ZEE KIM HUNG AND ANOTHER v. THE QUEEN

Headnote

                 Murder trial - admissibility of cautioned statements by the accused - some ruled to be inadmissible, whilst others was admitted - inconsistent rulings?

BETWEEN

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JUDGMENT

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Yang, J.A.:

1. Both D1 (the 1st appellant) and D3 (the 2nd appellant) apply for leave to appeal against conviction for murder. For the sake of convenience, and by agreement of counsel for all parties, we took D3's application before Dl's, for it is quite clear from the evidence that if D3's conviction is set aside, it necessarily follows that D1's conviction must also be set aside. Indeed the judge said in his summing up:

"If you acquitted the 3rd defendant of murder in this case, then I must point out that you could not convict the 1st and 2nd defendants as procurers of that murder, because the 3rd defendant is' the person they are alleged to have procured to commit the offence. Your verdict would be not guilty of murder. "

2. The prosecution case is that D1 and D2 were lovers and they plotted to have D2's husband killed in order that D2 might inherit his assets. To this end, the prosecution say, D1 hired D3 to do the killing, which D3 did. D3's case is that he is totally innocent.

3. The prosecution case against D3 rests almost entirely on his statement Exhibit P11 which amounts to a full confession. As the learned trial judge said in his direction to the jury:

"Without your being satisfied on the truth of the essential part of the 3rd defendant's statement, the case against the 3rd defendant is dead. "

4. D3's grounds of appeal may be grouped under two main headings: the first relating to the admissibility and weight of D3's statement Exhibit P11, and the second relating to his alibi. The last ground of appeal is that the conviction is unsafe and unsatisfactory, but it is not suggested that under this head there are any complaints in addition to the two already referred to.

5. On Exhibit P11, it is argued that the trial judge's ruling as to its admissibility is inconsistent with his rulings on D3's other statements. Now the police commenced taking the statement at 12:10 p.m. on 12th February 1984, concluding at 3:15 p.m. the same day. Thus by the afternoon of that day the police had in their possession ample evidence upon which to charge him with murder. On the following days, a number of other statements were taken: Exhibit P12 on 13th February 1984; Exhibit P13 on 16th February 1984; Exhibit P14 also on 16th February 1984 and Exhibit P15, also do 16th February 1984. There was a statement in answer to the charge (Exhibit P23) made on the evening after Exhibit P12 had been taken, viz., on 13th February 1984.

6. At the close of the voir dire, the judge ruled Exhibits P11, 14 and 23 admissible, and Exhibits P12, 13 and 15 inadmissible. No reasons were given. Exhibit P14 simply recorded that D3 did not say anything. Neither the prosecution nor the accused asked that Exhibit P23 be produced in Court.

7. Whilst we do not have the judge's reasons for his ruling, it could be that Exhibit P12 was excluded because the police failed to inform D3 that he was about to be charged upon evidence already in their possession, namely Exhibit P11. As to Exhibits P13 and 15, it could well be that these were excluded because these were taken after D3 had already been charged. Clearly then, there had been breaches of the Judges' Rules, and whilst there is ample authority for saying that the Rules do not form part of the laws of Hong Kong, a judge might well take them into account in deciding whether he was satisfied beyond reasonable doubt that a particular statement was free and voluntary. The inconsistencies complained of in this case may be more apparent than real.

8. It is further argued on behalf of D3 that in the light of the unchallenged medical evidence of D3's injuries corroborating his case that his statements were made as a result of police assault, the judge should not have ruled Exhibit P11 admissible. There was also, it is pointed out, corroborative evidence from D4 given during the voir dire on the assault. It is true that there is evidence from the Government Forensic Pathologist as to some very small abrasions on different parts of D3's body, but his conclusion was:

"It only requires a very casual contact, with trivial force, to inflict all the abrasions. I wouldn't call the degree of force violence, not in any way. Just mere casual contact in everyday life could have resulted the abrasions found on the accused thereof. "

9. It is further argued that there are a number of improbabilities regarding the circumstances in which Exhibit P11 came into being, e.g. that he was arrested in a crowded restaurant and there and then a short statement from him was recorded, the manner in which the statements were recorded from time to time, etc. all of which came from evidence given during the voir dire.

10. The aspect of the case relating to police assault was fully canvassed before the judge in the voir dire. We are unable to say that his ruling was wrong in any way.

11. Evidence was sought to be placed before the judge during the voir dire as to contemporaneous complaints made by D3 as to assaults by the police. Such evidence was also sought to be adduced before the jury on the general issue, but after some discussion between D3's counsel and the judge, counsel dropped the matter. As a result, such evidence was not produced, nor was there any application to have it produced. In any event the judge would have been entirely right in rejecting such a complaint, normally allowed as showing consistency of conduct in sexual cases only.

