HKSAR v. WONG WAI MAN AND OTHERS

CACC 315/1998

HEADNOTE

Criminal law and procedure - Evidence - Hearsay rule -Extent to which statement of one accused person may be used against another. Mawaz Khan and Amanat Khan [1967] 1 AC 454 considered.

CACC 315/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 315 OF 1998

(ON APPEAL FROM HCCC 267 OF 1997 AND 59 OF 1998)

----------------------

J U D G M E N T

----------------------

Nazareth V-P (giving the judgment of the Court) :

Introduction

1. On 26 May 1998, following a trial before Beeson J, sitting with a jury, the three applicants ("D1", "D2" and "D3") were convicted of murder, and a 4th defendant ("D4"), whose appeal has been disposed of, was convicted of manslaughter. D1 and D2 were sentenced to life imprisonment and D3 to imprisonment for a term of 30 years. The three of them now seek leave to appeal against their convictions and D3 in addition also against his sentence.

The facts

2. The case for the prosecution was that the victim, a 24-year-old hawker and sometime money lender, left his home on 17 December 1996. He was expected to return but never did. He was reported missing on 20 December 1996. Documents found by his family members revealed that he had loaned D1 and D2 a large amount of money. D1 attended Wanchai Police Station at the invitation of the police and, while being interviewed, was asked whether the victim, Ma Chun-wo, had come to his home on 17 December 1996. He blurted out "We have killed Ma Chun-mo.". D1 also admitted that he and the persons who became the other accused at the trial killed Ma because D1 and D2 had borrowed money from and were unable to repay him.

3. The body was never found. The four persons all made statements. It emerged from these that Ma was invited to the flat occupied by D1 and D2, was strangled there by the four defendants and thereafter the body was dismembered and dumped in a garbage tip.

4. As the judge pointed out the case was unusual in that the body was never recovered and the totality of the evidence came from the statements of the defendants. It should be added that some of the interviews were videoed.

The appeal

5. D1 and D2 were represented before us by Mr Kevin Egan, who had not appeared below. D3 was represented by Mr Jerome Matthews who had represented him below as well. The written grounds of appeal in respect of the different defendants can be regarded as being the same notwithstanding some difference in emphasis. Moreover, Mr Matthews adopted the submissions made by Mr Egan. The several grounds were advanced individually and also cumulatively in the context of the concluding ground that the convictions were unsafe and unsatisfactory.

Directions on intention

6. Turning to the first of those, it was contended that there were fatally flawed and confusing directions in relation to one of the essential elements of the offence of murder, i.e. intention. The submissions here concerned essentially two passages in the summing-up. The first of these appears at p.17K-M:

Mr Egan contended, as is plainly right and obvious, that "fairly certain" is wrong in relation to the requisite standard of proof. However, his submission that there must be a doubt that the jury here might, notwithstanding the numerous other very clear directions on the correct standard of proof, have proceeded upon the flawed "fairly certain" basis must be rejected. In the clear context of the summing-up as a whole, no more need be said about this particular submission in our view.

7. The other passage appears at p.18 D-F:

The summing-up then proceeded to the various entries in the Records of Interview and the video transcript.

8. It is the words "and you have to accept it as true" that are objected to. It is submitted that in effect they withdraw the issue of the truth of the contents of the statements from the jury. However, we have to say, that it seems to us that the words in question mean that the jury must first be satisfied beyond reasonable doubt that the contents of the statements were true. That is a possibility that Mr Egan recognised, but he then proceeded to make a submission similar to that made in respect of the earlier passage, i.e. that the jury could be left with the impression that they were obliged to accept the contents of the statements as true. We do not think that there was any realistic possibility of that having happened. When looked at as a whole, the summing-up made it clear to the jury that whether the contents of the statements were true was something which they had to decide.

9. However, Mr Matthews took an additional point. As indicated, the summing-up went on to list the several entries or items in the interviews which the judge said could be regarded as indicating that the defendants did have the necessary intention. He submitted that not all of those items go to intention. It can be seen that three or four of them plainly do not go to intention but to participation. Two others clearly do not go to intention. We do not find it necessary to address them in greater detail. In general terms, although the jury may have been misled into thinking that some of the entries went to intention, we do not doubt for one moment that the jury appreciated their task in this particular respect. What the submission goes to is the joint enterprise to kill Ma. In the circumstances described there could be no question at all that what was being carried out by each applicant was the killing of Ma. It was an amateurish effort to use the judge's description. It took a relatively long time and ultimately a television aerial cable in the flat had to be used. The circumstances simply do not afford any scope for nice questions as to what was the intention of each applicant. We have no hesitation in rejecting this ground as so far addressed.

10. It remains, however, to address Mr Matthews's final submission on this ground which relied upon the way the summing-up dealt also with intention in the context of the alternative charge of manslaughter. In the latter context, Mr Matthews rightly recognised that no corresponding intention to cause death or really serious bodily harm was necessary, but contended that unless the summing-up did address the mental element or intention in relation to manslaughter, which it failed to do, the jury could not have been in a position to safely address the matter of intention with reference to murder, the manslaughter charge having been left as an alternative. It may be that other circumstances might have afforded more scope for this sort of submission but in the circumstances before the Court, we are satisfied that the directions on intention in the context of the murder charge were entirely adequate and not flawed in the way contended. In that regard, the written note on the ingredients of murder that the judge provided to the jury (and to counsel) was acknowledged to be entirely satisfactory and clear. That alone, in our view, would have been sufficient to remove any lingering doubts that might have flowed from the deficiencies in the two passages already referred to, the use of "likely" to which we shall next come, and even the effect of the absence of a full direction on intention or the mental element in the manslaughter charge (if that submission were accepted).

