The Queen v. Ho Yee Chung and Others

CACC000134A/1983

BETWEEN

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

Date of hearing: 27 - 30 March 1984 & 2 April 1984

Date of handing down: 18 May 1984

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JUDGMENT

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McMullin, V.-P.:

1. On the 2nd of April, we allowed the appeal of the three applicants, quashed their convictions and set aside their sentences.  We ordered that they should be retried and we gave directions as to the charges upon which the fresh trial should proceed.   We now give our reasons for allowing the appeals.

2. The three applicants, together with another man, Tam Kwai-yuen, were convicted in the High Court of the murder of a police officer CHENG Tung-sing, and in a second count they were convicted of robbing him of his service revolver.  It was never in dispute that CHENG Tung-sing died as a result of an incident which occurred in a hut at a remote farm at Pak Sha Tsuen, Yuen Long, on the night of the 22nd of November, 1981. Death was due to strangulation by means of a ligature.  It was also not in dispute that the four defendants, together with another man, Chu Kwok-cheung, were either in the hut or in its immediate vicinity at the time of this incident and that all of them took part in burying the body of the deceased immediately thereafter on a nearby hillside.

3. The disappearance of the police officer led to an immediate investigation, and on the 24th of November, the 1st and the 4th defendants were arrested.  The arrest of the 1st defendant was the result of his having purported to contact the deceased officer through the latter's paging device on the day following the latter's death.  The police were able to establish his identity and discover his whereabouts as a result of these calls. The 4th defendant had come into police custody in connexion with some other offences on the 24th of November, and it was through information given by him to the police that the police were directed to the burial site in the New Territories where the body of the deceased's colleagues was discovered.  The 2nd and 3rd defendants and Chu Kwok-cheung were discovered at the 2nd defendant's home premises on the 25th. They too were arrested and taken to custody.  All of these men subsequently made statements to the police and were eventually charged with these offences.

4. Early in 1982, Chu Kwok-cheung, through whose information the revolver which had been concealed after the event was recovered by the police, was offered immunity from prosecution if he would give truthful evidence in the case. He became a prosecution witness, and the case against the four defendants rested almost entirely upon the testimony which he gave.

5. The principal point made on behalf of the 1st, 2nd and 4th defendants upon the appeal concerns the directions given by the trial Judge to the jury concerning their proper approach to the evidence of the accomplice Chu, and in particular, his directions as to possible corroboration of the accomplice's evidence.

6. Chu described how he and all other defendants devised a plan to entice a serving police officer called Cheng Tung-sing - the victim named in the 1st count - to a hut adjoining a small house owned by Chu's parents near a remote village in the New Territories.   Their purpose was to take this officer's gun by force if necessary.  The gun was to be used by all of them in carrying out a robbery at a goldsmith's shop. The victim, who was also known familiarly as Tung Kwa, was, according to Chu, a friend of the 1st defendant who had originally suggested to his four confederates that this police officer would be amenable to letting them borrow his gun for their unlawful purposes, on the understanding that he would receive payment out of their ill-gotten gains ultimately.   On being asked what would happen if Tung Kwa did not agree to this; the 1st defendant said that they would "cut him down". Chu said that he had understood this to be in the nature of a joker.

7. Chu went on to describe how they had all foregathered at the hut in the New Territories on the afternoon of the 22nd of November 1981.  Having spent some time in each other's company there, the 1st and 2nd defendants went off at about 11 p.m. and fetched Tung Kwa from the Wah Dun Ballroom in Kowloon where the 1st defendant had arranged to meet him earlier.  They drove back to the hut in the New Territories and Tung Kwa was introduced to the others.  He had bought with him a quantity of cannabis and some of this was used by the 2nd and the 4th defendants during a comparatively brief period while they shared the hut with the other defendants and Chu after the introductions during which time conversation of a neutral or general character had taken place inside the hut.

8. Thus far, Chu's evidence can fairly be regarded as implicating all the defendants together with himself in a plan to rob Tung Kwa of his gun.  The remainder of his evidence concerned the actual robbery of the gun and the killing of Tung Kwa.  It is not necessary for the purpose of dealing with the principal point made upon this appeal to go into that evidence in detail.  It is clear that, upon Chu's account, the 1st and the 4th defendants were left alone with Tung Kwa while he and the 2nd and 3rd defendants were sent outside where he and the other two smoked some cannabis.

