HKSAR v. SO KAM TONG

CAC C 126/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 126 OF 2009

(ON APPEAL FROM HCCC NO. 247 OF 2008)

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J U D G M E N T

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Hon Stock VP (giving the judgment of the Court):

Introduction

1.  On 30 March 2009, the applicant was convicted of the offence of murder after trial by Barnes J and a jury.  He now seeks leave to appeal against conviction.

2.  The indictment alleged that on 15 May 2008, he murdered Yau Hiu-yin.

3.  It was accepted by the defence that he had killed Ms Yau.  Indeed, upon arraignment, the applicant pleaded not guilty to murder but guilty to manslaughter.  The issue at trial was his intention at the time he killed her.

4.  The issue upon this application arises from the failure of the prosecuting authority to disclose the fact that prior to trial another suspect had made allegations against the police investigating team, similar to those made by the applicant in his challenge to the admissibility of his confessions to murder.

The facts

5.  Ms Yau was aged 21 years at the time of the killing and had been a passenger services officer at Chek Lap Kok Airport.  She lived in Tai Po.  In the early hours of 15 May 2008 she took a company coach home and disembarked at Tai Po Fire Station.  She had with her a mobile telephone with which she had been communicating with her boyfriend, Hui Chun.

6.  At about 5 a.m. on 15 May 2008 Hui received from Ms Yau’s mobile telephone an unusual text message saying that a friend of hers had a money problem and that Ms Yau needed to take a few days off work and that he was to help her secure sick leave from her employer.  She did not return home or telephone her family and on the evening of 16 May 2008 her mother made a missing person report.

7.  From about 7:30 p.m. on 19 May 2008, her boyfriend started to receive text messages from the mobile telephone belonging to Ms Yau which demanded ransom for her return.  Money was raised in the sum of $100,000 and the notes were marked by the police and handed to the boyfriend for him to deliver to the man who was demanding money.  The text messages provided the boyfriend with details as to where the money was to be delivered.  On 22 May 2008, the money was deposited by the boyfriend, as instructed, on a bus.  The applicant was seen to collect it and go to his home, a room in Tai Wo Estate.

8.  Officers entered his home and there found the applicant with his three siblings.  They questioned him, at first to no avail; but when the marked money was found, he was arrested for the offence of kidnapping.  It was then 10:40 pm on 22 May 2008.  Under caution, he said: “It’s me to go to withdraw the money. … the SMS was sent by me by the girl’s machine.”

9.  On 23 May 2008, a videoed-interview was conducted with the applicant between 5:35 a.m. and 5:50 a.m.

10.  In the course of this interview, the applicant described how he had waylaid Ms Yau, obtained the PIN number of her money card and killed her so that she would not later identify him.  Later that morning he led the police to her body.

11.  On 23 May between 12:12 pm and 2:31 pm, there was another videoed-interview in which he recounted in much greater detail than in the first interview, the course of events leading to the killing.  It was a confession to murder and to the making of ransom demands.

The trial

12.  The applicant challenged the admissibility of these two video-recorded interviews, as well as of the evidence of leading the police to the deceased, alleging that the evidence was obtained as a result of violence and other oppressive conduct.  The challenge was unsuccessful.

13.  The applicant testified at trial before the jury.  His defence was that he did not intend to kill Ms Yau or to cause her serious injury; but rather to make her unconscious.

Non-disclosure

14.  The single ground of appeal is that there was material non-disclosure.

15.  The assertion arises from the fact that on 7 March 2009, which was ten days before the commencement of the applicant’s trial, a letter was written to the Commissioner of Police by the relative of a man called Chu Wing Keung.  It is common ground that the letter was not disclosed, before or during the trial, to those acting for the applicant.

16.  Chu was an ex-boyfriend of the deceased and had been questioned by police on 22 May 2008, the same day as the applicant’s arrest.  The allegation was that Chu had been arrested and interviewed by a number of officers who were also involved in the arrest of the applicant, and that Chu’s complaints of misbehaviour on the part of that team were markedly similar to the applicant’s allegations against the police in the trial with which we are concerned.

17.  The suggestion advanced on behalf of the applicant is that Chu’s allegations would, had they been disclosed, have been of possible assistance to the applicant at trial.  The allegations were made against the same team investigating the same case at about the same time, are similar in nature, and involve some of the same officers who gave evidence at the applicant’s trial.

