WONG WAI MAN AND OTHERS v. HKSAR

FACC No. 1 of 2000

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 1 OF 2000 (CRIMINAL)

(ON APPEAL FROM CACC NO. 315 OF 1998)

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J U D G M E N T

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Mr Justice Bokhary PJ:

Certified question of law

1. Is it permissible for the prosecution to rely on differences between the confessional statements of two or more co-accused for the purpose of refuting allegations that those confessions were concocted by the police? That is the question which the Appeal Committee, in granting leave to appeal to this Court, certified as a question of law of great and general importance arising in the present case. The question refers to the police since the confessional statements in the present case were made to police officers. But of course the answer will apply not only to confessions made to police officers but also to ones made to other persons eg. investigators of the Independent Commission Against Corruption and officers of the Customs and Excise Department.

Factual circumstances

2. The factual circumstances in which the certified question arises are as follow.

3. Four accused were tried before Beeson J and a jury on a count of murder. They were charged that they had on or about 17 December 1996 murdered one Ma Chun-mo (to whom I will refer as "the victim"). These three appellants were the 1st, 2nd and 3rd accused. On 26 May 1998 they were convicted of murder as charged. The 1st and 2nd appellants, who were adults at the time of the offence, received mandatory life sentences. The 3rd appellant was only aged 15 at the time of the offence. So he received a determinate sentence. It was of 30 years' imprisonment. (The 4th accused was convicted only of the lesser offence of manslaughter, and is not a party to this appeal.)

4. On 27 August 1999 the Court of Appeal (Nazareth VP and Wong and Keith JJA) affirmed the appellants' convictions.

5. An unusual feature of the case is that the victim's body was never found. He left home on 17 December 1996 and was never seen again, dead or alive. There were no eye-witnesses as to what may have happened to him. There was no scientific evidence. Nor was there any circumstantial evidence upon which any of the accused could be convicted of any offence. On 19 January 1997 the victim's mother received a telephone call from an unidentified female caller who demanded $500,000 ransom for the victim's release. Whether this was a real ransom demand, a confidence trick or a cruel hoax is unknown. Who were behind it, whatever it was, is likewise unknown. Documents found in the victim's bedroom after his disappearance suggested that he had been an unlicensed moneylender to whom the 1st appellant owed $50,000 and to whom the 2nd appellant owed $100,000. But if the victim had been an unlicensed moneylender, he might have had any number of debtors equally to be suspected of having taken desperate measures to escape his clutches.

6. As against each accused all that the prosecution had was his disputed confession to the police. The confessions relied upon by the prosecution were of killing the victim, dismembering his body and disposing of his dismembered body. They came in the form of post-records of cautioned statements, written records of interview, video tapes of interviews and video tapes of scene-of-the-crime reconstructions. So the whole range was arrayed. But at the end of the day, the only evidence on which each accused could be convicted was his disputed confession. Each appellant testified that his confession was untrue, had been concocted by the police and was made under torture. So the reliability or otherwise of his disputed confession was the crucial issue in regard to each appellant. And it was accordingly imperative that the jury be properly directed on that issue.

The comparison which the judge invited the jury to make

7. In the course of her summing-up, the judge said this to the jury:

"There's one other matter in relation to the statements that you can take into account. I have told you, and I will be telling you again, that you cannot take into account in one defendant's statement what he said against other defendants. You can't look at the statements and compare them, to draw inferences of guilt against any of the defendants. However, for one purpose, you can compare the statements, and for one purpose only, and that is in assessing the question of how the statements were taken, and the question of the frameup; because the comparisons are valid in that context and in that context alone."

Having said that, the judge then gave the jury an illustration of what she meant. She did so by reference to what each of the four accused had said in his confession as to the number of cartons used for disposing of the victim's dismembered body. She pointed out that the 1st accused said that two cartons had been used while the 2nd, 3rd and 4th accused all said that three cartons had been used. And she then directed the jury thus:

"So you have to consider why, if the police are doing this frame-up, they allow such a major - or what might be a major difference occur between the two statements, or amongst the three statements that they have been concocting."

8. Thus the judge invited the jury to compare the confessional statements of the four accused whom they were trying: directing them in effect that the prosecution was entitled to rely on differences between the four accused's confessional statements for the purpose of refuting allegations that those confessions were concocted by the police. It is this direction which gives rise to the certified question.

9. The comparison exercise which the jury was invited to undertake appears to be unprecedented. And the judge did not forewarn counsel that she was going to take the novel step of inviting the jury to undertake such an exercise. So neither side had any opportunity to address the jury on what such a comparison did or did not suggest.

