R v. LAM WAI HANG

IN THE COURT OF APPEAL

1996, No. 431
(Criminal)

- Headnote -

Criminal law and procedure - Interventions by trial judge - Judge calling witness to testify - Duty of judge to "harken to the evidence" - Circumstances under which a trial judge might properly intervene examined by Court of Appeal.

IN THE COURT OF APPEAL

1996, No. 431
(Criminal)

_______________

_______________

_______________

J U D G M E N T

_______________

Litton, V.-P. (giving the judgment of the Court):

1. This is an application for leave to appeal against conviction.

2. The applicant was charged on an indictment containing one count of murder and six counts of theft. After trial before Stock J and a jury he was convicted on all seven counts.

Background facts

3. In December 1994 the deceased, Chan Lai-yee, a young woman, took up employment at the CSL shop in Mongkok. The applicant was working there as a sales representative. At that time the applicant was nearly 25 years old and was cohabiting with a young woman called Tam Sin-ming at his parents' home at Sau Mau Ping. From about April 1995 the applicant and the deceased began an intimate relationship, often spending nights together in hotels. To hide the relationship from Miss Tam, the applicant told her a story of having a second night-time job.

4. In August 1995 the applicant rented a small unit at No. 3A Anchor Street, Tai Kok Tsui, the tenancy starting from 1 September 1995. As from that date until the deceased met her death on the night of 17 September 1995 she spent most nights at the Tai Kok Tsui flat with the applicant.

5. By mid-September 1995 the clandestine affair was reaching crisis point. Miss Tam had discovered a rent receipt for the Tai Kok Tsui flat and asked to be shown the premises. The applicant and Miss Tam visited the unit on 16 September and there was an emotional scene between the two of them. They left the unit together to attend a wedding banquet and then spent the night together at Sau Mau Ping. In the meanwhile, the deceased met an old boy-friend of hers, one Eric Cheng, and they spent some time together on the night of 16 September at the Tai Kok Tsui flat: Eric Cheng leaving at about 10.30pm.

6. The next day - 17 September 1995 - the applicant went to work late - reporting for work at the CSL shop at about 11.45am. In the evening, after work, Miss Tam went to fetch the applicant from work at the CSL shop and they left together. They went for a meal at a restaurant, leaving at about 8pm. The appellant told Miss Tam that he was going off to his "moonlighting job".

7. The applicant was able to contact the deceased through her pager that evening. A message received on her pager at about 6.18pm read:

"Husband: something happened suddenly. You go back home to wait for him. He will come back in about an hour."

8. A message received on the applicant's pager at about 8pm read:

"Wife: She has returned home."

The killing

9. Some time during the night of 17 September 1995 the applicant battered the deceased to death at the Tai Kok Tsui flat. There were seven blows to the head with a hammer. Much force was used: enough to crack the thickest part of the skull. The deceased bled heavily onto the mattress. The body was dragged to the bathroom and left there.

The thefts

10. The deceased had ATM cards with two banks. The applicant knew the PIN numbers to both. Starting from the early hours of 18 September 1995 the applicant proceeded to withdraw large sums from those accounts. The first withdrawal was recorded at 2.49am at Nathan Road, Yaumati. The last withdrawal occurred at 10.47pm on 20 September 1995. Altogether $56,600 were taken from the accounts.

11. The applicant also took a lady's necklace from the deceased and exchanged that for a man's necklace at a jewellery shop, paying a difference of $5,912 by cash.

Disposal of the body

12. The applicant returned to the flat and tried to stuff the body into a suitcase but it would not fit. So he went out and bought an electric saw at a shop in Mongkok. He returned to the flat. With the electric saw he sawed off the deceased's legs and put them into a plastic bag. The rest of the body he stuffed into the suitcase. He disposed of the plastic bag containing the severed legs by putting it into a garbage bin in the street. He also bought ink which he then poured on the mattress to disguise the blood-stain. He then disposed of the mattress in the street. As to the suitcase and its contents, the applicant hired a car and transported the suitcase up Kowloon Peak. There, he dumped it down a steep wooded hillside.

