THE QUEEN v. LEE SHEK-CHING

Headnote

                A husband was charged with murder. In the same indictment his wife was charged under Sec. 90(1) of the Criminal Procedure Ordinance with doing an act without lawful authority or reasonable excuse with the intent to impede his apprehension or prosecution. She gave evidence in her own defence and was acquitted. The husband was convicted.

                The evidence given by the wife was very damaging to the defence of the husband. On an appeal by him against his conviction it was submitted that the wife ought never to have been charged - in which case her evidence would not have been available to the jury - either because a wife's immunity at common law must now be taken to include Sec. 90(1) offences, or alternatively that her marital obligations provided lawful authority or reasonable excuse.

                The first submission was rejected. As to the second it was held that although marital obligations might provide justification on some occasions, they would not have justified the wife's conduct in the present instance.

                The appeal was allowed however, and a retrial ordered, on the ground that while general principles required, as much for husband and wife as any others, that persons charged jointly should be tried together and that accessories should be tried together with the principal, in the very unusual circumstances of the case a miscarriage of justice had been occasioned by the judge's refusal to order separate trials.

                The inclusion of argument or submission in the Notice of Appeal was criticized.

BETWEEN

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JUDGMENT

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Cons, J. A. delivered the judgment of the Court:

1. The Applicant was on the 28th January this year convicted of murder before Hooper J. and a jury. The murder itself was committed on the 15th January three years earlier. The victim was a solicitor's clerk whom the Applicant had instructed professionally from time to time. They had met that evening by appointment. According to the Applicant the purpose of the meeting was to discuss the return of $4,500 to which he was entitled by reason of over payment of professional fees. According to the Applicant's wife however, the Applicant was in need of further professional services, but did not have sufficient resources. He wanted the victim to underwrite the cost of those services in the mean time, but the victim refused. Also present that evening was one Kwok Chi Leung, a friend of the Applicant, and his wife and whose occupation may be colloquially described as a nightclub bouncer. The Applicant admitted that his purpose in asking Kwok along was for Kwok to exert some form of pressure upon the victim, although the Applicant claimed that in the end kwok went far beyond the bounds of what he had initially expected.

2. In any event, no money or underwriting arrangement was forthcoming, and the Applicant agreed to drive the victim home in the borrowed car that he was using. The victim took the passenger seat next to the Applicant, who was driving, and Kwok and the Applicant's wife sat in the back. It was in the car that the murder was committed. As the Judge observed in the course of his summing up, whoever did it "wanted the victim well and truly dead". He received forty-seven cut-wounds, one of which went right across his throat from ear to ear, and one stab wound.

3. The Applicant disposed of the body, with Kwok's help, in the Lung Cheung Road. He was careful first to remove from it a blank cheque which the victim had been carrying, his Rolex watch and a Du Pont lighter. The next day, or later the same morning, as the murder had been committed in the small hours, the Applicant obtained $3,000 cash on the cheque and departed with Kwok for Macau.

4. The money did not last long, and on the following day, the Applicant pawned the victim's watch and lighter for $6,600. That money went equally quickly, and the Applicant telephoned his wife to bring further funds, which she did, paying the hotel bills which had accumulated, and buying tickets for the return journey. All three, that is the Applicant, Kwok and the wife, returned together to Hong Kong on the 18th January.

5. It is not necessary for the purposes of this appeal to recite all that happened subsequently, but we ought to explain that the Applicant, having in February made statements to the police which he now admits to be untrue, was released on police bail, only to disappear underground. He did not surface until the beginning of July last year, which accounts the long delay in bringing him to trial.

6. When he was eventually indicted, his wife was charged as well, under Sec. 90(1) of the Criminal Procedure Ordinance, which provides:-

"if a person has committed an arrestable offence, any other person who, knowing or believing him to be guilty of the offence or of some other arrestable offence, does, without lawful authority or reasonable excuse, any act with the intent to impede his apprehension or prosecution shall be guilty of an offence."