Rule against hearsay not engaged

10. A number of complaints are made on the appellants' behalf against the comparison exercise which the judge invited the jury to undertake. I will deal first with the complaint that the exercise violates the rule against hearsay.

11. The aspect of the rule against hearsay which often comes into play when a number of accused are tried together operates as follows. If any accused goes into the witness-box and testifies, his testimony is not hearsay and is evidence for and against his co-accused. Thus if it implicates or otherwise undermines the position of any co-accused, then his testimony is evidence against such co-accused. That is the position in regard to testimony i.e. what is said from the witness-box in the presence of, and subject to cross-examination by or on behalf of, the witness's co-accused. But the position is wholly different in regard to out-of-court statements. Such statements - which are called "confessional statements" whether they come in the form of full confessions or partial admissions - are a common feature of criminal trials in our courts. Such a statement is not evidence against anyone other than the maker. A confessional statement frequently says things against not only the maker himself but his co-accused too. But in respect of his co-accused, such things are mere hearsay which must be ignored.

12. In the case of R v. Walton (1989) 166 CLR 283 before the High Court of Australia, Mason CJ said (at p.288) that:

"The hearsay rule applies only to out-of-court statements tendered for the purpose of directly proving that the facts are as asserted in the statement." (Emphasis supplied.)

13. When the prosecution produces confessional statements of a number of accused persons and those accused persons allege that those confessions were concocted by the police, the two sides are of course pursuing diametrically opposed courses. The prosecution's purpose is to invite the tribunal of fact to find that the confessions are true, while the accused persons' purpose is the opposite one of inviting the tribunal of fact to find that the confessions are false or at least to doubt whether they are true. And if the prosecution were to rely on differences between the confessions for the purpose of refuting the allegations of concoction by the statement-taker or statement-takers, it would necessarily be doing so to further its own case that the confessions ? all of them ? are true. Thus it would be, to that indirect and limited extent, using against an accused what it puts forward as his co-accused's true out-of-court statements, even though it does not seek to rely on the contents of those out-of-court statements as the truth against him.

14. That is illustrated by the facts of the present case. The case run by the prosecution was that each accused had admitted the truth when he said that the victim's dismembered body had been disposed of in cartons. The direction complained of permitted the prosecution to rely on the discrepancy over the number of cartons used in order to show that those admissions were true. Thus in regard to each accused, the jury was invited to use against him, to the indirect and limited extent referred to above, what the prosecution put forward as his co-accused's true out-of-court statements.

15. Nevertheless the comparison exercise here in question stops short of using out-of-court statements for the purpose of directly proving, as against anyone other than the statement-maker himself, that the facts are as asserted in them. Accordingly the rule against hearsay is not engaged, and the complaint that it has been violated must fail.

16. That being so, there is no need to deal with the prosecution's submission that, if need be, a new exception to the rule against hearsay should be created to accommodate comparison exercises such as the one which the jury was invited to undertake in the present case. But since an invitation to create an exception to the hearsay rule may be made in some future case, it is as well to take advantage of the material placed before us in this appeal to offer a few words of caution as follows.

17. It is true that it was only by a majority of three to two that the House of Lords held in Myers v. Director of Public Prosecutions [1965] AC 1001 that it was for the legislature rather than the judiciary to create new exceptions to the hearsay rule. And in R v. Khan (1990) 59 CCC (3d) 92 the Supreme Court of Canada preferred the approach of the minority in Myers v. Director of Public Prosecutions. But it did so without referring to - and perhaps without the benefit of having cited to it - R v. Blastland [1986] 1 AC 41. In R v. Blastland all the other Law Lords hearing the appeal agreed with Lord Bridge of Harwich who (at p.52H) referred to the principle established in Myers "never since challenged, that it is for the legislature, not the judiciary, to create new exceptions to the hearsay rule". In Bannon v. R (1995) 185 CLR 1, a case before the High Court of Australia, Brennan CJ said (at p.12) that the creation of a new exception to the hearsay rule "would require a general review of the hearsay rule, its history, purpose and operation". The Law Reform Commission would appear to be the body best suited to conduct such a general review.

Not probative or, alternatively, more prejudicial than probative

18. There remains the appellants' complaint that the comparison exercise here in question is impermissible as being not probative or, alternatively, more prejudicial than probative. In dealing with this complaint, I begin by considering the sort of comparison exercise permitted ? indeed required - by the case of R v. Li Kar Wah [1970] HKLR 572.