9. A commotion arose inside the hut, and the 2nd and 3rd defendants went in and he followed shortly afterwards and saw the 1st defendant on the ground being helped up by the 3rd defendant, while the 2nd defendant and the 1st defendant were struggling to restrain Tung Kwa.  The witness helped to subdue Tung Kwa. During this, Tung Kwa tried to take out his gun but the 1st defendant took it from him and pointed it at him.  The 4th defendant then, under direction of the 1st defendant, hand-cuffed Tung Kwa with his own hand-cuffs as he lay face down on a bed to which he had been removed by those who were struggling with him.

10. Chu, the 2nd defendant and the 3rd defendant were once more sent out of the hut and shortly after that the 1st defendant came out and spoke to the 2nd and 3rd defendants.   Chu at that time was pacifying his mother who had become alarmed at the noise.   When he had sent her back to her own house which lay nearby the hut, the 3rd defendant came up and told him that the 1st defendant had informed the 3rd defendant and the 2nd defendant that Tung Kwa must be killed.  According to Chu, the 3rd defendant and the 2nd defendant were unwilling for this to be done, but both of them had once more returned to the hut while he, for a short while longer dealt with his father who had in turn became alarmed and had come out to investigate.  He then followed the others into the hut himself.  On entering he saw the 1st defendant kneeling on Tung Kwa's back.  There was a cord round Tung Kwa's neck and the 1st and the 4th defendants were pulling on it, and quite clearly the victim was in the process of being strangled by them. The 2nd defendant was on the bed in a position which was somewhat equivocally described by the witness close to the prone figure of Tung Kwa. The 3rd defendant was at the door bending down and picking up fragments of broken glass from some object which had been broken in the course of the commotion.  Chu approached the victim who did not appear to be dead although cyanosed and unconscious.  The 1st defendant then used the side of his hand to chop Tung Kwa several times on the side of the neck.  After that, Tung Kwa appeared to the witness to be quite dead. Then Chu - according to him in panic - helped the others to carry the body to the 1st defendant's car and they all drove to a place on a hillside where a grave was dug and Tung Kwa's body placed in it. They all then left the scene in the 1st defendant's car and returned to Telford Gardens where the 1st defendant lived. Such was the evidence of Chu.

11. Each of the defendants gave evidence.  They all admitted being present together at the hut in the New Territories on the night of the 22nd of November and they all admitted to having been inside the hut at some point during the violent action in which the deceased, Tung Kwa, was involved. Each, however, sought to exculpate himself from any complicity in either the robbery or the killing of Tung Kwa. In doing so, each of the defendants pointed to one or more of the other defendants as having been involved to a greater or lesser degree in the violence which resulted in Tung Kwa's death. The 2nd and the 4th defendants professed to have been so affected by the cannabis which they had consumed as to have been very confused in their perception of what had occurred.

12. The trial took some three months.  In Summing up the trial Judge succeeded in reducing a huge body of evidence to a summary of such admirable clearness and proportion that - apart from a single misstatement of fact which we cannot regard as material - it was accepted by counsel on both sides as an accurate factual precis which obviated the need for any elaborate excursion though the transcript of evidence and enabled them at once to concentrate their attention, and that of the court, upon the legal issues arising from certain of the directions given to the jury on matters of law.

13. It is conceded that among the many clear and proper directions given by the trial Judge, there was a fully adequate direction to the effect that Chu, in giving evidence against the defendants, as well as each defendant giving evidence on his own behalf, were to be regarded as accomplices in the sense of being persons involved to some degree in the event which they described and therefore having a special interest to serve.  The jury were carefully warned that they must consider the case of each defendant separately.  They were warned that one accomplice cannot corroborate another accomplice.  And they were warned that in such a case as that before them, it was dangerous to convict upon the evidence of the accomplices unless there was independent evidence to corroborate that testimony.

14. Counsel conceded that in one respect these directions may have gone further in favour of the defendants than the law demands.  R. v. Loveridge (1983: 76 Cr. App. Rep. 125) is authority to the effect that the full accomplice warning need not be given in respect of the evidence of co-defendants.

15. The principal point upon the appeal relates to the manner in which the jury were directed on this question of corroboration.  The Judge reminded the jury that each of the defendants had made several statements while in police custody, and he directed them that it was their task to consider whether each of these statements was true, wholly or in part and to attach to such statements whatever weight they thought fit.  He then said:

"But there is one thing I must bring to your attention and that is that a confession made by an accused person outside the witness box touches himself only.  If he makes statements against himself, and, incidentally, against other persons, you only have regard to them as far as they affect him, and ignore them as far as they adversely affect anybody else. ....... So, insofar as in his statement any of these accused has implicated other accused, ignore that."

