THE QUEEN v. LO CHI KEUNG

Headnote

    Where serious allegations are made that a video construction was staged managed by police officers

(i) It is the duty of counsel to press for detail instructions and put the full detail in cross-examination. This cross-examination should show both how far his instructions go and precisely There they stop.

(ii) The Court should require this to he done.

    Where serious allegations of misconduct are made against witnesses or police officers, and are not supported by evidence from the defendant, strong comment by the judge to the jury is permissible.

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J U D G M E N T

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Hunter, J. A. :

1. On 24th April 1987 after a trial before Deputy Judge Corcoran and a jury the applicant was found guilty of the murder of Lam So Yee, a 12-year-old girl, on 17th August 1986 at Wang Yuk House, Lok Fu Estate, Wong Tai Sin, Kowloon.

2. The victim was last seen alive between 12 noon and l pm on that Sunday, 17th August, when she left her home on the 14th floor of the block. Her young sister saw her leave and speak to a man outside the lift. She was never seen alive again. At about 11 pm that night she was found on the top floor of the building she was naked, had been raped and had suffered death by strangulation. There were many other injuries in her body. There was a white nylon strip tied round her neck with the other end fastened to a banister.

3. On 28th October 1986, the applicant was arrested at an address in Mongkok at about 7 am. When the police entered those premises, he sought to hide under a bed. At about 8.30 am he started to make a statement and answer questions at the Mongkok Police Station. The interrogation took the simple form of question and answer, much of it innocuous, until 11.15 am up. Up till that point he had been asked about his places of work. The question then put to him arose out of an earlier answer and was :

4. "How about the site at Kwun Tong? Where is it?"

The answer that was recorded was :

"An Sir, you need not neat about the bush. A person will die naturally when (he) reaches the Yellow River (sic) (give up when all hope is gone). I may as well tell you about this case. I know. But I did not kill that girl. When you came to find me this morning, I already knew what it was all about".

He was at once stopped and cautioned again. He spent the rest of the morning outlining a story of how he was persuaded by the refuse collector at the block to engage in a sort of conspiracy with him. The applicant's task was to entice or presuade this girl up to the top of the block and then hand her over to the refuse collector. The apparent intent was that she should be thus kidnapped and held to ransom. He explained this story during the rest of the morning.

5. At about 2 pm there was a break for refreshment. Over that luncheon break the police officers took the precaution of inviting a Mr Lam Fan, a local Justice of Peace, to attend in the afternoon. They must have realised that could figure prominently in a future prosecution. They wanted to exclude any question of the improper taking of a statement. Mr Lam then witnessed the questioning in the course of that afternoon. It finished shortly before 5.45 pm with these four questions. The first 3 were put by the examining police officer, Detective Sergeant Wong :

"Q : I now have no further questions to ask you. I remind you. You will be charged by the police with the offence of murder. Do you understand?

A : I understand.

Q : Are you willing to take the police officers back to Wang Yuk House tomorrow and to reconstruct the crime which occurred that day.

A : I am willing. However I wish to go there at the time when no one nobody is there. Either at the noon time or at night.

Q : Regarding the whole process of the enquiries made of you by the police today, do you have any complaints against the police? You may now made any complaint to Lam Fan, Justice of Peace.

A: I have no complaint against the police."

The final question was put by Mr Lam Fan himself :

Since you were arrested by the police have you been assaulted, threatened ill-treated or forced to give a statement by the police?"

The recorded answer is "No".

6. The following morning a short statement was taken of the applicant at Mongkok Police Station in which he was once again invited to say whether he was willing to take the police to Wang Yuk House. He repeated his willingness to do that. He was accordingly, taken to Wang Yuk House. The whole of the incident, both the taking of the first statement at the police station and at Wang Yuk House, was recorded by a video camera man. The court has been provided with what is accepted to be an accurate translation of what was said by everybody on camera.

