R. v. PATRICK DAVID WONG AND ANOTHER

Headnote

Lies forming part of the circumstantial evidence: importance of directions to jury: R. v. Tam Chung Shing [1991] 1 HKLR 458 applied. Crown's duty in appellate hearings: McIlkenny and Others [1991] 93 Cr App R 287

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J U D G M E N T

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Silke, V.-P.:

1. This is the judgment of the court.

Patrick David Wong - "D1" - and Miss Yu Mo Ling - "D2" - were, after trial before Wong, J. and a jury at which neither gave evidence, convicted of the two counts in the indictment. Count one was murder. Its particulars alleged that they on or about 6th May 1989 at Tsok Pok Hang Village, Shatin, New Territories murdered Brenda Wong Sze Kwan. Count two was the prevention of the lawful and decent burial of a corpse, contrary to common law. Its particulars alleged that they, between 6th May 1989 and 12th May 1989 at Tsok Pok Hang Village in Shatin, prevented the lawful and decent burial of the corpse of Brenda Wong Sze Kwan - "the deceased".

2. D1 now seeks leave to appeal against his conviction on both counts - D2 seeks leave to appeal against her conviction on the count of murder. Originally, she had also sought leave to appeal against her conviction on the second count but that application was abandoned at the hearing.

3. It was the Crown's case - and it is not our intention because of the course this appellate hearing took to dwell at any great length upon the evidence - that the deceased had been the girlfriend of D1. D2 supplanted her in his affections. On 6th May 1989 D2 was living with D1. Both were cocaine addicts and impecunious. The deceased was seen alive for the last time on 6th May. On 12th May, as a result of a neighbours complaint, the police raided the flat in which D1 and D2 lived and discovered in a locked metal box in the bathroom the highly decomposed body of the deceased, much of the flesh was missing. Because of the high state of decomposition, the forensic pathologist was unable to ascertain the actual cause of death or indicate, other than in general terms, when death had occurred. He found, in the course of the autopsy, that the left temporal bone of the skull showed comminuted fractures and the zygomatic arch was fractured at the middle. These fractures would have been fatal if sustained before death and were caused by the application of severe force.

4. On the morning of 6th May a neighbour had heard a sound of a fierce quarrel between two women coming from the flat, with a man intervening in the course of it.

5. On the evening of 6th May a woman had telephoned the Cathay Pacific Airlines Crew Controller - the deceased was an air hostess - claiming that the deceased was ill and had to take four days sick leave.

6. It was the practice of the deceased to carry credit cards and her Hang Seng Bank book in her shoulder bag. These items were never found. On 7th May the signature of the deceased was forged and used to exhaust her credit facilities and her Hang Seng Bank account.

7. On 7th May a friend of both the accused who came to play cards saw them both looking exhausted. Another friend who came sometime between 6th and 12th May said that D1 had come down from the second floor of the flat sweaty and saying that he had just moved something.

8. After 8th May, a foul smell started to emerge from the flat. On 11th May, the accused told a neighbour and his wife that the smell was being caused by dead fish and rabbits. On the same day, a maid who assisted in cleaning the flat, was told the smell was caused by a dog and was because a previous maid had not cleaned the flat properly.

9. On 11th May a dark red liquid, like rotten meat, was seen in the drain which came from the flat.

10. There were bloodstains on the sofa in the sitting room on the first floor and suspected bloodstains on the curtain of the bed. Various chemicals were found in the flat and an alkaline solution was in the metal box containing the body. There was what was described as activated charcoal on top of a filter pad on that box, the intention being to drain away liquid which smelt and to absorb and filter out the smell. Five bottles of concentrated hydrochloric acid were also found.

11. On 9th, 10th and 11th May a neighbour saw the accused carrying large plastic bags away from the premises. On the evening of 11th May D2 was seen and heard carrying glass bottles up to the flat. D2 admitted in a cautioned statement that she had bought corrosive fluid, liquid cleaners and air fresheners. She further admitted that she had put the body of the deceased in the box and had moved that box from the first floor bedroom to the second floor bathroom where it was eventually found. She placed the blame for the killing on Dl.

12. A bunch of keys was seized on the first floor of the flat and the second bunch upon the person of D2. Keys from both bunches opened the doors on the first and second floors and the brass padlock attached to the trunk containing the deceased's body.

