THE QUEEN v. LEE SHEK CHING

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JUDGMENT

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Sir Alan Huggins, V. -P.:

1. The issues in this case relate to admissions made pursuant to s. 65C of the Criminal Procedure Ordinance, the main question being whether the trial judge was justified in refusing to allow the withdrawal of such admissions.

2. The Appellant was arraigned before O'Connor, J. and a jury on a charge of murder. This was a retrial, the Appellant's previous conviction before another judge having been quashed on appeal. It was at that previous trial that the admissions had been made by counsel then representing him. Before us Mr. Sedgwick has contended that those admissions should never have been made and that O'Connor, J. should have allowed them to be withdrawn in the exercise of his discretion.

3. At the second trial it was further alleged that the admissions had been made without the defendant's authority, but after hearing evidence in the absence of the jury the judge disbelieved that allegation, and the point has not been pursued before us.

4. It is not, of course, disputed that, on the one hand, a judge has a discretion to permit an admission under s. 650 to be withdrawn and, on the other, that if not withdrawn any admission operates as an admission for the purpose of a retrial: sub-ss.(3) and (4) so provide. We are concerned with the circumstances which should lead a judge to grant leave to withdraw an admission.

5. It is necessary to indicate briefly the nature of the case against the Appellant and the facts admitted. The Deceased was found early in the morning on the side of a busy road with no less than 47 cut wounds on his body. It was the Crown's case that he had been killed inside a motorcar and subsequently dumped. The car had been borrowed the day before by the Appellant, who was said to have been driving it that night. The two men had met in Kowloon some time after 1.15 a.m., when both the Appellant's wife and a man called KWOK Chi-leung were present. The Appellant asked the Deceased for a loan, which was refused. The four of them, then, drove in the car and it was on this journey that the murder was alleged to have been committed. When the car was returned on the following day to its owner the driver's window had been changed, suggesting that the original (tinted) window had been broken during the period of the loan. The seat covers had also been removed and replaced. There was above the front passenger seat a cut in the roof lining, which had been taped over. Beside the body were found a blood-stained vest, which had been in the car when it was borrowed, and a piece of blood-stained, tinted glass. When he was arrested the Appellant was wearing a shoe stained with blood of the Deceased's blood group, a group to which none of the other persons identified as having been with him belong. He had on the day of the alleged murder gone to a bank with a cheque which had been removed from tile Deceased's body, and had cashed it. Later the same day he went to Macau and there pawned a watch and a cigarette lighter which' also had been taken from the Deceased's body. Shortly before his arrest he wrote four letters, in two of which he admitted that he alone was responsible for the murder. These are the letters to which the 11th admission related.

6. The Appellant was originally indicted with his wife and with KWOK Chi-leung, and it was in the context of that indictment that the admissions in question were made by the Appellant. Upon the retrial Kwok gave evidence for the Crown, whilst the wife was no longer before the court, and she was not a compellable witness against the Appellant.

7. The admissions which it was sought to withdraw were that:

 

2. (b)	On 15.1.1982 in the early hours of the morning the deceased was stabbed in and dragged from the Celica motor vehicle CB 1541 and left on Lung Cheung Road, Kowloon. LEE Shek-ching stole the following property from the deceased 's. person:-
	(i)	A wallet containing cash and personal papers including a bank cheque No .000007 from the deceased's cheque account at Citibank, Yaumati Branch.
	(ii)	One Rolex wrist watch model 6827 Serial No. 6539091
	(iii)	One Dupont lighter.

 

3. (a)	On 15.1.1982 between 12 p.m. - 1 p.m. at Citibank 72 Nathan Road, Tsimshatsui the first accused, LEE Shek-ching, alone tendered the stolen cheque referred to in paragraph 2(b)(i) above to a bank teller YIU Pui-ting (P.W.16), and obtained thereby the sum of $3,000 cash.
(b)	On 16.1.1982 in the early hours of the morning, some time after 3 a.m., at the Wing Shing pawnshop, 50 Yeuk Hen Sze Sai Main Road, Macau the first accused, LEE Shek-ching, alone pawned the deceased's property referred to in paragraph 2(b)(ii) and (iii) above to a pawnbroker TSANK Kwok-ming (P.W.15) and obtained thereby the sum of $6,600 cash.

