THE QUEEN v. WONG WING-YUET AND OTHERS

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JUDGMENT

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Mortimer JA (giving the judgment of the Court):

1. On 23 August 1995 the first two applicants were convicted before Stuart Moore J and a jury of the murder of a young boy whom they had kidnapped. They pleaded guilty to the kidnapping. They also pleaded guilty to manslaughter of the boy but that was not accepted by the Crown. They were each sentenced to 18 years imprisonment for the kidnapping and to the mandatory life sentence for murder.

2. Each now seeks leave to appeal against his conviction for murder.

The facts

3. The facts of the case are horrifying. Wong and Yip were both in need of money to pay off debts. There was some suggestion that Wong had a minor grudge against the young boy's father. The two of them and others planned to kidnap this 9-year-old boy who was related to Wong. In the course of planning, there was discussion about the necessity to kill the boy to avoid recognition. On the pretext that the boy's grandfather was ill, they collected him from school on 26 September 1994. That unfortunate and unsuspecting child was taken to a remote picnic place. An ammonia-soaked cloth was held over his nose and mouth till he became unconscious. He was then placed head first in a plastic refuse bag. The body was later found down a slope near that picnic place hidden in thick grass.

4. It is difficult to imagine that anyone doing these things to that child could have had any intention other than to kill.

5. After the child's death, a series of blackmailing phone calls were made to his parents, offering his safe return against a substantial sum of money.

6. The boy's body was found by the police on 29 September after Yip had been arrested. Wong was not arrested until 3 1/2 months later after he had fled to China and had been returned.

7. In statements which they made to the police, they both admitted presence and participation in one way or another when the child was smothered and placed in the bag and put down the hillside. Both admitted participation but each placed the main blame upon the other.

At trial

8. Wong did not give evidence. The defence put forward was that the Crown had not proved the necessary intention to establish murder. Yip gave evidence in which he denied an intention to kill.

9. Two accomplices also gave evidence against the applicants. One of those, Fong, gave evidence of a conversation with Wong shortly after the child had been placed and left in the refuse bag, in which Wong put the blame on Yip. This conversation was not admissible against Yip.

Wong's application

10. Wong drafted and filed an notice of appeal on his own behalf but he was granted legal aid for the application. Mr Mullick appeared for him. After that experienced and able counsel had given this case his careful consideration, he was not able to advance any grounds upon which he could properly seek leave to appeal. In spite of that, as was his right, Wong pursued in person the notice he had drafted. That notice raises no arguable point. The only matter to which it is necessary to refer is that he seeks to raise a matter about the witness Fong. Fong admitted in his evidence that he had read his own witness statement during adjournments. This is a matter to which we will return in considering Yip's application.

11. We allowed Wong to submit upon many points which were not in his notice. With chilling lack of remorse, he sought to revisit matters which were raised and considered by the jury at the trial. He added to this some completely unsubstantiated and unparticularised general allegations against counsel who appeared for him. He puts forward no argument upon which this Court could possibly give him leave to appeal.

Yip's application

12. Mr Buchanan, who appears for Yip, seeks leave to argue four main matters. The first is that the trial judge was wrong not to accede to the defence's application on behalf of Yip for a separate trial. The grounds for the application were that Wong made allegations against Yip in his statement to the police and he placed the major blame upon Yip. The evidence of Fong outlining the conversation with Wong to which he have referred that consideration which was inadmissible against Yip placed the blame upon him. It is right also to note that for his part Yip placed the major blame upon Wong in his statements and later in his evidence.

13. Mr Buchanan submits that the evidence against Wong was so prejudicial, although not admissible against Yip, that it was impossible for Yip to have a fair trial unless it was severed. He further submits that the judge could not put the matter right by directions to the jury about which Mr Buchanan makes no submissions. It is right to say that in this regard the judge's directions to the jury were both correct and impeccable. Mr Buchanan was not able to cite any authority to the Court to support this particular submission.

14. An order for separate trials is a matter which lies within the discretion of the judge. This Court will only interfere with the judge's discretion if it is shown that there has been a miscarriage of justice consequent upon a plainly erroneous exercise of that discretion. Whereas the evidence given in the case can be described as prejudicial against Yip, it can only be a problem in the absence of proper directions from the judge. Here, there were proper directions.