7. As the applicant described and acted out the events of 17th August, it must have become apparent to the surprised viewers that the story he was then telling was quite different to that which he had told the previous day. No mention at all was made of the refuse collector. There came a point when he first spoke of laying hands on the girl. In his interests and it is significant, Detective Sergeant Wong, who was conducting the matter at once stopped him, and is recorded in the transcript as saying :

"I remind you that your are still under caution, that is to say you are not obliged to say anything but whatever you say may be given in evidence in future. Do you understand?"

The answer was "Understand".

8. He then went on to describe the events immediately preceding the girl's death. The first description occupies about 8 pages in the transcript. It leaves rid must have left this jury, in little doubt, that he was responsible for her death. A striking feature is that in the transcript he then twice summarised the crucial parts of that description: the parts which identified him most closely as the girl's murderer.

9. The events at Wang Yuk House having been completed, he then went back to the vehicle and pointed out to the police the places where he said he had thrown away the girl's clothing. When he returned to the police station starting at just after 1 pm and continuing to about 2.40 pm, a further statement was taken from him in writing. This in effect is a post recorded statement of what had transpired that morning at the block. That statement contains the basic details of the account he had given that morning. He was invited to read it through and correct it in any way. He chose not to make any correction. In the face of that evidence at 4.55 pm that afternoon he was charged with murder.

10. That evidence formed the heart of the prosecution case. Objection was taken to its admissibility and a voir dire was held. At its conclusion the judge admitted the video and the transcript, expressing himself in these words :

"In regard to these statements and the reconstruction I am satisfied so as to be sure that there was no assault, threat, promise inducement or oppression or deception of any kind whatsoever or anything like that; and I am sure that the statements and the agreement to do the reconstruction and the doing of the reconstruction itself, were voluntary in the sense that I have explained, and that is that there was no assault, threat, promise, inducement or oppression or deception of any kind".

He also went on to deal with the suggested breach of the principles of the Judge's Rules. This arose out of the very first of the four questions which terminated the afternoon session the preceding day. It warned him that he would be charged with murder, before he was asked to take part in the reconstruction. This revealed an unusual conflict of opinion between the two senior police officers. Superintendent MacKillop who was the senior officer had taken the view that there was sufficient evidence to charge him with murder; that it was right to warn him then that he would be charged; but only to charge him later. Chief inspector Cheng took the view that there was insufficient evidence to justify a charge of murder and that the inquiry should proceed it. Mr Sarony frankly admits that looking at the matter objectively it is much easier to support Inspector Cheng's view than the Superintendent's. So there is a considerable doubt whether these events gave rise to any breach of the principles of the Judge's Rules at all.

11. The judge was prepared to assume that they did, and went on in these words :

"I am satisfied beyond doubt that they (the two police officers) acted in all honesty, and consider that they were acting properly, and I see nothing whatsoever that would point to me any unfairness to the accused in the way that they did proceed, having told the accused that he would be charged with murder".

Indeed, it might be thought that the converse was the position, and that it was the epitome of fairness to warn a man that he would be charged with murder, before inviting him to take part in a reconstruction which in the event produced evidence which almost certainly convicted him of that murder.

12. The first ground of appeal advanced by Mr Sarony on behalf of the applicant is that the trial judge erred in admitting in evidence the video recording and the transcript. Before dealing with that I should explain that this appeal has taken much longer than usual to reach this Court. This was because it was known that an appeal was being brought before the Privy Council raising the question of the admissibility of video recordings. That appeal was heard, and disposed of by the Privy Council last summer; Li Shu Ling v R [1988] 3 WLR 671. In dismissing an appeal from this Court which had upheld the reception of a video recording Lord Griffiths said this at p 676 :

"The truth is that if an accused has himself voluntarily agreed to demonstrate how he committed a crime it is very much more difficult for him to escape from the visual record of his confession than it is to challenge an oral confession with the familiar suggestions that he was misunderstood or misrecorded or had words put into his mouth. Provided an accused is given a proper warning that he need not take part in the video recording and agrees to do so voluntarily, the video film is in principle admissible in evidence as a confession and will in some cases prove to be most valuable evidence of guilt".