The form in which the count against her was finally left to the jury was that she, with the appropriate intent, "departed from Hong Kong for Macau to offer financial assistance to" her husband. She gave evidence in her own defence and was acquitted by the jury.

7. We should also mention that she was found not guilty, on the direction of the Judge at the close of the prosecution case, of a similar charge in respect of Kwok. (He too was charged with the murder, but applied for and was granted a separate trial. We understand that he was convicted, and an appeal is pending.)

8. The evidence given by the wife was mainly by way of confirming, as being true, statements that she had made to the police on the 3rd, 4th and 5th July 1984, that is after the arrest of her husband. The statements were already in evidence as against her by having been put in as part of the Crown's case. It is not necessary to go in detail into what the wife said. It is sufficient to observe that her evidence was very damaging to the Applicant's case. Firstly, it discredited his evidence as to the reason of the meeting that evening. Secondly, it indicated, by the recital of an earlier conversation between Kwok and the Applicant, a prior intention on the part of both to do away with the victim if he was unwilling to provide money. And thirdly, the wife's version of the incidents in the car was such that, as the Judge put it to the jury, "If it is true, it can mean only one thing, and that is that the 1st Defendant was one of the killers". The Applicant suggested at the trial that the killing had occurred in a tussle between Kwok and the victim in the car; that all he, the Applicant, did was to intervene in an attempt to stop the fight, being assaulted by the victim for his pains; and that all his subsequent actions had been forced upon him by Kwok, who had threatened that otherwise he would drag the Applicant's wife into the affair.

9. It is not disputed that the evidence of the wife could not have been adduced against the Applicant at the instance of the Crown. It was available for consideration by the jury simply because the wife, having been charged as we have indicated, chose to give evidence on her own behalf.  It is argued by Mr. Sedgwick, who appears for the Applicant, that she ought never to have been so charged, - and the evidence thus ought never to have been made available - either because a wife by virtue of her matrimonial status is incapable in law of committing an offence against Sec. 90(1), or alternatively that the same status gives her an automatic defence of lawful authority or reasonable excuse.

Common Law Immunity

10. It is well settled that at common law a wife cannot be convicted as accessory after the fact to a felony committed by her husband. The reason for this has been said to be either that it would be repugnant to her common law obligation to give help and comfort to her husband and to respect his confidences, an approach first recorded by Staunford ⁽¹⁾, followed by Coke ⁽²⁾ and Hawkins ⁽³⁾ and applied in the Courts as e.g. in Reg. v. Mary Good ⁽⁴⁾; alternatively that it derives from the presumption that any act done by a wife in the presence of her husband is deemed to have been done under his coercion, suggested by Blackstone ⁽⁵⁾ and applied e. g. in R. v. M'Clarens ⁽⁶⁾ and R. v. Holley ⁽⁷⁾.

11. By section 1 of the Criminal Law Act 1967 the distinction between felonies and misdemeanours was abolished in England, and the special provisions relating to felonies replaced by those relating to misdemeanours. Naturally that legislation spelled the end of the common law offence of accessory after the fact to felony. However there was no similar offence in relation to misdemeanours. In order to fill the void that was left, the Criminal Law Revision Committee had recommended a statutory offence which became law in Sec. 4 of the Act and which is in terms the same as our Sec. 90(1) However Sec. 1 was not enacted in this jurisdiction and the common law offence still continues to exist: The Queen v. Ly Cam-Sang⁽⁸⁾. It is argued therefore that not only does the wife's common law immunity continue, which cannot be gainsaid, but that somehow it prevails also in relation to conduct which would otherwise be an offence against Sec. 90(1).

12. With respect we do not agree. The immunity given by the common law is in respect of an offence created by, the common law. It is not to be presumed to follow that it extends to a statutory offence which, although similar, casts a wider net.  Arrestable offences, with which Sec. 90(1) is concerned, may be misdemeanours as well as felonies, and the subsection my capture circumstances which would not be sufficient to constitute the common law offence. There is nothing in its language which indicates an immunity for wives. We see no reason to imply such an intention do the part of the legislature.