15. Where did the justice of the case lie in respect of separate trials? Mr Saw who appears for the Crown reminds the Court of what was said in R v Moghal (1977) 65 CrAppR 56 at 62 Scarman LJ (as he then was) said this:

"... we think that only in very exceptional cases is it wise to order separate trials when two or more are jointly charged with participation in one criminal offence. The present case is an object lesson of the risks. The risks were analysed by Lord Goddard, Lord Chief Justice, in Grondkowski v Malinowski (1946) 31 Cr. App. R. 116; [1946] K. B. 369. In the course of delivering the judgment of the Court in that case he said, p. 371: 'prima facie it appears to the court that where the essence of the case is that the prisoners were engaged on a common enterprise, it is obviously right and proper that they should be jointly indicted and jointly tried, and in some cases it would be as much in the interest of the accused as of the prosecution that they should be. Suppose, for instance, that the defence of one was that he or she was acting under the positive duress of the other. It would be obviously right that they should be tried by the same jury, who might see in one prisoner a harmless or nervous looking little man or woman, and in the other a savage brute whom they might deem capable of forcing his co-prisoner against his will into assisting in a crime.' The question is for the judge in the exercise of his discretion, and it is thus that the law has been stated ever since, that the appellate Court will intervene only if satisfied that the judge's decision has caused a miscarriage of justice."

In this case, the failure to order separate trials far from resulting in a miscarriage of justice was in the broad sense the only just solution the judge could have reached. This could be described as a classic case where two accused each blamed the other and in which justice requires that they should be tried together.

16. Mr Buchanan's second point is that the judge ought to have excluded the evidence against Yip contained in his records of interview. These are exhibits P5 - P10. The first submission is that the police officers failed to follow the procedures and guidelines for the taking of statements. Indeed, as was shown in cross-examination, one of the officers was unaware of some - if not all - of those guidelines. Secondly, that the repeated interviewing of Yip during the 24 hours following his arrest was so oppressive that the interviews ought to have been excluded from evidence. Finally, that the judge misdirected himself in considering the admissibility of those records.

17. The application for them to be excluded was made late in the trial. There was no voir dire and the issue was raised after Yip had given evidence. Let us say at once that there was nothing improper in this. The admissibility of evidence is a matter which can always be considered or re-considered at any time.

18. In the result, there was only one issue which the judge had to decide. Was he satisfied beyond reasonable doubt that Yip - in giving answers on interview - was giving those answers freely and voluntarily? It is to be noted that until the last interview the applicant chose to write the record himself. On one occasion, he was asked if he was too tired to continue and he said so and the record of interview was terminated.

19. After hearing lengthy submissions from counsel, the judge ruled against the submission in these terms:

"I am afraid I am against you on question of admissibility."

It is not a tenable submission to suggest that in making that ruling the judge had not fully considered the matters that had just been put before him. Those were matters relating to the police officers failing to follow the guidelines and repetition during the early part of the investigation.

20. It must be remembered that when the applicant was arrested on 29 September, the whereabouts of the child and whether or not he was alive, were unknown. It was a matter which called for urgent and persistent investigation. Those matters, therefore, were clearly in the judge's mind. Mr Buchanan submits that it was necessary for the judge to state in making his ruling, the basis upon which he has made it. In other words, that he should state that he is satisfied beyond reasonable doubt that the statements had been made freely and voluntarily.

21. Mr Buchanan has not been able to put before the Court any authority to that effect. There is no such authority. It is trite law that a judge does not have to give reasons for a ruling on the admissibility of evidence. Mr Buchanan submits that it is a practice in Hong Kong to give reasons. Whether or not the judge gives reasons for a ruling is entirely within his discretion. As this Court has said repeatedly, a judge will not be criticised for giving a ruling on admissibility without giving reasons. The judge here gave a clear ruling and that ruling is not open to attack.

22. Mr Buchanan refers to a further point. He submits the judge applied the wrong test. After the judge had made the ruling there was an exchange between him and counsel in which he said:

"Voluntariness is the question and it may be that the police didn't know all that they should have known, but that's not a question which affects the voluntariness and that's a matter for the jury."

23. There is nothing in that exchange which could possibly indicate that the judge was applying the wrong test. As Mr Saw submits it was shorthand between the judge and counsel. Voluntariness, of course, remained an issue for the jury as supposed to admissibility because on the voluntariness of the matter, the jury were to assess the weight of those statements.