13. The accuracy of those observations has been demonstrated by the present case.

14. The first objection advanced in the Notice of Appeal is that "no or no proper warning was given to the applicant regarding his participation". There is no substance in that. I have already read the answer he gave when he was first asked if he was willing it was "yes". That answer was repeated the following morning. That he was a willing participant in this demonstration is plain beyond a peradventure.

15. Secondly, it is suggested that the appellant was "not afforded an opportunity as soon as practicable to view the said recording and comment thereon". That arises out of the next paragraph in the speech of Lord Griffiths where he says:

"To meet the suggestion that lack of acting skill may result in serious distortion of a fair demonstration by the accused, the video recording should be shown to the accused as soon as practicable after it has been completed and he should be given the opportunity to make and have recorded any comments he wishes about the film. If the accused says the film does not show what he meant to demonstrate there will then be a contemporary record of his criticism, which the judge and jury can take into account when assessing the value of the film as evidence of his confession".

That was in terms not done in this case. One must remember that this suggestion from the Privy Council came two years after the event. But in fairness to the polite they brought about the equivalent. In the middle of the first summary of the crucial events on the video the transcript shows that the applicant was interrupted and asked if he wanted to correct anything that he had already said. More significantly in the written statement taken in the Mongkok Police Station afterwards, all these events were again recorded and he was then given the opportunity of correcting or adding anything. No doubt in the future, Lord Griffiths' suggestion will be acted upon. No criticism can be directed at the police in this case of the steps they did take to allow this applicant to make any correction that he wished to make.

16. The third objection under this head is that there was evidence consistent with the police having directed the applicant during the course of filming. This to my mind is the most disturbing feature of this case. As Lord Griffiths pointed out a video may make it "very much more difficult for him to escape from the visual record of his confession. If what happened in this case is to be repeated in the future, it has revealed that there is a very simple way out. That is to make a blanket allegation, wholly unsupported by proper particulars, that this was not a reconstruction it was a performance it was a charade, stage-managed, directed and scripted by two police officers.

17. The full implications of this suggestion were graphically illustrated in the closing moments of the trial. In the courser of his summing up the judge quoted extracts from the transcript with a view to showing a correlation between the events that the accused was describing and the medical evidence. Thus he says this:

"p 332, (that is a reference to the transcript) 'then I tied her hands' Dr Beh found ligature marks on the girl's wrists.

"P 334. 'Then burned off the string with which her hands were tied'. You will recall that when she was found there is no evidence that her hands were bound, but the doctor found ligature marks on her wrists. So you have here in the statement the saying that he tied her hands up first and then took the bonds away".

This revealed, the jury may well have thought, a very striking correlation between the medical evidence and what was recorded in the statement. After the judge had completed his summing up, counsel on both sides made various points about it, and Mr Sarcny for the defendant is recorded as saying this in reference to this particular aspect of the summing up:

"My Lord, your Lordship would also recall, I hope it will be proper for me to raise it now, that this was all evidence that was already in the knowledge of the police before the statement was made".

The inference from that is that the police then had in their possession all the evidence necessary to write a convincing script.

18. The implications of this are very considerable. It must mean that on the evening of the 28th & 29th October there would have had to have been a lengthy meeting between the police offices concerned and possibly the photographer too, (the use of the theatrical terms is justified) in which one or more performed the roles of stage manager, director and script writer. They would have had to have had a very close and detailed look at the medical evidence, to see what injuries were found in order to see what story had to be told by the accused before the camera to fit the criteria fixed by those injuries. The tying and untying of the wrists was one example. They would then have had to have arranged how these matters wend going to be got across to the lead actor, the applicant himself; how it was going be split up into convenient tranches of information which a man of his limited intelligence could absorb; and how they were going to avoid his drying up in the face of the camera and revealing the whole charade on the video. It might well have had to have taken the form of a theatrical producer's notebook. Likewise you would have had to have had something equivalent to a clapper board; arrangements made with the photographer to break up the filming into convenient parts so that the man could be instructed on what came next. That is was really lies behind this allegation. It would have involved a very sophisticated operation indeed. One only has to spell our what was involved to see that it would be a very difficult one too.

