ground in support of the appeal.

40. I am of opinion I should allow him to do so. I understand that in a criminal trial where life and liberty of the subject is involved the court is allowed to raise a question of law even though not canvassed by the counsel.

41. I am further of the opinion that triad membership evidence and Exh. 4 should never have been admitted. Without Exh. 4 there was no independent evidence to corroborate the evidence of Accomplice YIP and other accomplices. This was a fact which the judge acknowledged. I am not saying that without Exh. 4 the jury would never have convicted the appellant. The unfortunate fact is that they convicted the appellant on the basis of the judge's direction to the effect that if they believed the contents of Exh. 4 - a piece of evidence which should not be admissible they could have convicted the appellant on such evidence alone or take Exh. 4 as corroborating the accomplice evidence.

42. Having regard to the circumstance I have come to the conclusion that the conviction was unsafe and unsatisfactory. The appeal should be allowed and conviction quashed.

(1)    1976 A.C. 574

(2)    (1914) A.C. 599, 609

(3)    (1964) 1 W.L.R. 152

(4)    (1982) 74 C.A.R. 207

(5)    Crim. App. No. 1212 of 1979

(6)    Crim. App. No. 380 of 1983

(7)    (1981) 2 All E.R. 612

(8)    (1981) 72 C.A.R. 163

(9)    Crim. App. No. 702 of 1978

(10)    (1979) 67 Cr. App. R. 10

(11)    Crim. App. No. 131 of 1985

(12)    Crim. App. No. 964 of 1983

(13)    1980 A.C. 402

Kempster, J. A.:

43. On 1st June 1984 HO Fat-wong was playing mahjong with his girl friend, HO Po-chu, her sister and a male friend in a room on the 14th floor of Block 43, Tee Wan Shan Estate, Kowloon. Also in the room and watching television were the girl friend's younger brother, Ah Ming, and two of his friends, one of whom was called Ah Tong. At about 8.45 p.m. there was a shout of "Ah Ming" from the corridor and the door to the room was opened. Two men entered. Each was armed with a knife. One, LEE Chuen-ting, went towards Ho while the other, YIP Ting-man, remained by the door. LEE Chuen-tin inflicted mortal wounds on Ho with his knife and then fled, together with Yip.

44. On 18th March 1985, following trial, Lee was convicted of murder. He abandoned his application to us to appeal against that conviction and it was duly dismissed.

45. Tried and convicted together with Lee was LAW Shing-huen. Evidence had been called to show that he was the jilted lover of HO Po-chu and that, failing to recover the sum of $5,400 to which he felt himself entitled as a solatium for his injured feelings, he had gone about uttering threats and then organised the murder. He had done this by instructing Lee and Yip whom to attack and where and by providing the weapons. He became aware of Ho's whereabouts at the material time through Ah Tong. This evidence came in great part from Yip, an accomplice, as to the danger of whose testimony the trial judge, Hopkinson J., gave the jury due warning. Law did not give evidence before the jury but the case put on his behalf was that he had arranged for Lee and Yip to invite Ho to leave the room where he had been playing mahjong in order to engage in settlement talks and had had nothing to do with the weapons.

46. Law maintains his application to appeal against conviction and relies on the, allegedly improper reception in evidence of the record of a cautioned interview, in question and answer form, made by him on 7th June 1984, which contained critical, admissions. It is contended that the trial judge misdirected himself in admitting that statement since it was obtained in circumstances amounting to oppression. On the voire dire, which also convered an earlier series of questions and answers, the applicant gave evidence and complained that he had been subjected to and was in fear of violence from the investigating police officers. Such, indeed, was his fear that despite the visits, during the making of the material record, of senior officers who inquired whether he had anything of which to complain, once in the presence of his own brother, he dared not make a complaint and could not exercise the right not to answer questions of which, in relation to that interview, he had been reminded. In fact he did decline to answer one question and in holding this record to have been made voluntarily the learned judge rejected the allegations of violence, threat and fear. He also rejected any express or implied suggestion of inducement or oppression and declined to exercise his residual discretion to exclude the record. He ruled the earlier record inadmissible since he was not satisfied it had been made without oppressive questioning. He was at pains to point out that he did not find that the questioning was in fact oppressive.

