R. v. LAM WAI KEUNG

IN THE COURT OF APPEAL

1992, No. 371
(Criminal)

H E A D N O T E

Robbery - conviction of Cautioned statement admitted after voir dire.

Accomplice's cautioned statements in earlier trial relating to the same robbery and taken by the same police officers as the present ones were rejected by the judge in the earlier trial as he was not satisfied of their voluntariness.

Rejection of accomplice's statements in previous trial not explored in present trial

Conviction quashed.

IN THE COURT OF APPEAL

1992, No. 371
(Criminal)

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J U D G M E N T

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Hon Yang, CJ:

1. This is the judgment of the Court.

2. The applicant was convicted after trial of one count of robbery and another count of possession of a firearm or imitation firearm at the time of committing a robbery. This is his application for leave to appeal against conviction.

3. On 17 May 1990, a man entered the Koon Nam Wah Goldsmith Shop holding a gun; he said, "Robbery, don't move !" Two other robbers who came in held knives. The manager of the shop tried to shield the open showcase with his body but was pushed aside. As the manager fell he hit his head on the floor. He heard the voices of two other robbers, one of whom said, "Leave". Gold necklaces and bracelets to the value of some half a million dollars were stolen.

4. The evidence against the applicant consisted of identification by a salesman of the shop, an accomplice's evidence, and the applicant's cautioned statement.

5. In the Amended Perfected Grounds of appeal, the applicant alleged, inter alia, that: -

I. he was misled by his counsel at the trial into not giving evidence at the voir dire;

IA. in an earlier trial of another person on similar counts, that person's four cautioned statements taken by the police officers, who also took this applicant's cautioned statement, were held to be inadmissible;

II. the judge prejudged as false, the applicant's assertion that he had been misled by counsel: vide I above;

III. the judge erred in refusing to grant the applicant an adjournment in order to seek representation by another counsel;

IIIA through no fault of the applicant, the admissibility and truth of his cautioned statement were not properly canvassed; and

IV. the judge had not acted in accordance with natural justice.

6. The trial opened before Bewley, J. on 20 August 1992, and before the jury was empanelled, he made the decision to hold a voir dire in respect of the applicant's cautioned statement. The complaint was that the statement was obtained by means of police violence. On 21 August 1992, the jury was empanelled and sent away, and the voir dire continued until mid-day, when the judge ruled that the applicant's statement was voluntary, and he admitted the statement in evidence. When the hearing resumed in the afternoon, Mr Barry Sceats, counsel for the prosecution, opened the case to the jury. Just before prosecuting counsel called his first witness, certain exchanges took place between judge and counsel, in the absence of the jury. Part of the exchanges is as follows: -

"Mr Sceats: My Lord, the first person to be arrested was a young man called LAM Ka-lok. And your Lordship heard that name from my learned friend this morning.

Court: Right.

Mr Sceats: He stood trial in the High Court, and apparently the only evidence that the Crown had against him consisted of statements. And those statements were ruled inadmissible against him, so he was acquitted.

Court: I see."

7. Counsel for the defence ("counsel") took no part in the conversation at this stage of the proceedings.

8. The trial then proceeded with the evidence of the first and second prosecution witnesses. The hearing of the day ended at 4:10 p.m. and was adjourned to 24 August 1992.

9. When the hearing was resumed on 24 August 1992, the Court was informed by counsel that the accused (i.e. the applicant) wished to make an application to the Court in respect of his (counsel's) continued representation in the case. The jury was then sent out.

10. In the absence of the jury, the accused asked the Court for an adjournment for another counsel to represent him, because counsel "cannot represent my interest, cannot defend me reasonably". Upon the accused's intimation that he had given counsel full instructions, counsel confirmed that the accused had given him written instruction and he had followed the accused's instruction.

11. The judge then indicated that such an application was seldom granted. In reply the accused said he wanted another counsel to represent him. The judge then made the following ruling: -

" The law appears to be that where at the beginning of a trial, the defendant expresses a desire to conduct his own defence, he should be allowed to do so, and counsel should not be assigned to him against his will. If, however, counsel has begun to conduct the defence and has cross-examined witnesses, a defendant should not then be allowed to dispense with the services of the counsel and take over his own defence. I refuse your application."