The issues at the trial

13. There was no doubt that the applicant had unlawfully killed the deceased. In the statement of admitted facts - made pursuant to s65C of the Criminal Procedure Ordinance Cap 221 - there appears the following:

"In these proceedings the Defendant has pleaded guilty to the Manslaughter of CHAN Lai-yee on the 17th day of September 1995 in Hong Kong."

14. Although the judge had, out of an abundance of caution, left the possibility of self-defence to the jury, the real question was whether, in the circumstances of the case, a verdict of manslaughter might properly be returned by the jury on account of provocation.

Statements made by the applicant to the police

15. As the first ground of appeal is that the trial judge should have ruled inadmissible all the statements made by the applicant to the police, the circumstances under which these statements came to be made must be examined in some detail.

16. The applicant was visited by the police at his work-place on 23 September 1995 at about 6.35pm and was invited to go to the Mongkok police station for inquiries. By that time the deceased had been missing for nearly a week. A long statement was taken from him: He told the police that he had last seen the deceased on 15 September and had spent the night of 17 September with Miss Tam at Sau Mau Ping. At about 10.30pm the police took the applicant to the Tai Kok Tsui flat to conduct a search. Nothing was found. They then went to the Sau Mau Ping flat. Miss Tam was there and she was invited to go with the police for questioning.

17. From Sau Mau Ping the party went to Yuen Long police station, arriving there at about 12.45am on 22 September. Yuen Long was where the deceased's family lived and where the "missing person" report was made. The applicant was at first interviewed without being cautioned, focussing on his relationship with the deceased and whether he knew her whereabouts. The applicant said he did not know. Then at 5.50am the applicant was told that the police suspected him and Miss Tam of having stolen $56,600 from the deceased's accounts by the use of her cards and cautioned him regarding his right to silence. The statement recorded between 5.50am and 6.55am became Ex P3. The applicant denied theft. The interview terminated when the applicant said:

"Ah Sir, I am very tired. I want to have a short sleep and will answer you again later."

18. The applicant was allowed about 4 hours' rest and then a team from the Regional Crimes Unit took over.

19. The applicant was taken from Yuen Long police station to the New Territories North regional headquarters at Tai Po. DPC 2042 Tsui Hing-chung was given the task of interviewing the applicant. DPC 2042 kept an impressively thorough and comprehensive record, spanning a period of about 11 1/2 hours, between 12.25pm on 22 September to 11.46am on 23 September. This became Ex P83. The applicant said when he was first questioned that he was willing to co-operate with the police but did not know where the deceased was. DPC 2042 said that the police proposed taking the applicant to search the Tai Kok Tsui flat, his home at Sau Mau Ping and his workplace and the applicant expressed willingness. Much time was taken up with the searches during the afternoon and evening of 22 September, beginning after lunch at the RCU office at Tai Po, and continuing after dinner at Mongkok police station. The various searches did not end until 1.25am on 23 September.

20. Back at the RCU offices at Tai Po DPC 2042 cautioned the applicant again and he expressed willingness to answer further questions. When asked if he knew why the deceased was missing the applicant said:

"TSUI Sir, I really do not know. I know that you people, the police, thought it was me who made Ah May disappear."

21. "Ah May" is the deceased's nick-name.

22. After some more questioning, Ex P83 recorded the following occurring at 2.45am:

"Lam Wai-hang expressed to me that he was very tired and wanted to take some rest before giving further statement. I then suspended the taking of the statement and told Lam Wai-hang to sign as proof."

23. Ex P83 then shows that 13 minutes later DPC 2042 returned and said he had one further question to ask, cautioned the applicant again and asked him if he was willing to answer. The applicant said he was willing. The question related to whether he had contacted the deceased on 17 September. What then happened was that DPC 2042 caught the applicant out in a down-right lie: The applicant denied that he and the deceased had paged each other: The police had records to show the contrary. Ex P83 records the following statement made by the applicant at 3.12am:

"TSUI Sir, I know (I) cannot lie to you. It was my mistake by accident. It was done by me."

24. After a further caution regarding his right to silence Ex P83 shows the following:

"'TSUI Sir, I did not mean to kill her. That night, we had a row. On the spur of the moment I killed her. Now I have strong guilty feeling and am in great pain. I have to tell you the incident in order to make myself feel better.'

