R. v. LAU LING WOR

IN THE COURT OF APPEAL

1992, No. 234
(Criminal)

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J U D G M E N T  O F  T H E  C O U R T

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Macdougall, J.A.:

1. The applicant was tried before His Honour Judge Whaley in the District Court on one charge of aggravated burglary and one charge of criminal intimidation. He was found not guilty of aggravated burglary but guilty of burglary, and was acquitted on the criminal intimidation charge. He now applies for leave to appeal against his conviction.

2. The Crown's case as outlined in the Summary of Facts was that the applicant's girlfriend, Miss Cheung, went to her parents flat on the evening of 13 September 1991 and found the applicant in the act of ransacking it. He threatened her with a screwdriver, warned her not to report the case and then began to drag her outside while threatening to kill her.

3. At the outset of the hearing prosecuting counsel informed the judge that Miss Cheung had disappeared and that despite the best endeavours of the police could not be located. He said that as there was no likely prospect of finding her he conceived it to be his duty to proceed with the case on the basis of circumstantial evidence. The following evidence was then led.

4. A security guard at the building in which Miss Cheung's parents and Miss Cheung resided in a flat on the 23rd floor testified that at about 6.45 p.m. on 13 September 1991 he saw the applicant use a key to enter the building through the main entrance and go upstairs by taking the lift. He recognised the applicant as Miss Cheung's boyfriend. The applicant was accompanied by another male at that time. Later that evening the police arrived to investigate a burglary in Miss Cheung's parent's flat.

5. Since this evidence merely put the applicant in the building in which a burglary was later that evening found to have been committed, and since Miss Cheung had disappeared and could not be traced, the prosecution sought to introduce evidence from her brother as to what she had told him concerning the burglary. Counsel for the prosecution submitted to the judge that the circumstances of the present case fell squarely within the principles enunciated by the Privy Council in Ratten v. R. (1972) 56 Cr.App.R. 18 and by the House of Lords in R. v. Andrews (1987)84 Cr.App.R. 382. Counsel for the applicant vigorously objected to the admission of the evidence of Miss Cheung's brother, but the judge ruled in favour of the prosecution.

6. The brother, Cheung Kin-wah, testified that Miss Cheung had telephoned him at his home at about 9.30p.m. She declined to tell him why she was calling him, saying only that she would come to his home as soon as possible. She then hung up. Thirty to forty five minutes later she arrived at his home "looking pale, trembling and shaking". It was immediately apparent to Mr. Cheung that "something very important had happened".

7. Miss Cheung then told him that when she returned to her parent's flat after work that evening she had found the door wide open. On entering she saw "Ah Dee" - this was the applicant's nickname - searching inside her mother's room. When Ah Dee saw her he rushed at her, "pressed on her" and pointed a screwdriver at her. He told her to keep quiet and not report the matter to the police. They then went to a restaurant in Mongkok for a chat. After a while the atmosphere between them became calmer and she took advantage of this to go to the washroom where she made a telephone call to Mr. Cheung.

8. Having heard this account of the incident from Miss Cheung, Mr. Cheung paged his elder sister. When she responded to his call he told her that a robbery had occurred at his parent's flat. Mr. Cheung and Miss Cheung then went to the flat. On his arrival, which was sometime before 11 p.m., he found that his parents, grandparents, the elder sister whom he had telephoned, a younger sister and some uniformed police officers were already there. The flat was in a state of disorder. The drawers in the two bedrooms has been pulled out and ransacked. Money was scattered over the floor and the telephone handset had been wrenched from the wall.

9. A police constable who attended the scene testified that he arrived at about 11.01 p.m. Miss Cheung told him that the suspect had thrown a screwdriver down into the street from the sitting room window. He, Miss Cheung and another police officer then went into the street where a screwdriver, which Miss Cheung identified as being the one she had referred to, was found directly below the sitting room window.

