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CACC000490/1984
IN THE COURT OF APPEAL
BETWEEN:
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THE QUEEN
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and
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WONG Yun-fat
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Coram: Roberts, C.J., McMullin, V.P. & Silke, J.A.
Date of Hearing: 26th February, 1985.
Date of delivery: 15th March, 1985.
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JUDGMENT
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[Alternative procedures on the voir dire.]
Roberts, C.J. -
Facts
1. LING Hoi-yuen (D.1) and WONG Yun-fat (D.2) were jointly charged with the murder, on 25th November, 1981, of SO Ping-fat (SO) at a restaurant in Yuen Long.
2. At the close of the Crown case, the judge ruled that there was no case to answer against D.1 and accordingly acquitted him.
3. D.2 was found guilty of murder and appeals against his conviction.
4. SO was a customer in a restaurant in Yuen Long on 14th November, 1981. While he was sitting at a table, he was attacked and suffered about ten chop wounds to his head, forearms and 1eft wrist. He died some days later as a result of a fracture of the skull and bruising of the brain, caused by one of the head wounds which he had received.
5. The police made extensive inquiries into the murder, but without success until 6th March, 1984 when, acting on information, they arrested D.2 at his place of work in Hung Hom. He was taken in custody to the Tai Hing Police Station, where he made a statement under caution, which contained the following passage -
"Lo Fu Chai asked me to do this matter. At first, he told me to beat him up and that it would be given on two separate occasions, and that one thousand and five hundred dollars would be given to (me) first and that the remaining amount of one thousand and five hundred dollars would be given to (me) after it was done. That day, Lo Fu Chai gave me a knife. He went with me to the International Restaurant in Yuen Long. Lo Fu Chai ... 'pointed out' a man wearing a black cotton-wadded jacket. I am not acquainted with him. He sat there and was having tea. I went up and chopped him once on his shoulder with the knife. The man got up and hit me back madly. Therefore, I cared about nothing and chopped him a few times. Afterwards, I left. After this incident, I felt very remorseful. Sometimes when I was sleeping at night, (I) saw the deceased appear in front of me and this made me very upset''.
6. On the following day, D.2 took police officers to the restaurant where So had been attacked and, according to the record, made by one of them, said -
"Ah sir, the deceased was sitting here at that time. I went up and chopped"
7. When formally charged with the murder of SO, on 8th March, 1984,D.2 answered -
"I have mentioned about this matter already. It was LO FU CHAI who told me to do it. When I took action, LO FU CHAI was present. As I was in urgent need of money. At the time (I) just wanted to chop him and cause (him) injury. But, he got up and hit back. I found he was so stout, I got scared, (so) (I) chopped two more times. (I) did not expect he would die. I felt very remorseful afterwards."
8. The man who attacked SO was not identified by any witness, and the only evidence of substance against D.2 consisted of the confessional statements which he had made to the police.
9. Although two other grounds of appeal were put forward by counsel for D.2, they were without substance and we do not propose to deal with them.
10. The only substantial ground advanced on behalf of D.2 was that there had been a material irregularity in the conduct of the trial by reason of the procedure adopted in relation to the admissibility of D.2's statements to the police.
Procedure adopted
11. At the outset of the trial, counsel informed the judge that both defendants disputed the voluntary nature of the statements made by them and wished the question of their admissibility to be dealt with in the presence of the jury. The judge agreed to adopt this procedure. The Crown therefore called its witnesses, to establish the voluntary nature of the defendants' confessions, before the jury. The defendants then gave evidences, before the close of the Crown case, on the issue of admissibility only.
12. At the conclusion of the evidence for the Crown, the judge ruled that the statements made by D.2 were voluntary and admissible. The Crown then closed its case and D.2 gave no evidence on the general issue.
Ground of Appeal
13. Counsel for D.2 submitted that the judge had been wrong to adopt this procedure, even though he himself had asked for it during the trial. He explained his attitude by reference to a ruling by Macdougalli, J. in Criminal Case No. 240 of 1984, delivered on 21st November, 1984, some months after the trial of D.2, which took place between 4th and 28th September, 1984.
14. The same counsel, in Case No. 240, sought to persuade Macdougall, J. that the procedure, which had been adopted in the trial of WONG Yun-fat, should also be followed in Case No. 240.
15. Macdougall, J., however, having examined the authorities, came to the conclusion that there were two options open to a defendant who wished to challenge the admissibility of a statement made by him to the police -
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(a) |
to have the issue determined on a trial within a trial, during the course of the Crown case and in the absence of the jury; or
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(b) |
to have the issue determined in the presence of the jury, in which case the defendant should give his evidence on this narrow issue; if he wishes to do so at all, during the course of the defence case. |
16. The judge based his ruling on the Privy Council case of Ajodha v. The State.(l)
17. At page 139, Lord Bridge, who delivered the judgment of the Privy Council, dealt with the procedure to be followed in relation to the admissibility of confession statements in the following terms -
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As in relation to the substantive law governing the admissibility of confession statements, so also in relation to the proper procedure to be adopted at a jury trial in various circumstances in which a question as to admissibility may arise, the argument before their Lordships ranged over a wide field. Their Lordships would certainly not attempt to ...lay lay down an exhaustive code of procedure intended to cover every contingency, but here again it may be helpful to practitioners in some jurisdictions where difficulties seem to have been encountered, if they indicate their understanding of the appropriate procedure is a number of not uncommon situations.
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1. In the normal situation which arises at the vast majority of trials where the admissibility of a confession statement is to be challenged, defending counsel will notify prosecuting counsel that an objection to admissibility is to be raised, prosecuting counsel will not mention the statement in his opening to the jury, and at the appropriate time the judge will conduct a trial on the voir dire to decide on the admissibility of the statement; this will normally be in the absence of the jury, but only at the request or with the consent of the defence: Anderson (1929) 21 Cr.App.R. 178.