Chronology

18.  The significance of Chu’s allegations is made evident by the following chronology.

19.  On 19 May 2008, the investigation into the murder of Ms Yau was taken over by Team 3 of the Regional Crime Unit (RCU), New Territories North Headquarters.  That team was headed by Detective Senior Inspector Tsang, and included Detective Station Sergeant Tsang and a number of detective constables.

20.  On 22 May at about 9:50 p.m., the team entered the applicant’s living premises.  He was reluctant to say anything in answer to questions put to him about where the girl, the money or her telephone was.  That reluctance changed once the money was found but, even then, all he said was that he had withdrawn the money and that he had sent the text messages with the girl’s telephone.  Until the first interview he said nothing about killing the girl or about where she might be found.

21.  At about 4 a.m. on 23 May 2008, he was taken to police headquarters and at about 5:30 a.m. the first videoed-interview was conducted.

22.  At about 6:30 a.m. he took the police to a water catchment area where the deceased’s body was pointed out by him and he was then taken back to Tai Po Police Station where he was kept in custody.  Later that morning he was taken back to the headquarters where from 12:10 p.m. the second videoed-interview was conducted which finished at about 3 p.m.

23.  Early the following morning he asked to see a solicitor and was later taken to a hospital for certain injuries to be examined.  The injuries were said by him at trial to have been occasioned by police assaults.  Later that morning he was asked whether he was willing to go for a videoed-reconstruction of the events leading to the young lady’s death but he declined.

Allegations on the voir dire

24.  The applicant testified upon the voir dire saying that when the police entered his room at Tai Wo Estate on the night of 22 May 2008, he was made to kneel down and was handcuffed; that the police asked him where the girl was and when he failed to co-operate in that regard, the Senior Inspector slapped him hard several times on his left ear and that two or three other officers pushed him down on the bed and punched him on his chest and abdomen and that they squeezed his private parts.  Then some money was found beneath a mattress whereafter the applicant was further beaten.  The Station Sergeant spoke to him alone saying that he would be subjected to more violence at the police station and that his parents and other family members would also be harmed, but if the applicant told everything, the sergeant could help his family to move house and could help the applicant to receive a one-third reduction in his sentence.  It was in consequence of this conduct and these threats that he gave the interviews.

25.  A solicitor gave evidence on behalf of the applicant in the voir dire saying that he visited the applicant at Tai Po Police Station in the early hours of the morning of the 24 May 2008 where the applicant complained to him that he had been assaulted by the police.  The solicitor said that he saw large areas of bruises over the applicant’s body, the front and the back.  He made a report to the duty officer.

26.  Evidence was also given by a doctor who saw the applicant at a hospital in Tai Po at about 1 am on 24 May.  His examination of the applicant had revealed tenderness and bruises over the chest wall, back and upper abdominal wall.  There was redness and mild blood on the left ear tympanic membrane. There was a mild abrasion wound over the right elbow.

27.  The judge ruled the evidence admissible and found that there were no grounds for its exclusion in the exercise of her discretion.

28.  The voir dire commenced on 17 March 2009 and concluded on 23 March 2009.  The jury was empanelled the following day and returned its verdict on 30 March 2009.

Mr Chu’s complaint

29.  On 7 March 2009, a letter was addressed to the Commissioner of Police by a Mr Lai Ming Hung.  He is the uncle of Chu Wing-keung.  In that letter, Mr Lai said that Chu’s father had visited him, Mr Lai, during the Chinese New Year and revealed to him that Chu had wrongly been suspected of involvement in the murder of Ms Yau.  The letter went on:

“During the investigation and arrest, the police who investigated the case forcefully squeezed his son’s lower parts during to force a confession. (His son) suffered severe psychological and physical trauma as a result!

            Later, (his son) was released after the ‘alleged real murderer’ was arrested.  His son was badly hurt mentally and thought that he was ‘chased by the Police’ and went to Tai Po Police Station to ‘turn himself in’, saying that he had made a ‘mistake’!  (His son) even went to Sheung Shui from Tai Po alone, climbed to the rooftop of ‘Kim Kiu’ Building and attempted to commit suicide.  (His son) was hospitalised for several months after being rescued.”