13. In a statement to the police, D1 said that he had no idea that the deceased was in the flat and that dead rabbits and perhaps a dead dog had caused the smell. He denied seeing the deceased at any time in the previous month.

14. None of the visitors to the flat had seen any rabbits there and the goldfish which were there were alive.

15. Mr. Sedgwick, who with Mr. Ramanathan appeared for Dl, filed a total, on the face of it, of twenty grounds of appeal. These were in fact nineteen as there was no ground 11. There was also filed a Notice of Motion on behalf of Dl seeking to introduce in evidence a statement made subsequent to conviction by D2 together with the evidence of a Legal Aid clerk and a further Notice of Motion seeking to introduce the evidence of a doctor relating to the effect of drugs.

16. Of the first Notice of Motion there will be more later.

17. Ground 16 of Mr. Sedgwick's grounds alleges a misdirection by the trial judge on the issue of lies. Mr. Mullick, who appeared on behalf of D2 both at trial and before this court, filed a total of fourteen grounds: his ground 13 takes the same point.

18. The lies - and great reliance was placed upon them by the Crown which was not surprising as the evidence here was circumstantial - related to the smell and the explanations given for it together with the categorical statement by D2 that she had nothing to do with the killing.

19. The direction (p.33) given by the judge as to the effect of lies was this:

" If you are satisfied that the 1st accused and the 2nd accused had lied in their statements and if you are also satisfied so that you are sure that they had lied to the pastor and his wife [neighbours] about the smell, you are entitled to ask yourselves why they lied.

    The fact an accused tells a lie is not in itself evidence of guilt. You must ask yourselves what prompted him or her to do so.

    An accused may lie for various reasons, for example, to protect someone else, to save himself from embarrassment, out of panic or confusion or other matters of that sort.

    If you think there is or may be some innocent explanation for his lies, then you should pay no attention to them. If you are sure that their lies were relevant to the allegations against them and were not prompted by any innocent motive of that kind, then those lies would be evidence going to proof of guilt." (Emphasis supplied)

20. Mr. Cross, who appeared for the Crown with Mr. W.S. Cheung, and with Mr. Forlin who also appeared at trial, as the result of that which was said by this court in R. v. Tam Chung Shing and Others [1991] 1 HKLR 458 in relation to a very similar direction by the same judge, said that he had "formed a view". He referred us to a passage in the judgment of the English Court of Appeal delivered by Lloyd, L.J. in McIlkenny and Others [1991] 93 Cr.App.R. 287 which, in referring to the duties of counsel before the Court of Appeal, made reference to the concluding paragraphs. of the Farquharson Committee's Report on The Role of Prosecuting Counsel, May 1986 (Archbold 43rd ed. para. 4-47a but which does not appear in the most recent edition of Archbold):

"If prosecution counsel has formed the view that the appeal should succeed he should acquaint the Court with the view and explain the reasons for it. If the court disagrees with him counsel is entitled to adhere to his view and is not obliged to conduct the appeal in a way which conflicts with his own judgment. At the same time it remains counsel's duty to give assistance to the court if requested to do so."

21. Mr. Cross having formed the view that he was not in a position to argue the appeal acquainted us with this at the outset of the hearing and explained his reasons.

22. In R. v. Harris [1991] 1 HKLR 389 this court, at page 399J, said this:

"But the only use the trial judge made of these matters [untruth told by the appellant] was in his assessment of the appellant's credibility.

It is not suggested that he considered these lies of themselves to be probative of guilt. Lies can in conjunction with other evidence tend to support an inference of guilt. They can support it in the sense that they can confirm or tend to support other evidence which of itself is indicative of guilt."

23. In R. v. Lam Tsz Wah [1984] HKLR 54, Fuad, J.A. (as he then was) in delivering the judgment of the court said at page 63, in reference to circumstantial evidence in a case where the appellants, as was the case here, did not give evidence:

"We have already mentioned that we consider that the circumstantial evidence in this case was sufficient to be left to the jury. We do not accept that it raised mere suspicion, as has been contended, and therefore agree with Mr. Jackson, for the Crown, that since the applicant chose not to go into the witness box to explain the circumstances in which his finger print came to be on exhibit P.33 he cannot complain if a proper inference is drawn, and if it is drawn more readily in view of his election - Sung Shui-sing v. The Queen [1962] HKLR 587, a decision of the Full Court applying Reg. v. Sharmpal Singh [1962] AC 188 (P.C.)." (Emphasis supplied)

24. R. v. Broadhurst [1964] AC 441 is, of course, the definitive decision relating to the directions which should be given in relation to lies - supplemented as it now is by Lucas [1981] 3 WLR 120. In the course of the judgment of the Judicial Committee, delivered by Lord Devlin, it was said at p.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."

