THE QUEEN v. WONG SAI WAI

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J U D G M E N T

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Macdougall, J.A.:

1. This is the judgment of the court.

2. In the early hours of the morning of 17th November 1987 the attention of two Police motor cycle patrolmen was attracted to a stationary taxi on a beach some 20 feet from the road at Lung Kwu Tan in the New Territories.

3. On investigation they found that it was locked and that there were bloodstains on the floor of the rear compartment, the outer handle of the driver's door and on the sand nearby. The rubber mats from the floor of the rear compartment were missing. One of the officers then made a report to police headquarters and a constable was despatched to guard the scene.

4. At about 9 a.m. the applicant and a tow truck driver engaged by him to tow the taxi back onto the road arrived in a tow truck. In response to inquiries from the constable the applicant said that he was the driver of the taxi, but offered no reply when asked to account for the presence of the bloodstains.

5. When a team of police officers led by a superintendent arrived shortly afterwards the applicant explained that after he had driven a passenger to a nearby village at about 9 O'clock the previous evening, his taxi had skidded off the road onto the beach where it became trapped in the sand.

6. Having made these initial oral statements he agreed to accompany the police to Castle Peak police station where he repeated his earlier account as to how the taxi had come to be on the beach. A detective sergeant was then instructed to record a statement from him. This was exhibit P8(a). It was a non-incriminatory statement in which the applicant gave an expanded version of his earlier accounts of how, after his passenger had alighted from his taxi, he had attempted to do a U turn, but because of the darkness and slippery conditions the car had slid off the road and onto the beach.

7. In the meantime the tow truck driver, who had also agreed to go to the police station, handed to an officer a travel bag which the applicant had drought with him on the drive to the beach to retrieve the taxi but had left behind in the tow truck. The bag was later found to contain bloodstained items of clothing and a pair of shoes.

8. After his non-incriminatory statement had been recorded the applicant agreed to accompany the police on a search of his house. However, as he and the police officers were about to leave the station, he suddenly announced that he wished to say something. He then made a statement the gist of which was that on the previous evening he had picked up two "pep pill girls" at a Tuen Mun restaurant and, noticing that they were under the influence of drugs, thought he would have some fun with them". After driving them to Siu Hang Chuen he made advances to them which they rejected, so he "did them in with a pair of scissors". He was then cautioned. During the course of further questioning he stated that after he had stabbed the girls to death he dragged them from his taxi and pushed one of them, into a nullah and the other down a slope. Following this he drove first to the Shan King reservoir, where he disposed of the scissors, and then to Lung Kwu Tan in order to clean his taxi. The statement and the questions and answers that followed were recorded by the detective sergeant and signed by the applicant (Exhibit P9(a)). It was on the basis of this information that the police conducted a search at Siu Hang Chuen and located the bodies of the two girls.

9. Almost two hours after the taking of exhibit P9A the applicant agreed to answer questions concerning some bloodstained clothing that bag been found in the travel bag which the tow truck driver had handed to the police. He explained that the clothing was stained with blood because he had worn it when he stabbed the two girls to death and that he had placed it in the bag with the intention of discarding it. Again the questions and answers were recorded in writing by a police officer. They formed exhibit P9(b).

10. Subsequently he took part in a video recorded re-enactment of the killing of the two girls, and led the police to a place where he also gave a video recorded demonstration of how he had discarded the scissors, the pair of underpants he had been wearing at the time of the killings, and two rubber vehicle mats. He explained that he had disposed of these articles because they were contaminated with the blood of one or other of the two girls. The police retrieved these and other articles.

11. The applicant also accompanied the police to the beach at Lung Kwn Tan where the taxi had been found. On this occasion, owing to the presence of press reporters, he declined to re-enact what had taken place there on the night of the killings. Instead, he stated that he had driven the taxi there in order to cleanse its interior of the girls' bloodstains but that due to momentary carelessness he had lost control of the vehicle and it had slipped off the road onto the beach. He had then locked the doors and left the scene.

12. A forensic examination of the taxi revealed numerous bloodstained areas including a pool of blood under the rear seat and a spattering on the rear window that was consistent with having come from a person wounded while seated in the rear compartment. It was also apparent that there had been a thorough removal of all blood from the surface of the rear seat.

