THE QUEEN v. YIP WAI KWONG

BETWEEN

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J U D G M E N T

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SiIke, V. P. :

1. Yip Wai Kwong, was convicted after a trial, at which he did no give evidence, before His Honour Judge Daniell sitting as a Deputy Judge of the High Court and a jury on a single count of uttering forged documents. He was sentenced to imprisonment for 5½ years. He now seeks leave to appeal only against that conviction.

2. The offence was said to have taken place on 18th October 1984 and the notes concerned were 130 forged HK$1,000 issued by the Chartered Bank. There was no dispute at trial that the notes were forged, they being of good quality but detectable by experts.

3. The trial took place in May 1988. The long delay between arrest and trial was occasioned by procedural matters including the issue of orders of mandamus and certiorari which form no part of our consideration.

4. It was the case for the Crown that the Applicant, a Mr. Lee and a Mr. Cheng had discussed the exchange of $130,000 Hong Kong dollars, which were to be provided by the Applicant, for 72,800 Renminbi to be provided by Mr. Lee. Mr. Lee who ran a car business in China desired to get the Renminbi out of China and to obtain foreign currency in Hong Kong.

5. It was agreed, there not appearing to be much trust between the parties, that each would use a middleman - Mr. Cheng for the Applicant and a Mr. Kam for Mr. Lee.

6. The Applicant took Mr. Lee and Mr. Cheng to his home in Tai Po and there showed to Mr. Lee thousand dollar notes. Mr. Lee examined them by using ultraviolet light provided by the Applicant and also by the use of that which was termed "the white paper" test. He satisfied himself that the notes were genuine.

7. The Applicant placed the notes in a drawer, locking it and giving the key to Mr. Cheng. Mr. Kam then arrived on the scene and the arrangement was that he and Mr. Cheng would stay in the room while the Applicant and Mr. Lee went to Shen Zhen to collect the Renminbi. Upon collection there the Applicant and Mr. Lee would telephone to Mr. Cheng who would give the Hong Kong dollars to Mr. Kam. Mr. Kam, using Mr. Lee's passbook, would in turn go to a branch of the Hong Kong and Shanghai Bank, at Kwong Fook Road in Tai Po, and deposit the notes into Mr. Lee's accounts. That plan was implemented, Mr. Cheng waiting in a restaurant next door to the bank, but the bank found the notes to be forgeries. Mr. Kam and then Mr. Cheng were arrested.

8. Mr. Lee returned from China, found no deposit had been made to his account and traced Mr. Kam to his home. When Mr. Lee arrived there the police were present and he also was arrested. All these men were eventually Crown witnesses.

9. The Applicant was not then arrested but, on 11th October 1986, he surrendered himself to the police and was arrested. Immediately upon that arrest he made a very full cautioned statement. The defence - I use that term for convenience - emerged from the cross-examination of the witnesses called by the Crown. It was suggested that the forged notes might have been substituted for the money shown to and tested by Mr. Lee: that another man, Au Yeung Kwong Tai, who was an intended prosecution witness but who could not be found at the time of trial, was heavily involved and the general implication was a disclaimer by the Applicant of complicity in any dishonest acts.

10. Great use was made of the Applicant's cautioned statement in the course of cross-examination. During the prosecution's case evidence was given by Detective Sergeant Chow Chi Yeung to the effect that such a statement had been taken. Towards the conclusion of their case certain agreed witness statements were read to the jury by counsel then appearing for the Crown. These included one made by DPC 23655 Ng Siu Chuen, a witness on the back of the indictment.

11. Counsel informed the Court that both he and counsel then appearing for the Applicant agreed to the admission of certain facts under the provisions of section 65C of the Criminal Procedure Ordinance, Cap.221. These included the fact that the Detective Constable Ng had taken the cautioned statement from the Applicant between the hours of 3:40 p.m. and 7:30 p.m. on 11th October 1986. He had, after the surrender of the Applicant, arrested him for the charged offence at 2:30 p.m. on that day.

12. Counsel went on to state that he formally produced the cautioned statement and it was marked as Exhibit P7 the whole being admitted, though there was no formal order to that effect, as evidence before the jury.

13. I am surprised that counsel should have taken this course in relation to a statement made some two years after after the events for which the Applicant had been arrested and after his surrender to the police. I appreciate that his purpose was to set it up in order to knock it down and to be able to describe it as "a tissue of lies".  He had opened the Crown's case on this basis, informing the jury that the Applicant had put all the blame on Au Yeung Kwong Tai. No objection was taken to this course as no doubt counsel for the defence, understandably, considered this to be grist to his mill.

14. The Crown closed in the same manner going as far as to draw the attention of the jury to the two year delay.

15. I have grave doubts as to whether this statement should have been admitted at all. Counsel for the defence in his closing address was permitted to advise the jury that he had initially desired the Applicant to go into the box but, as he found that the Applicant had clearly explained everything in the cautioned statement, if he did go into the box:

"What he could do is just to repeat his evidence in the cautioned statement. In order to save everybody's time, therefore, my client chooses not to go to the box. In fact all the truth lies in his cautioned statement."