16. No complaint is made, nor could any complaint have been made, in relation to these admirably clear and succinct directions.  There followed the warning in relation to accomplice evidence and then comes the first of the passages to which objection has been made when the Judge had turned his attention to the question of corroboration. What he then said is as follows:

"What corroboration is there of CHU's story or of any evidence given by any of the accused involving other accused?   The only corroboration that I can see in the difficult circumstances of this case lies in the alleged confessions of the various accused.  If you believe those confessions were true you could take them to corroborate what an accused person had said and what CHU Kwok-cheung had said. I don't think there's anything else in the case which provides adequate corroboration, and that's really why I said it is so important to form a judgment of the credibility of CHU and the various accused,"

17. It is conceded that although the word 'corroboration' need not itself be actually employed by a Judge, provided his directions on the topic are in other respects fully adequate, yet where corroboration is referred to, the meaning of the term in law must be made clear.   The primary complaint here is that the Judge did not at the outset of his treatment of the question of corroboration tell the jury that what they must look for was evidence tending to implicate the particular accused in the commission of the offences of robbery and murder by confirming in some material particular, not only the evidence that these crimes had been committed but that he had been involved in  committing them. [Baskerville (1916) 2 K.B. 658 Dip. Per, Lord Reading, C.J., at 667.]  This was especially important in view of the very diverse and contradictory nature of the contents of the several statements made by the several defendants.

18. A more fundamental objection, however, is that even if such a direction had been given the jury would not have been entitled to use the statements at all for this purpose if nothing in them could in law afford corroboration.

19. In his statement of the 25th of November made to Inspector Ngai Shu-tak, the 1st defendant admitted being a party to a plan to rob Tung Kwa of a gun.  He said that the idea emanated from the 3rd defendant who also suggested that Tung Kwa ought to be killed for being "too haughty".  He said that he was unwilling to take part in any such plan but his objections were overborne by the others, and he admitted that he had helped to entice the deceased out to the hut in the New Territories. He totally dissociated himself from any of the violence done to Tung Kwa. He said that the others were all inside the hut with Tung Kwa, but he was outside and he did not describe any of the acts done by any of the other persons.  The 4th defendant emerged and told them that "it was finished". Thereafter, once more over his objections, he was prevailed upon  to drive the dead body of Tung Kwa with the others to the hillside where it was buried.

20. The following day he made a brief statement in answer to the charge in which he denied taking any part in the killing, and said that he only knew that the others wanted to get Tung Kwa's gun.  These statements therefore were not only in general purport self-exculpatory, but largely contradictory of the evidence given by Chu in his regard. The only part of this story which was fully supportive of Chu's evidence against the 1st defendant was the participation in the burial of Tung Kwa.  The remainder of the statement was by way of being "confession and avoidance".  The defendant, that is to say, puts himself in the vicinity of the scene where the crimes were committed with knowledge of the nature of the mischief which was afoot although he ascribed this wholly to his companions.  Although his admission to presence at the scene and to participating in the disposal of the body support Chu's story in a general sense what was needed was something which would confirm Chu on the details of the assault upon Tung Kwa and nothing of that kind is to be found in the 1st defendant's statement.

21. The jury had been warned that they should use these confessional statements as corroborating the accomplices' evidence only if they were satisfied that they were true. Since the defendant's statement controverted the evidence of the accomplice in every material particular of the latter's account of what had occurred, up to the burial of the body, the jury could only rely upon the earlier part of the statement as corroborative on the basis that it was an admission to presence with some degree of knowledge of the possible outcome.  Since presence at the scene was not in issue, the jury, if they resorted to the remainder of the statement, up to the disposal of the body, to test the truth of Chu's evidence against the 1st defendant, could only have used this part of the statement as confirming the truth of Chu's evidence by concluding that what the 1st defendant had said therein was untrue.  In Tumahold Bereng v. R. [1949 A.C. 253] Lord MacDermott, giving the judgment of the Court of Appeal said that the prisoner does not corroborate an accomplice merely by giving evidence which is not accepted and must therefore be regarded as false.  The same rule must apply, and with additional force, in respect of an out of court statement of a prisoner when the question in issue is whether or not that statement confirms the truth of the accomplices evidence.

