R. v. CHONG KWOK WAH and Another

1996, No. 549
(Criminal)

H E A D N O T E

Expert evidence is to be considered not in vacuo but in the context of the whole of the evidence.

IN THE COURT OF APPEAL

1996, No. 549
(Criminal)

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J U D G M E N T

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Bokhary, J.A.:

1. Two gruesome murders form the backdrop to this most extraordinary case in which these two applicants, both police officers investigating those murders, have been convicted of conspiring to pervert the course of public justice.

2. They were so convicted by His Honour Judge Lugar-Mawson in the District Court on September 6 last year. And they now seek leave to appeal against conviction.

3. The first of the two murders was of a man named Shum Ping-cheung. That murder took place on October 6, 1994. The second murder took place a little less than a year later on September 29, 1995. It was of a man named Ho Chun-yau.

4. One matter linked the two murders. In each victim's notebook, the police found the name and telephone number of a man named Lam Tin-ming.

5. The two murders were investigated by detectives of the formation known as Regional Crime Unit, New Territories South (often shortened to "the RCU NTS").

6. Both applicants were members of Team 3 of the RCU NTS. The 1st applicant was a Detective Sergeant in his mid 40's, while the 2nd applicant was a Detective Constable in his early 30's.

7. Not surprisingly, the police invited Mr Lam, whose name and telephone number appeared in each victim's notebook, to attend the RCU NTS's offices for the purpose of providing a witness statement. And he did so on the afternoon of November 21, 1995. His witness statement was recorded by the 2nd applicant.

8. The police then wanted to search Mr Lam's home, a flat in Sha Tin. He agreed to that. And he accompanied the police to the flat for that purpose.

9. In the result, the search took some time. Mr Lam's wife suffered from a psychiatric complaint. And she had to be calmed down first. Then Mr Lam himself behaved very strangely. He threw himself about the room and acted, a witness said, "like a monkey". After calming down a bit, he told the officers present that he had been performing a spiritual exercise. And even after calming down a bit, he still showed signs of great nervousness.

10. Following the search, the police invited Mr Lam to go back to the RCU NTS's offices for further enquiries. And Mr Lam did so.

11. Back at those offices, there began the events which gave rise to the charge on which the applicants have been convicted.

12. In the 1st applicant's presence, the 2nd applicant interviewed Mr Lam and kept a written record of the interview. There were only three persons in the room, being the applicants and Mr Lam.

13. At some stage while he was in the room with the applicants, Mr Lam lost consciousness.

14. Attempts to resuscitate Mr Lam were made: first by police officers; then by ambulancemen who arrived; and finally by a doctor at the Tai Po Jockey Club Clinic to which Mr Lam was rushed. All such attempts failed. Mr Lam had died.

15. A post-mortem examination showed that he had died of a heart attack resulting from the poor state of his arteries. There is no suggestion that either applicant had in any way caused or contributed to Mr Lam's death.

16. At about 6 o'clock that morning, November 22, the 2nd applicant handed to Detective Senior Inspector Lee Tak-kin the record which he had kept of his interview of Mr Lam in the 1st applicant's presence.

17. That record of interview shows Mr Lam confessing to the murders of Mr Shum and Mr Ho.

18. There was no suggestion by the prosecution at the trial, nor is there any suggestion by them before us, that anybody other than Mr Lam had killed either of those two men.

19. The record of interview also shows Mr Lam telling the interviewer about money hidden in his flat, being money which had come from one of the murder victims.

20. As a result, still early that morning, the police conducted a further search of the flat. Sure enough, acting on the strength of information contained in the record of interview, the police found in the soil of a flower pot in the flat $223,000 in $1,000 notes.

21. At some later stage, the 1st applicant's police notebook came into his superiors' hands. In that notebook there is an entry, against the time 0100 hours on November 22, 1995, to this effect: Mr Lam was asked if he wanted a lawyer to be present during the interview; he indicated that he did not; and he was asked to sign. Then there is what appears to be Mr Lam's signature.

22. Coming back to the record of interview, it appears to have been signed by Mr Lam at ten places in the document.

23. Those eleven signatures, each appearing to be Mr Lam's signature, lie at the heart of this case.

24. At some stage during the enquiry into Mr Lam's death, the police began to suspect that those eleven signatures were not genuine. And they tackled the applicants on that score. But both applicants maintained that they saw Mr Lam signing the record of interview. And the 1st applicant also maintained that he saw Mr Lam signing his notebook.

25. The charge brought against the applicants - and found by the judge proved beyond reasonable doubt against both of them - is essentially this. Between November 21 and December 27 1995, they conspired together to pervert the course of public justice by:

(1) forging Mr Lam's signature in the notebook;

(2) forging his signature in the record of interview; and then

(3) falsely representing to the police that he had signed both of those documents.