10. The following facts, inter alia, were admitted pursuant to section 65C of the Criminal Procedure Ordinance Cap. 221: that the applicant was arrested at 4 a.m. on 14 September 1991; that he denied the offences under caution; that he had a clear record; and that Miss Cheung's mother had made a statement to the police at 1.30 a.m. on 14 September 1991 in which, she said, inter alia, that Miss Cheung had disclosed to her that when she returned home at 7 p.m. that evening she had found her boyfriend Lau Ling-wor (the applicant) ransacking the house and that he had then fled. The relevant part of section 65C is as follows:

"65C(1) Subject to the provision of this section, any fact of which oral evidence may be given in any criminal proceedings may be admitted for the purpose of those proceedings by or on behalf of the prosecutor or defendant and the admission by any party of any such fact under this section shall as against that party be conclusive evidence in those proceedings of the fact admitted."

11. We observe here that the formal admission regarding Madam Cheung's statement to the police in which she related what Miss Cheung had disclosed to her, was not an admission that the applicant had in fact been found ransacking the house. It therefore did nothing to advance the prosecution case against the applicant.

12. Miss Cheung's mother, whom prosecuting counsel was granted leave to treat as a hostile witness, took the prosecution case no further. She testified that she and her husband had gone out for dinner with other family members on 14 September 1991 at about 6.30p.m. and that later that evening she received a telephone call as a result of which she and her family members returned to the flat and found it in a state of chaos, the drawers having been rifled and their contents scattered around. Certain items including her finger rings were missing. She could not remember, however, what she had stated in a written statement to the police, that Miss Cheung had told her that when she returned to the flat at 7p.m. she had found her boyfriend Lau Ling-wor ransacking her home and that he then fled.

13. At the conclusion of the prosecution case counsel for the defence submitted that there was no case to answer on either charge. The judge found that there was a case to answer on the aggravated burglary charge but ruled in favour of the submission on the criminal intimidation charge and formally acquitted the applicant on it.

14. The applicant elected not to give evidence or to call any witnesses. On the basis of the evidence which we have outlined, the judge, in his Reasons for Verdict, stated that he was satisfied beyond reasonable doubt that the applicant had entered the flat as a trespasser, had ransacked the drawers and had stolen some gold finger rings. However, since he was not satisfied that the screwdriver amounted to a "weapon of offence" within the meaning of the definition in section 12 of the Theft Ordinance Cap. 210, he acquitted the applicant of aggravated burglary and convicted him of burglary pursuant to section 32 and the Schedule to that Ordinance.

15. Mr. Dinan, who appeared for the applicant in this court but not in the court below, argued three grounds of appeal.

16. First, he submitted that, Miss Cheung not having been called as a witness, the judge erred in law in admitting and subsequently relying upon the evidence of Mr. Cheung that Miss Cheung had told him that she had seen Ah Dee searching the premises upon her return from work, when

"(a) the report to PW3 was not sufficiently proximate to the event allegedly witnessed;

(b) the learned Judge could not reasonably exclude the possibility of concoction by PW3's sister;

(c) PW3's sister's reliability and honesty generally had never been properly considered or examined by the learned Judge."

17. In his Reasons for Verdict the judge referred to excerpts from the Opinion of the Board delivered by Lord Wilberforce in Ratten. The following is the entire passage at p.26 from which the excerpts were taken:

The possibility of concoction, or fabrication, where it exists, is on the other hand an entirely valid reason for exclusion, and is probably the real test which judges in fact apply. In their Lordships' opinion, this should be recognised and applied directly as the relevant test: the test should be not the uncertain one whether the making of the statement was in some sense part of the event or transaction. This may often be difficult to establish: such external matters as the time which elapses between the events and the speaking of the words (or vice versa), the differences in location being relevant factors but not, taken by themselves, decisive criteria. As regards statements made after the event it must be for the judge, by preliminary ruling, to satisfy himself that the statement was so clearly made in circumstances of spontaneity or involvement in the event that the possibility of concoction can be disregarded. Conversely, if he considers that the statement was made by way of narrative of a detached prior event so that the speaker was so disengaged from it as to be able to construct or adapt his account, he should exclude it. And the same must in principle be true of statements made before the event. The test should be not the uncertain one, whether the making of the statement should be regarded as part of the event or transaction. This may often be difficult to show. But if the drama, leading up to the climax, has commenced and assumed such intensity and pressure that the utterance can safely be regarded as a true reflection of what was unrolling or actually happening, it ought to be received. The expression 'res gestae' may conveniently sum up these criteria, but the reality of them must always be kept in mind: it is this that lies behind the best reasoned of the judges' rulings."

