HKSAR v. CHAN KA CHUN

CACC 42/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 42 OF 1999

(ON APPEAL FROM HCCC NO. 415 OF 1997)

______________________

J U D G M E N T

______________________

Wong, J.A. (Giving the judgment of the Court)

Introduction

1. The Applicant was indicted with Chan Ki-nang, Philip Francisco in an indictment containing a total of 10 Counts. The Applicant was D1 and Chan Ki-nang was D2 in the amended indictment. After a lengthy trial before Burrell, J and a jury he was convicted by unanimous verdicts on all counts of conspiracy to commit robbery (Counts 1, 3, 6 and 9), murder (Counts 2, 4 and 10), conspiracy to commit murder (Count 5), and rape (Counts 7 and 8). He was sentenced to life imprisonment for the murders and sentences for the other offences ranged from 8 to 18 years totalling 26 years imprisonment to be served concurrently with the life sentence. He now seeks leave to appeal against his convictions.

2. A third man, Leung Sze-lai, Anthony, pleaded guilty to Counts 6, 7, 8, 9, 11 and 12 in the re-amended indictment and was sentenced to a total of 12 years' imprisonment.

The facts

3. For the purpose of our judgment, it is not necessary for us to go into the facts in great details in view of the grounds of appeal relied upon by the Applicant. The matter came to light after Miss Kwok Yin, the victim in Counts 5, 6, 7 and 8, made a report to the police on 27 January 1997 that she had been raped and robbed by two men in Cheung Chau on 21 January 1997. The police immediately started in-depth enquiries and as a result arrested Leung Sze-lai on 1 March 1997. During his interview with the police Leung implicated the Applicant who was arrested by the police the very same afternoon. The rest of the prosecution case can be taken from the summing up, which is succinct. This is what the judge said to the jury -:

" This case has been about four separate incidents. And, each incident concerns what happened to one particular young woman. I shall list them for you chronologically. The first incident I shall call the "Cheung Chau burial case". The prosecution say there that both the 1st and the 2nd defendants conspired together to rob Miss Cheung Wah-mei in about June of 1996, and then murdered her. That incident is covered by the first two counts in the indictments.

The second incident I shall call the "Hung Hom case". There the prosecution alleged that again both the 1st and the 2nd defendants conspired to rob Miss Tam Ngan-hang in August of 1996 and then murdered her. This incident is covered by the 3rd and 4th Counts in the indictment.

The third incident I shall call the "Kwok Yin incident". The prosecution alleged there that on about 21 January 1997, the 1st defendant and Leung Sze-lai conspired together to rob Kwok Yin and also conspired together to murder her. Also it is alleged that on 21 June the 1st defendant and Leung Sze-lai both raped her, and on the next evening of 22 January, the prosecution say that the 1st defendant raped her again. This incident is covered by Counts 5, 6, 7 and 8.

Finally, there is the fourth incident which I shall refer to as the "Shatin Shing Mun River case". Here the prosecution say that the 1st defendant and Leung Sze-lai conspired to rob Miss Yu Wai-man on February 17 of 1997 and the 1st defendant then murdered her, whilst Leung Sze-lai is guilty of her manslaughter. This is in Counts 9 and 10 of the indictment."

4. The Applicant was interviewed by Detective Sergeant Fan who had, by the time of trial, been promoted to an inspector. The first interview took place between 19:44 hours and 20:36 on 1 March 1997. The interview was in connection with the rape of Miss Kwok and was video recorded. It is not in dispute that the Applicant was cautioned for the rape. There were subsequent interviews on 2 March and 3 March 1997 by the same officer which were also video recorded. Suffice to say that the information provided by the Applicant in the interviews amounted to a full confession of each and every offence for which he stood indicted.