11. We turn finally to the word "likely" in the following passage at p.35 H-J of the summing-up:

Mr Matthews candidly admitted that he spotted this latter reference to "likely", which plainly is not the right test, while on his feet in replying to Mr Bruce's submission. As already indicated, given the numerous references to the right test both before and after this passage (and indeed the other passages) not to mention the written note, we simply cannot accept that the jury would have had any doubts at all as to the requisite standard of proof.

12. We accordingly reject the grounds and submissions that the summing-up was defective in the foregoing respects.

"Validity" as criteria for statements

13. Mr Egan took us to a number of references to the "validity" of the defendants' statements, in particular to that in the following passage at p.29 P-S of the summing-up:

We accept that "voluntary" or "credible" or other words might have been less open to objection and more appropriate. However, we cannot see what damage was done or that such use resulted in the jury being confused or even that there is a real doubt that they may have been confused. The most we feel able to say with reference to this submission, having considered the summing-up overall, is that it may just possibly bear upon the concluding question of whether the convictions are unsafe or unsatisfactory by reference to the several grounds of appeal, to which we shall ultimately come.

Comparison of defendants' statements

14. We turn then to D1 and D2's main ground of appeal. It arises in the following way. In challenging their statements, the defendants claimed that the police concocted the version of events which found its way into the statements. As we have said, the only evidence against the defendants was their own statements, and the judge repeatedly warned the jury that each statement could only be evidence against its author. The judge in her summing-up, as may be expected, dealt at length with the statements. Having come to the point that the jury had to be sure that the statements were taken as the police officers claimed and that the contents were true, she went on to say that there was one other matter in relation to the statements that the jury could take into account in the following way:

She then went on to make the point that the jury could not draw inferences of guilt against the defendants from comparison of their statements but that in considering -

She went on then to refer to the discrepancy in the statements as to the number of cartons used to dispose of the dismembered body, telling the jury they had to consider why, if the police did engage in the alleged frame-up, they allowed such a major difference to occur between the statements. And likewise if the 2nd defendant was coached as he claimed, why the police did not do a better job in leaving out so many significant details, and indeed why D2 would have said he did not intentionally kill the victim and that they were "manipulated by God and ghost". She concluded:

Mr Egan submitted that the use of the defendants' statements in this manner and the comparison between those statements was impermissible and contrary to law. He relied upon two authorities, Mawaz Khan and Amanat Khan [1967]1 AC 454; and R v Boykovski and Atanasovski (1991)58 A CrimR 436, 442.

15. In Mawaz Khan the prosecution relied strongly upon the fact that each of the two appellants had in his unsworn statement given at the trial sought to set up a joint alibi which was shown to be false.

16. The appellant's main ground of appeal before the Privy Council was that the trial judge had erred in ruling that a statement made by one accused person in the absence of another could be used for any purpose or in any way against the other. To admit such a statement it was said would violate the "hearsay" rule. Before addressing the facts of that case, their Lordships first found it convenient to state what was meant by the "hearsay" rule as contravention of the rule makes evidence inadmissible. They pointed out that the accepted textbooks on the law of evidence are at one in saying that such statements are inadmissible to prove the truth of the matters stated, citing a passage from Wigmore on Evidence and another judgment of their Lordships in Subramanian v Public Prosecutor [1956]1 WLR 965, 970, PC. The point made in those passages was that extra-judicial statements were not excluded in all circumstances but were inadmissible when their object was to establish the truth of what was contained in them and were admissible e.g. when it was proposed to establish not the truth of the statement but the fact it was made (at p.459E-460B).

17. And at p.462B-D the judgment continued:

Their Lordships then went on to hold that the statements were relevant as tending to show that the makers were acting in concert and that such action indicated a common guilt.

18. Mr Egan's submission, if we understood him rightly, was that in dealing with the comparison of the statements in Mawaz Kahn, their Lordships identified the only circumstances in which such extra judicial statements by one accused could be used against another. We cannot accept that submission. There is nothing that we can see in the judgment to support it. Moreover, the comparison or use of each defendant's statement here by the judge seems to us in terms of principle to be no different to that in Mawaz Kahn. The inconsistencies between the statements and the matters mentioned by the judge that went to diminish their use as admissions, were apparent on their face in the same way as the fact that the statements were made. Plainly in the way the judge limited the use to which the statements could be put, there was no question of the contents of the statement of one defendant being used as evidence of the truth of those contents against another.

19. Returning to Mawaz Khan, their Lordships reverted at p.463E-F to the following point earlier touched upon:

If our view that the comparison made by the judge was no different from the exception referred to in Mawaz Khan, i.e. use of a statement as evidence not of the truth of its contents, but the fact it was made, is not right, then in our view, it must nonetheless be a legitimate exception to the general exclusion of the use of extra judicial statements of one accused person against another.

20. It can be seen in that way that Mawaz Khan supports rather than militates against the comparison the judge permitted. Moreover, the use of the statements in Mawaz Khan went somewhat further than used by the judge here as is apparent from the following at p.462D-E:

Here the comparison went to the rebuttal of the defendant's allegations that the statements were a concoction of the police. Thus, the use here of the statements was not as directly tending to indicate common guilt.

21. Mawaz Khan was followed in Boykovski, but the latter does not as far as we can see take the matter any further in the present context.

22. We accordingly reject the submission that the comparison permitted by the summing-up was a misdirection.

Unsafe and unsatisfactory

23. It remains to say that even if the grounds and submissions are taken cumulatively, we are satisfied that the convictions are not unsafe and unsatisfactory, and that they do not give rise to any lurking doubt.

24. For the reasons we have given, we dismiss the applications for leave to appeal against conviction. There remains only D3's application for leave to appeal against sentence to be dealt with..

Remarks: