THE QUEEN v. LAM YIP YING

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JUDGMENT

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Roberts, C. J.:

Preliminary

1. LAM Yip-ying appeals against his conviction for the murder of LAM Kwai-kam on 19th May, 1983.

2. At about 12.30 a.m. on 20th May, 1983, the defendant entered the Shaukiwan Police Station, in an obviously distressed condition. He was barefooted, had bloodstains on both his arms and said to the officer on duty, P.C. 13655, "I have killed someone at No.16, Holy Cross Path".

3. At about the same time, a report came through the police radio that there had been fighting at the address given by the defendant.

4. P.C. 13655 thereupon led him to an interview room, cautioned him and recorded, at about 0035, what the defendant said to him in reply in his notebook ("the first statement”).

5. At about 12.30 a.m. the same day, D.P.C. 13609 went to No. 16 Holy Cross Path, where he found LAM Kwai-kam with acid burn marks and a number of chop wounds. An axe was found in a pool of blood nearby. D.P.C. 13609, returned to the police station and asked the defendant if he was willing to take the police to No. 16 Holy Cross Path, to which the defendant agreed.

6. When they returned to the police station, D.P.C. 13609 made a post-recorded entry in his diary, at about 0235, after further cautioning the defendant (''the second statement").

7. LAM Kwai-kam died of his wounds before he arrived at the hospital. A post mortem examination showed corrosive burns on his face, neck, arm, elbow, shoulder and hands and a number of lacerations and deep cut wounds consistent with blows from an axe. The cause of death was a fracture of the skull with injuries to the brain.

The Statements

8. The first statement, which was signed by the defendant, asserted that the deceased had threatened to chop the defendant to death and added "it would be either he killed me or I killed him". In effect, it could be said to have been a plea of self-defence.

9. The second statement, also signed by the defendant, contains an admission by him that he had led the police to No.16 Holy Cross Path and that he had chopped and wounded LAM Kwai-kam with an axe. It also records that the defendant idfentified the axe found on the premises.

10. A third statement was recorded by P.C. 13609 and signed by the defendant at 1545 on 20th May, after a further caution. This contains an allegation that the deceased had persuaded the defendant's wife to leave him and go to live with the deceased, as a result of which there had been frequent quarrels between them.

11. The third statement went on to describe how, on May 19th, the defendant arranged to meet LAM Kwai-kam at the latter's request. A row broke out between them, LAM threatened him and went downstairs. The defendant went to his room, got a bottle of acid and an axe and lay in wait for LAM. He threw acid on him and attacked him with the axe.

12. This statement could be said to hint at provocation, a matter that was carefully left to the jury in the summing-up.

13. When the prosecution sought to tender the three statements in evidence, counsel for the defendant challenged their admissibility on the grounds that the defendant was illiterate, that he did not speak Cantonese with fluency or adequacy nor understand it fluently; that he was intimidated verbally into signing his name on the documents, and that he did not fully understand what it was that he was signing.

14. The judge held a voir dire to determine their admissibility. At the end of the voir dire, during which the defendant gave evidence, the judge ruled all of them admissible in the following terms -

"Nevertheless, the basic question to be asked and answered by any court when determining the issue which has been raised in this trial within a trial is that laid down by the House of Lords in the Deputy Public Prosecutor v. Ping Ling and that test, as it was formulated by Lord Hailsham and reaffirmed as recently as this year by the Court of Appeal in England, is this: Has it been proved beyond a reasonable doubt that the impugned statement or statements was or were made by the accused free from the fear of any prejudice excited in his mind by any police officer and free from the hope of any advantage implanted in his mind by any police officer?

 

          That is the test, that is the question that I have to pose to myself, and from the evidence given during this trial within a trial the answer is a resounding, yes, it has been so proved and all the evidence is in that direction.

 

           In his address in relation to the statements generally, Mr. Zia Bey said the issue is the nature of what the accused said and what he intended to convey. That is an issue but an issue to be resolved in the trial proper.

 

           I rule that all the statements were voluntarily made by the accused.

 

            The only question remaining is: Was there anything oppressive in the conduct of the police officers whilst he was in their charge, was there anything improper in their conduct whilst he was in their charge such as that I ought to exercise a discretion and not admit that otherwise admissible evidence? Again, I am satisfied beyond any doubt that there was no oppressive conduct and no impropriety such as to warrant the exercise of such a discretion.