Having recorded what LAM Wai-hang had said, I further asked him, 'Well, where is the body of Ah May now?' LAM Wai-hang said, 'I dumped the body at Kowloon Peak.'

Having taken down what LAM Wai-hang had said, I further asked, 'Well, are you willing to take me to find (it).' LAM Wai-hang said, 'I am willing to take you there.'

At 3:28, after I finished writing the above statement, (I) suspended the recording."

25. Later on that morning the applicant led the police to the spot at Kowloon Peak where he dumped the body down the hillside. In the car, on the way to Kowloon Peak, the applicant gave a detailed description of what had taken place and how the deceased had met her death at the Tai Kok Tsui flat. This account, committed to memory by DPC 2042, was later post-recorded in Ex P83, about 4 hours later.

26. The party left Kowloon Peak at about 5.40am and the applicant was taken to Tsz Wan Shan police station for breakfast. When asked after breakfast if he needed a rest the applicant said:

"TSUI Sir, it's not necessary. I want to fix up this case first as soon as possible."

27. Back at the RCU office the post-recording in Ex P83 was made and was then read back to the applicant at about 8.30am and the applicant then said:

"TSUI Sir, it was more or less like that."

28. He then signed the record.

29. Later-on that morning arrangements were made to video-tape the re-enactment of the crime, the applicant having expressed willingness for this to be done. The video-recording of the re-enactment of the dumping of the body at Kowloon Peak, recovery of the suitcase containing body by the police, and identification of the corpse by the applicant took place between 9.26am and 10.04am on 23 September. The applicant was then brought back to Tsz Wan Shan police station where the fact of the re-enactment and video-recording was noted down in Ex P83. Then the entire statement was read back to the applicant and the interview as recorded in Ex P83 ended at 11.46am. The applicant acknowledged the accuracy of the statement and the fact that it was voluntarily given by his signatures which appeared many times as the recording went along, and finally at the end.

30. The applicant then had about 3 1/2 hours' rest and was then taken to the Tai Kok Tsui flat for a re-enactment of the killing, recorded by video. We can do no better than the judge in describing what the video showed:

"What is shown on the video is a full and detailed confession of killing the deceased during which he said that he suggested separating from her, that she then flourished a weapon at him, and wanted to jump from a window; he dragged her back and hit her with a hammer. He demonstrates how she was lying on the bed, how he hit her, how he wrapped her in a quilt; that he took her purse which contained her various bank and credit cards, that he had withdrawn money on several occasions after the killing, that he had bought gold ornaments with the money which he had left at his Sau Mau Ping home; how the following day he had sawn off her legs, put her in a case, hired a car and taken her to be dumped. He described how he had cleaned the mattress and showed the police the cutter with which the girl had threatened him. He also says that he killed her unintentionally; and that his conscience was such that he had to relate the whole incident. He is then seen and heard to tell the police that he was however unwilling to take the police elsewhere."

31. At 9.16pm on 23 September the applicant was charged with murder. In answer to the charge he said:

"I understand. I accidentally killed a person on impulse. Hope I can turn over a new leaf."

The voire dire

32. The judge had a difficult task on the voire dire. Because the challenges mounted by the defence were ambiguous, the judge, understandably, was puzzled as to the issues he had to decide. The applicant's attitude to the interviews as recorded firstly in the statement Ex P3 (taken at Yuen Long police station between 5.50am and 6.55am on 22 September) and ending with the video-recording of the re-enactment of the killing in the Tai Kok Tsui flat (which finished at 5.09pm on 23 September) was equivocal. This cannot be blamed on counsel, who had her instructions. But what was the judge to make of the challenge to the admissibility of the confessions? The applicant had given a fairly detailed confession whilst the police were taking him by car to Kowloon Peak. The defence admitted that this indeed took place, and that the confession was voluntary: but the applicant's adoption by his signature of the record made afterwards in Ex P83 was, counsel asserted, involuntary. In other words, oral testimony of his confession could have been given by DPC 2042 - refreshing his memory from the record he had made about 4 hours later, as shown in Ex P83. How it might have assisted the defence to have the confession put before the jury in this way, but not by having Ex P83 adduced, is difficult to understand: for if DPC 2042 were allowed to refresh his memory from Ex P83 (as presumably would have been the case) then the oral evidence given by him would have simply been a repetition of that portion of Ex P83. If the challenge were simply as to the degree of accuracy of that portion of Ex P83 then in reality the challenge went to weight and not to admissibility and the matter could have gone to the jury with a warning by the judge that the confession, as to its details, was simply DPC's recollection of what the applicant had said 4 hours before. In Ex P83 itself, the applicant was not recorded as having adopted Ex P83 in toto: it was "more or less like that".