16. This, with respect, was a complete misapprehension of the law. What was said in this wholly self serving statement was not evidence of the facts stated in it. Its only possible use could have been to show first reaction - and, given the time lapse, the spontaneity necessary to make such a reaction admissible evidence might well have been thought to be singularly lacking. It smacked of a set piece. Its admission under section 65C was not an admission by the Crown as to the truth of its contents - if it were then the prosecution would have had no case.

17. In the course of his summing up, the trial judge made it clear to the jury that what was said in it was "not evidence which goes to the truth" and that it showed simply that the Applicant had said those words and not that what he had said was true. He did not go on to make direct comment upon the Applicant's failure to support the statement by his own or other evidence. He could, properly, have taken this course as was indicated by Lawton, L.J. in McCarthy (1980) 71 Crim.App.R. 142. I can appreciate that the trial judge probably felt himself inhibited from doing so by the nature of the Crown's opening - and its closing - and the production by agreement of the statement.

18. But be that as it may: the only ground argued, though it is divided into two parts, is that there was a material misdirection in a failure by the trial judge to direct the jury as the use they could make of lies, a failure compounded by that which counsel has termed a further misdirection "effectively" telling the jury that, if they considered that the Applicant had lied in that statement, they should convict him.

19. Immediately after the trial judge had made reference to the nature of the statement he said this to the jury:

"Indeed it is the Crown case chat the statement is a tissue of lies."

and he then went on to outline what the Crown's case generally was.

20. The only other reference to lies to which our attention has been directed occurs at page 16 - and it is this urges Mr. McCoy, who appeared for the Applicant in this Court, that is the gravamen of his complaint.

The judge said:

"Members of the jury, this case is very simple. It appears complicated perhaps when the defence case is put to the Crown witnesses. Do remember that the defendant's case is essentially based on his statement to the police. In the light of the evidence which you have heard, do you think that statement he gave to the police is true or may be true? If so, your duty would be to acquit him."

21. The difficulty with that passage is, of course, that the judge had earlier, and quite properly, directed the jury that the statement was not evidence which went to its truth.

The trial judge the went on:

"Or, members of the jury, do you think that the statement is, as the Crown alleges, a tissue of lies. Remember the defendant did surrender himself to the police. Remember, too, that he explained to the police his long absence from Hong Kong, saying that he could not find work here."

22. It is the combination of these two directions which leads Mr. McCoy to advance the submission he does.

23. As has been said many a time and oft summings up are not to be construed as if they were a statute. They must be viewed in the context of the evidence as it emerged at trial and in the light of the way respective counsel ran their cases. I would add: also in the light of the impression the trial judge has formed of his jury and the complexities of the trial generally.

24. Mr. McCoy agrees that if the direction set but above had been absent from the summing up he would have been doubtful of the necessity for any direction on the use of lies. As was said by Sir Alan Huggins in The Queen v. Keung Sin Chi CA 965/83 (unreported) it is not necessary in every case for a trial judge to give a Broadhurst direction (Broadhurst v. The Queen [1964] AC 441).

25. It is the absence of any additional direction, that is that it is only if the jury comes to the conclusion that lies had been told as evidencing consciousness of guilt that the jury can make use of them as a factor in their consideration of the whole of the evidence but not as something of themselves upon which they can base a conclusion of guilt, which he suggests is fatal. The Crown in its closing address did advance this proposition to the jury (page 225). It was perhaps unfortunate, in the circumstances here, that it was not picked up by the trial judge.

26. Mr. McCoy relies on Keung for the proposition set out subsequent to the "not every case" dictum that :

"(a trial judge) must, of course, avoid giving the impression that lies are necessarily indicative of guilt of the offence charged ....."

27. That, says Mr. McCoy, is precisely the effect of the complained of direction here.

28. In the passage complained of the trial judge seems to have put two options to the jury. The first is "if you belief his statement is, or might be true, you must acquit him." There can be no complaint with that. The second however is "Or members of the jury do you think this statement is, as the Crown alleges, a tissue of lies?". He does not go on to say "if you do you should convict him" but that seems to be the clear implication and it is of course wrong as being contrary to Broadhurst.

29. Mr. Bruce, who did not appear below, accepts that he is in some difficulty. He too relies, but for a different purpose, on the "not every case" dictum in Keung. He urges that the effect of the jury's verdict is that they must have believed the evdence of Mr. Lee, Mr. Cheng and Mr. Kam otherwise they could not, in effect, have found the contents of the Applicant's statement to be untrue.

30. He further submits that, even if we do find a misdirection, coupled as indeed it must be with a non-direction, we should consider the application of the proviso. This submission Mr. McCoy seeks to counter by suggesting that this Court can only speculate as to what the jury might have done had they been, as he would have it they should have been, properly directed and that we cannot, therefore, be sure that no miscarriage of justice has taken place.