 

           The matters which have been raised will, of course, no doubt, be raised again before the jury and I consider that the jury is the proper tribunal to consider the question as to whether the statements reflect accurately the nature of what the defendant said to the police officers and whether they reflect what he did really intend to convey.

 

             The statements will be admitted and of course that ruling refers to the evidence of the witness that the accused made a certain statement orally."

15. It became apparent during the hearing of the voir dire proceedings that there was no substance to the complaint that the defdndant was intimidated.

16. Thus the only effective objection to the admission of the statements was that the defendant did not have a sufficient understanding of Cantonese to express himself adequately to the police, or to realize what was being said to him, or read back to him, by the police officers who conducted the interviews and that he had not been able to read what had been recorded in them.

17. The record of the voir dire proceedings shows that the evidence of the police officers and of the defendant differed radically as to the defendant's ability to understand what was said to him and to communicate with them.

18. A11 the police officers asserted that, although the accused spoke Cantonese with a strong Chiu Chow accent, they were satisfied that he understood what was being said to him and was able to communicate with them in a way which they could understand.

The Judge's Ruling

19. The judge's ruling can be summarized as follows -

Arguments for appellant

20. The main argument put forward on behalf of the appellant was that the judge was in error in not himself deciding the question, of whether or not the defendant sufficiently understood the language in which he was questioned and in which the admissions were recorded, as a matter which was relevant to voluntariness; instead of ruling that it should be left to the jury to decide, in the light of the evidence put before them, what weight should be given to the statements.

21. A subsidiary argument was that the judge should in any event, having decided that the statements were voluntary, have excluded them in accordance with the general discretion which resides in a judge to exclude evidence on the ground of "unfairness" -see R. v. Leung Cheuk-fan and Others⁽²⁾ .

Voluntary nature of confessions

22. The classic test of the voluntary nature of a confession in Ibrahim v.  R.⁽³⁾was "that it was not obtained by 'fear of prejudice or hope of advantage excited or held out by a person in authority'". Hailsham, L.C. in D.P.P. v. Ping Ling ⁽¹⁾ added to this test the words "or by oppression".

23. A further gloss appears to have been placed upon the Ibrahim ⁽³⁾ formula by Seeray Ajodha v. The State ⁽⁴⁾ which decided that a confession obtainedi by fraudulent misreprentation must be regarded as involuntary. A police officer had falsely informed the defendant that he was signing a document of a different character, from that which he did sign.

24. In R. v. Sang ⁽⁵⁾, Lord Salmon commented that "a confession obtained by threats or promises is inadmissible as evidence against him, because to admit it would be unfair, which could be said to be a crisper version of the Ibrahim ⁽³⁾ test.

25. To summarize these authorities, a statement is involuntary, and so inadmissible, if it was obtained by threats; promises; oppression; or "deception" (to give fraudulent misrepresentation a simpler description).

26. None of the cases suggests that any discretion resides in a judge to widen the categories of conduct which will make a confession involuntary. If the Crown establishes that a statement was not obtained by "improper methods" to quote the phrase used by Hailsham, L.C. in Wong Kam Ming v. R.⁽⁶⁾ - that is to say by threats, promises, oppression or deception. - the statement is voluntary and admissible. Any dispute as to the accuracy of the statement will be a matter of weight to be determined by the jury.

27. This approach derives support from Ajodha ⁽⁴⁾. Lord Bridge (at p. 222) sets out a number of principles governing the respective functions of judge and jury in relation to incriminating statements tendered in evidence by the prosecution. Having dealt with cases in which the defendant asserts that the statement was not voluntary, he continues -

"(4) On the face of the evidence tendered or proposed to be tendered by the prosecution, there is no material capable of suggesting that the statement was other than voluntary. The defence is an absolute denial of the prosecution evidence. For example, if the prosecution rely upon oral statements, the defence case is simply that the interview never took place or that the incriminating answers were never given; in the case of a written statement, the defence case is that it is a forgery. In this situation no issue as to voluntariness can arise and hence no question of admissibility falls for the judge's decision. The issue of fact whether or not the statement was made by the accused is purely for the jury."

28. In essence, the defendant denied that he gave some of the incriminating answers. The passage quoted from Lord Bridge's judgment supports our view that, where improper methods are not alleged, it is a question of fact for the jury to decide whether the statement was made by the defendant and as to the accuracy of its contents.

