THE QUEEN v. LAI CHI HUNG AND OTHERS

IN THE HIGH COURT OF HONG KONG

(CRIMINAL JURISDICTION)

CASE No. 159 of 1986

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BETWEEN

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RULING

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1. LAI Chi-hung is before the court charged with others with the offence of murder. The charge arises following the death of a young man in what the prosecution will say at the trial was a revenge attack by one group on another group as a result of one of the former group having been injured in a previous attack.

2. This defendant was arrested by the police inside a room in private premises at 5.15 a.m. on the 30th of April, 1986. He was cautioned at the time of his arrest in respect of this offence with which he is now charged and he said nothing in response to the caution other than acknowledging that he understood it.

3. He was taken to a police station and at 7.35 a.m. on that same morning he was cautioned again in relation to the same offence. He agreed to answer the police officers' questions in relation to the matter and the statement which was made up of the questions and his answers thereto took from 7.35 a.m. until noon on that day to compile.

4. In the course of that statement the defendant acknowledged that there had been an attack on his group and that he was at least aware of a suggestion, if not an actual plan, to hit back in some way at the group which had attacked his. When he was directly questioned about his movements at the time the fatal attack took place, he answered the questions and in effect supplied an alibi. The position therefore at 12 noon on the 30th of April, 1986 was that the defendant had made no admission of complicity in the attack which has led to this charge.

5. On the next day, the 1st of May, 1986, at 1.35 p.m. he was charged with this offence of murder, and after being cautioned in the customary way when charged, he made a reply in which he denied knowledge of and complicity in the attack. After he was charged, he was taken to court on the 1st of May, 1986 where he was remanded for three clear days to the 6th of May, 1986 for 'further inquiries".

6. On the 2nd of May, 1986 from 4.30 p.m. to 5.30 p.m. he was questioned for the purpose of "clearing up ambiguities" alleged to be contained in the statement made the previous day. In reality the statement consists of -- or the statement is evidence of further interrogation, but in any event, the defendant did answer questions under caution, but he still made no admission of complicity.

7. On the 5th of May, 1986 at 3.40 p.m. he was shown a statement which had been made by a person recently arrested whose name was CHIU. CHIU under caution had made a statement and it is common ground that the contents of that statement were hearsay as far as CHIU was concerned. CHIU was not and has not been charged in connection with this matter, but his statement was shown to the defendant. From 3.40 p.m. to 7.05 p.m. the defendant indicated that he granted to comment on CHIU's statement and that he was willing to answer questions asked of him by the police in connection with it.

8. The prosecution case is that no comment was invited from the defendant and that he was shown the statement in the perfectly proper way in which statements by co-accused are shown to other accused.

9. Now the defendant did comment or this statement and went on to make an inculpatory statement not as part of his immediate response on being served with the statement but as a result of, questions asked after that response to which the defendant did voluntarily supply answers. It is this statement which is challenged as to admissibility.

10. When Mr. Walters for the defendant outlined his objections to the admissibility of this evidence, it became clear that even if I were persuaded beyond reasonable doubt that the statement was given voluntarily, there was a serious question to be considered following upon such a ruling, namely, whether the statement should nevertheless be excluded in the exercise of the undoubted discretion which a judge does hold in cases of this kind to exclude otherwise admissible evidence. For that reason, I decided that it may eventually save time if I heard counsel's submissions on the discretion question before going fully into the evidence. This ruling, therefore, is being made on the assumption that the prosecution would have proved the voluntariness of the statement and that the officers in showing the defendant the statement by CHIU were not prompted to do so by any improper motive.

11. It is my view that when a person has been charged and is in the custody of the police under the authority of a court order remanding him in such custody, he must be treated by the investigating officers in accordance with judicial and not police standards of fairness. It is my view that no court would sanction communication between investigating police officers and the defendant for the purpose of the police showing him a piece of paper where that act could serve no useful purpose in the judicial process which had by then been commenced.

12. Mr. Harris submits that to hold that the police are not entitled to do what they have done, that is, not entitled to show, as they did in this case, inadmissible evidence, places an unreasonably restrictive hold on a police investigation and makes unreasonable demands on investigating police officers because it would require them in order to do their duty properly to have a knowledge of the law which it would be unreasonable to expect them to have.

13. That submission, however, overlooks the fact that the investigative process vas over once the defendant was charged, at least in so far as the search for extra evidence to inculpate the defendant was concerned.

14. I do not think it is unreasonable to require police officers who wish to make enquiries of an accused, as distinct from a suspect, to do so conscious of the fact that a judicial eye is now supervising their conduct. I do not think it is unreasonable to expect them to make only such enquiries as that judicial eye will give an approving wink to. The accused is remanded in their custody only so that they can make judicially approved inquiries.

15. The document shown in this case was not a statement made by any party to the proceedings. It was not a statement made by a witness competent to give evidence about the matters contained in the document and the person who gave the statement was not a person the prosecution proposed to call as a witness.

16. I would stress that I am not by this ruling saying or suggesting that it would have been improper for the police ever to have shown that document to the defendant. This ruling is no more than an expression of this narrow view, namely, that police investigations of an accused when he is in their custody subject to a court order should be conducted with the attitude that a judicial eye is looking over their shoulders throughout the course of those inquiries and only those inquiries which have been shown by past decisions to have been approved of judicially should be undertaken or those which the officers confidently expect will be approved of when the matter is viewed by a judicial eye.

17. I do not think that it was proper to show the defendant the document when he was in custody in the circumstances that I've mentioned. This is a case where no admission, no inculpatory statement had been made by the defendant before he was shown that document. I make that point because this ruling is meant to be confined to the particular facts of this particular case. It may well be a different situation if a defendant has made an inculpatory statement before being remanded in custody, but I wish to say no more about that matter than that.

18. In this case, I think it is a proper case for the exercise of a judicial discretion to refuse to allow the evidence to be given.