TEE QUEEN v. LAM KA FAI

IN THE COURT OF APPEAL

1993, No.724
(Criminal)

HEADNOTE

Extent of discretion to exclude admissible evidence examined. In the category of evidence unfairly obtained the discretion comes into play if unfairness is established but will only be exercised if admission of the evidence will prevent a fair trial.

IN THE COURT OF APPEAL

1993, No.724
(Criminal)

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Corm: Hon. Power, V.P., Macdougall, V.-P. & Litton J.A.

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JUDGMENT

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Power,V.-P. (giving the judgment of the Court):

1. The applicant at trial faced one charge of blackmail. This was particularized as follows: that he and the 1st defendant Hui Ching-yin, to whom we shall refer hereafter as Ah Yin, on 11th day of May, 1992, at Kam Lun Restaurant, Western, in Hong Kong, with a view to gain for themselves and others, made an unwarranted demand of $50,000 Hong Kong currency from Chu Chi-hung with menaces. He was convicted after trial in the District Court before Judge Livesey and was sentenced to imprisonment for eighteen months. He now appeals against that conviction.

2. The person Chu Chi-hung mentioned in the charge was the first prosecution witness and the principal prosecution witness at trial. He said that he was the location supervisor of the Salon Film Company and that that company on 10th May 1992 was making, in association with an American company, a film about the late Bruce Lee. He said that on that day in response to a message he went to Ching Lin Terrace where filming was about to commence and was there met by a group which included the applicant and Ah Yin. He said that Ah Yin said, "When you come to shoot a film you've got to reach an agreement with me and get our permission before you are allowed to so. Otherwise you cannot shoot the film. This area is protected by us."

3. His evidence thereafter is of particular importance as it indicates the extent to which he was able to observe the person whom he later said was the applicant. The issue before the judge was for the most part one of identification.

4. He said in his evidence:

"10th May 1992, defendant (the applicant) and others spoke to me. They were about three inches away from me. Lighting, not yet dark, I could see face clearly"

He went on to say:

"Mainly Ah Yin, the other one, who asked for money from us D2 (the applicant) was mainly behind Ah Yin D1, supporting his words.

As I arrived at the scene, I could see there was a group of about five persons, standing at the staircase. I saw D1 and the D2 present. D2 was holding a portable phone. Ah Yin D1, asked us if we had got their permission for the shooting.

He then went on to ten of a conversation and said:

"During this D2 (the applicant) was mainly supporting his (Ah Yin's) words. For example he said ‘That’s right the most important thing is to inform me when you have the latest news.

D2 did not talk a lot that day.

Whilst speaking to Ah Yin, D2 was just about two feet away.

The two of them were three feet away from me, the rest were about six feet away."

He said that the conversation had lasted for about 15 minutes. He clearly had a very good opportunity to observe the appearance of the person to whom he was speaking on that occasion.

5. He told of a meeting on the following day, saying that it was arranged by a telephone communication and that he recognized the applicant's voice when he made that appointment. He went on to say that he went to a café, sat with the applicant and Ah Yin, and that a conversation took place in which the applicant had said that it was hard for them as they already collected money from the shops nearby and so he was going to seek instructions from their big brother. The applicant then went outside to make a telephone call. He also said that the applicant told him that if he paid money nothing would happen to the people or the vehicles, and added that it would cost a lot more for Chan Yan-kin if he were shooting the film. Again that conversation lasted about 15 minutes and there was never any suggestion that he did not have a good opportunity to observe the persons with whom he was speaking.

6. P.W.1 later on that day reported that matter to the police and at about 6:15p.m. Ah Yin was arrested. Ah Yin was not facing trial as, after arrest, when on bail he absconded. Ah Yin at the time of his arrest was carrying a pager the number of which was the same as that which had been given to the witness.

7. The applicant was not arrested until 3rd June and at about 2a.m. on that day he made a statement in which he implicated himself in the offence. The trial judge was satisfied that this statement was voluntary and admitted it. The ruling which she made when so doing was as follows:

"After consideration I was satisfied that the caution statement Exh.PP3 was admissible in evidence. I made no order on Exh.PP4, it was left before the court so it could be included m the consideration of the evidence as a whole. I bore in mind my general discretion to exclude the evidence on the basis of unfairness, or general reliability, which discretion could be exercised at any time."

We find some difficulty with this ruling. Firstly there is the observation made about Exh.PP4. The judge said that she left it “before the court so it could be included in the consideration of the evidence as a whole". We can only assume that what she meant was that she was, in fairness to the applicant, leaving it before the court so that she might consider it later when she came to look at the evidence in the round.

