THE QUEEN v. LAI YEE WAH

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JUDGMENT

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Mortimer JA (giving the judgment of the Court):

1. On 26 July 1995 the applicant was convicted of murder before Stuart Moore J and a jury after a trial which lasted six weeks. He was given the mandatory life sentence.

The facts

2. On 21 August 1994 the applicant and a group of men armed with beef knives, including Chan Man-tam who pleaded guilty to manslaughter, chased Lui Wai-leung, the deceased, from a discotheque in Energy Plaza. They caught him in Chatham Road near some railings where they chopped him to death. The prosecution case was that D1, D2, D3, D4 and D6 escaped to Sai Kung where they hid until they were arrested later the same day. Four beef knives were found in a flower-bed where the assailants had thrown them. D5 was arrested at his home sometime later.

The evidence

3. The prosecution case against D2 to D6 depended upon confession statements each of them had made. The prosecution case against the applicant, however, depended not only upon the two confession statements made after his arrest but also the evidence of a witness who saw him with a beef knife chasing the victim with others before the attack. That witness later picked out the applicant on an identification parade.

4. Each of the accused at trial challenged the admissibility of his confession statements on a voir dire. At the end of the voir dire the judge ruled the confessions by D2, D3, D4 and D6 to be inadmissible and the prosecution was unable to continue against them.

The trial

5. The trial proper began against the applicant and D5 but during the trial, the judge reconsidered his ruling on D5's confessions when it became clear to him that an officer whose evidence he had rejected had been involved in bringing D5 to the police station immediately before he confessed. A point to which we will return.

The voir dire

6. Mr Jerome Matthews appears for the applicant. The main thrust of his submissions - to which we will turn - is that Stuart Moore J failed to properly evaluate the evidence of DPC12772 Leung, PW1 (Leung) and Station Sergeant Shum, PW2 (Shum) when giving his reasons after the voir dire.

7. A witness Chan Chi-ming was called by the defence. On the day following the offence that witness was taken in handcuffs to the police station to assist the police in their inquiries. They thought he knew the whereabouts of one of the accused. He was held in the police station for several hours and assaulted by various officers in an endeavour to persuade him to disclose information. He sustained bruising and abrasions together with a hairline fracture of the spine. On this the judge said (1129G-N):

The judge formed an adverse view of DPC4319 Lee whom he described as "not a truthful witness" and "that officer is simply not prepared to tell the truth about anything".

8. In these circumstances the judge found it difficult to find that statements made by accused persons which were either recorded by Lee or which were made in circumstances in which Lee was in control were voluntary.

9. It is suggested that the judge failed to take into account and evaluate evidence of the involvement of Leung and Shum in the assaults on the witness Chan Chi-ming because this was not drawn to the judge's attention and may have been overlooked. It is submitted that if this had been drawn to the judge's attention, he would have excluded the applicant's statements.

10. For convenience, this is referred to as "tainting". That is where a judge excludes a statement taken by an officer on the grounds that he is satisfied that the officer has been involved in improper conduct in the taking of statements from other accused. Clearly, if a judge has rejected the evidence of a statement taker about the taking of a statement from accused A, it may be difficult for the prosecution to rely upon the same officer's evidence to establish beyond reasonable doubt that when he took a statement from accused B - who makes complaints against him - that the second statement was voluntary. However, this is no more than a factor which a judge will bear in mind in assessing the evidence.

11. In the voir dire the judge saw and heard both witnesses give evidence. Leung recorded the applicant's statements and Shum was present. Both these witnesses gave evidence, were cross-examined (originally and on recall), and the judge formed a favourable view of them.

12. Although he took an adverse view of DPC Lee, the judge specifically found that

"it is not a case where because some interviews are tainted, necessarily they all must be. There are cases in which that might well be so ... But this is not a case where the police squad or team necessarily causes other interviews to be tainted. But where there is an overlap between a defendant and an officer who is undoubtedly tainted as a result of this voir dire. I need to step very carefully indeed and there is such an overlap in my judgment that is so serious that I cannot overlook it".

He then found it necessary to exclude the statement of another accused taken by DPC Lee. He found that he was lying about the circumstances in which the statement was taken.

13. The judge finally ruled that the statements given by this applicant and one other - the 5th defendant - were voluntarily given. "Having seen and heard the evidence, I am no doubt at all that they were".

D5's further application

14. Counsel who represented D5 on the voir dire later had to withdraw from the case and be replaced. His new counsel, Mr Stirling, invited the judge to reconsider his ruling on the admissibility of D5's statement.

15. The basis of the application was the consequences of the judge's adverse view of the police evidence relating to the arrest and interview of D6. In ruling D6's statement inadmissible, the judge concluded

Mr Stirling pointed out that an officer - referred to by his number 22826 -had arrested D6 and had been working with DPC Lee Wing-him, 4319, the statement taker. It had not been brought to the judge's attention on the voir dire that the officer 22826 was the interviewing officer in D5's case. Both interviews and enquiries - although two months apart - were also under the overall supervision of the same officer.

16. The judge concluded that there may be a direct overlap with an officer who may be tainted and ruled out D5's statement.

The application

17. Mr Matthews submits that, as with D5, the judge overlooked similar "tainting" of Leung and Shum and was in error when he excluded them from the criticism he made of other officers. He therefore failed to evaluate the evidence - or the evidence was overlooked - that the two officers were involved in the assault on Chan Chi-ming and possibly others when D1 and others were arrested at the Beach Hotel. It is submitted that their credibility is tainted by that involvement, that the judge ought to have ruled out the applicant's statements and would have done so had he had these matters in mind.