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2. Though the case for the defence raises an-issue as to the voluntariness of a statement in accordance with the principles indicated earlier in this judgment, defending counsel may for tactical reasons prefer that the evidence bearing on that issue be heard before the jury, with a single cross-examination of the witnesses on both sides, even though this means that the jury hear the impugned statement whether admissible or not. If the defence adopts this tactic, it will be open to defending counsel to submit at the close of the evidence that, if the judge doubts the voluntariness of the statement, he should direct the jury to disregard it, or, if the statement is essential to sustain the prosecution case, direct an acquittal. Even in the absence of such a submission, if the judge himself forms the view that the voluntariness of the statement is in doubt, he should take the like action proprio motu.
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3. It may sometimes happen that the accused himself will raise for the first time when giving evidence an issue as to the voluntariness of a statement already put in evidence by the prosecution. Here it will be a matter in the discretion of the trial judge whether to require relevant prosecution witnesses to be recalled for further cross-examination. If he does so, the issue of voluntariness should be dealt with in the same manner as indicated in paragraph 2 above.
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4. Particular difficulties may arise in the trial of an unrepresented defendant, when the judge must of course, be especially vigilant to ensure a fair trial. No rules can be laid down, but it may be prudent, if the judge has any reason to suppose that the voluntary character of a statement proposed to be put in evidence; by the prosecution is likely to be in issue, that he should speak to the defendant before the trial begins and explain his rights in the matter. |
18. While it can be argued that the views expressed by Lord Bridge are obiter, and are not intended to be comprehensive, it is clearly desirable for this court to follow them, so far as they are applicable to the circumstances of Hong Kong.
19. The clear inference from paragraph 1 is that a trial on the voir dire may be conducted either in the presence or in the absence of the jury.
20. If the defence chooses the issue to be decided in the presence of the jury, the procedure set out in paragraph 2 should apply, Thus the defendant must, if he wishes to give evidence on that issue, do so as part of the defence case.
21. In R. v. KEUNC Sin-chi (2), this Court, having referred to Ajodha(1), commented as follows, at page 3 -
"The better practice is, therefore, for a trial judge to ascertain categorically whether defence counsel is objecting to the production of a defendant's statement or merely seeks to challenge its truth, whether defence counsel wishes a trial within a trial to be held (and, if so, whether in the presence or absence of the jury), whether the defendant wishes to give evidence on the issue of admissibility and whether counsel wishes to address him on that issue. If a trial within a trial is held, the judge should then make a clear ruling as to the admissibility of the statement before hearing the defendant's case on the general issue."
22. This passage supports the contention that the issue of admissibility can be decided either in the presence or absence of the jury - though the distinction between the alternative procedures would perhaps have emerged more clearly if the words "voir dire" had been used instead of "trial within a trial", where it first appears in the above quotation; and if "in the absence of the jury" were added after "trial within a trial" where it next so appears.
23. We conclude that the procedure adopted by the trial judge in this case, although he took this course at the request of the defence and with the acquiescence of the Crown, was wrong, and that the proper procedure is that which was adopted by Macdougall, J. on.21st November, 1984.
24. There is no doubt that the procedure, whereby the trial of the issue of admissibility takes place in the absence of the jury, is the normal practice; and we think that it is proper for a trial judge to assume that, if the admissibility of a statement is challenged, the issue will be decided on a voir dire in the absence of the jury. Only if the 'defence specifically asks that the issue of admissibility be dealt with in the presence of the jury, should the alternative procedure approved in paragraph 2 of Ajodha(1) be followed.
Application of the proviso
25. As a result of the view which we have formed, we find that there was a material irregularity in the procedure adopted.
26. We have to decide, however, whether we are satisfied that no miscarriage of justice occurred, so that the proviso can properly be applied.
27. The submission made on behalf of D.2, as we understand it, was that although the judge adopted the procedure, which was followed, at the specific request of the defence, D.2 should still be entitled to an acquittal on appeal if that procedure was later found to be irregular.
28. The jury had heard the evidence of D.2.on the narrow issue of admissibility and might well, counsel submitted, have been prejudiced on the general issue by the view which they had formed of D.2.'s credibility on the narrow issue of admissibility.
29. However, the judge properly directed the jury that he real question for them was to decide whether they believed the statement to be true or substantially true. If they did, it was open to them to attach such weight to it as they thought fit.
30. The jury's verdict makes it clear that they must have accepted that the statement made was substantially true, since there was no other evidence of any weight against the defendant..
31. No doubt, in deciding that they accepted the statements as true, the jury must have formed a view, adverse to D.2, as to his credibility on this issue. Once they had done so, there was no other evidence on which they could exercise the opinion which they had formed as to the credibility of the defendant on the narrow issue of the admissibility of his confessional statements.
32. The contents of the statements, once accepted as true, provide overwhelming evidence against.D.2. Although the judge left the issue of manslaughter to the jury we think he was over generous to the defendant and that, on the basis of D.2's admissions, no other verdict but that of murder was open to the jury.
Thus, although there was a material irregularity of a procedural nature, we are satisfied that there was no miscarriage of justice, that this is a proper case in which the proviso should be applied and that the appeal should be dismissed.
(1) [1981] 73 Cr. App. R. 129
(2) Cr. App. No. 965 of 1983
Representation:
Mr. D. Keane, Q.C. with Mr. John Lee (D.L.A) for Appellant
Mr. A. Howard, S.C.C., for Respondent.
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