13. Blood samples taken from inside the taxi could have originated from both girls, and bloodstains found on the applicant's clothing could have come from either girl. One sample of blood on the scissors could have come from one of the girls or from the applicant, and another sample on the scissors could have come from one of the girls but not from the applicant. Blood smears were discovered on the applicant's underpants, and some plant material together with bloodstains that the expert was unable to group were found on the applicant's jacket. His shorts were also contaminated with blood, but this was diluted, perhaps as a result of washing. A medical examination of the applicant revealed that he had not suffered any recent injury. One of the girls had suffered twenty stab wounds, the most serious of which were to her neck. The other girl sustained four stab wounds, all to the neck.

14. Numerous yellow and blue acrylic fibres matching the applicant's jacket were found on the body and clothing of both girls. The only item of clothing belonging to either of the victims that was suitable for fibre contact examination was a pair of shorts. Black cotton fibres matching these shorts were found in tapings taken from the rear seat of the taxi. An expert also testified that soil adhering to the applicant's shoes agreed in colour, texture and chemical composition with soil from the loose surface of a construction site road adjacent to the nullah in which the body of one of the victims was found.

15. Although there was other evidence to which we have not referred the foregoing represents the principal evidence on which the crown relied at the trial. The applicant elected not to testify and called no witnesses. After a comprehensive summing up from the trial Judge Mr Justice Bewley, of which no complaint has been made, the jury convicted the applicant on both count a of murder.

16. It was contended on appeal that :

(1) There was a material irregularity in the course of the voir dire to determine the admissibility of all written statements, including the non-incriminatory statement and the video recordings of the demonstrations by the applicant, in that the judge wrongly permitted counsel for the crown to cross-examine the applicant on other statements, not the subject of the voir dire, which he had made to a psychologist and to two psychiatrists.

(2) The judge refused to hold a further voir dire to determine the admissibility of such admissions the applicant had made to the psychologist and to the psychiatrists.

17. Mr Westbrook, who appeared on behalf of the applicant both at the trial and on this appeal, submitted that these matters materially affected the outcome of the voir dire and may have materially affected the applicant's decision not to testify before the jury.

18. What happened arose in this way. Well before the trial began counsel received a report from one of the psychiatrists_. We were not told which one it was. However, having considered this report, prosecuting counsel, Mr Cagney, agreed with Mr Westbrook to call for all reports of interviews that the applicant had bad with psychologists or psychiatrists in connection with the forthcoming trial. This was done. We are told by counsel that each of the reports contained a resume in English of what the applicant had said in Cantonese at the interview to which the report related.

19. After both counsel had considered the reports, Mr Cagney informed Mr Westbrook that, shoud the applicant seek to challenge the voluntariness of the statements he had made to the police, he proposed to cross-examine him on what he was reported to have told the psychologist and psychiatrists. Thus Mr Westbrook not only had copies of the reports, but he had been given ample notice that Mr Cagney intended to use them in cross-examination on the voir dire to determine the admissibility both of the signed statements the applicant had made to the police and of the video recorded demonstrations.

20. In his evidence on the voir dire the applicant agreed that he had given a statement to the detective sergeant. He claimed that it was as account of the events of the previous evening, and that he saw the detective sergeant taking down what he assumed to be a faithful record of what he was telling him.

21. According to the applicant, he told the detective sergeant that at 10.00 p.m. that evening while he was waiting for passengers outside a Tuen Mun Restaruant, two men, each helping a girl, entered the rear compartment of his taxi from opposite sides. He was instructed to drive to Shiu Hang Village. During the journey one of the men suddenly announced to him "These are two street objects. I give them to you for fun for three hundred dollars. Do you accept?". The applicant replied that he had a wife and child, that he was too busy and not in the mood, and that he would not accept the girls even if they were offered to him free of charge. The men appeared to be angry and did not reply. On reaching a construction site in Shiu Hang Village he stopped the taxi and asked for the fare. Suddenly he felt someone grasp him around the neck and seize hold of his left hand. He struggled and attempted to reach for a pair of scissors he kept on the floor of the taxi, but was overpowered and lost consciousness.