12. The judge then consulted counsel and decided that the accused had a choice of either carrying on with counsel or on his own. The judge also stated that he could see no reason to waste time and expense by starting all over again. Then the following exchanges took place: -

"Accused: I would like to raise one question with your Lordship. In respect of the cautioned statement, I was misled by the counsel. As a result of which I elected not to give evidence. And then because of the misunderstanding, your Lordship ruled that the statement was admissible. So if the cautioned statement was placed before the jury, it would be most unfair to me.

Court: Why did you not give evidence ?

Accused: I was told by my lawyer that your Lordship had already held the view that ......

Court: I don't believe ......

Accused: ..... the police should be believed.

Court: I don't believe ......

Accused: So if I elected to give evidence ......

Court: Sorry ?

Accused: So if I elected to give evidence, your Lordship would not believe me. That was the advice from my lawyer.

Court: I don't believe he gave you that advice.

Accused: As a matter of fact, that was the case.

Court: Do you confirm that that is not true, counsel ?

Counsel: That is not my view. That is not my advice. I cannot say further. And I have his written instruction to the effect that he elected not to give evidence.

Court: Thank you.

Counsel: But in any event because of this further allegation by the defendant that he had been misled by me, so I am now placed in a more difficult position, not simply he -- at first he simply says that I cannot represent him reasonably, so this is a very general comment ......

Court: Yes. But he now accuses you of giving him advice ......

Counsel: Wrongful advice, or things of that sort.

Court: ..... not to give evidence on the grounds that I had already decided to believe the police. I gave no such indication, and I cannot believe that you would have given him any such indication. I reject that allegation completely. And I don't think that need trouble you any more, counsel.

Counsel: Yes.

Court: Yes. Anything else ?

Accused: I ask for an adjournment in respect of this case so that I can change another lawyer.

Court: No, that application, I refuse. But I am prepared to give you, say, 20 minutes, to consider whether you carry on with counsel, or whether you carry on on your own.

Accused: It was not necessary for you to adjourn the case for 20 minutes for me to consider. I have made up my mind now. I decided to continue with the trial without the representation of counsel. But I must tell your Lordship that I am a layman in law. If you find that I am guilty of the offence, you may do so."

13. It was obvious that by this stage the accused was unhappy with his failure to obtain an adjournment, and he acted for the remainder of the trial in person, albeit reluctantly. The trial concluded on 27 August 1992 when the jury unanimously found the accused guilty of the two offences charged.

14. There was produced before us at this hearing by way of fresh evidence a number of letters and enclosures. We need only refer to counsel's letter to the Legal Aid Department dated 24 August 1992, setting out what had transpired in Court that morning. Counsel in his letter made the point that, throughout the whole of the afternoon of 21 August 1992, the applicant did not indicate he wished to have a change of counsel, not even when he completed the cross-examination of the first two prosecution witnesses on the general issue by about 4:10 p.m. that day.

15. Attached to counsel's letter was a medical certificate dated 4 August 1992, where the examining doctor reported that the applicant had been medically examined by him on 5 July 1991, and that the applicant had stated that he had sustained injury of multiple scratch marks over the whole body while climbing over the fence at Sha Tau Kok frontier, but he made no allegation of assault by anyone.

16. Another document attached to this letter was the applicant's written instruction to counsel dated 21 August 1992, in the following terms: -

" I, LAM Wai-keung in High Court Case No. 321 of 1991, having been explained the case by Counsel, have decided not to give any evidence in the Voir Dire, and I would never go back on my words."

17. I now come to the Grounds of Appeal.

18. Grounds I, II and IV may be taken together. It is trite law that, except in the case of flagrantly incompetent advocacy, the Court will not set aside a conviction on the ground that counsel has made a decision or pursued a course in the conduct of the trial which later appears to be mistaken or unwise, even if the decision or course of conduct was contrary to the accused's wishes: vide Power, JA, in R. v. HO Shu-chung (1990) 1 HKLR 180, at 188 I - J; see also Fuad, VP, in R. v. MO Lee-kuen [1993] 1 HKCLR 78, at 84(45) - 86(30).