First Ground of Appeal

5. Mr Stirling who appears for the Applicant both before us and at the trial advances two grounds of appeal. The first ground is :

"The Learned Trial Judge erred in law in that he ought to have excluded from evidence those parts of the video taped interview of the Appellant conducted by D. Sgt 22382, Fan Wing-hong on 1st March 1997 (Exhibit P21) which related to the alleged victims Cheung Wah-mei, Tam Ngan-hang and Yu Wai-man and ought to have excluded from evidence the subsequent video taped reconstruction carried out on 2nd March 1997 (Exhibit P22) and on 3rd March 1997 (Exhibit P25) and a video taped interview of the Appellant conducted by D. Sgt 22382 on 3rd March 1997 (Exhibit P24).

Or alternatively, the Learned Trial Judge should in all the circumstances have exercised his discretion to exclude the said exhibits from evidence."

He submits that it is a general principle of law that where a person is in custody and under caution for a particular offence and when he begins to make an admission to a more serious offence unrelated in any way to the offence for which he is under caution he should, without delay, be cautioned in respect of the more serious offence. Sergeant Fan was in breach of this important principle when he failed to caution the Applicant during the interview on 1 March 1997 when the latter began to make admissions concerning an offence unrelated to Miss Kwok Yin. The Applicant was arrested and cautioned for raping Miss Kwok. He further submits that there has been a failure to observe principle (d) in the introduction to the Rules and Directions for the Questioning of Suspects and the Taking of Statements issued by the Secretary for Security which, he says, is a mandatory requirement under the common law. These Rules and Directions have now replaced what used to be called the Judges Rules. The failure to comply with principle (d) followed by the failure to administer the appropriate caution under Rule III is a serious breach of the law and must render the confession involuntary. He places considerable reliance on a decision of the Ontario Court of Appeal of Canada in R v Dick (1947) CR Vol 2 417. We have considered the judgment of Chief Justice Robertson and suffice to say we do not think that the decision can be taken as establishing any principle that a failure to caution and breach of rules constitutes a ground of involuntariness. Principle (d) says :-

"that when a police officer who is making enquiries of any person about an offence has enough evidence to prefer a charge against that person for the offence, he should without delay cause that person to be charged or informed that he may be prosecuted for the offence."

This principle must be read in conjunction with principle (e) which is overriding and applicable to all cases. It reads :-

"That it is a fundamental condition of the admissibility in evidence against any person, equally of any oral answer given by that person to a question put by a police officer and of any statement made by that person, that it shall have been voluntary, in the sense that it has not been obtained from him by fear of prejudice or hope of advantage, exercised or held out by a person in authority, or by oppression.

Mr Stirling also complains that there was a breach of Rule III. What does it say? This is Rule III in its entirety :

"(a) Where a person is charged with or informed that he may be prosecuted for an offence he shall be cautioned in the following terms :-

' Do you wish to say anything? You are not obliged to say anything unless you wish to do so but whatever you say will be taken down in writing and may be given in evidence.'

(b) It is only in exceptional cases that questions relating to the offence should be put to the accused person after he has been charged or informed that he may be prosecuted. Such questions may be put where they are necessary for the purpose of preventing or minimising harm or loss to some other person or to the public or for clearing up an ambiguity in a previous answer or statement.

Before any such questions are put the accused should be cautioned in these terms :-

' I wish to put some questions to you about the offence with which you have been charged (or about the offence for which you may be prosecuted). You are not obliged to answer any of these questions, but if you do the questions and answers will be taken down in writing and may be given in evidence.'

Any questions put and answers given relating to the offence must be contemporaneously recorded in full and the record signed by that person or if he refuses by the interrogating officer.

(c) When such a person is being questioned, or elects to make a statement, a contemporaneous record shall be kept, so far as is practicable, of the time and place at which any questioning or statement began and ended and of the persons present."

6. It is quite clear from principle (e) that whether a confession is admissible depends on whether it is voluntary. This principle does nothing more than to affirm the classic test laid down by Lord Sumner in Ibrahim v R [1914] AC 559 at 609. Prager (1972) 56 Cr.App. 151 added oppression as another ground for exclusion. In that case, it was held by the Court of Appeal (Criminal Division) in England that, though failure to comply with the Judges' Rules might render answers and statements liable in some circumstances to be excluded from evidence in subsequent criminal proceedings, the Rules were merely a guide to police officers conducting investigations and were not rules of law; that the judge was entitled to refrain from deciding whether there had been a breach of rule 2 in the light of his conclusion regarding the overriding issue of voluntariness; that no criticism could be made of the judge's approach to that issue; and that the statements had properly been admitted. Rule III does nothing to detract from the validity of the voluntary nature of the confession. In this case, the judge was satisfied that the statement was voluntary and admissible.