30.  On or before 20 March 2009, that is, whilst the applicant’s trial was in progress, the matter was referred to the Complaints Against Police Office (CAPO).  Chu was interviewed, though the interview took place in April 2008, after completion of the trial.  Officers in Team 3, the team engaged in the arrest of the applicant, were also interviewed by CAPO.

31.  It transpires that at precisely the same time as the applicant was under arrest at his premises at Tai Wo Estate on the night of 22 May 2008, Mr Chu was under arrest at his own premises, under suspicion for precisely the same offence, namely, the murder of Ms Yau; although it is right to say at once that on the following day he was unconditionally released and is entirely absolved from any implication in that offence.  It also transpires that closely engaged in his arrest and in an interview of him that night was Detective Station Sergeant Tsang, the same Detective Station Sergeant Tsang who went later that evening to the applicant’s premises and was, so the applicant alleges, the person who offered him threats and inducements.  Detective Senior Inspector Tsang, against whom the applicant made complaints of misconduct, was the person who ordered the arrest of Chu and was, on the night of 22 May 2008, in telephone contact with those who arrested Chu.

32.  Chu’s allegation, when interviewed in April, was that the officers who arrested him handcuffed him and squeezed his private parts and then punched him.  He added that after these assaults and his release, he was so distressed that he attempted to commit suicide and was thereafter admitted to hospital.  His admission to hospital is common ground and it also appears from reports placed before us that Chu has a history of some mental illness.  How reliable are his allegations is not possible, nor necessary, for us to determine.

The argument

33.  The essential point is that the letter of 7 May 2009 was not disclosed to defence counsel at or before the conclusion of the applicant’s trial.

34.  Mr Loughran, who appears for the applicant, contends that the non-disclosure was material in that Chu’s allegations and those made by the applicant are intimately connected and relevant in that, together, they suggest that the police were, for the purpose of this case, prepared to go to improper lengths “to get a conviction”. It would, in the circumstances, have been permissible upon the voir dire – and we suppose him to say, before the jury if the records of interview were admitted – to cross-examine the Detective Senior Inspector as well as Detective Station Sergeant Tsang about Chu’s assertions and, if necessary, to call Chu.

35.  It has not been entirely easy to distil the essence of the respondent’s approach to this application save to say that it is opposed.  In his written submissions, Mr Wong for the respondent referred us to a significant number of authorities which touch upon the question of cross-examination directed at collateral issues, particularly the issue of the credibility of a witness; pointing out that, as a general rule, the answers of a witness who is cross-examined as to credit are final and evidence to contradict those answers is not permitted.  The contention in those submissions is that the substance of the complaints made by the applicant and that of Chu cannot fairly be described as similar or strikingly similar and that all that there was by the time of trial was a bare assertion in a letter from Chu’s uncle, uninvestigated and unsubstantiated, so that there was no breach of the duty of disclosure and that nothing in the subsequent investigations “independently substantiates Chu’s complaints or discloses any wrongdoing on the part of the police.”

36.  In oral submissions, Mr Wong conceded that had the fact and nature of Mr Chu’s complaint come to his notice at or before trial he, had he been the prosecutor, would have disclosed it to the defence.  Once that concession was made – and it was correct to make it – he was, we believe, in some difficulty in explaining the respondent’s stance that its non-disclosure is in the event of no material consequence.  The suggestion seemed to be that it was disclosable since it might lead merely to a train of inquiry but that the non-disclosure mattered not because that train of inquiry would have led to a dead-end, in that it would merely have led to Chu and that it would have been impermissible for Chu to be called by the defence.

Analysis

37.  The problem with the respondent’s argument is that it presupposes that the question of Chu’s complaint was a matter that went to credit only and that the judge would have been bound for that reason to treat any answers given by criticised police officers as final.  In our judgment, however, Chu’s complaint went beyond credit.  It went to an issue in the applicant’s case, namely, the objective of the investigating team on the night of 22 May 2008 by reference to their conduct that very night in the course of the one investigation.  The defence case was that the police were desperate to find the missing lady and that the two senior officers running the team were willing to use and countenance violence in order to locate her.  The complaint which Chu had made provided potential support for the applicant to that end.  It was evidence that was capable of doing more than merely damaging the credibility of police officers, by reference, say, to their conduct on some other occasion and in some other case.  It was evidence about the behaviour of one police squad and its directing officers at exactly the same time in the course of precisely the same investigation which they were undertaking in respect of the applicant.  It had the potential, in other words, to bear on what truly happened to the applicant that night.