18. The judge then went on to state:

"In the present case these criteria are all well-satisfied in my view. (I note in passing that both the fact of the burglary and the finding of the screwdriver below the window of the flat have been proved by other evidence)."

and

"In my view the flow of events was such that when (Miss Cheung) unburdened herself to her brother of the events in which she had become enmeshed, commencing with her discovering her boyfriend burgling the family home, she was still so involved in the event that any possibility of concoction can be safely disregarded. When she had telephoned her brother he knew immediately that something was the matter, and when he asked her what the matter was she would not tell him - clearly the circumstances did not allow it - but said she would come to his home as soon as possible. When she did arrive about 30 minutes later she was "pale, trembling and shaking", and proceeded to underburden herself of what had happened.

These facts fit squarely with what she told her brother had happened after she had surprised Ah Dee in flagrante, namely that after he had rushed at her and threatened her with screwdriver not to report the matter, she went with him to Mongkok where they "chatted", and when the atmosphere had become a bit calmer between them she "took the chance" of going to the washroom and rang him.

It is perfectly understandable that she did not blurt out her story to him on the phone, in the circumstances in which she found herself, but rather, having ascertained that he was at home, said that she would come to his home as soon as possible, which she did then proceed to do, getting there about 30-45 minutes later. That was the first realistic opportunity which she could get in the highly - charged flow of events in which she had got caught up, to relate what had happened to her. (It may also be relevant to recall here that the telephone in the flat had been forcibly disconnected, so there was never any opportunity to report the matter to anybody from there).

Furthermore the fact that the screwdriver was found on the ground below the window of the flat as a result of what Miss Cheung told the police officer who found it, lends support to her assertion that she was being threatened in the flat with a screwdriver pointed at her, not to report the matter.

In these circumstances, and not forgetting that she was "pale trembling and shaking" when she arrived at her brother's house, it is clear beyond any reasonable doubt in my view that she was still so in the grip and emotion of the event and its immediate aftermath, despite the lapse in time of some 2¾ - 3 hours, as to render her statement completely spontaneous, and to dispel any possibility of concoction. These events, including Miss Cheung's statement, have authentic stamp of spontaneity about them.

It is perhaps not without significance that it was to her elder brother to whom she first turned in this very difficult and emotive situation in which she found herself, rather than going straight to the police or her parents, particularly in view of his qualities of personality to which I have already referred.

In any event, quite apart from the circumstances then prevailing, the fact that the Defendant was her boyfriend in itself militated against the possibility that her story was concocted. It was never suggested to Mr. Cheung that there was any estrangement or quarrel between Miss Cheung and the Defendant which could have given her a motive to concoct such a story against him. On the contrary it was put to him in cross examination that the Defendant was Miss Cheung's boyfriend at that time, and had been since about March 1990."

19. Having referred to Andrews the judge continued:

"To adopt with respect Lord Ackner's illuminating analysis of this aspect of the res gestae doctrine to the facts of the present case, I am satisfied beyond reasonable doubt of the following :

1. On all the evidence the possibility of concoction or distortion on the part of Miss Cheung can be safely disregarded;

2. The event was so unusual and startling and dramatic as to be still dominating her thoughts when she unburdened herself to her brother some 2¾ - 3 hours later, "pale, trembling and shaking", and that this unburdening was in the circumstances an instinctive reaction to the events which she had witnessed and got caught up in, having had no real opportunity for reasoned reflection thereon. Her enforced involvement in those events and the pressure of them on her were such that her statement, which was uttered at the first real opportunity which presented itself, was made in circumstances of sufficiently approximate contemporaneity as to exclude the possibility of concoction or distortion;