22. When he regained his senses he found himself in the rear compartment and discovered that there was "a lot of blood" on the rear seat and that the pair of scissors he had used in self-defence was lying there. The four passengers had disappeared. Stunned and frightened he drove to a reservoir where he discarded "someting" that he had discovered in the rear compartment. From there he drove to the beach at Lung Ku Tan where the taxi became stuck in the sand. He then disposed of some further items from the rear compartment that he had not discarded at the reservoir, and filled a bucket with water which he splashed over the back seat. Anxious to return home, he paged the taxi station but there was no reply. So he locked the vehicle and made his way home on foot. There he had a bath and, having hung out the clothes that he had been wearing that evening, went to bed. After he had risen at 6.00 a.m. with his wife and son he placed all the clothes he had worn on the previous evening in a travel bag with the intention of making a report to the police. He then contacted a tow truck company and made arrangements to have his taxi towed back onto the road.

23. After it appeared to the applicant that all this information had been recorded, the detective sergeant assured him that since he, the applicant, had formerly been a police officer, the police would put in order what he had said and that everything would be alright. The applicant then leant over the desk at which he was seated and dozed off. Sometime later he was awakened by the detective sergeant entering the room with a pile of documents which he explained to the applicant contained everything he had told him and that if he signed them everything would be alright.

24. Anxious to return home to see his family the applicant hurriedly began signing the various pages at the detective sergeant's direction. As he was about to sign the third page, however, he suddenly noticed that at the bottom of that page there was a reference to the speed of his vehicle. Since he had not made any mention of this to the police, he refused to continue signing. The detective sergeant then seized him by the hair and told him that the police were not going to bother about the enquiry and that he had to take the whole blame for the killing of two girls. The applicant protested, but he was handcuffed to a chair and his genitals were squeezed until he agreed to sign P9(a). He was then told that as soon as he cooperated in making some video recordings and in assisting the police to find the scissors the sooner he would be able to see his family. He was then shown the travel bag and after he had admitted that it belonged to him, the items of clothing were taken out one by one and were shown to him. Fearing that if he did not cooperate with the police he would again be assaulted he signed exhibit P9(b).

25. After this he was told that he would be taken to various places to participate in video recordings and that he had to cooperate and act in accordance with what he had told the police at the police station. He was told what questions he would be asked and a rehearsal was staged for the purpose of the video recordings. In the circumstances the applicant submitted to the police demands.

26. Plainly this was a very different version from that which the prosecution alleged he had given to the detective sergeant.

27. Mr Cagney then put to the applicant that he had given different accounts of the matter to various people. This the applicant denied. Mr Cagney then sought to put to him that he had given an account to a psychologist that was consistent with what was contained in exhibit 9(a) but inconsistent with what he was now alleging he had told the police.

28. The object of cross-examination of the applicant on this and other subsequent versions given by him that were inconsistent with his present testimony could only have been to attack his credibility on the issue of the voluntariness of the signed statements he had made to the police. The judge was not concerned with the truth of the statements that were the subject of the voir dire but with the circumstances in which they had been made. Accordingly there was no question of him using what the applicant had said to the psychologist for any purpose other than to determine whether the signed statements to the police had been made voluntarily.

29. Mr Westbrook objected to this line of cross-examination. Initially his objection was based on the concept of confidentiality. But after some argument he very properly abandoned this ground. He then posed the question of whether, in the interest of a fair trial and in the exercise of his discretion, the judge thought it right and proper that such a question should be asked. Alternatively, he suggested that a voir dire might be required to inquire into the circumstances of the giving of the statement to the psychologist. The judge then ruled that the question was fair. It was put again and the applicant replied that he thought the account he had given to the psychologist was different from the one he claimed he had given to the police.

30. Mr Cagney then put to the applicant that the version he had given to a psychiatrist, a Dr. Leung, was also consistent with what was contained in exhibit p9(a) and inconsistent with the account he said he had given to the police. The applicant replied that at that time he was that had been exerted by the police in the police station, a statement from him for the police and had asked him to set all the more worried and confused. He wondered what the consequences would be if he did not cooperate with the doctor, so he repeated what he had been forced to admit in the police station.