22. As for the only other point at which the statement of the 1st defendant confirmed Chu's evidence - the burial of the body of Tung Kwa - that could not amount to support in a material particular of the evidence of Chu in respect of either of the offences charged.   Yet it was very likely to have been seized on by the jury in considering whether Chu's evidence was confirmed in a material particular.

23. Precisely similar considerations apply in the case of the statement made by the 2nd defendant to Inspector Lau King-wai on the 25th of November and to the shorter statement made by him on the 26th of November when he was charged with murder by Inspector Wun Pak-ling. Both of these statements contained matter which, if accepted as true, would undoubtedly constitute primary evidence against the defendant because in both of them he does make damaging admissions as to the part played by him in the event and he also implicates the other defendants and the accomplice Chu in varying degrees in the assault upon Tung Kwa. But once again the account given by him in these statements is so wholly at variance with the evidence given by Chu in his regard that the 2nd defendant cannot be said in these statements to confirm Chu in any material particular other than the disposal of the body.

24. The 3rd defendant made two statements to Inspector Lee Tze-kwong.  The first of these is on the 25th of November and it consists of a total denial of any complicity in the matter whatsoever. On the following day, he was shown a statement allegedly made by the accomplice Chu and, after reading that, he made another statement in which he admitted being present at the hut in the New Territories on the evening of the 22nd while denying having taken any part in the killing of Tung Kwa.  He identified the 1st and 2nd defendants as the persons who were in the hut with the deceased while he, on the instructions of the 1st defendant, kept watch outside. He admitted to taking some part in the disposal of the body.

25. At the trial, the 3rd defendant repudiated both of these statements and insisted that they were both quite untrue. The Judge pointed this out to the jury but nevertheless the statements were before them and had been made, like the statements of all the other defendants, the subject of inquiry in the absence of the jury before they had been admitted in evidence. The evidence given by Chu in relation to the 3rd defendant was very much the same as the evidence that the 3rd defendant himself gave in the course of the trial. All of that testimony was to a large extent exculpatory of the 3rd defendant in relation to the actual robbery and killing of Tung Kwa.  Once again, the admission in the 3rd defendant's statement of having kept lookout at the behest of the 1st defendant could possibly have afforded some primary evidence against the 3rd defendant but it did not corroborate in any particular the evidence given by Chu in his regard. If the jury had regard to that part of the 3rd defendant's statement as the truth, it would rather have tended to controvert the evidence of Chu than to confirm it.

26. The case of the 4th defendant stands in a somewhat different position from that of the other defendants.  No written statement signed by him was ever put in evidence.  On the 23rd of November, he was in police custody in connextion with other offences.   By this time the absence of the deceased from duty had been noticed at police headquarters.  While he was being interviewed in relation to these offences, the 4th defendant said that he wished to give information concerning a serious case that had occurred.  He was unwilling to make a statement under caution, but eventually agreed that Sergeant Wong Shui-sham could make a note of what he had to say in his notebook. The substance of it was that the 4th defendant "was aware that a C.I.D. officer known as Cheng Tang-sing, or Tung Kwa had gone missing.  When he was asked how he knew about this, he said "I took part in it.  I will tell you in detail. This was done by five altogether."  He then went on to give further details of the affair and in the course of that he identified the 2nd and the 3rd defendants as the persons who had put the nylon cord around the deceased's neck and strangled him.  He also admitted that he had himself taken part in disposing of the body.  Once again, apart from admitted presence at the scene, the only detail in Chu's story which is positively confirmed by the defendant's statement concerns the disposal of the body.

27. Overall, therefore, it is difficult to discern in any of these statements anything that could properly be regarded as corroborating the testimony of Chu as to the actual killing of Tung Kwa. Unless that testimony could be regarded as substantially the truth of what happened, it was simply not within the jury's power to decide how the robbery of the gun or the killing of Tung Kwa had come about.  Although before us it was implicit in Mr. Alderdice's argument for the Crown that there was matter in these statements which could corroborate the accomplice, and although this was to some extent conceded by Mr. Keane for the 1st and 4th defendants, on neither side did counsel draw our attention to what precisely it was said should have been so identified.

28. At the trial, Mr. Alderdice was indeed exercised by what he regarded as the inadequate nature of the direction given to the jury which has been set out above in this judgment.  Thus before the jury retired, he addressed the court again on the matter and pointed out that the statements were in many respects in conflict with the evidence of Chu, and that there was not much in them relating to the actual killing, although there were matters in them which related to the agreement to rob.  The Judge then gave a final direction in these terms:

"You will have to look at the statements as a whole and decide yourselves whether any accused in his confession, if you regard it as a truthful confession, is corroborating the story of Chu Kwok-cheung."