33. The challenge as to admissibility became even more tenuous when the applicant came to testify at the voire dire: he agreed with the suggestion that, in making the confession, he had wanted to get matters off his chest. As regards the re-enactment of the scene at Kowloon Peak where the applicant dumped the suitcase containing the body, this was something which the applicant said he had wanted to do. As for the re-enactment of the scene at the Tai Kok Tsui flat - perhaps the most cogent evidence of all - the applicant said he did that willingly: The killing, he said, was unintentional and his conscience was such that he had to relate the whole incident. But he did not want the reconstruction recorded by video as he did not want to undergo the ordeal of seeing the reconstruction on film.

34. From beginning to end, it was not entirely clear in the court below what precisely the applicant was challenging in the voire dire.

The alleged assaults

35. The "outline of allegations" produced by counsel at the voire dire alleged that, at Yuen Long police station, in the early hours of 22 September 1995, prior to Ex P3 being taken, the applicant was assaulted by the police. But, it will be recalled, the applicant made no admissions in Ex P3 and then, at about 6.50am, the applicant is recorded as saying that he was very tired and needed a short sleep. Thus the interview at Yuen Long ended. He was then taken a few hours later to the RCU offices at Tai Po and, starting from 12.25pm DPC 2042 began recording the statements that eventually became Ex P83. As regards Ex P83, the "outline of allegations" said that the first eight pages were voluntary and that, sometime in the course of the interview in the afternoon of 22 September, the applicant was assaulted by various members of the RCU team. But, it will be recalled, it was admitted by the defence that the confession made in the car on the way to Kowloon Peak was voluntary, as were the re-enactments of the killing in the Tai Kok Tsui flat and the dumping of the body. As the judge remarked in the course of his ruling:

"In a case where there have been a number of confessions spread in time over a day or more, if the first confession, or in this case the first or second statement, is tainted by the Crown's failure to prove its voluntariness, it will, especially where the allegation is of assault and fatigue, be difficult for the Crown to prove that the taint has been dissipated by effluxion of time or by some other consideration. So too if there have been assaults or other forms of impropriety to which the defendant has not at first succumbed, the Crown will nevertheless bear a heavy onus to show that those assaults or those improper acts have not, either alone or cumulatively, impacted on the voluntariness of subsequent acts or statements. Yet it is an unusual feature of this particular application that the defence do not contend that everything that transpired after the allegedly improper behaviour of the police was involuntary. On the contrary, it is positively asserted that certain acts and statements were voluntary."

36. It was in this context that the judge considered the allegations of assault by the police.

37. There was some corroboration of the applicant's allegations of assault in the form of bruises found on his body when examined by a doctor at the Lai Chi Kok Reception Centre on 27 September 1995: one set of bruises about 5 days old and another set about 1 to 2 days old. The judge, in his ruling, accepted that these bruises might have been inflicted whilst the applicant was in police custody. His conclusion - set out in his meticulously detailed ruling - was, in essence this:

(1) The prosecution had failed to exclude the possibility that the applicant was assaulted at Yuen Long police station on the night of 21/22 September. Nevertheless that had no impact on the admissibility of Ex P3 made at Yuen Long police station: Ex P3 contained no admissions against interest of any kind. It was voluntarily made and signed.

(2) The RCU team which took over during the morning of 22 September committed no impropriety, right up to the time the applicant was charged at 9.16pm on 23 September 1995. The possibility that he might have been assaulted on 25th or 26th September could not be excluded - but that had no impact on anything the judge had to decide.

(3) Taking into account all the circumstances - including the possibility that the applicant must have been very tired - he ruled the confessions admissible.