29. It follows that an assertion by a defendant that he did not understand properly the contents of a statement is a matter which goes to the weight to be given to it and not as to its admissibility.

Residual Discretion

30. It was not in dispute at the hearing of the appeal that a residual discretion resides in a trial judge to refuse to admit, on the ground of unfairness, any evidence, including a statement which he has ruled to be of a voluntary nature (See. R. v. Sang ⁽⁵⁾, Lai King Ming v. R.⁽⁷⁾ and Leung Cheuk-fan v. R.⁽²⁾)

31. Unfairness may arise either by virtue of the circumstances in which a statement was taken or because its use in evidence would be unfair to the defendant.

32. The use of this discretion was referred to in the very recent case of Wan Kwong-sun v. R.⁽⁸⁾, in which Huggins, V. P. observed -

"The initial question which the judge had to ask himself was whether the statement was voluntary and the second question was whether he ought, in the exercise of his discretion, to exclude an admissible statement on the ground that it had been obtained in a manner which was oppressive. In his ruling he appears to have taken these questions in the reverse order, but nothing turns upon that. In our view there was evidence upon which he could properly find that the statement was voluntary. We could interfere with his exercise of his discretion only in a clear case, and we are not persuaded that he was wrong."

33. We follow this approach, save that we suggest, in view of the inclusion, by virtue of D.P.P. v. Ping Lin,⁽¹⁾ of "oppression" within the categories of misconduct which vitiate a confession, that Huggins, V.P. must have intended the word "oppressive" to mean "unfair".

Exercise of Discretion

34. When is the discretion to be exercised? To quote Lord Scarman in Sang ⁽⁵⁾ -

"The principle of fairness, though concerned exclusively with the use of evidence at trial, is not susceptible of categorization or classification and is wide enough to embrace the way in which, after the crime, evidence has been obtained from the accused."

35. Lord Frazer in Sang ⁽⁵⁾ expressed a similar view that-

"the purpose of the discretion is such that it should be sufficiently wide and flexible to be capable of being exercised in a variety of circumstances that may occur from time to time but cannot be foreseen."

36. So "unfairness" is not to be limited by category, but must be left flexible, though it has been established that it may operate where the prejudicial effect of a statement would outweigh its probative value - e.g. if a statement contains matter which is of small probative value as to guilt, but admits a number of previous convictions by the defendnat; and see R. v. Isequilla ⁽⁹⁾ and R. v. Steward ⁽¹⁰⁾.

37. It was argued on behalf of the appellant that the judge should have considered whether the circumstances of the recording of the statements, accepting the defendant's version of events, fell within the category of "unfairness".

38. It seems to us that this is what he did do. Having ruled the statements to be voluntary, and noted that their accuracy was a matter of weight for the jury, he asked himself whether they were obtained by "oppression or impropriety", making it clear that, had they been so obtained, he would have exercised his discretion to exclude them.

39. Thus, he has directed his mind to the possibility of excluding what he had ruled to be a voluntary confession in the exercise of his discretion. He has applied the test of "oppression or impropriety", within the parameters of "unfairness". There is, however, no magic in the use of the latter word, if the Judge's approach was essentially the same, as we think it was.

40. The application for leave to appeal against conviction is dismissed.

Footnote

41. It may be of help if we summarize the duty which lies on a trial judge at the end of a voir dire, when he must ask himself

42. The power to exclude confessions on the ground of unfairness should seldom be employed. Firstly, because it involves the Judge in withdrawing relevant and admissible evidence from the jury, whose function it is to weigh such evidence. Secondly, because in almost all cases, the kind of conduct which would constitute "unfairness" should already have excluded the confession as involuntary.

43. As this court has previously said, it is not necessary for a trial judge to give reasons for his finding as to whether a statement is voluntary or not, nor for his refusal to exercise his residual discretion.

(1)     [1976] A.C. 574 (HL) @ p.600.

(2)    Crim. App. No. 964/83

(3)    [1914] A.C. 599 (P.C.)

(4)    [1982] A.C. 204 (P.C.)

(5)    [1980] A.C. 402 @ p. 445

(6)    [1980] A.C. 247 at p. 261 B-D.

(7)    Crim. App. 380/83

(8)    Crim. App. 1437/83

(9)    [1975] 1 All E. R. 77 C.A.

(10)  [1972] 56 Cr.App. R. 272 CCC.