 

                (Emphasis supplied).

8. (a)	Exhibit P5 is a blood stained knife, 10" long. It was used to kill the deceased and was found alongside the body of the deceased on 15.1.1982.
	This knife belongs to the first accused. It was purchased by the first accused [and his wife] as part of a two knife set called "open cut"from the Da Da Department store during the summer of 1981.
(b)	On 6.2.1982 at about 10.45 p.m. Detective Police Constable 2370 LAU Ming-fai (P.W.23) made a search at the premises occupied by [the first acused's wife ].
	*         *        *         *        *         *
11.	At about 6.30 a.m. P.W.21 saw the first accused seated at a desk writing a letter.
	At about 7.20 a.m. the police arrested the first accused in the premises of PW21. Up to that time the first accused had written four letters which are Exhibits P54, P55, P56 and P57.
	At the time of his arrest the first accused was found in possession of a knife 20" long (Exhibit P52) and a triangular file 9'' long (Exhibit P51) which belonged to him.

8. Mr. Sedgwick's contention necessarily is that the judge  wrongly exercised his discretion. He submits that the primary question was whether the prosecution would be prejudiced by allowing the withdrawal of the admissions, and he then argues that, in a capital case the widest latitude should be given to the defence upon an application to withdraw an admission. We do not accept either contention. Undoubtedly, where as a result of an admission the prosecution has done something which disables it from subsequently proving the fact admitted, the judge will be reluctant to grant an application to withdraw the admission. It does not follow that where the prosecution has not thus acted to its detriment an application will necessarily be granted. Equally, the fact that an admission has been made in a capital case is a material consideration, but the judge must still take into account all the circumstances.

9. In truth the substance of the argument for the appellant has been that the admissions here were such as no competent counsel would ever have allowed his client to make and that it would be unjust that the Appellant should be bound by them. The fact that counsel appearing for the Appellant was very inexperienced does not, in our view, justify our saying he was wrong: at the most it could explain why any admission which ought not to have been made was in fact made. It is always a strong thing to say that a course taken at the trial was manifestly wrong. Counsel representing a party at the time may well see the case in a very different light from those who read the record afterwards. To admit peripheral facts which the prosecution will have little difficulty in proving is usually a sound tactic. Even to admit less obvious facts can be a proper course where it is sought to persuade the jury of the complete frankness of the defendant and of his truthfulness upon what is ultimately the vital issue. Only someone who has been present at the trial can judge whether such a course had any prospect of success. We are not prepared to say in this case that counsel, at. the first trial should not have made these admissions.

10. Secondly it is argued that the changed circumstances at the second trial made it unfair that the Appellant should continue to be bound by his earlier admissions. It is said that as Kwok was now going to be a prosecution witness it was important to the defence that the admissions should not be available as corroboration of his evidence: moreover, there was no longer a possibility that the wife would give evidence and no reason to admit facts to which she might have testified. Much of this is true, but we are not persuaded that the result is to make the judge's decision unfair. Mr. Duffy for the Crown asked us to hold that the only factors relevant upon an application to withdraw an admission were those relevant to a change of plea. We prefer not to limit the judge's discretion in this way, although those factors will carry great weight.

11. Mr. Sedgwick further submitted that, having declined to permit the withdrawal of the admissions, the judge was wrong in refusing to leave it to the jury to consider the circumstances in which the admissions were made and the weight which they would attach to the admissions. We are satisfied that such a view is untenable. The statute provides that an admission under s.65C shall be conclusive of the fact admitted: it is not open to the jury to regard the admission as other than conclusive.

12. Again, complaint was made that the judge directed the jury that the admissions generally could constitute corroboration of Kwok's evidence and did not identify which of the admissions could constitute such corroboration. We see no force in this submission. The jury was bound to accept each and every admission as conclusive of the fact admitted. There were some admissions not capable of amounting to corroboration (e.g. those numbered 1, 4, 5 and 6) which the jury could not possibly have regarded as corroboration in the light of the judge's direction as to the meaning of that term. All the others could constitute corroboration.

13. The application is dismissed.

16th September 1986