19. By contrast what was put on instructions by Mr Sarony to Sergeant Wong about this was (I am reading from p 139 of the transcript) :

"Q : You see, I put it to you that what happened on the 29th was that the defendant had been told to act out a part.

A : No.

Q : And that you and Chief Inspector Cheng told him that his part was to be that of the refuse collector.

A : No.

Q . And that between you, you directed him as to what he should do and what he should say.

A : No. Why would he have to listen to me, to my direction?

Q : Counsel don't normally answer questions, but I'll answer on this occasion for you. Because he was afraid of you.

A : No.

Q : Because you had told him that it didn't matter what he said, he was going to be charged with this murder in any event.

A : No".

Mr Sarony explained to the court that he could not go any further in cross-examination because that was the limit of his instructions. His instructions were as general and superficial as that. No further detail was gone into with any other witness. No evidence whatever was given either on the voir dire or at the trial by the applicant himself.

20. In my view this course was profoundly unsatisfactory, and it is something which I hope will not be followed in the future. Allegations of this nature are exceeding serious. They demand that the whole story be very fully and properly investigated by the lawyers concerned with the person who originate the allegations, the defendant. They must do it with the utmost care, particularly in this jurisdiction, because they may well be putting matters to witnesses which will, when the time comes, not be supported by the originator in the witness box at any stage. Allegations in such general terms are in my view quite unsatisfactory because they are exceedingly easy to put in those few words "Between you, you directed him to as what he should do and what he should say"; and equally difficult to rebut. Fairness to the persons against whom the allegations are made demands in my view that they should be put with very much more care and detail than that.

21. I suggest that there are two answers. First the primary responsibility must be with counsel. He of course has a difficult job in these circumstances. He has to act upon his instructions and to put his instructions. If his instructions are inadequate he should push hard those who are giving him instructions to add to them, so that he can put the matter with all the proper detail. The police officers can then be told precisely who it was, did what, said what, and gave what information. If on the other hand his instructions are as tenuous as those which Mr Sarony had in this case, in my view, he should also make it clear in the course of his cross-examination that he cannot go any further than he has done, because that is the limit of his instructions. In other words he should show how far the instructions go and precisely where they stop. That is the initial responsibility. Secondly I believe that the court should require that to be done.

22. In the light of those considerations, it seems to me that there is nothing whatever in this ground of appeal. The evidence showed that there were at least two breaks in the filming probably only one of which was of any great length. It might have extended to 15 minutes, basically for the changing of the batteries, and in which there were apparently conversations between the police officers and the applicant. That caused some dispute at the trial. It might well be convenient in the future if the precise timing of the filming could be recorded either by fitting some automatic timing device, if this is possible, to the camera itself, or by insuring that the camera man or more probably his assistant, records the moment when filming starts and when the filming stops. That might put an end to the investigation and argument which occurred in the course of this trial. The court and the jury would know precisely when, and for how long the breaks lasted, and could fit them precisely into those pieces of the video which they saw and those pieces of transcript which they read. That is a tentative suggestion for the future.

23. Having said that there was evidence of breaks, there was no evidence at all to suggest any of those breaks were used improperly; and no, suggestion from a reading of the transcript of any hesitation or instruction of this applicant by anybody. Plainly there was nothing on the video or our attention would have been drawn to it. As I have already pointed out, Mr Sarony himself had nothing worthwhile to put to any of these witness.

24. The last objection to the admissibility of this video is that it was wrong in principle to admit it since the applicant had already been told he would be charged with murder. I have already dealt fully with this point when reciting the judge's reasons for admitting the video. There is no substance in it because what happened in this case was totally fair.