25. In Tam Chung Shing at pages 471 and 472, this court had, as we have indicated, for consideration a very similar direction to the one given here by the same trial judge. It is only necessary to refer to the portion emphasised in that report to indicate the similarity:

"On the other hand, if you are sure that his lies were relevant to the allegations made against him and were not prompted by any innocent motive of that kind, then those lies would be evidence going to prove his guilt."

Of that passage we said:

"Again while the passage started out with a perfectly proper direction that portion of it emphasised is, at best, ambiguous. On its face it is in direct contrast to the passage's opening. It was not open to the jury to find that lies by themselves would be evidence going to prove guilt and it is possible that they may have been misled."

26. The appeal in Tam Chung Shing was not allowed on that ground alone. There were other matters which drove the court, with reluctance, to consider the conviction to be unsafe and unsatisfactory.

27. In fairness to the trial judge it should be said that the direction given here was one given before both Harris and Tam Chung Shing were decided and, to an extent, used a formula which appears to stem from the use of the expression in a number of authorities "consciousness of guilt" - an expression which should be used with great circumspection.

28. We accept the submissions made to us by Mr. Cross, adopted as they were by Mr. Sedgwick and Mr. Mullick, that the danger here is, given the circumstantial nature of the evidence from which the jury were asked to infer guilt and given the importance placed upon those matters said to have been untruths uttered by both D1 and D2, the jury could have been misled by the directions set out into thinking that lies by themselves could be sufficient proof of guilt.

29. Moreover, we think that in the circumstances of this case the jury should have been told, but were not, that, if they concluded that a particular applicant had lied about the cause of the foul smell, such lie or lies might be explicable on the basis that, at the time he or she told them, he or she did so in an attempt to protect the other. The jury might otherwise have come to the erroneous conclusion that such lies were necessarily relevant to an involvement in the killing by the teller of the lies.

30. We intimated that we were minded to allow the appeals. Mr. Sedgwick then sought to press Cross to indicate that it was his view that the appeal "should succeed". As it was clearly the content of Mr. Cross' submission that he was not prepared to argue against the validity of the contentions in grounds 16 and 13 respectively we made an order allowing the appeals of D1 on counts one and two and D2 on count one and asked to be addressed on the issue of a re-trial.

31. Mr. Cross sought a re-trial. At this point the Notice of Motion seeking to introduce the evidence of D2 again came into play. Mr. Sedgwick asked us to either continue the appeal, deal with the Notice of Motion, hear the evidence and the grounds directly relating to it: alternatively to take the same course in order to persuade us not to make an order for re-trial.

    Having heard his submissions we refused to take either of those courses. The appeal had been determined, albeit on one ground out of the many and without any decision being taken on the contents of the affirmations attached to that Notice - we are not concerned with the doctors evidence. In considering whether or not a re-trial should be ordered - and neither Mr. Sedgwick nor Mr. Mullick sought to argue generally against such an order - we bore in mind the strength of the evidence, the public interest in seeing that this matter is brought to a proper conclusion, the nature of the offences and the interests of the accused - though that last is not the paramount matter for the consideration of this court. Were we to have heard D2 in evidence relevant solely to the issue of re-trial it would in effect have been necessary for us to have heard the other evidence given at trial to which the Crown would have wished to direct our attention. D2's affirmation, the contents of which are known to us from our perusal of papers, is in stark contrast to the statements she made to the police. It also raises, if it were tobe thought credible a number of defences in relation to the admission that it was she and she alone who killed the deceased. Desite a suggestion from Mr. Sedgwick, which should never have been made, that any refusal by this court to hear this evidence now might well be the subject of an application to the Judicial Committee of the Privy Council, we did not think that the interests of justice - a phrase occurring in both section 83E (governing an order of re-trial) and section 83V (governing the admission of fresh evidence) of the Criminal Procedure Ordinance, Cap. 221 - required that we should entertain Mr. Sedgwick's applications. We, therefore, made an order that D1 be re-tried on a fresh indictment containing both counts 1 and 2 and that D2 be tried on a fresh indictment containing count 1. Having made that order we stated that we would give our reasons later and this we now do.