Lawful Authority or Reasonable Excuse

13. We have now to consider whether the wife's marital status will nevertheless provide her with "lawful authority or reasonable excuse" - in the present context we are not disposed to draw any distinction between the two phrases.

14. The submission is based largely on a suggestion made in an article which appeared in [1978] Criminal Law Review and which Mr. Sedgwick generally adopts as part of his argument. Basically it is that although the common law immunity may have fallen with the abolition of felonies as such, the reasons behind that immunity remain and should continue to afford similar protection to the modern wife.

15. We do not find the suggestion made good in the present instance. As we indicated earlier, the wife's immunity at common law rested either on duty or coercion, or perhaps on a combination of the two. Coercion can no longer be considered in this respect for Sec. 100 of the Criminal Procedure Ordinance requires it first to be positively proved. Duty alone remains. We accept that a wife in modern Hong Kong is not required to behave as she would have been in England some four hundred years ago. Even so we think it may be that on occasion her marital obligations, at least in so far as they apply within the matrimonial home, would afford sufficient excuse for what would otherwise be a breach of Sec. 90(1). However we do not think that the same obligations must necessarily excuse- and that is the standard which the counsel has to establish if the argument is to succeed - assisting her husband to maintain his living beyond the jurisdiction.

Undisclosed Statement

16. We turn now to a further ground of appeal. After the jury had retired and while they were considering their verdicts, counsel who then appeared for the Crown, combing through his bulky pile of documents, came across two statements made by the wife to the police on the 6th and 7th February 1982, that is, at the time the police were making their initial inquiries and before her husband had absconded. The statements came as a surprise to counsel for the statements to which we have already referred were the only statements which counsel recalled having seen in the preparation of the case. It would seem that somehow they had found their way into a file which would not be called for until after the trial was concluded. Neither defence counsel had been supplied with a copy.

17. It is the first of the two statements that is important. Therein the wife declared that the last time she had seen the victim was two or three years earlier, - which would put it about 1979 or 1980, - when he had dealt with a traffic case for her husband. If that were true, then what she said in 1984 was not; when asked by the police what she had done and with whom she had been on the night of 14th January, she had replied that she could not remember. If that were true, her memery in such detail two years later would be open to comment.

18. Where a prosecution witness gives evidence that is materially inconsistent with a statement given earlier by that witness, and which is in the possession of the prosecution, it is expected that counsel for the Crown will so inform the defence and make a copy of the statement available unless that has already been done. It is conceded in this appeal that counsel would in the circumstances have done the same, that is, he would, had he remembered them, have passed the earlier statements to counsel for the Applicant, who in his turn would have used them in an attempt to discredit the wife.

19. It is well settled that this Court may order a retrial if there become available, subsequent to the original trial, statements which would have afforded material for substantial challenge to the credibility or reliability of a witness on matters vital to the case for the prosecution: R. v. Mohammed Fiaz Baksh ⁽⁹⁾. However we are not persuaded that we ought to interfere in the present instance.  We do not find it surprising that so shortly after such a traumatic experience the wife should have denied any knowledge or connection with it. The position would be completely different when she had had ample time to recover. We should also add that quite apart from her evidence, and although there was otherwise no direct testimony as to what took place in the car, there was considerable other cogent evidence that the Applicant had played an integral part in the murder.

Separate Trials

20. Some considerable time after the trial had opened, and after the Applicant had been put in charge of the jury, counsel who then appeared for the Applicant applied for his client to be tried separately from the wife.  The application was refused by the Judge. Of course, it was a matter for his discretion. As was said in Rex. v. Gibbins and Proctor ^{(10) :}

"The rule is, that it is a matter for the discretion of the judge at the trial whether two people jointly indicted should be tried together or separately. But the judge must exercise his discretion judicially. If he has done so this court will not interfere, but that is subject to this qualification, if it appeared to this court that a miscarriage of justice had resulted from the prisoners being tried together it would quash the conviction."