19. In that case the Court of Appeal's predecessor the Full Court quashed the convictions of three accused upon a comparison of their confessional statements. For it was seen that those statements were so strikingly similar in substance and in form as to suggest, as a matter of commonsense, that the statements were not made by each accused independently but rather that all the statements were the work of a common author. In other words, the similarities went beyond those which one would expect to find when a number of persons give independent accounts of the same events. They were such as to point to common authorship. (As it happens, the allegation there was that the statements had been concocted by a single officer; but the comparison exercise would be just as valid if the allegation were that the statements had been concocted by a group of officers acting together. )

20. In R v. To Kai Sui [1980] HKC 112 the Court of Appeal said this at p.117 C-E:

"A judge in a voir dire is required to look at the narrative of each confessional statement in order to judge whether or not there are similarities or inconsistencies between statements by different defendants which indicate that they were not made in the manner the prosecution say, see R v. Li Kar Wah [1970] HKLR 572, a case to which defence counsel referred the judge at the conclusion of the voir dire. We consider that a judge ought in the trial proper, when considering the weight to be attached to the confessional statement of a particular defendant, consider it together with the statements of other defendants, for the purpose of attacking but not supporting the case against the defendant." (Emphasis supplied)

21. Before thinking it through, it is perhaps understandable rhetorically to ask: if the defence is entitled to rely on similarities, why is the prosecution not entitled to rely on differences? Is sauce for the goose not sauce for the gander?

22. The answer, upon analysis, is that it is not a matter of the law of evidence putting the defence in a position of unfair advantage over the prosecution. Whether it is permissible to compare the out-of-court statements of co-accused does not depend on which side is seeking to make the comparison. It depends instead on the purpose for which the comparison is sought to be made. Where that purpose is to show that the out-of-court statements concerned are false, there is no question of any accused's out-of-court statement being used against any other accused. And it is to be remembered that the prosecution too is entitled to rely on similarities between the out-of-court statements of co-accused for the purpose of showing that they are false. This can be seen from the decision of the Privy Council in Mawaz Khan v. R [1967] 1 AC 454, an appeal from Hong Kong.

23. In that case two men were jointly charged with murder. The prosecution's case against them was based on circumstantial evidence. In addition the prosecution relied upon the fact that each of them had in his statement to the police put forward a joint alibi which was demonstrated to be false. In his summing-up, Huggins J gave the jury this direction:

"The Crown's case here is not that these statements are true and that what one says ought to be considered as evidence of what actually happened. What the Crown say is that these statements have been shown to be a tissue of lies and that they disclose an attempt to fabricate a joint story. Now, members of the jury, if you come to that conclusion then the fabrication of a joint story would be evidence against both. It would be evidence that they had co-operated after the alleged crime."

24. That direction was held to be correct. Delivering the advice of the Privy Council, Lord Hodson referred to the classic proposition enunciated in Subramaniam v. Public Prosecutor [1956] 1 WLR 965 that a statement is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but that it was made. His Lordship then continued thus:

"Not only therefore can the statements of each appellant be used against each appellant individually, as the learned judge directed, but they can without any breach of the hearsay rule be used, not for the purpose of establishing the truth of the assertions contained therein, but for the purpose of asking the jury to hold the assertions false and to draw inferences from their falsity.

The statements were relevant as tending to show that the makers were acting in concert and that such action indicated a common guilt. This is a factor to be taken into account in conjunction with the circumstantial evidence to which reference has been made in determining the guilt or innocence of the accused persons. Telling lies to the police when enquiries are being made about a crime is of great significance ..."

25. In thinking that the decision in Mawaz Khan v. R warranted the judge's direction in the present case, the Court of Appeal overlooked a crucial difference between that case and the present one. In that case the prosecution was saying that the statements were false alibis. But in

the present case the prosecution is saying that the statements are true confessions. The answer to the certified question is not to be found in Mawaz Khan v. R. It is to be found by reference to other matters, to which I now turn.

26. Even though the comparison exercise here in question did not violate the hearsay rule, it would still be open to the following objection. To begin with, it is in the intrinsic nature of things that differences in the statements of two or more persons do not point nearly as strongly to the absence of concoction as striking similarities in such statements point to concoction. Furthermore, once the prosecution advances the argument that the differences suggest that the confessions were not concocted by the police, an opposite and probably at least equal counter-argument would automatically become available to the defence. This would be that if officers were evil enough to concoct confessions, then they might well be cunning enough to work in whatever differences would best hide their authorship. The exercise would thus become circular.