7. Alternatively, Mr Stirling submits that the failure to administer the appropriate caution at the appropriate time and the non-observance of the rules amount to unfairness and oppression and the judge, in these circumstances, ought to have excluded the confessions by an exercise of his discretion. In this context he cites the decision of the English Divisional Court in Sherman and Apps 72 Cr. App.R. 266. It is to be noted that this was a case dealing with the question of bail and application for a writ of habeas corpus. It is not really apposite to the issue before us.

8. The issue of admissibility was extensively explored before the judge at the trial and the judge admitted the statements after having considered all the evidence and submissions of counsel. This is what the judge in his ruling at p544 P-T and P545 A-F of the transcript said:

"The sole issue to be separately determined in relation to each defendant and in relation to each videoed statement is the question of voluntariness. If the prosecution has proved beyond a reasonable doubt on the whole of the evidence that a statement was made voluntarily by its maker, it is admissible. If, for any reason, it was not made voluntarily, it is inadmissible. If the circumstances in which it was made were oppressive, it must be regarded as having been made involuntarily. There is also a further safeguard, that a voluntary statement may still be excluded if it was obtained by unfairness or trickery.

After careful consideration of all the evidence relating to the manner and circumstances in which these videoed statements were taken, including the allegations made by the defendants, and having due regard for the 1992 Rules and Directions on the Questioning of Suspects, the court's decision is the same in relation to all seven of the records which the prosecution seek to produce, and it is that the court is satisfied as to their voluntary nature, and is further satisfied that there are no other grounds upon which this court should exercise its discretion to exclude them.

Accordingly, I rule that they are admissible and may be produced as part of the prosecution case."

9. It is clear that the judge had taken into consideration all the matters that ought to be taken into consideration.

10. The judge certainly did not overlook to remind the jury of the point that Mr Stirling had made in regard to the confessions and this appears at p56 J-T of his summing up :

"Members of the jury, whenever the interview goes on to a new case, or the 1st defendant is admitting the killing of a girl for the first time, Mr Stirling asked, why did not the sergeant give the defendant a new, that is a fresh, caution and tell him he might be charged with murder. The sergeant's answer was that at each time the interview moved on to new matters it did not occur to him to issue a fresh caution, such a caution would have supplemented the caution that had been administered at the start of the interview, nor, he said, did it occur to him to warn the defendant that he might be prosecuted for murder because he was concentrating and listening hard to what the 1st defendant was saying. Sergeant Fan did not agree that his failure to re-caution the defendant or to warn him was due to the fact that he knew what the 1st defendant was supposed to say, or because any mention of murder might dilute the inducement that the 1st defendant had been given, that he would only be convicted of manslaughter."

11. There may be occasions when confessions, although voluntary, are excluded, by the court in the exercise of its residual discretion as a result of serious breaches of rules which amount to unfairness. But a breach of rules does not automatically render an admission or confession inadmissible. The circumstances when a judge would exercise this discretion will be rare and only in cases where it is clearly demonstrated that exclusion is necessary to secure a fair trial of the accused : R v Chan King-hei and others [1995] 1 HKCLR 288. In R v Ng Wai-fai, Cr. App 238/89, Silke V-P had this to say at p6 of the judgment :-

"Clearly, the conversation was permitted to continue in breach of the Judge's Rules which, it must be remembered are rules for the guidance of police officers. While breaches of the Judge's Rules may indicate impropriety and unfairness, such a breach, of itself, does not render a confessional statement inadmissible...... And further this Court will only interfere with the exercise of his discretion by a trial judge if it can be shown that he was clearly wrong in the course he took or if it can be shown that he failed to consider matters which he should or have taken into consideration matters which he should not."