21. That passage was approved in Rex. v. Grondkowski ⁽¹¹⁾ where Goodard L.C.J. observed that in the judicial exercise the judge "must consider the interests of justice as well as the interests of the prisoners". In the present case the judge was faced with a three way exercise.  He had to balance the competing interests of justice, of the wife, and of the applicant.

22. With every respect to the judge, he does not appear to have undertaken any balancing exercise at all. He seems to have been content to satisfy himself that despite sec. 54(1)(c) of the Criminal Procedure Ordinance, which provides that the wife or husband of a person charged is not to be called as a witness except upon the application of the person charged, the wife was, in the circumstances, a competent witness in her own defence without the consent of the applicant and that, should she choose to give evidence, then her evidence would be evidence for all purposes in the trial.

23. The most usual ground put forward in an application for separate trials is that the defence of one defendant will necessarily entail an attack upon another. That was not the case here. The defence of the wife was to be that she had no intent to impede the apprehension or prosecution of the applicant. To succeed in that it would not be necessary for her to refer to the statements that she had made to the police. Indeed she might have succeeded without going into the witness-box at all, leaving it to the jury to draw what might have seemed a natural inference in the circumstances. On the other hand, whatever she might do, the statements were an essential part of the prosecution's case in order to prove her belief in the applicant's guilt, and, should she give evidence, it would be inevitable that in cross-examination she would be asked to confirm heir truth. Moreover, we understand that their counsel had intimated that in any event she so intended. The end result was therefore bound to be the admission of evidence highly damaging to the Applicant, evidence that would, apart from the chance of the joinder, have been inadmissible. Against that, all that counsel for the Crown has been able to suggest is that separate trials would require the commission of the murder to be proved two times over, although for ourselves we query whether the statements alone might not have been sufficient to establish that as against the wife. She, of course, has not been represented before us, but there have been no suggestions of any prejudice which separate trials might have caused her, although we understand her counsel did oppose the application at the time.

24. It is impossible to say to what extent the jury did in fact rely upon the evidence given by the wife. We think, however, it would be idle to suppose that it played an insignificant part in their deliberations. Having regard then to the long established opposition of the common law to the calling of the evidence of one spouse against another, we are satisfied that to that extent there was a miscarriage of justice and that a retrial ought to be ordered.

25. We wish to emphasize that our decision in this appeal in no way detracts from the general principle that it is desirable that persons charged jointly should be dealt with together, or that accessories should be tried together with the principal. Nor do we wish it to be thought that in general the position is different where the persons charged are husband and wife. Each case must be considered on its own facts. In our judgment the instant case reflected a very unusual set of circumstances.

26. We do not wish to leave this appeal without commenting upon the substituted Grounds of Appeal. They reflect a common and irritating tendency to confuse Notices of Appeal with skeleton arguments. The Notice of Appeal should contain, and contain only, a clear and concise statement of the faults alleged, so that this Court may know immediately with what it is concerned. The submissions in support of the appeal, if reduced to writing at all, should be set out in a separate skeleton argument. They do not belong in the Notice of Appeal.

27. For these reasons, leave to appeal is granted, the hearing is treated as the hearing of appeal, the appeal is allowed, the conviction is quashed, and an order is made for retrial.

28. We give the appropriate direction for the preferment of an indictment pursuant to Sec. 83F(1) of the Criminal Procedure Ordinance.

(1)    LES PLEES DEL CORON, LT. 1 p.26

(2)    3 Inst. 108

(3)    Pleas of the Crown Bk. I p.2 and Bk. II p.320

(4)    (1842) 1 Car. & K. 185; 174 E. R. 768

(5)    Comments IV, 39

(6)    Cox III 425

(7)    [1963] 1 All E. R. 106

(8)    (unreported) Cr. App. 751 of 1982

(9)    [1958] A. C. 167

(10)    13 Cr. App. R. 134 at 136

(11)    [1946] 1 K.B. 369