27. The point can, I think, be illustrated in the following way. Plainly an invitation to a jury to undertake the sort of comparison exercise here in question would be incomplete, unfair and unsafe unless counterbalanced by a cautionary admonition to consider whether the differences between the various confessional statements might have been artificially inserted in order to hide common authorship. No such admonition was given in the present case. And that omission makes it difficult to sustain these convictions on any view as to what is the correct answer to the certified question. In answering the certified question, however, one must proceed on the footing of the proper admonition being given. But then the prosecution's difficulty is that once such an admonition is given, any probative value which the exercise might otherwise have would be wholly negated or at least reduced to slight significance.

28. If, as I think, the probative value of the exercise is wholly negated, the exercise would not be probative at all and would therefore be impermissible as irrelevant. But if, on the other hand, the probative value of the exercise is not wholly negated but is nevertheless reduced to slight significance, then it would be necessary to consider whether the exercise is attended by such prejudice as outweighs whatever probative value it may have.

29. In R v. Tsui Shing-you [1980] HKLR 706 the Court of Appeal were concerned with the following direction to the jury:

"You do have to remember, however, that a confession made outside the witness box or an admission or a statement made outside the witness box is only evidence against the person who made it, not against other persons mentioned. It is a different matter when one accused person gives evidence in the witness box which involves or incriminates another accused, because if he does that, the other accused's counsel has the chance of cross-examining him on that, to test its truth and possibly destroy it. But what a person has said before the trial, particularly to policemen, is only evidence, if you think he did say it, and you think it's true, having regard to the circumstances in which it was made, against that particular accused. One thing you might consider in comparing the statements made by the 2 accused is the extent to which they agree. And you might ask yourselves whether they seem to be talking about the same events. " (Italics in the original.)

Delivering the judgment of the Court of Appeal, Roberts CJ said this (at p.712):

"There must, we fear, be some danger that, having been told that they might compare them 'in order to see whether they agreed', the jury would have assumed that they could compare them so as to decide which parts of each were true and which parts were untrue. If the jury did so, and found a similarity, they might decide that this indicated that the statements were true. If they found a discrepancy, they might decide to accept the version in statement 1 as more likely than that in statement 2 and so decide that statement 1 as true. This would mean, in effect, that the statement of one co-defendant was being used as evidence against the other."

30. Once a jury is invited to compare the out-of-court statements of two or more co-accused for one purpose, there arises the inherent danger that they would stray into comparing those statements for other purposes. The cases illustrating this danger include the New Zealand case of R v. Baynon & Pitama [1960] NZLR 1012, the Australian case of R v. Alexander [1979] VR 615 and the Hong Kong case of R v. Ma Hing Yip [1987] 1 HKC 154. There are very strong standard directions designed to steer the jury away from treating what one accused says in his out-of-court statement about another accused as evidence against that other accused. Nothing should be said to a jury which jeopardises the effectiveness of such directions.

31. As I see it, the comparison exercise which the jury was invited to undertake in the present case was at the very least fraught with danger. Assuming that such an exercise has some probative value, it is nevertheless attended by a measure of prejudicial effect which outweighs such probative value so as to render the exercise impermissible.

Answer to the certified question

32. In my judgment, the certified question of law is to be answered in the negative against the prosecution. It is not permissible for the prosecution to rely on differences between the confessional statements of two or more co-accused for the purpose of refuting allegations that those confessions were concocted by the police.

Conclusion

33. The appellants accept that the most favourable result for which they can hope is a retrial. They also accept that they should be remanded in custody pending their retrial. As to costs, the prosecution accepts that the appellants should have their costs in this Court and in the Appeal Committee if the appeal were to succeed.

34. In the result, I would allow this appeal to quash these convictions, order that the appellants be retried on a fresh indictment for the murder alleged against them, remand them in custody pending their retrial and award them their costs in this Court and in the Appeal Committee.

Mr. Justice Chan PJ:

35. I agree with the judgment of Mr Justice Bokhary PJ and the orders which he has proposed.

Mr. Justice Ribeiro PJ:

36. I have had the advantage of reading in draft the judgment of Mr Justice Bokhary PJ. I am entirely in agreement with it and do not have any observations to add.

Sir Denys Roberts NPJ:

37. I agree with the judgment of Mr Justice Bokhary PJ.

Lord Nicholls of Birkenhead NPJ:

38. I agree with the judgment of Mr Justice Bokhary PJ.

Mr. Justice Bokhary PJ:

39. The Court unanimously allows this appeal to quash these convictions, order that the appellants be retried on a fresh indictment for the murder alleged against them, remand them in custody pending their retrial and award them their costs in this Court and in the Appeal Committee.