25. The next major ground of appeal is that the trial judge "misdirected the jury on the issue of the appellant's failure to give evidence to his trial, and the effect of the judge's direction was to suggest that guilt could be inferred from silence". This in some respects is a curious point. When dealing with this matter in his summing-up the judge did so very fully. In fairness to him I shall read what he said about this on the first occasion. He paraphrased it again the following morning. What he said first was this :

"Members of the jury, the accused has not given evidence. I have told you that the accused has not got to prove his innocence. That is the basic principle incur law. He has riot got to prove anything. He is quite entitled, as Mr Sarony says, to sit back and say to the Prosecution, 'You have charged me with this murder, you prove beyond reasonable doubt that I committed it.'

The accused is not required to give evidence or to call any witnesses. He remains innocent of this charge until the prosecution has satisified you beyond a reasonable doubt, that is to say, satisfied you so that you are sure of it that he committed the offence The accused in this case has not given evidence, that is his right and privilege. It would be quite wrong for you to hold the fact that he has not given evidence against the accused. You must not assume that he is guilty because he has not given evidence. That would be quite wrong. The fact that he has not given evidence proves nothing one way or the other. The fact that he has not given evidence does not prove his guilt or his innocence, it proves nothing. It does nothing to establish his guilt. On the other hand, it does nothing to rebut contradict or explain the evidence put before you by the prosecution".

26. Now the whole of the first half of that passage is accepted as impeccable. Indeed it expressly covers the two points which the editor of the 6th edition of Cross on Evidence at p 351 emphasises must be made: First that the accused has a right not to testify and that no assumption of guilt should be drawn from his failure to testify. It also accepted that the last sentence is accurate, in the sense that if the accused does not give evidence then it necessarily follows that there is no evidence put in the scales against that which the prosecution has led. So the last sentence cannot be criticised as inaccurate. But the submission is Shat the judge got his batting order wrong; the last sentence would have been impeccable if it had come at the beginning; but it creates a false impression at the end.

27. I cannot accept that. The judge had a duty to emphasise the first two points. He equally had the right to point out the consequences of the failure to give evidence. What he said was quite sufficient and correct for the purposes of this case. He was simply describing in neutral language the effect of the absence of any evidence from this applicant. He was making no comment upon this at all. Still less was he making any adverse comment.

28. In many respect this aspect of the summing up is exceedingly favourable to this applicant. This is a case wherein my judgment the judge would have been perfectly entitled to make strong comment upon the absence of any evidence from this applicant in support of the very serious allegations of misconduct that were made against the police officers concerned and of lying against Mr Lam, the Justice of Peace, and one of the interpreters. The matter is in my belief accurately dealt with in paragraph 4-317 of Vol l of the 43th edition of Archbold. There the authors cite dicta of Lord Goddard in R v O'Neill (1950) 34 Cr App R 108 where he condemned in round terms the behaviour of counsel for making allegations of this nature without calling their client. These remarks were I think recognised as going too far, as the editors point out. Counsel is in an invidious position in these cases. He must act upon his instructions. If his instructions are that certain things happened, he must put those matters firmly to the persons concerned. At the time he is putting those matters, he cannot be sure that his client will necessarily give evidence. Furthermore there may be occasions where he himself may be called upon to advise his client not to give evidence. For example if the client has a very long criminal record, this line of cross-examination could be self-defeating as letting in the criminal record if he gives evidence.

29. In these circumstances, the proper practice is indicated, I believe, by the editors of Archbold in these terms.

"Furthermore the court in Brigden ([1973] Crm L.K. 579) identified the sensible remedy - strong comment by the judge in the summing up. The following comment was upheld: "counsel for the prosecution cannot mention the fact that the accused has not given evidence. The law says so. But it also says that when a judge thinks it proper he most certainly can, and I have mentioned it to you now that you have had no opportunity of hearing from (the accused). That may help you in deciding whether there is a ha'p'orth of truth in that allegation about this police officer".

30. In this case very serious allegations were made, on instructions, by counsel against all the witnesses connected with the taking of these statements and the video. There was no apparent good reason for this applicant not giving evidence, because he had already introduced into the case his criminal record. But he chose to say nothing either on the voir dire or at the trial. The judge in my view would have perfectly entitled to make a comment similar to that made in Brigden. He did not do so, to this applicant's advantage.