47. It is true that a number of the questions were put in a most reprehensible way, properly criticised by Mr. Eddis who appeared for the applicant, and also that the questioning may have continued after sufficient evidence was available to the police for them to charge him. Further, the second series of questions and answers was commenced not long after the conclusion of the interview in which the voluntariness of the applicant's answers was not established to the learned judge's satisfaction. As against these considerations the applicant neither denied giving the answers recorded nor, fear apart, suggested that his will had been sapped by the questioning or that he had spoken when otherwise he would have stayed silent. No grounds have been demonstrated which, in my view, would entitled this court to interfere with the learned judge's findings of fact in this regard and no error of principle warranting our interference with the exercise of his discretion. As Lord Lane C.J. remarked in R. v. Rennie ⁽⁴⁾ at p. 212:

"The person best able to get the flavour and effect of the circumstances in which the confession was made is the trial judge, and his findings of fact and reasoning are entitled to as much respect as those of any judge of first instance - 'voluntary' in ordinary parlance means of 'of one's own free will'."

"The person best able to get the flavour and effect of the circumstances in which the confession was made is the trial judge, and his findings of fact and reasoning are entitled to as much respect as those of any judge of first instance - 'voluntary' in ordinary parlance means of 'of one's own free will'."

48. Although it is not a matter relied upon in support of the application for leave to appeal it is apparent that in the course of the trial and in the impugned record. of interview reference was made to the triad affiliations of the applicant and of a number of the witnesses. After the point had been raised at an early stage in the trial Hopkinson J. held such evidence admissible on the footing that it explained the degree of cooperation between all involved in the murder. In my opinion this evidence was in no way necessary to enable the Crown to prove its case; was irrelevant and substantially prejudicial in nature and its admission constituted an error of law. However, having regard to the overall, strength of the prosecution case I am satisfied that no miscarriage of justice resulted and would apply the proviso to section 83(1) of the Criminal Procedure Ordinance.

49. In the premises I am of the opinion that the application to appeal against conviction should be refused.

(4)    (1982) 74 Cr. App. R. 207

Nazareth, J:

50. I agree with my Lord Kempster J.A. and would only add that there seems to me to be two aspects involved in the admission of the statement.

51. First that pertaining to fairness, which in the case of The Queen v. Lee Yi-choi ⁽¹¹⁾ was referred to in the following way:

"We believe that more often than not, unfair evidence will be excluded as involuntary.... . Public confidence in the integrity of the judicial process must not be prejudiced .... it is apparent to us that the admission in evidence of the applicant's confession did endanger the principles which exist in law to secure fair trials and that the administration of justice was thereby brought into disrepute."

52. In this case not only were a number of the questions put in a most reprehensible way, but the failure to caution the Applicant before his first statement was taken must be deprecated. Nonetheless I do not feel able to say that that failure coupled with the repetition of the questions, was a trick to procure the statement, nor even that it was a deliberate strategy. Many of the questions were quite unnecessary and, indeed, seem to me indicative of incompetence and folly rather than skullduggery. Looking at all the circumstances I cannot say that the manner in which the statement was taken was so unfair that its admission brings the administration of justice into disrepute.

53. The other aspect pertains to the question of oppression. On this I have nothing to add to what my Lord Kempster J.A. has said.

54. I, too, would refuse the application.

(11)    Crim. App. No. 131 of 1985

Representation:

Mr. Francis Eddis, Q. C. & Mr. M. Bharwaney (D.L.A.) for 1st defendant

Mr. Christopher Young (D.L.A.) for applicant/2nd defendant

Mr. McCoy, S.C.C. for D.P.P./respondent