8. The second matter which causes us concern is her observation that she had a "general discretion to exclude evidence on the basis of unfairness or general reliability". We shall later turn to consider the extent of such discretion.

9. The trial judge went on to say:

"The defendant elected not to give evidence on the general issues, but he requested that the evidence of DW1 and his earlier evidence be adopted for final consideration."

The evidence of DW1 was the evidence of Mr. Buchanan, a barrister, who had by leave given evidence both as to the admissibility of the statements and on the general issue. This ruling insofar as it stated that it would allow the evidence given on the voir dire by the applicant to be adopted for “final consideration” was wrong. The evidence of a defendant given in a voir dire cannot be treated as evidence in the trial. He has not given evidence upon the general issue nor, just as importantly, has he been cross-examined thereon. If the alternative procedure is followed, and we are assuming that it was in this case, the only proper course for a trial judge, if a defendant elects not to give evidence, is to refuse any request that the evidence given on the voir dire be adopted for final consideration except insofar as it might have to be considered when determining what weight should be given to the statement. The evidence of Mr. Buchanan stood on a different footing as he had, by leave, given evidence both as to admissibility and on the general issue.

10. The observation of the trial judge was, perhaps, conditioned by the ruling set out hereunder which she then made as, it seems, she clearly had it in mind to re-consider the evidence in the round. She said:

"Although I was satisfied that the caution statement had been given voluntarily, I again considered my discretion to exclude the caution statement, Exh.P3, in evaluating the evidence on the basis of fairness, and its general reliability. Having considered the conduct of the investigating police during the rest of the day after the first caution statement was taken in particular the taking of the second caution statement after the earlier complaint, and in the absence of any legal adviser, I determined that I could place little reliance upon the first caution statement, so I excluded it from my consideration. Exh.PP4 was also therefore of no further consideration."

11. A trial judge is of course entitled to re-assess an earlier decision to admit a confessional statement if doubt arose as to the propriety of its taking by evidence given at a later state of the trial. This was, however, not the position in the present case. There was no further evidence after the defence evidence had been given in the course of the alternative procedure. If the trial judge was really saying in the passage cited was that, upon a further consideration of the evidence as a whole, she had a doubt as to the voluntariness of the statement, then she was entitled, indeed required, to rule that it should not be admitted. She does not, however, appear to have been following that course as, at the beginning of the passage she repeats her finding that the cautioned statement was given voluntaily and does not resile from that ruling but says that she intends, because of the conduct of the police during the rest of the day, to place little reliance upon it. A trial judge does not have an overriding discretion based upon some general perception of unfairness to exclude or, indeed, to place “little reliance” upon admissible evidence. We shall turn in a moment to look more closely at the extent of the discretion of a trial judge to reject admissible evidence. Suffice to say that if she was satisfied that the statement was admissible, having been given freely and voluntarily, she was wrong, in effect, to reject it because of improper conduct by the police later in the day. In the outcome, the judge not having placed any reliance upon the confessional statement the only evidence left for consideration was the evidence of identification. This came principally from PW1 Mr.Chu Chi-hung.

12. Before examining that evidence we turn to consider the evidence which came from Mr. Buchanan. He stated that at mid-day on 3rd June he went to the police station to advise the applicant and that he attended again on 4th June for an identification parade. He said that in his opinion the actors were not suitable and that the Chief Inspector conducting the parade did not therefore hold it He told of the second parade which was to have been held at 9 p.m. and of a similar objection and a similar decision by the Chief Inspector not to hold that parade. There was then to be a third parade at 11 p.m. but it appears that that parade was not held because the applicant was then unwell. The next incident of importance occurred on the morning of 6th June when the applicant was brought to Western Magistracy where what we shall refer to as the "informal identification parade" was held. PW1 describes that in the following way

"6th June 1992 about 9.20 a.m. I was taken by Inspector Wong to the cell at Western Magistracy.

There I met mother Chief Inspector Chow.

I saw a line of persons in a room.

I was asked to see if there was anybody present who were the ones asking for money from my company that day.

As I went in I recognise D2 who was standing on last position on the right. There were about eight persons on the line.

I could recognise the person as we had stayed for over half how already, I had an idea.

When I was dealing with this matter I realised most important point was to remember I recognise the face."

This line up was composed of prisoners waiting to go up to court and behind whom stood police officers. In cross-examination the witness was asked about the parade and if could he remember the persons who were on it. He said:

"I cannot remember, but I had very clear idea already as with him for some half hour before. As soon as I entered I recognise him. I had a clear idea of him."

He was asked them if any of the persons on the parade appeared unshaven or have other distinctive features and answered:

"A        I did not look for so much detail. I walked from one end to the right I could recognize him immediately so I do not have to pay too much attention to the features of others.