12. We agree. The law which governs the admissibility and exclusion of confessions is well established. The Judges Rules have been the subject in numerous judicial pronouncements throughout the common law jurisdictions in the last two centuries. The judge had considered all the evidence before him and was appraised of the full circumstances under which the confessions were made. There is no substance in this ground and it fails.

Second Ground of Appeal

13. The second ground reads :

"There was a material irregularity in that the Learned Trial Judge ought not to have permitted the witness Kwok Yin to give her evidence by way of video link"

14. Mr Stirling complains that Miss Kwok Yin was a mature woman and should not be categorised as a witness "in fear". By allowing her to give evidence in this way, it has caused prejudice and unfairness towards the Applicant in relation to the charges on the indictment relating to Miss Kwok. He submits that any fear she might have had that the Applicant would exact revenge on her was just as present whether she gave evidence on video link or in the witness box. The Applicant could still see and recognise her. She gave her name and age. This argument ignores the fact that she might become so frightened when she saw the Applicant face to face and as a result she was unable to give her evidence in a calm and undisturbed manner. He says that on the other hand the prejudice to the Applicant was very real and apparent to the jury and no direction by the judge could remove the prejudice from the mind of the jury.

15. The procedure of giving evidence by video link found its way into our Statute Book in 1996 and s79B(4) of the Criminal Procedure Ordinance, Cap 221 was brought into operation on 16 February of that year.

16. The application by the prosecution to make use of the procedure met with strong opposition by the Applicant and the judge ruled on it after hearing arguments. This is what he said at p545 N-Q of the transcript :

"The question is, are there reasonable grounds to conclude that the witness is apprehensive of her own safety or that of her family arising out of her knowledge, inter alia, of the fate of other victims allegedly at the hands of the defendant. In my judgment, her claimed fear in these circumstances is reasonable, and I consider this to be an appropriate case in which to exercise my discretion to permit her to give evidence by closed-circuit television."

17. The judge also directed the jury at p36N-S in these terms :

"The very first witness you heard was Miss Kwok Yin. First of all, let me say this about her evidence. She gave her evidence through a closed circuit television. The mere fact of her giving her evidence in that way is not something which either improves or diminishes her credibility or her value as a witness to you. You must treat her in the same way as you treat any witness who gives evidence in court, and regard her evidence as evidence that has been given in court in exactly the same way as anybody else."

18. In his written submission, Mr Chapman who appears for the Secretary for Justice cites a passage from the decision of the Court of Appeal in England in R v D.J.X., S.C.Y., G.C.Z. (1990) 91 Cr. App.R. 36. The Lord Chief Justice said at p40 :-

"The learned judge has the duty on this and on all other occasions of endeavouring to see that justice is done. Those are high sounding words. What it really means is, he has got to see that the system operates fairly : fairly not only to the defendants but also to the prosecution and also to the witnesses. Sometimes he has to make decisions as to where the balance of fairness lies and further (at p. 41)....... We take the view that ....... what the learned judge here did in his discretion was a perfectly proper, and indeed a laudable attempt to see that this was a fair trial : fair to all, the defendants, the Crown and indeed the witnesses."

19. Miss Kwok went through the most traumatic and painful experience of having been raped twice in two days by the Applicant and on the first occasion she was in fact gang raped by the Applicant and Leung Sze-lai. She was treated in the most depraved and revolting way. The Applicant and Leung took turns to rape her. One did it from behind while the other ejaculated into her mouth from the front. It is most likely that the fear and shock that she suffered will not go away for a long time to come which will be difficult to overcome.

20. This is a matter within the judge's discretion. The judge was clearly justified in exercising his discretion to allow Miss Kwok to give her evidence by way of video link. We will not interfere with what is a proper exercise of discretion by the judge.

21. This ground must also fail.

Conclusion

22. There is nothing in this appeal to cause us anxiety that the convictions are unsafe and unsatisfactory. Accordingly the application for leave to appeal against convictions is dismissed.