3. The event which triggered the statement was clearly still dominating her mind when she uttered it;

4. Far from there being any special features which might suggest or allow of the possibility of concoction or distortion, the special feature in this case, that the person whom she said she had caught in flagrante delicto burgling her parents' home was at the time her boyfriend, militates against the possibility of concoction or distortion;

5. Any possibility of error in the facts narrated in the statement can for the same reasons be disregarded.

It may be as well to note that it has expressly not been put in dispute by defence counsel that the only reason that Miss Cheung has not been called by the Crown is that her whereabouts are unknown. (This was indeed underscored by the evidence of her mother that she has not seen or heard from her since before the winter solstice last year).

I am very conscious that the lapse of time between the event and the statement is considerably longer in the present case than in any of the decided cases, as far as I am aware, and that the geographical location at which the statement was made was well removed from that of the event. However, as the Privy Council in Ratten expressly said, those criteria, while relevant are not by themselves decisive; and the facts of this case illustrate as well as could be hoped for why, in my respectful opinion, that must be the correct approach, since taking all the peculiar facts and circumstances of this case into account there were very good reasons for the lapse in time and different location such as not to detract from the spontaneity and reliability of the statement. There was in all the circumstances a close and intimate connection between the event and the statement."

20. The question of whether the judge was justified in admitting Mr. Cheung's testimony can be tested by applying the criteria stated by Lord Ackner in Andrews at p.391:

"My Lords, may I therefore summarise the position which confronts the trial judge when faced in a criminal case with an application under the res gestae doctrine to admit evidence of statements, with a view to establishing the truth of some fact thus narrated, such evidence being truly categorised as "hearsay evidence":

1. The primary question which the judge must ask himself is - can the possibility of concoction or distortion be disregarded?

2. To answer that question the judge must first consider the circumstances in which the particular statement was made, in order to satisfy himself that the event was so unusual or startling or dramatic as to dominate the thoughts of the victim, so that his utterance was an instinctive reaction to that event, thus giving no real opportunity for reasoned reflection. In such a situation the judge would be entitled to conclude that the involvement or the pressure of the event would exclude the possibility of concoction or distortion, providing that the statement was made in conditions of approximate but not exact contemporaneity.

3. In order for the statement to be sufficiently "spontaneous" it must be so closely associated with the event which has excited the statement, that it can be fairly stated that the mind of the declarant was still dominated by the event. Thus the judge must be satisfied that the event, which provided the trigger mechanism for the statement, was still operative. The fact that the statement was made in answer to a question is but one factor to consider under this heading.

4. Quite apart from the time factor, there may be special features in the case, which relate to the possibility of concoction or distortion. In the instant appeal the defence relied upon evidence to support the contention that the deceased had a motive of his own to fabricate or concoct, namely, a malice which resided in him against O'Neill and the appellant because, so he believed, O'Neill had attacked and damaged his house and was accompanied by the appellant, who ran away on a previous occasion. The judge must be satisfied that the circumstances were such that having regard to the special feature of malice, there was no possibility of any concoction or distortion to the advantage of the maker or the disadvantage of the accused.

5. As to the possibility of error in the facts narrated in the statement, if only the ordinary fallibility of human recollection is relied upon, this goes to the weight to be attached to and not to the admissibility of the statement and is therefore a matter for the jury. However, here again there may be special features that may give rise to the possibility of error. In the instant case there was evidence that the deceased had drunk to excess, well over double the permitted limit for driving a motor car. Another example would be where the identification was made in circumstances of particular difficulty or where the declarant suffered from defective eyesight. In such circumstances the trial judge must consider whether he can exclude the possibility of error."

21. In applying these criteria we bear in mind Lord Ackner's observation at p.392 that where the trial judge has properly directed himself as to the correct approach to the evidence and there is material to entitle him to reach the conclusion he did reach, then his decision is final, in the sense that it will not be interfered with on appeal.

22. While we accept that the judge was not bound to resolve the question by reference to whether the report of the incident which Miss Cheung made to her brother was exactly contemporaneous with the event which she described, the time lapse between that event and its reportage is of considerable significance.