31. Given that the Applicant's cautioned statement was produced, used before the jury, given to them and that they were told the Crown desired them to consider it "a tissue of lies" - the Crown itself having brought it to their attention - I am brought to the reluctant conclusion that, in not giving a Broadhurst direction, the trial judge was in error. I have sympathy with him for he found himself in the difficult position of having on the one hand to tell the jury that the statement was not evidence of the truth of the truth of its contents and on the other to deal with the Crown's contention that those very contents were "a tissue of lies". All this in the context of no evidence having been adduced by the defence.

32. I consider the misdirection, or in reality non-direction, was material and sufficiently so as to prevent the Court from finding that there was on miscarriage of justice. I would grant leave to appeal treat the hearing as the hearing of the appeal and allow the appeal, quash the conviction and set aside the sentence.

Penlington, J.A.

33. I agree. I too and with reluctance would allow the appeal.

Macdougall, J.A.:

34. In support of this application for leave to appeal against conviction Mr. McCoy has advance the following two grounds.

1.     There was a material non-direction in that the judge failed to warn the jury as to the use they could make of lies in a case where the Crown alleged that the applicant's whole case was "a tissue of lies".

2.     The judge materially misdirected the jury by in effect directing them that if they came to the conclusion that the applicant had lied in his statement to the police they should convict him.

35. The passage in the summng up on which Mr McCoy relies in seeking to make out the second ground is as follows:

"Members of the jury, this case is very simple. It appears complicated perhaps when the defence case is put to the Crown witnesses. Do remember that the defendant's case is essentially based on his statement to the police. In the light of the evidence which you have heard, do you think that statement he gave to the police is true or may be true? If so, your duty would be to acquit him. Or, members of the jury, do you think that the statement is, as the Crown alleges, a tissue of lies? Remember the defendant did surrender himself to the police. Remember too, that he explained to the police his long absence from Hong Kong, saying that he could not find work here."

36. At the very outset Mr. McCoy readily conceded that it is not incumbent on a trial judge in every case in which the Crown alleges that the accused has lied to give a specific direction to the jury as to the use they may make of lies. He submitted, however, that the present case was one in which it became imperative that such a direction be given.

37. The thrust of Mr. McCoy's argument was that by contrasting a finding that the statement may be true with one that it was a tissue of lies, and by giving a correct direction that there should be an acquittal in the event of the first, but then failing to give any direction as to the consequences of the second, the deputy judge effectively, though unwittingly, invited the jury to convict the applicant if they came to the conclusion that his statement was a tissue of lies.

38. Mr. Bruce, who appeared for the Crown in this court but not in the court below, sought to uphold the conviction. He pointed to the fact that because the applicant had exercised his right not to give evidence, the jury were left with the testimony of the prosecution witnesses as to the applicant's participation in the offence, and the statement which he made to the police. He submitted that therefore the only basis on which the jury could have found that the applicant had told a tissue of lies to the police was if they believed the prosecution witnesses. Accordingly the passage in the deputy judge's summing up could not have had the effect that Mr. McCoy claims it had.

39. This argument is founded on a false premise. The statement made by the applicant after his voluntary surrender to the police consisted of a series of questions and answers, some of which were directly concerned with the alleged offence and others related to collateral matters. Mr Bruce's argument proceeded on the assumption that, looking at the statement in isolation, there was nothing in the answers given by the applicant to the questions asked by the interviewing officer from which the jury could conclude that he had lied.

40. It is plain, however, from an examination of the record of the interview that it is reasonably possible that the jury may have concluded that the applicant had prevaricated and given unsatisfactory answers. But that is not all, for after one question in the series the interviewing officer recorded "at this point, suspect Yip Wai-kwong did not answer. He didn't answer me even after two minutes".

41. Moreover, in opening the case to the jury, prosecuting counsel told them that the applicant had made a statement to the police in which he sought to put the blame on a man who would not be a witness at the trial, and made it plain that the Crown's contention was that the statement was a tissue of lies. And in his closing address he took the jury through the series of questions and answers in the statement and invited them to conclude that some of the answers flew in the face of the probabilities inherent in the events there being related. He characterised some of the applicant's answers as "unreasonable".

42. The statement was not one which the applicant himself could have had admitted in evidence; it was not spontaneous and it was wholly exculpatory. Prosecuting counsel clearly sought to introduce it in order to highlight to the jury those answers he viewed as wholly implausible and to invite them to conclude that the applicant, actuated by a sense of guilt, had concocted a story to extricate himself from his predicament.

43. In these circumstances it was of crucial importance that the deputy judge should have dispelled any notion the jury might have had that if the accused had lied in his statement it must be because he was guilty. It was clearly a situation that called for a proper direction on the effect of lies.

44. For these reasons therefore I would allow this application and quash the conviction.