HKSAR v. YEUNG MAN FU

CACC 258/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 258 OF 1999

(ON APPEAL FROM HCCC 372 OF 1998)

______________

_______________

J U D G M E N T

_______________

Stuart-Moore Ag CJHC (giving the judgment of the Court):

1. On 27 April 1999, the Appellant was convicted of murder, following a trial before Pang J and a jury. He now appeals on a question of law against his conviction.

Prosecution's case

2. The facts were straightforward. On 1 July 1993, the victim was murdered by a group of four men who chopped him to death. Death resulted within about 30 minutes from the bleeding caused by 14 chop wounds to the body. The print of the Appellant's right forefinger was later discovered on a discarded knife sheath found at the murder scene.

3. About two and a half years later, the Appellant was arrested as he returned to Hong Kong through the immigration check-point at Lo Wu. He was questioned and he admitted his involvement in the killing after he had been informed that his fingerprint had been found on the knife sheath.

Defence case

4. The Appellant's defence at trial was that he had not been at the scene of the murder. He explained how his fingerprint had got onto the sheath by saying that a friend called "Sun Chai" had tried to persuade him to take part in the attack. However, when shown the knives which were going to be used in the attack, the Appellant said in his evidence that he told Sun Chai he was "scared". Sun Chai told him that he was a coward and to go home. The Appellant then said that he took a taxi home without ever going to the scene where the victim was murdered by the others. His explanation for the detailed admissions he had signed at the police station was that these were a fabrication. On this aspect, he testified that he had been assaulted by police officers and had been induced to sign a statement which had been made up by them under the belief that if he did so he would be used as a prosecution witness.

Previous trial

5. The trial which has led to this appeal was itself a re-trial which had been ordered by the Court of Appeal when allowing the Appellant's appeal against conviction for murder on 21 October 1998. The significance of this historical note in the present appeal relates to the very different nature of the Appellant's defence in his first trial about which the jury was made aware in the re-trial. In essence, the Appellant in his original trial had offered to plead guilty to manslaughter. However, his offer was not accepted by the prosecution. In that trial, the Appellant adopted the contents of his cautioned statement as being true and he agreed that it had been voluntarily given. By accepting this vital confession evidence, the Appellant's case in the first trial amounted to an acceptance on his part of presence and participation at the scene of the killing.

Grounds of appeal

6. Plainly a direction as to the jury's approach to lies had to be given in the re-trial. It is the direction which was given in the summing up on this topic which constitutes the sole ground of appeal before us.

7. Mr Grounds, on the Appellant's behalf, has submitted that the judge misdirected the jury in respect of the Appellant's lies or, alternatively, that the judge failed in relation to lies to direct the jury properly or completely.

8. The directions relevant to this appeal were given by the trial judge at the end of the summing up. In summarising the Appellant's defence, the judge reminded the jury that the Appellant had given evidence during the previous week about having lied to the jury in the first trial and about his reasons for so doing. The jury was told to consider the evidence given by the Appellant with care because, if what he was now saying was true, he could not have been at the murder scene or have formed the necessary intention required for murder. The judge, in the passage which Mr Grounds has criticised, then went on (at page 28 of the transcript of the summing up) to say:

".... if you find that he has lied in parts of his evidence, or even in all of his evidence, then you must bear this in mind. The mere fact that a defendant tells a lie is not, in itself, evidence of guilt. A defendant may lie for many reasons, for example, to bolster a true defence; to protect someone else; to conceal disgraceful conduct of his, short of the commission of the offence, or out of panic or confusion."

9. Mr Grounds' contention is that this direction was in error because it never informed the jury as to the use to which the lies could be put assuming the jury found that the Appellant had lied in the course of the trial without having any innocent explanation for doing so.

10. It is perfectly true that a judge in directing the jury on lies will usually conclude with words to the effect that if they are sure that the defendant did not lie for an innocent reason, his lies can be regarded as evidence which supports the prosecution's case. In the present case, the judge made no reference to the lies as being capable of supporting the case for the prosecution. There was, in our judgment, no need to do so. It was plainly obvious from the context that if the Appellant was lying when he said he was not present at the killing, as distinct from his admissions to the police to presence and participation at the killing and as distinct from his testimony in the first trial, that this false evidence lent support to the prosecution's case.

11. Mr Grounds extended the ambit of his submissions by criticising as vague and confusing the judge's direction that "a lie is not, in itself, evidence of guilt". He contended that this phraseology might lead a jury to conclude that, in certain circumstances, lies might be taken as direct evidence of guilt. Mr Grounds suggested that a better direction might be that "lies can never be direct evidence of guilt". We consider this to have been a submission without any foundation and we reject it.

12. The directions which Pang J gave the jury were helpful, accurate and they could not have been fairer. The judge did not leave the jury in any doubt as to how they were to approach lies, assuming they concluded, as almost inevitably they must have done, that the Appellant had told some lies.

13. The summing up as to this aspect of the case should, however, not be looked at in isolation because the judge went on to give further directions in these terms:

"When you consider the evidence for and against the defendant, let me emphasise to you once more, even if you do not accept the defendant's evidence, you will still have to be satisfied beyond reasonable doubt on the prosecution's evidence, that the defendant had committed the offence as charged. If you find that there is some element of truth in the defendant's evidence, and if there is some doubt, you give the benefit of the doubt to the defendant.

Even if you reject the defendant's evidence completely, you will still have to go through the prosecution evidence and satisfy yourself beyond reasonable doubt before you can convict him of the offence"

And a few lines later, the judge went on to say:

"You must bear in mind that the prosecution must prove the defendant's guilt. The defendant does not have to prove his innocence or, indeed, anything."

Conclusion

14. There is nothing to suggest that the conviction was unsafe or unsatisfactory. Accordingly, the appeal is dismissed.