38. Counsel for the applicant argues that the judge ought, on the basis of his own findings, to have excluded the confessions from the jury altogether: irrespective of the applicant's desire at the trial that parts of the statements should be put before the jury. We cannot accept this submission.

39. Where there is a suspicion, arising from the evidence, that an accused has been assaulted whilst in police custody, this is a serious matter. As Lord Hailsham said in Wong Kam-ming v. The Queen [1980] AC 247 at 261-B:

".... in a civilized society it is vital that persons in custody or charged with offences should not be subjected to ill treatment or improper pressure in order to extract confessions".

40. Had the judge in the court below treated the question of assault otherwise, this court would have felt constrained to evaluate all the evidence afresh - handicapped though we are in this process, not having the benefit of seeing and hearing the witnesses. In this case, however, the judge went into the evidence with meticulous care and subjected the prosecution case on the voire dire to a most exacting scrutiny. The judge found that DPC 2042 had kept a meticulous and careful record, in the form of Ex P83. The applicant was, as the judge found, properly cautioned at such times as were necessary. Moreover, it was not as if the evidence regarding the assaults was all one way. In particular, there were two matters which weighed in the scales against the applicant. These were:

(i) When the applicant was seen by D/Sgt 17269, a member of the RCU team, at the Yuen Long police station prior to his being taken to the RCU Headquarters and asked if he had any complaint, the applicant said he had no complaint and signed the D/Sgt's notebook to this effect.

(ii) When the applicant first appeared before a magistrate on 25 September 1995 - after he had seen a lawyer - he complained of having been assaulted by the police at Yuen Long police station, but made no complaint against the RCU team at Tai Po.

41. In our judgment, disturbing though the allegations of police violence are in this case, there is no basis for this court to interfere with the judge's decision to allow all the statements made by the applicant to be put before the jury.

Interventions by the trial judge

42. The applicant, through counsel, complains of a series of interventions by the trial judge during the voire dire. They focus on a number of areas in the evidence of concern to the judge: areas which the judge felt had not been adequately covered by the examinations of counsel. These were:

(i) Whether the applicant was deprived of sleep, to the extent that any answers he gave to the police had to be heavily discounted or disregarded altogether.

(ii) Allied to the first point, the question of the applicant's physical appearance, whilst in police custody during 22-23 September.

(iii) The nature and extent of the bruises found on the applicant.

(iv) What the applicant meant by saying that part of what he had told the police was "voluntary".

43. It is plain on reading the transcript that the judge was very demanding of counsel on both sides and felt at times let down. When this happens - happily not frequently in the courts - this puts the judge in a difficult position. He may feel duty-bound - as Stock J did in this case - to intervene in order to fill-in the gaps in the evidence. Generally-speaking, a judge cannot be criticised for this: even though it turns out that his interventions were in vain. In this context, the manner in which the questions were put by the judge is important. Here, the judge had clearly adopted as neutral a tone as possible and no suggestion is made that the questions as put by the judge were hostile to the applicant. If anything, the reverse is the case.

44. Counsel argues that, by his interventions, the judge had "conducted an inquisitorial inquiry" and "descended into the arena", citing in support of his argument the well-known passage in Lord Denning's judgment in Jones v. National Coal Board [1957] 2 QB 55 at 64 to the effect that the judge's function at a trial is to "harken to the evidence". But, as Bokhary JA said recently in The Queen v. Wu Chi-wai [Cr.App. 230/96, 11 April 1997, unreported] at p5, the word "descended" in the expression "descended into the arena":

"... serves as a reminder that there is much, even of a highly interventional nature sometimes, which a trial judge may legitimately do from his proper place above the arena."

45. And Lord Denning, in Jones v. National Coal Board at p64, did not say that the judge's sole function was to "harken to the evidence", for he contemplated situations where the judge might ask questions of witnesses when it was necessary to clear up any point that had been "overlooked or left obscure".