31. The applicant then proceeded to develop his explanation by adding that he had expected that what he said to Dr Leung would be used in evidence at his trial, and that prosecuting counsel would allege that he had told "various people various stories". He further added that he had given the version to the doctor "only for my own interest".

32. Following this, Mr Cagney put to the applicant that in an interview with another psychiatrist, a Dr Shum, he had given an account of the events of the night of the 16th of November which was inconsistent both with his confession in exhibit P9(a) and the version he had given in court of what he had told the police. The applicant agreed that this was correct but went on to explain that because other prisoners in the reception centre had advised him that since whatever information he gave the doctors might be used in court he should not tell the truth, he decided to follow their advice and gave a false account to the doctor. No questions were asked in re-examination of the applicant concerning the circumstances of or what was said at any of these interviews.

33. In his ruling at the conclusion of the voir dire the judge said that he was satisfied that the police officers had told the truth and the applicant had not. He found that the statements tendered on the voir dire had been made voluntarily and that the applicant had voluntarily taken part in the video recordings. They were accordingly admitted in evidence

34. At 3:30 p.m. on the day of the conclusion of the crown case Mr West brook applied for and was granted in adjournment until 10:00 a.m. the following morning in order to discuss with the applicant whether he wished to give evidence and to explain to him the meaning and consequences of the technical evidence that had been given. At the resumed hearing, Mr Westbrook announced that the applicant had elected not to give evidence.

35. In developing his arguments on the grounds of appeal Mr Westbrook submitted that if it is impermissible to cross-examine an accused person before the jury on a statement that has not been admitted in evidence as part of the crown case, it is equally impermissible in the course of a voir dire held to determine the admissibility of signed confessions, to permit cross-examination of the accused on any incriminating statements made by him that are not the subject of the voir dire.

36. In this connexion Mr Westbrook cited a number of authorities which laid down the well-know principles that an inadmissible document could not be made admissible simply because it was put to an accused person in cross-examination before the jury that it was not permissible to cross-examine an accused before the jury on any matter that could and should have been adduced as part of the prosecution case, and that although all evidence which the prosecution considered probative of the accused's guilt had to be adduced before the end of the prosecution case, if it was then available that did not extend to non-probative evidence relating only to an accused's credit.

37. Although he frankly conceded that he was unable to find any authority directly in point, Mr Westbrook submitted that the principles governing the reception and treatment off evidence before a jury should also apply to the reception and treatment of evidence by a judge on a voir dire held to determine the admissibility of an admission or a confession.

38. We do not agree. The basic rules of evidence are the same in a voir dire as those that apply in the trial on the general issue, but the function of the judge on a voir dire is entirely different from that of the tribunal, be it judge or jury on the trial proper. On the voir dire the role of the judge is to determine not guilt but voluntariness, and the truth of the statement that is the subject of the voir dire is not even in issue. On the trial proper the function of the tribunal is to determine the issue of whether the accused person is guilty. In this connexion it inquires into the truth of the statement.

39. If all the principles that, govern the reception and treatment of evidence before a jury were to apply to the reception and treatment of statements on a voir dire the subject matter of the voir dire would be inadmissible and the voir dire could not proceed at all. So the full breadth of Mr Westbrook's submission must be rejected. The only issue can be whether by analogy the principle can be said to apply to any other statements containing admissions not directly the subject of the voir dire.

40. Here it seems to us that the differences in function are of primary importance. As Lord Diplock observed in R v Sang [1980] A.C. 402, the underlying rationale of the law relating to confessions and statements tantamount to confessions is to be found in the maxim nemo debet prodere ae ipsum - no one can be required to be his own betrayer. We take this to mean betrayer of his guilt. As the determination of guilt is not the function of the judge on the voir dire it following that the maxim has no relevant application to such proceedings.

41. It was relevant to the issue of voluntariness of the statements the applicant had made to the police that he had subsequently given two statement, one to a psychologict and another to a psychiattrist, both of which were consistent with those he had given to the police. It was open to him to offer such explanation as he had for making those statements at those medical interviews. Furthermore it was directly relevant to his credibility that he had made a statement to another psychiatrist which was inconsistent both with his statements to the police and his present testimony.