31. The last ground of appeal advanced is that the trial judge "failed to put the appellant's case fairly to the jury" Now the defence case in this trial was a very simple one. "I was not there. This has got nothing to do with me". There were two groups of evidence relied upon. One was evidence from three young girls, who all gave some evidence tending to connect the accused with this building on the day in question. His answer to those was that those young girls were quite unreliable. They were cross-examined with some success and skill by Mr Sarony to that effect. The principal evidence against him was provided by the statements he made to the police. The defence there was that they were the product of threats, violence torture and fear. Both those aspects of the defence were very fully put by this judge to the jury in the summing up.

32. The first specific complaint relates to the failure to identify him when confronted by witnesses. The first of the young ladies was the deceased girl's sister. She was the one who had seen the victim leave the flat and talk to a man at the lift. She was confronted with the accused at the police station, at his request. He declined an identification parade and wanted a confrontation. It occurred and she failed to recognise him. That fact was referred to by the trial judge every time he referred to that girl's evidence. No complaint can be made about that.

33. The second complaint is that "the only evidence against the applicant was contained in the alleged statement of confession and there was some evidence to consider on the subject of voluntariness and duress". What the judge did in relation to these statements was to remind the jury of the events. He then went through all the details of the allegations made against the various persons in cross-examination. He then proceeded thus.

"You will give consideration to these allegations. But you will bear in mind that all the allegations had been denied by the police to whom they were put, and by Mr Lam. If you think that could be some truth in the substance of these allegations against the police in connection with the statements and the video you may well take the view that it would be unsafe to give any weight to any admission therein and in regard to Exhibit P9 (the transcript) and the Exhibit P30, (the video) that it will be unsafe to regard the contents or part thereon as being accurate or to give any weight to either exhibit".

That is as fair a summary of the position as could possibly have been stated. It was then followed by a detailed consideration of the particular allegations. So I see no substance whatever in that.

34. The third complaint was that there was an issue as to whether the police were under pressure. When the evidence on that was examined, it fell to the ground.

35. The last complaint related to "the constructive evidence of alibi drawn from the estimated time of death and the evidence of those witnesses giving evidence of the last occasion on which the appellant had visited Wang Yuk House". As I said there was evidence from these three young girls, one if whom I have already dealt with. That has to be looked at against the background of an alibi notice served by the applicant before the trial to the effect that he in fact had spent the whole time in other premises with the lady with whom he was then cohabiting, Madam Yip. The evidence which connected him with this property came from other members of that family Mr Chung, Madam Yip's husband, and two girls, one Chung Wai Yin, who was aged 14 and the other Chung Wai Mui, who was aged 16.

36. When he came to deal with this evidence in his summing up the trial judge went through it in some care and detail. Mr Chung had put to him that on the afternoon in question he had seen the accused in his place of work when he returned his young son back after a night out. He accepted that it had happened on one occasion, but he said more than once that it was not on this occasion. The girls gave certain evidence connecting the accused with these premises. But they were skillfully cross-examined, and the judge in dealing with their evidence pointed to all the discrepancies and all the problems arising from the cross-examination. Certainly upon my reading of the summing up he was giving a tacit invitation to the jury to say that these young witnesses were really quite unreliable, and could not advance the case one way or the other. I am at a loss to see how any complaint can be made about the sufficiency or the fairness of that aspect of the summing up. Again there was an adverse comment almost invited to be made. That is that this alibi being advanced through cross-examination at the hearing was in flat contradiction to that in the alibi notice. That comment was never made.

37. In these circumstances I can see no substance in the allegation that the applicants case was not fairly put to the jury or any basis for saying that the verdict of the jury in this case is unsafe or unsatisfactory. From my part, I would dismiss this application.

Kempster, JA :

38. I too would dismiss this application for the reasons given by my lord.

O'Connor, J :

39. I also agree with the reasons given by my Lord and would dismiss this application.