18. Mr Matthews also submits that the judge did not give sufficient weight to admitted breaches of the "rules for questioning suspects".

The possible "tainting" of Leung and Shum

19. The first involvement relied upon is the arrest of the applicant and other accused at the Beach Resort Hotel. There were certain discrepancies in the evidence between these officers and Inspector Chow. Although these matters were relied upon by Mr Matthews, it is not necessary to consider them further because the judge was well aware of them, he was not of the view that these matters were of sufficient importance to influence him in his decision. During Mr Stirling's submissions for D5 at 1176 Q-S, he said:

"... I am not very impressed by the nature of the allegations concerned with the ... hotel, I am not impressed by that."

There were so many officers involved that it could not be said that each was aware of the acts of the others.

20. Both Sergeant Shum and DPC Leung were recalled to give evidence of their dealings with Chan Chi-ming. Chan Chi-ming had been brought to the police station at about 3 pm on 21 August 1994 and at 7.20 pm Shum and Leung were instructed to take Chan Chi-ming to his home for Chan Chi-ming to use his pager to call one of the defendants.

21. Leung gave evidence that after Chan Chi-ming's arrival at the police station, he, together with DPC4319 - the officer about whom the judge had the severest criticism - interviewed Chan in a room. But, that after about 10 minutes Inspector Chow took over and he, Leung, stood guard outside the door.

22. It was suggested that this was inconsistent with Leung's notebook which recorded:

"1640 hours instructed by DSl Lee, took over c/m Chan Chi-ming from D.Sgt 17392 and 45849 at Room 309 to find out particulars and whereabouts of the assailants. 1820 hours I reported to DSI Lee the result. 1900 hours led by D.Sgt Shum together with DPC9455 went to Chan Chi-ming's place of abode and he was willing".

DPC4319 and Inspector Chow both supported Leung that he had only spent about 10 minutes with Chan Chi-ming before Inspector Chow had taken over. It was open to the judge to accept Leung's account.

23. The suggestion is that even if Shum and Leung were not personally violent or threatening towards Chan Chi-ming as they took him to his home at 7.20 pm and as Leung was on guard outside the room in which Inspector Chow was interviewing Chan, they must at least have been aware of the violence used against him.

The issues

24. Two issues arise. The first is whether the judge overlooked the involvement of these two officers with the witness Chan Chi-ming. The second is, if so, ought he to have found that they were so "tainted" with their involvement with other officers that the judge ought to have rejected their evidence on the taking of the applicant's statements?

25. As the applicant's confessions were an important part of the evidence against him in this most serious case, these are issues which an appellate court must approach with great care. Equally, this Court will not interfere in a judge's ruling on a voir dire unless good grounds are demonstrated.

26. The judge exercised the greatest care in assessing the evidence on the voir dire and kept an open mind on the admissibility of the confession statements during the trial. In D5's case, he had himself reviewed the evidence before Mr Stirling made the second submission. He had alerted himself to previous counsel's oversight.

27. We have received considerable assistance from counsel on this appeal but it has also been necessary for this Court to review the transcript in some detail before reaching our conclusion. This has not been an easy task.

Conclusion

28. The applicant's contentions were themselves unusual. His case was summarised by his counsel, Mr Young, who at the outset of his submission on the voir dire said:

In other words that the applicant had twice given a full account of the events but Leung and Shum forcefully made him make statements which only set out part of the account he had given.

29. Then at the forefront of his submissions for the applicant, counsel said:

"Now your Lordship will probably recollect only yesterday Messrs Leung DPC and Shum Detective Station Sergeant - were paraded before us in a different context. It was said that they had been involved in the maltreatment of Chan Chi-ming. So your Lordship will no doubt wish to bear in mind what was put to them about that and what they had said."

30. Chan did not give evidence that either Shum or Leung assaulted him. Leung gave evidence that he interviewed Chan with DPC4319 for about 10 minutes and was relieved by Inspector Chow. Chan said that Chow assaulted him without giving details. He said the assault was "slight, less than the others".

31. In contrast therefore to counsel then defending D5 on the voir dire, counsel for the applicant brought to the judge's attention - if it was necessary - the evidence of Leung and Shum. Further, these witnesses, together with Chan, had been recalled to deal specifically with their involvement with Chan at the end of the voir dire and immediately before the applicant's counsel made submissions - including those we have set out.

32. With respect, it is inconceivable that when ruling on the applicant's statements this careful judge had overlooked the matters advanced by counsel on this appeal. As he said,

"It is not a case where because some interviews are tainted, necessarily they all must be."

Further, it is clear from his ruling that he had the relevant evidence in mind when he said about Leung:

"(his) evidence I found very impressive as it was when he was first called ..."

He well recognised the unsatisfactory nature of some of the evidence given by the police officers. He gave effect to his findings and clearly gave the benefit of the doubt to the accused. He was impressed by the evidence of Leung and Shum. There is no reason to think that he did not properly evaluate and take into account the evidence which he had recently heard. Indeed, it is clear that he did.

33. There was no duty upon the judge to give any reasons for ruling the statements to be admissible. The only reason he gave was that he found Leung and Shum to be reliable. Similarly, of course, it is not incumbent upon him to give any reasons for ruling any statement out but in this case he chose to do so.

34. Finally, the concessions made by the officers of breaches of the rules for questioning suspects do not reflect any credit upon them but in this case were not of sufficient moment to influence the judge's decision on its admissibility.

35. It is not necessary to deal specifically with any of the other matters raised.

36. We are satisfied that the matters relied upon in support this application are not made out in spite of Mr Matthews's careful and well reasoned submissions.

37. The application for leave to appeal against conviction is refused.