Q.        So this man appeared to stand out or be different?

A         Actually I could recognise face of this person very well, but you may put it that way."

13. Mr. Buchanan also witnessed this parade viewing it from a vantage point in another room. He said:

“I couldn't see the face of person wearing the hood. As far as I can determine his body actions were not consistent with him looking at each person on line. He was taken by arm and taken along the line to the end. No stopping in front of each individual. From moment I recognize client to time male was at end of line was 60 seconds 2 minutes at the most. Why I didn’t understand.

The holding of the arm did continue from door to his getting to end of line. My impression.

Of the two men, the one doing the leading was the one holding the flooded man's arm. He was pulling or guiding the hooded man along.

No attempt made to stop at each male, just taken to end of line, guided by man holding the arm.

At end of the line, all I can recall is hooded man taken to end of line, something said then all split. I do not recall any action by hooded man.

I did not know what was going on.”

14. The judge found Mr. Buchanan to be an honest and reliable witness but was satisfied that he was "mistaken when he says that PW1 was led up to the line to the position occupied by the applicant". The trial judge said of this informal parade:

“It can only be described as being a very marginally better than a confrontation in that more persons than just the defendant were present, but from the ages of the persons on the line up, only two or three could be considered remotely comparable. A confrontation is the least satisfactory way of checking the accuracy of an identification.”

15. The trial judge found PW1 to be a competent, careful and impressive witness. As to his evidence regarding the identification, she said:

"I then had to consider his evidence in relation to the accuracy of his final identification. I bore in mind that even an impressive and careful witness can make a wrong identification. His positive identification of D2's voice on the telephone is an example. He may very well be right as to his identification, but it was based upon certain assumptions which could not be criticised but which do not reach the standard of proof required in the criminal courts. I also carefully considered the guide-lines as set out in the case of R. v. Tumbull. This was a situation where PW1 observed D2 and Ah Yin on two separate occasions, for a period of about 15 minutes on each occasion. The parties were face to face in good lighting, with no obstructions and no real distractions. The identification took place some four weeks after the incident, which is not an unduly long period of time. There were no assumptions to be drawn, it was a case of whether PW1 could or could not recognise the faces of the persons who had blackmailed him. I was satisfied that PW1 made an accurate identification on the 6th June, when he identified D2 at Western Magistracy.

16. In this appeal Mr. Grounds, who appears for the applicant, has argued two matters. Firstly he has suggested that the refusal of the trial judge to exercise her discretion and exclude the identification evidence was quite unreasonable. He submits that any judge taking proper cognizance of the unsatisfactory features of that evidence must have exercised his or her discretion to exclude it.

17. He next argues that there were wrongful evaluations made of the evidence, particularly as to the evidence of the decision of the police to hold the informal parade. Given the approach we take with regard to the first matter it is not necessary to canvass these latter submissions.

18. Mr. Bruce, who appeared for the Crown, submitted that evidence such as this could only be excluded as a matter of discretion, that the judge rightly refused to exercise her discretion and that this court has no ground for interfering therein.

19. We were referred to the landmark decision of R. v. Sang [1980] AC 404. I will refer to a summary of the important points in that decision contained in The Queen v. Cheung Hon-yeung Criminal Appeal No.132 of 1992 which states:

"As I read the judgments in R v. Sang, in particular that of Lord Diplock, there are three categories of admissible evidence which a judge has the power to exclude. The first covers admissions made by a defendant where it has not been proved that they were made freely and voluntarily."

This category has no application to the identification evidence. The decision goes on:

"The second is where the judge is satisfied that the prejudicial effect of the evidence outweight its probative value. Evidence of bad character and of similar facts are the two leading types of evidence of this kind. Another type of evidence falling within this category is where the evidence is equivocal, as it was in the case of R. v. Christie (1940 AC 545 where the Crown sought to lead evidence of the silence of the accused contending that in the circumstances it amounted to an admission."

This category, likewise, has no present application. The decision goes on:

“The third category is a much less certain one. This covers evidence obtained unfairly or by trickery. Into this category fall what might be described as quasi-confessions such as that in R. v. Payne [1963] l WLR 637. It is, however, to be noted that this is the only recorded case in which a discretion has been exercised to exclude evidence in this category. It may well be that the categories will in time be extended. However, as the law now stands, it seems clear from the decision in R. v. Sang that while a judge has a general discretion to ensure a fair trial that discretion does not extend to the rejection of otherwise admissible evidence outside the three categories set out above.”