19. In R. v. Clinton (1993) 2 All ER 998, Rougier, J, said (at 1004 i - 1005 a): -

"The court was rightly concerned to emphasise that where counsel had made decisions in good faith after proper consideration of the competing arguments, and, where appropriate after due discussion with his client, such decisions could not possibly be said to render a subsequent verdict unsafe or unsatisfactory. Particularly does this apply to the decision as to whether or not to call the defendant. Conversely and, we stress, exceptionally, where it is shown that the decision was taken either in defiance of or without proper instructions, or when all the promptings of reason and good sense pointed the other way, it may be open to an appellate court to set aside the verdict by reason of the terms of s 2(1) (a) of the 1968 Act." I.e., the Criminal Appeal Act.

20. Here, however, the applicant's complaint is not borne out by his written instruction to counsel. Moreover, the medical certificate refutes the applicant's complaint of police assaults. The exchange between the learned judge and defence counsel shows plainly that, far from prejudging the applicant's complaint about his counsel, the judge was apprised of the fact that counsel acted according to instruction. There is in our judgment nothing in those grounds alone to cause us anxiety about the verdict.

21. As to Ground III, it is not suggested that the learned trial judge erred in his statement of the law relating to the judge's discretion in granting or refusing an adjournment (supra). Whilst another judge might have dealt with the question of adjournment differently, we cannot say the judge had acted wrongly in refusing an adjournment. This was a matter for the judge's discretion: R. v. Lyons (1978) 68 Cr. App. R. 104, 107 - 108.

22. Grounds 1A and IIIA really go together. It is argued that in April 1991, one LAM Ka-lok was tried before Deputy Judge Leonard (as he then was) in High Court Case No. 253 of 1990 on an indictment containing the same counts as faced by this applicant. LAM Ka-lok alleged that four statements purporting to be confessions to the crimes charged had been obtained by means of violence on the part of DSPC 11435 LAM Hon-tai against whom similar allegations were made by this applicant. The admissibility of those statements was considered on the voir dire and that officer gave evidence for the Crown. The learned Deputy Judge ruled all four statements inadmissible. Except for the brief indication of Mr Sceats to the trial judge (see above), these matters were not brought to the attention of the Court nor to that of the jury in the present case.

23. In this case, the applicant alleged that DSPC 11435 and Senior Inspector Chun took part in beating his bare soles, and that the two officers were present when electric current was applied to his genitals. In the previous case, LAM Ka-lok complained that he was repeatedly punched in the chest and stomach by DSPC 11435, who also threatened him with further beatings. Senior Inspector Chun was said to be present. In the present case, DSPC 11435 took the statement complained of from the applicant. In the previous case, the same constable took the four statements from LAM Ka-lok. Both the constable and the inspector gave evidence in voir dire proceedings in both trials.

24. In ruling that LAM Ka-lok's first statement was inadmissible, Deputy Judge Leonard held he was not satisfied that the notebook entry made by the constable was voluntary. He held that the second statement was tainted by the first one, and also that it was taken from a young person in the absence of his parent or guardian. The third statement was held to be tainted by the first two statements and to have no probative value in any event. The fourth statement was held to be tainted by the first two statements.

25. A number of authorities were cited in the course of submissions. We begin with R. v. WONG Kwai-fun, Crim. App. No. 175 of 1989 (unreported), where Hunter, JA, held (at 7): -

"(1) The general rule is that stated by Kempster, JA, in R. v. LEE Shu-fai and Another (1987) Cr. App. 608 (unreported), namely, that the opinion of another jury is irrelevant and inadmissible.

(2) Accomplices are no exception to this rule. One of the leading authorities was an accomplice case: R. v. Thorne and Others (1978) 66 Cr. App. Rep. 6.

(3) The small group of cases in England cumulating in R. v. Gary Cooke (1987) 84 Cr. App. Rep. 286, and which may be said to have created an exception to this rule (but which have yet to be considered and accepted in this court) are very narrow and require two particular features, namely: -

(i) A very close connection between the evidence which the witness gave at the previous trial and that given at the current trial.

(ii) A clear inference that this evidence, when given at the previous trial, had been disbelieved."