46. In our judgment, this ground of appeal has no merit.

Judge calling a witness

47. The trial commenced before the judge on 12 June 1996. It emerged for the first time on 19 June - in the second week of trial - that the applicant had been medically examined upon admission at Lai Chi Kok Reception Centre on 25 September 1995. This fact came as a surprise to counsel on both sides. Apparently, no one had seen fit to interview the doctor concerned. Not unnaturally this revelation shocked the judge: Having regard to the fact that the applicant had complained of assaults by the police at a very early stage and the voire dire - which the judge was then conducting - focussed upon those allegations, the fact that no one had bothered to find out if the applicant had been medically examined is astonishing.

48. When this situation emerged, the judge concluded - not unnaturally - that the allegations of assault had not been properly investigated by the prosecution. By that stage, the prosecution case on the voire dire had closed. There was, however, a witness on the depositions - a Mr Siu Kar-kit - who had not been called by the prosecutor in the course of the voire dire. He was the person who had rented the Tai Kok Tsui flat to the applicant and had seen the applicant on 19 September 1995 when he had surrendered the tenancy and returned the keys to Mr Siu. In the depositions, Mr Siu spoke of some signs of injury on the applicant's neck: apparently some sort of redness partly hidden by the collar. The defence objected to the Crown case being re-opened, to enable the prosecutor to call Mr Siu as a witness. In these circumstances, the judge decided to call the witness himself.

49. The judge's examination of the witness was neutral and proper. As it transpired, the witness was unhelpful: He was unable to add anything beyond what was recorded in the depositions.

50. The complaint in this court is not as to the way in which the judge examined the witness: the complaint is that the judge decided to call him as a witness at all.

51. There is no doubt that only in exceptional circumstances would a trial judge be entitled to call a witness himself. In support of his argument counsel for the applicant Mr Mullick referred us to the judgment of Roberts CJ in The Queen v. Tam Chi-pang [1986] HKLR 1122 at 1127, quoting from Lord Parker in R. v. Hamilton [1969] Cr.L.R. 486:

"Of course it has been recognised always that it is wrong for a judge to descend into the arena and give the impression of acting as advocate."

52. Counsel argues that by calling the witness himself the judge could not help but give the impression of acting as advocate.

53. In our judgment, the point rests not only upon the impression created by the judge acting as he did but also upon the substance of the matter. In Tam Chi-pang Roberts CJ, relying on R. v. Hamilton, identified three situations which gave rise to convictions being quashed:

(i) where the judge, by his interventions, was in effect inviting the jury to disbelieve the evidence of the defence - put in such strong terms that it cannot be said to be cured by the common formula that the facts were for the jury to decide;

(ii) where the interventions made it really impossible for counsel to do his or her duty to properly present the defence;

(iii) where the interventions prevented the accused from doing himself justice and telling the story in his own way.

54. Here, as can be seen, the case falls into none of the three instances set out above. The judge was plainly aware of the exceptional nature of the proceeding: it was exceptional because an obvious area for inquiry - whether the applicant had any injuries on his body before he got into police custody - was, for reasons unexplained by the prosecutor, not explored in the Crown case. It was not explored because the prosecutor seemed wholly unaware - until the second week of trial - that the applicant had bruise marks on various parts of his body. Such an event, happily, does not often occur in the courts: Even less so in a murder case where, at his first appearance before a court, the accused had complained of assaults by the police.

55. In our judgment, the circumstances here were exceptional and the judge was justified in calling Mr Siu himself to testify at the voire dire. Despite Mr Bruce QC's concession in his written arguments that there was a material irregularity in the course of the voire dire, in our judgment there was none.

Conclusion

56. The real issue for the jury, at the end of the day, was a narrow one: Might the applicant have been provoked by the deceased into committing his acts of violence, thus entitling him to a verdict of guilt on manslaughter? The applicant in giving evidence before the jury did not disavow the story he had told the police: He said the story as told was in fact fuller than what was recorded: For instance, the deceased not only flourished a paper-cutter at him: She grabbed him by his lower parts, threatened to cut off his penis and kicked him in the same place. These, the applicant said, were not matters of recent invention.

57. These were all points for the jury's consideration, and they were put with meticulous care by the judge, as were the ingredients of the defence of provocation.

58. The judge's summing-up to the jury was impeccable. The issues were clearly delineated for the jury's consideration. The summing-up was full, fair and balanced in every respect.

59. In these circumstances, this application for leave to appeal must be dismissed.