There is a “general discretion” but it is limited to the exclusion of evidence obtained “unfairly or by trickery” and is exercised only when the use of such evidence will prevent the accused from obtaining a fair trial. There are two quite different considerations involving "fairness". In the first the court must look at the evidence impugned and determine whether it was unfairly obtained. In these second, being satisfied that there is evidence which was so obtained, the court must determine whether the admission of such evidence might prevent the accused from receiving a fair trial. If it might then the court must exercise its discretion and exclude it. The “fairness” involved in the first consideration is wholly different from the "fairness" involved in the second consideration.

20. The first, if established, calls into play the real issue which is whether the evidence is such as might prevent the accused from obtaining a fair trial.

21. Lord Diplock made this clear, in R. v. Sang when he said, at p.436:

"Outside this limited field (the power to exclude confessional statements not proved to have been made voluntarily) in which for historical reasons the function of the trial judge extended to imposing sanctions for improper conduct on the part of the prosecution before the commencement of the proceedings in inducing the accused by threats, favour or trickery to provide evidence against himself, your Lordships should, I think, make it clear that the function of the judge at a criminal trial as respects the admission of evidence is to ensure that the accused has a fair trial according to law. It is no part of a judge's function to exercise disciplinary powers over the police or prosecution as respects the way m which evidence to be used at the trial is obtained by them. If it was obtained illegally there will be a remedy in civil law; if it was obtained legally but in breach of the rules of conduct for the police, this is a matter for the appropriate disciplinary authority to deal with. What the judge at the trial is concerned with is not how the evidence sought to be adduced by the prosecution has been obtained, but with how it is used by the prosecution at the trial.

A fair trial according to law involves, in the case of a trial upon indictment, that it should take place before a judge and a jury; that the case against the accused should be proved to the satisfaction of the jury beyond all reasonable doubt upon evidence that is admissible in law; and, as a corollary to this, that there should be excluded from the jury information about the accused which is likely to have an influence on their minds prejudicial to the accused which is out of proportion to the true probative value of admissible evidence conveying that information. If these conditions are fulfilled and the jury receive correct instructions from the judge as to the law applicable to the case, the requirement that the accused should have a fair trial according to law is, in my view, satisfied; for the fairness of a trial according to law is not all one-sided; it requires that those who are undoubtedly guilty should be convicted as well as that those about whose guilt there is any reasonable doubt should be acquitted. However much the judge may dislike the way in which a particular piece of evidence was obtained before proceedings were commenced, if it is admissible evidence probative of the accused's guilt it is no part of his judicial function to exclude it for this reason."

Evidence is not automatically excluded because it has been obtained by some perceived unfairness. If there has been unfairness the judge is called upon to determine whether it is such as requires him to exercise his discretion to exclude the evidence. He must do so if the admission of the evidence will deny the accused a fair trail - that is the determining factor. This determination must depend upon the facts in each case.

22. The question in the present case was whether the procedural irregularities prior to and at the time of the informal parade, i.e. the unfairness, were such as to prevent a fair trial. The issue to be determined before deciding whether an exercise of discretion was called for could have been posed in a number of ways. The judge identified it using the following words:

"The fact that a parade is not conducted in accordance with the parade book does not necessarily invalidate the parade as long as it is conducted fairly."

23. Procedural irregularities by the police can, in many cases, be properly described as unfair to an accused but, such unfairness having occurred, the issue for the judge is whether the evidence obtained in consequence of the irregularities will, if admitted, prevent a fair trial. This was, although she may not have stated it in so many words, the issue with which the judge dealt. She was satisfied, properly in our view, that the real issue in the circumstances was whether there was any possibility that the irregularities might have occasioned a wrong identification? She carefully considered all of the evidence that had been placed before her. She was satisfied that PW1 was a competent, careful and impressive witness, that he had a good opportunity to observe the face of the applicant, that he was not prompted when making his identification and that he made an accurate identification. We cannot, given the above, hold that she was wrong to refuse to exercise her discretion to exclude the evidence.

24. This must, of course, not to be taken as approbation of the course adopted. The police are required to observe the rules which govern the conduct of parade. A failure to observe those rules might well, in some circumstances, require the exercise of a judge's discretion to exclude the identification evidence. This was, however, not so in the present case.

25. Mr. Grounds also argued that there had been a failure to consider what weight should be given to the evidence once it was admitted. We find that there was no such failure. The judge carefully examined the evidence of PW1, satisfied herself that he was a witness of truth and gave proper weight to his evidence. Indeed, reading the evidence as it appears in the record, there was ample ground upon which she could be so satisfied.

26. Nothing has been raised which occasions us any doubt as to the propriety of the conviction and the application for leave to appeal against it must therefore be refused.