42. While we fully accept that cross-examination of the applicant on the general issue on contested statements that were not the subject of a voir dire and thus not admitted in evidence, would have been impermissible, we are satisfied that cross-examination of the applicant on the voir dire of the statements be made to the psychologist and psychiatrists was permissible and did not constitute an irregularity.

43. On a somewhat different line of argument Mr Westbrook cited R v. Smith (1979) 69 Cr. App. R 378. The submission made on behalf of the applicant in that case was that as he had submitted himself to a medical examination only on the basis that the results would be made available to the court and the jury if he raised the defence of insanity or diminished responsibility it was a breach of confidence and a dirty trick to give that evidence upon the defence of automatism being raised. It was contended that the court should have prevented the evidence from being given.

44. In giving the judgment of the court Geoffrey Lane, L. J. (as he then was) said this at page 386:

"Here the applicant knew that the medical evidence from the psychiatrists, if it were given at all, would be given in relation to any abnormality in his mental condition and that is exactly what happened. True the mental condition was not one of insanity or of diminished responsibility but it was one of automatism and that seem to us to be a sufficiently abnormal mental condition to prevent the evidence from having any taint of unfairness."

45. Mr Westbrook submitted that the inference to be drawn from this passage is that had the evidence been called to establish anything other than the applicant's mental condition the court would have taken the view that it was unfair.

46. In our view it is where an accused person is led to make a statement that he would otherwise not have made but for an undertaking given to him that it would not be used except for a stated purpose, and is then used for another purpose, that the question of unfairness arises. Evidence may be excluded where it has been obtained unfairly, but where the accused person makes the statement for his own purposes and is not misled by any undertaking made or assurance given to him, the statement cannot be said to have been obtained by that undertaking or assurance. On the evidence before the judge it is difficult to see any unfairness that called for the exercise of his discretion to exclude the material of which Mr Westbrook complains.

47. Nowhere in his long submission to the judge after the conclusion of the evidence on the voir dire, did Mr Westbrook suggest to the judge that he should exclude from his consideration of the applicant's credibility the statement he made to Dr Leung on the basis that it had been obtained unfairly. It is not surprising therefore that the judge made no reference to this ratter in his ruling on the admissibility of the signed statements and video recordings. We do not consider that it was necessary for him to have done so.

48. It is our opinion that since the applicant had not been misled by anything Dr Leung was alleged to have said to him, it cannot be said that the statement was obtained from him as a consequence of what was said. Accordingly there was no good reason why that evidence should have been excluded from consideration on the ground of unfairness.

49. As to Mr Westbrook's contention that the judge refused to hold a voir dire within the voir dire to determine the admissibility of the statements, we think it only fair to say that this is not strictly correct. The judge made no such ruling. While it is true that the judge did not hold an additional voir dire or voir dines, it is plain that, during the course of his submission on the objection to Mr Cagney's question concerning the statement to the psychologist, Mr Westbrook did no more than suggest to the judge that he may conclude that he had sufficient material before him to decide whether or not it was fair to hold a voir dire within a voir dire to determine what had been said to the applicant and whether the applicant had been warned that the interviews could subsequently be used against him at his trial.

50. No authority has been cited to us to support the contention that investigations into allegations concerning statements that are not the subject of the voir dire must be made the subject of separate compartmentalised voir dires. We do not think that such a procedure is required.

51. Clearly the applicant had foreknowledge that he would be cross-examined on the statements he had made at the medical interviews. It is also clear that he not only had ample opportunity to explain the circumstances in which he made these statements but that he sought to offer an explanation whenever tie saw fit to do so.

52. In the course of his subjection on the objection to Mr Cagney's line of cross-examination Mr Westbrook made no specific allegations concerning the making of these statements, nor, apart from what he said concerning the interview with Dr Leung, did the applicant make any such allegations. We have already mentioned that the applicant himself volunteered that he had expected what he told Dr Leung to be used in evidence at his trial and that he had done so only for his own interest. Having not been misled by anything he alleged had been said to him the question of whether it had actually been said was of no importance. Thus the outcome of the cross-examination on the statements made at the interviews was that he accepted that in respect of the events of the relevant night, he had, voluntarily and for his own purposes, given versions that were inconsistent with his present testimony.

53. For these reasons therefore the application for leave to appeal against the convictions for murder is refused.