24. There is no arguable point raised on the admissibility of those exhibits.

25. Mr Buchanan then seeks to argue that the credibility of Yip was unfairly damaged by two directions given by the judge to the jury. The first related to the direction on lies. It was submitted that the judge failed to direct the jury that Yip had lied because of pressure put upon him by the police. It is not necessary for this Court to consider that submission further. The basis for it was not established on the transcript and on lies the judge's direction was correct. The second is a direction given which suggested that Yip may be more concerned with protecting himself than speaking the truth. This was a direction given in respect of Wong's case. The judge warned the jury that they should be aware of the possibility that Yip may be giving evidence to protect himself. It was a proper direction about which Yip through his counsel can make no complaint. There is nothing in the third ground complained of.

26. The final matter raised concerns Fong's admission during cross-examination that when giving his evidence he had refreshed his memory from his own witness statement. It was a lengthy statement which had taken about a week to give. This came out in cross-examination.

27. There was an application on this basis for the judge to discharge the jury. This was rejected. It is now suggested that the judge wrongly exercised his discretion. Where there is an application for discharge of the jury, this Court has said on previous occasions that this Court will rarely interfere with the judge's discretion. Are there any grounds here in which the Court ought to interfere with the judge's discretion and say that he was wrong not to discharge the jury? The answer is clear. Fong was in possession of his own statement. It was his statement and as a witness he was entitled to have it. If he chose to remind himself about his statement outside the court, there is nothing the Court can or ought to do about it, save if it is known, the matter falls to be considered by the jury when examining the witnesses' evidence. In this case, the matter came out in cross-examination. The judge reminded the in jury of this fact and invited them to consider the witness's evidence with this in mind. It was a proper direction. There was nothing unfair in it. There was nothing unfair in the witness reminding himself about his evidence outside the court.

28. In R v Leung Chi-yuen and others (1989) 2 HKC 24, this Court dealt with the question of accomplices reminding themselves about evidence from statements. We do not wish to add to what was said in that case. This point also is completely unarguable.

29. In the result, therefore, for these reasons, both these applications for leave to appeal against conviction are refused.

Lui's application on sentence

30. Lui Chun-ngai was involved in the periphery of this case. He pleaded to an offence of blackmail. His involvement was as follows. He knew - because he was present - that plans were made to kidnap the boy in order to extract a ransom from his parents. He refused to take part in the kidnapping. He would have nothing to do with it.

31. After the boy had been kidnapped - and it would appear after he had been murdered - Lui came to know that the child had been kidnapped and a ransom had been demanded. He did not know that the child had been killed. He was persuaded by Wong to make a telephone call to the parents. He phoned the father of the child and told him to take money to a 7-11 store. He told him where to place it and then to go home by taxi. Nothing resulted from the telephone call but, of course, the applicant was aware of the kidnapping and was aware fully of the implications of the call he made. In other words, he was aware of the implied threat of what would happen should the money not be delivered as requested.

32. The applicant was of previous good character. There was a favourable probation report and he has the support of his family. Mr Jenkyn Jones, who appears on his behalf, submits that the sentence passed was manifestly excessive. We turn to the sentence.

33. The judge took 7 years as the starting point. He said:

"You pleaded guilty and I reduce it to 5 years. That is to reflect the remorse that you have shown in pleading guilty to this charge and also to reflect the matters which have been brought to my attention on your behalf."

Mr Jenkyn Jones submits first, the judge did not give sufficient weight to the mitigating factors including the plea of guilty; and secondly, that the accomplices, who had given the evidence, received sentences which were disparate. Fong, who was seriously involved, received 8 years and Wong Fuk-tak, another accomplice, had his sentence reduced by the judge from 8 years to 3 years for his assistance.

34. With respect, however, this Court has to consider only the sentence passed upon the applicant unless it is shown that the judge misapprehended the roles each accused played. It is clear that the judge did not in anyway misapprehend these roles.

35. So the question for this Court is: was the starting point of 7 years manifestly too high? The answer is clearly not. Anyone who becomes involved in a case of this seriousness, even with the limited knowledge of the applicant, must expect to receive a very heavy sentence. The starting point of 7 years was correct. The applicant was given a reduction of 2 years for his plea and other matters of mitigation. That reduction is one with which this Court could not possibly interfere. In the result, therefore, this is a heavy sentence. It is a heavy sentence entirely justified by the nature of the offence. The application is refused.