23. In Ratten Lord Wilberforce, whose exposition of the relevant principles, was accepted by their Lordships in Andrews, said at p.29, after having reviewed English, Scottish, Australian, and United States cases:

"These authorities show that there is ample support for the principle that hearsay evidence may be admitted if the statement providing it is made in such conditions (always being those of approximate but not exact contemporaneity) of involvement or pressure as to exclude the possibility of concoction or distortion to the advantage of the maker or the disadvantage of the accused.

Before applying it to the facts of the present case, there is one other matter to be considered, namely the nature of the proof required to establish the involvement of the speaker in the pressure of the drama, or the concatenation of events leading up to the crisis. On principle it would not appear right that the necessary association should be shown only by the statement itself, otherwise the statement would be lifting itself into the area of admissibility."

24. As a matter of sheer common sense, the longer the time interval, the greater the opportunity for concoction and the less likelihood that the relevant event was so dominating the victims thoughts that her utterance could properly be said to be an instinctive reaction to that event such as to give no real opportunity for reasoned reflection.

25. True, there was no evidence that would suggest that Miss Cheung had a motive for concocting a story against the applicant, but we are unable to accept that after a lapse of two and a half hours during which, on the prosecution's own account, Miss Cheung and the applicant had been to a restaurant where they had had a chat and the atmosphere between them had become calmer, followed by a further lapse of one half to three quarters of an hour - a total of three to three and one quarter hours - there was no real opportunity for reasoned reflection. Not only did the evidence fail to exclude the possibility of concoction but it fell abysmally short of meeting Lord Ackner's proviso that the statement must have been made in conditions of approximate but not exact contemporaneity - an ingredient which Lord Wilberforce observed was present in all the authorities to which he referred in Ratten.

26. We think that after such a long lapse of time between the event and Miss Cheung's report of it to her brother, the judge erred in attaching the significance he did her brother's evidence that when she arrived at his home she was "pale, trembling and shaking". We also do not accept that her utterance to her brother was "the first real opportunity which presented itself" as the judge thought it was. Clearly, Miss Cheung had ample opportunity publicly to unmask the applicant at the restaurant, particularly so at the time that she managed to go to the washroom and make a telephone call.

27. We are satisfied that the evidence before the judge did not justify him in admitting Mr. Cheung's testimony as to what Miss Cheung told him concerning the alleged incident at her parent's flat.

28. The second ground of appeal was a complaint that the judge adopted inconsistent reasoning when he ruled that there was no case for the applicant to answer on the criminal intimidation charge but that there was a case to answer on the aggravated burglary charge.

29. The passage from the ruling upon which reliance is placed is as follows:

"On all the evidence given, including that of Cheung Kin-wah - having heard which I consider it to be admissible - in my view a jury properly directed could find the Defendant guilty of the 1st charge, and accordingly he has a case to meet on that charge.

As regards the 2nd charge however, since the only evidence in relation to it is the hearsay evidence of what Miss Cheung told her brother, with no other evidence at all to support it, in my view the Crown has not made out a prima facie case and I accordingly find the Defendant not guilty of the 2nd charge, and he is formally acquitted thereof." (Mr. Dinan's emphasis)

30. Mr. Dinan submitted that since the only other probative evidence, namely the finding of the screwdriver and the disconnection of the telephone, was more supportive of the criminal intimidation charge than of the aggravated burglary charge, the judge should also have ruled that there was no case to answer on the aggravated burglary charge.

31. We confess to some difficulty in following the judge's reasoning in the second paragraph of his ruling for he did not indicate what other evidence he seems to have relied on in finding that there was a case to answer on the aggravated burglary charge.

32. However, for the reason already given in respect of the first ground of appeal, we do not find it necessary to analyse this matter any further. Likewise, we do not need to consider the third ground, which was a general ground that the conviction was unsafe and unsatisfactory.

33. We grant the application for leave to appeal against conviction and, treating the hearing of the application as the hearing of the appeal, allow the appeal, quash the conviction and set aside the sentence.