12. Before leaving this heading of the appeal, it is necessary to refer to D4's evidence on the general issue, where he said he noticed Detective Sergeant 9243 Lo Ho-keung use foul language to D3 and then either Lo or another police officer Ng Siu-keung hit D3. Whilst the evidence supports D3's complaint of assault, it is clearly up to the jury what use they wished to make of it.

13. We shall now turn to the second general ground of appeal regarding alibi.

14. It is stated in the Grounds of Appeal that the manner in which the alibi evidence of D3's father came to be given and the contents of such evidence coupled with D3's own evidence leaves a lurking doubt as to the correctness of the jury's verdict. It is further stated that the learned trial judge erred in allowing part of the legal arguments in respect of D3's Notice of Alibi to be argued in the presence of the jury, and that he further erred by not informing the jury that the Notice was in fact good.

15. D3's Notice of Alibi stated that he was staying at his house with his father at the time of the commission of the offence and "as instructed, the 3rd accused does not call any alibi witness in this case". It was after D3 had finished giving evidence that his counsel sought to call D3's father. In the light of his Notice of Alibi, Crown Counsel objected to the father being called, but after some discussion, some of which was in the presence of the jury, D3 was recalled for cross-examination by the prosecution.

16. According to the records, that part of the discussion as to alibi witness is as follows:

"MR. WESTBROOK :    I have got just one further witness, my Lord, WONG Cheung-lin. I had arranged with the clerk of court for an Shanghainese interpreter for this witness.

COURT :    We will wait for him.

MR. JENNINGS :    My Lord, the prosecution have been given no notice of the intention to call this witness.

MR. WESTBROOK :    Alibi notice was served on the Crown months ago.

MR. JENNINGS :    I repeat, we have been given no notice of the to call this witness.

MR. WESTBROOK :    My Lord, my notice was served on 31st ...

COURT :    Who is the witness you are calling? The father?

MR. WESTBROOK :    The father, yes.

COURT :    There is a notice of alibi in my file.

MR. JENNINGS :    The notice says 'As instructed, the 3rd accused WONG Chi-shing does not call any alibi witness in this case'.

MR. WESTBROOK :    That was his intention at the time that that notice was filed. He has taken legal advice ...

COURT :     '... the 3rd accused will adduce evidence at the material time of the commission of the offence on 30th January he was not present at the scene of the crime but was staying at his house with his father and as instructed, the 3rd accused does not call any alibi witness in this case'.

MR. WESTBROOK :    As I understand it, that last paragraph is quite superfluous. It does not form part of the alibi notice as such in law. It was simply added on his present instructions by those who represented him. The alibi notice is satisfied - just so that the members of the jury know what is going on, defendants who wish to call alibi evidence are obliged to give notice to the Crown if they propose to rely upon an alibi. The defendant did serve an alibi notice upon the Crown.

COURT :    He'd better wait outside for the moment.

MR. WESTBROOK :    I don't think he speaks English in any event.

MR. JENNINGS :    My friend might like to refer to refresh his memory section 65D of the Criminal Procedure Ordinance.

COURT :    Yes, I am calling for that.

MR. WESTBROOK :    If we are going to go into technical matters of law, it may be that the jury could simply withdraw.

COURT :    Are you asking that the argument be heard ...

MR. WESTBROOK :    Yes.

COURT :    Members of the jury, would you mind stepping outside for a short while? Counsel prefer this matter to be dealt with in your absence.

(Jury leaves court)"

17. Prior to the application to call the father, D3 had in the course of his evidence stated that he was at home with his father during the morning of the killing. Upon recall, he repeated the evidence. The father in his evidence confirmed in some detail that his son was at home in the morning of the killing but under cross-examination he said that it was not until a week or two before he gave evidence, that is, on 4th October 1984, that he was in a position to give an alibi. He said: "I did not know that until recently because people were trying to hide things away from me because they did not want me to suffer from anxiety out of this". Under re-examination, he was asked if he remembered visiting a solicitor's office in Central on the 19th of September (i.e. two days after the trial had commenced and some 7½ months after the killing) and he said he did not remember.

18. What weight the jury placed on the alibi evidence is of course a matter entirely for them. It is not suggested that the summing up on this point could be criticized in any way, and we see nothing in the manner in which the father's evidence came to be given which might prejudice D3's case in any way. Counsel for D3 argues that whilst it might have been better for the judge to explain to the jury that the Notice of Alibi was a good notice, that part of the appeal is not heavily relied on. Again we do not think that the judge erred in any way in allowing part of the legal arguments regarding the Notice of Alibi to be argued in the presence of the jury.

19. For the reasons given, we are of the opinion that D3's application against conviction must fail and we accordingly dismiss his application.