38.  The cases establish that the line between calling evidence going only to credit as opposed to addressing the issue in the case is not always an easy one to draw but in the circumstances which we have particularised – and the question is always fact and context specific – we are satisfied that cross-examination about what happened to Chu that night would be cross-examination as to an issue in the case and that, further, it would be open for the defence to call Chu.

39.  The respondent’s submissions hinged almost entirely upon the question whether the threshold requirements referred to by Li CJ in HKSAR v Wong Sau Ming (2003) 6 HKCFAR 135 for cross- examination as to credit have been met.  But that was a case decided in the context of an attack as to credit of police officers by reference to their veracity as assessed by a tribunal in another case on an earlier occasion.  A number of the other authorities to which we have been referred were directed at such a context and the distinction between that context and the present is stark.

40.  A prosecutor has a duty to disclose material which, on a sensible appraisal by the prosecutor, can be seen to be relevant or possibly relevant to an issue in the case.  This duty is imposed on the prosecution generally and extends to material in the possession or control of an investigating agency.  HKSAR v Lee Ming Tee and Securities and Futures Commission (Intervener) (2003) 6 HKCFAR 336.  The material in question, namely, the letter from Chu’s uncle, was undoubtedly in the possession of the police prior to the applicant’s trial, and the fact and terms of the complaint failed to be disclosed.  That the initial complaint was not a complaint directly by Chu and that his complaint had not by the date of trial been investigated by CAPO and that Chu’s reliability may be suspect because of his mental condition – all matters advanced by counsel for the respondent – are, in our judgment, in the context of this case, not to the point.

41.  Insofar as Mr Wong relies on judgments such as R v Edwards [1991] 1 WLR 207, at 216, for the proposition that “complaints to the Police Complaints Authority which have not been adjudicated upon would [not] properly be the subject of cross-examination”, that was not a proposition that was intended to apply to all cases and all circumstances.  As was emphasized in Wong Sau Ming, at para 24, “relevance is a matter of degree”, and those decisions which shy away from an inquiry into unresolved complaints against police officers where the complaints have no connection with the case under trial, are of scant relevance to a case of the kind with which we are concerned.

42.  The instinct of any prosecutor familiar with his duty would, we are sure, have been to disclose the Chu’s complaint at once to those acting for the applicant.  That would be so whatever the charge, let alone one as grave as murder; and it would be so no matter how strong the evidence.  Since that would have been the duty of a prosecuting counsel, it was the duty too of the police to bring it to the attention of the prosecutor.  No-one suggests in this case that the information was withheld with a view to denying the applicant a fair trial, but that is not determinative of the duty.

43.  We are satisfied therefore that there has been a material irregularity in the conduct of the trial.

The proviso

44.  Mr Wong has suggested that, were we to come to that conclusion, this is an appropriate case for the application of the proviso to s. 83 of the Criminal Procedure Ordinance Cap. 221.  Insofar as that suggestion is based on the contention that Chu’s complaint would not have affected the trial judge’s ruling, it is not a suggestion which we can countenance.  One cannot possibly speculate how matters might have turned out.

45.  We were in this regard, however, exercised by the strength of the case against the applicant.  We have considerable difficulty in understanding how the defence which emerged at trial, namely, that the applicant intended (merely) to render the victim unconscious could constitute a defence to an allegation of murder for it is hard to see how that can be interpreted as anything other than an intention to do really serious harm.  However, for the purpose of the present exercise, namely, the question of the proviso, we had to address the alternative scenario, which is to say, the strength of the prosecution case assuming, for present purposes only, that no evidence of the two interviews and of the applicant leading the police to the body, went before the jury.  Whether on the primary facts remaining, a verdict of guilty to murder is the only reasonable inference to draw is, we have concluded, a matter which must essentially be one for a jury and it would not be appropriate for us to deny the applicant the right to such a determination.  For these reasons, we decline to apply the proviso.

Conclusion

46.  Accordingly, the application for leave to appeal against conviction is allowed and, treating the hearing of the application, we allow the appeal, quash the conviction for murder and order that the applicant be retried upon the same indictment.  In relation to this indictment he is remanded in custody, even though that is somewhat academic since he is in custody in relation to another matter.