29. The principal danger discerned by Counsel for all the applicants in the several directions given upon corroboration was that in being told to look at the statements as a whole, it was possible that the jury might use the statement of any one of the defendants as corroborating the evidence of Chu, not only against the maker of the statement, but as against any other persons mentioned in that statement.  Although the Judge had warned the jury that they should not regard anything in any one of the statements as affecting the interest of anybody except the person who had made it, he did not repeat that warning when he came to deal with the question of corroboration.  In addition, the earlier warning was open to the clear interpretation that what any one of the defendants had said in his statement might be used to corroborate what that defendant had said in evidence.   In both of these respects it is possible that the jury might  have been misled, but the primary point is that these statements could not in truth afford corroboration in the proper sense.  Nevertheless it is impossible to say that the jury did not resort to them to some extent to confirm the evidence of Chu and we could not say that if properly directed they must inevitably have come to the same conclusion in respect of all the defendants. In the circumstances we did not think that the proviso to s.83(1) of the Criminal Procedure Ordinance could be applied.

30. A further point taken by Mr. Keane on behalf of the 4th defendant may be quickly dealt with. The 4th defendant gave evidence that while he and the 1st defendant were in custody, the 1st defendant had concocted a plan with him as a result of which the 4th defendant asked for and was granted an interview with an officer of the Independent Commissior Against Corruption.  To that officer he confessed not only to the killing of Tung Kwa but also gave as a reason therefor the fact that he had not been paid by Tung Kwa for his assassination, at Tung Kwa's instance, of a detective sergeant on the 21st of March, 1981.   This matter was fully investigated by the police who came to the conclusion that the account by the 4th defendant of how he had carried out this earlier killing was a total fabrication. The reason for this extraordinary behaviour has never been fully explained but it appears to have been the 1st defendant's idea that the confession to this earlier and more celebrated killing might give himself and the 4th defendant some bargaining power with the police.  At the trial, Mr. Kwong for the 1st defendant sought to have evidence of the confession by the 4th defendant to the killing of Tung Kwa introduced in support of his client's allegation that he was not the person responsible for the killing. This was strongly opposed by Mr. Sparrow for the 4th defendant. Mr. Alderdice for the Crown who was primarily concerned to discredit this evidence nevertheless felt, because he had had notice of Mr. Kwong's intention, that he could not demand that the matter be raised only by way of defence so that the Crown could introduce rebuttal evidence.

31. Eventually, the fact that the 4th defendant had made these confessional statements to an officer of the ICAC was put before the Court under s.65C of the Criminal Procedure Ordinance as an agreed fact.

32. The Crown then led evidence to discredit the alleged confession by the 4th defendant to killing the station sergeant. Subsequently, after the defendants had given evidence, an officer of the ICAC was called on behalf of the 1st defendant who testified that the 4th defendant had been interviewed by him and bad, in the course of that interview, admitted to the killing of Tung Kwa. Mr. Keane says that this was hearsay evidence of a most prejudicial kind which must have gravely affected the case of his client.  We need only refer to the authority of Reg. v. Turner & Others [1975] 61 Cr. App. Rep. 67 as support for Counsel's objection. We are satisfied that this evidence was of the nature of hearsay which did not come within any of the well-settled exceptions to the general rule that hearsay evidence is not admissible.   Notwithstanding the Crown's demolition of the 4th defendant's testimony in relation to the confession to killing the station sergeant, and the highly obscure nature of the ruse alleged by the 4th defendant as the reasons for making both of these confessions, there was left before the jury evidence of an additional confession to the killing of Tung Kwa which was not admissible and to which they might well have resorted either as independent evidence of the 4th defendant's complicity in that killing, or as evidence confirming the testimony of Chu. In the case of the 4th defendant, therefore, this was an additional reason for finding that the conviction was unsafe.

33. At the conclusion of the hearing, we allowed the applications of all three applicants and order that they should be re-tried upon a fresh indictment.  We directed also that that indictment should include charges of robbery and murder against the 1st and 4th defendants but that as against the 2nd defendant the charges should be robbery and manslaughter only.  Mr. Alderdice for the Crown undertook to activate the Governor's powers in respect of the 3rd defendant whose case was not before us on this occasion.