26. In R. v. Edwards (1991) 1 WLR 207, Lord Lane, CJ, said this (at 217D): -

"The acquittal of a defendant in case A, where the prosecution case depended largely or entirely upon the evidence of a police officer, does not normally render that officer liable to cross- examination as to credit in case B. But where a police officer who has allegedly fabricated an admission in case B, has also given evidence of an admission in case A, where there was an acquittal by virtue of which his evidence is demonstrated to have been disbelieved, it is proper that the jury in case B should be made aware of that fact. However, where the acquittal in case A does not necessarily indicate that the jury disbelieved the officer, such cross- examination should not be allowed. In such a case the verdict of not guilty may mean no more than that the jury entertained some doubt about the prosecution case, not necessarily that they believed any witness was lying."

27. Lord Lane was followed by Sears, J. sitting in the Court of Appeal in The Queen v. YAU Sun-choi, Crim. App. No. 574 of 1990 (unreported).

28. Lastly, in HUI Chi-ming v. The Oueen (1992) 1 AC 34, the Privy Council held (at 44 B - F): -

" In Reg. v. Gary Cooke (1986) 84 Cr. App. R. 286 it was held by the Court of Appeal that counsel should have been allowed to bring out in cross- examination the circumstances and the result of an earlier trial. A, B and C were alleged to have made admissions to the same detective constable. B and C were tried first on a charge of robbery and acquitted. There was a clear inference from the acquittal that the jury had disbelieved the detective constable's evidence and the Court of Appeal, in allowing A's appeal from his conviction at a later trial (based on his alleged admissions to the same detective), held that his counsel ought to have been allowed to bring out the circumstances in which B and C had been acquitted because they were so relevant to the credibility of the detective constable. As Parker L.J. put it, at p. 293:

' In the present case although the acquittal and its circumstances which were sought to be relied on related to different accused and a different offence, the circumstances were that the credibility of Detective Constable Spreckley was a vital matter and the offences and interviews were so closely connected that the defence ought in our judgment to have been allowed to bring the matter out.'

A study of the cases, including those which were canvassed in Reg. v. Cooke, shows that some exceptional feature is needed before it will be considered relevant (and therefore admissible) to give evidence of what happened in earlier cases arising out of the same transaction. The logic of the defendant's submission here may be tested by asking what ruling the trial judge ought to have given if the defendant or another member of the group had been tried first and found guilty of murder and subsequently, on the trial of Ah Po, the Crown had tendered evidence of the conviction of an accomplice for murder at the earlier trial."

29. In our view, the complaint made in these Grounds of Appeal falls within the situation envisaged in the authorities cited above. There were allegations of police violence in both cases though the particulars of the assaults were different. The same police officers were involved in the taking of statements, and investigation into precisely the same crime was pursued. DSPC 11435's credibility was of vital importance in both cases. Although Deputy Judge Leonard's reasons for ruling as he did (reasons conveyed to us by counsel for the Crown) are terse, it is plain that he did not believe DSPC 11435.

30. Furthermore, there was no indication that the applicant's counsel at the trial made any conscious decision not to examine the matter in the light of what Mr Sceats revealed about the LAM Ka-lok statements. Indeed, it is not clear whether he was in a position to make any decision because it was only after the judge's ruling on the voir dire that the information came to light, although counsel may have been privy to it beforehand. It is argued before us that if, as properly advised he should have been, the accused had given evidence on the voir dire, and if, as he should have done, his counsel had investigated the officers' behaviour in the LAM Ka-lok trial, the trial judge's ruling as to admissibility or his summing up might well have been different. Had it been different, and as this jury had only the accomplice evidence and that of a single identification made almost a year after the event, the verdict might also have been different.

31. In our judgment, because of the unusual course taken by this trial, the defence ought to be allowed the opportunity to canvass the circumstances in which LAM Ka-lok's statements were taken, if not during the voir dire, then during the hearing on the general issue. A most important factor which might well have influenced the jury's assessment of the weight to be given to the applicant's cautioned statement ( - if it was placed before them at all) was, even if advertently, kept from them. We regard the verdicts as unsafe and unsatisfactory.

32. The application for leave to appeal against conviction is allowed. The hearing of the application is treated as hearing of the appeal and the appeal is allowed.

33. Convictions quashed and sentences set aside.

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34. Having heard counsel, order for retrial on a fresh indictment.