26. Expert evidence that those eleven signatures were not Mr Lam's was accepted by the judge. And, in the light of that, the judge considered the only reasonable inference to be that the applicants had indeed conspired as charged.

27. The judge felt unable to say whether the forgery took place before or after Mr Lam had died. But in either case, he concluded, there would have been a course of public justice to be perverted. Plainly, that is so. It would be the inquiry into Mr Shum and Mr Ho's murders if the forgery had taken place before Mr Lam died. And it would be the inquiry into Mr Lam's death in police custody if the forgery took place afterwards.

28. Both matters were police matters. Both matters would have been destined for a court: a criminal court in the case of the former, a coroner's court in the case of the latter.

29. Two grounds of appeal against conviction have been lodged on behalf of the applicants, who are jointly represented before us although separately represented below.

30. The first ground is that the judge erred in law in accepting the evidence of the two handwriting experts called by the prosecution. And detailed particulars of why that is contended are contained in the ground.

31. As for the second ground, it is that the conviction of each applicant is in any event unsafe and unsatisfactory. Again detailed particulars of why that is contended are given, such particulars including a repetition of the first ground.

32. Having noted the broad terms of each ground, we revert to the first ground for the purpose of making these observations.

33. The main thrust of the first ground is directed against what the handwriting experts used as "control signatures" i.e. as signatures of Mr Lam for the purpose of testing the genuineness of the signatures in his name appearing in the notebook and in the record of interview.

34. There were, as we have said, two handwriting experts called by the prosecution. They were Mr Cheng Yau-sang and Mrs Ng Gek-kwee.

35. Mr Cheng is a forensic scientist with the Government Laboratory here. Mrs Ng is the head of the Document Examination Laboratory in the Department of Scientific Services of Singapore's Institute of Science and Forensic Medicine. Their expertise cannot be doubted.

36. It is true, however, that some of the control signatures placed before the experts are of doubtful origin. Moreover, it would appear that by the time he came to deliver his verdict, the judge had forgotten a concession in that regard made by the prosecution while Mr Cheng was in the witness-box.

37. But at the end of the day, it might be that there was a sufficient number of properly proved control signatures for the experts to give admissible and acceptable evidence that the signatures in Mr Lam's name in the notebook and in the record of interview were not his after all. We need not decide that because we are of the view that this case can be disposed of on the second ground even on the assumption that the defence arguments under the first ground fail.

38. Coming now to a closer examination of the second ground, it can be seen to contain a large number of things. We focus on one in particular. Even at first glance, it can be seen that it calls for particularly close examination. And it grows larger and larger upon examination.

39. Found by the police in Mr Lam's flat was a number of completed Macau entry cards which bore signatures in Mr Lam's name.

40. In the normal way, one would expect that those signatures were his, being in his name and found in documents in his home. But both experts were of the opinion that they were not his.

41. The judge noted that those signatures had been "discarded by [the experts] for comparison purposes". And he seems to have thought that that was the end of the matter as far as those signatures were concerned.

42. But was it really the end of the matter?

43. Two scenarios considered - and rejected - by the judge in regard to the notebook and the record of interview were these. Mr Lam had signed the notebook and record of interview in a disguised hand. Or he had signed those two documents while in such a state that he could not help but produce something so odd that even handwriting experts would believe it had been written by somebody else.

44. The third scenario - which the experts concluded and the judge accepted was the true one - is that somebody had forged Mr Lam's signature on those two documents.

45. To the same extent that those three scenarios were the ones to choose from in relation to the notebook and the record of interview, so were they the ones to choose from in regard to the Macau entry cards.

46. But the judge never considered them in relation to the Macau entry cards.

47. In our judgment, he should have done do. And he should have done so in the context of the whole of the evidence upon which he had to answer the ultimate question for him: had the signatures in Mr Lam's name in the notebook and in the record of interview been forged? Expert evidence is to be considered not in vacuo but in the context of the whole of the evidence.

48. If the signatures in Mr Lam's name in the Macau entry cards had been forged, then that would mean two sets of forgery if those in the notebook and in the record of interview that also been forged. That would be quite a coincidence and required consideration.

49. But if Mr Lam had signed the Macau entry cards in a disguised hand, then might he not have done the same thing in the notebook and in the record of interview?

50. Equally, if he had been in such a state when he signed the Macau entry cards that even experts would think that they had been signed by somebody else, might that not also have been the case in regard to the notebook and the record of interview?

51. After all, Mr Lam was a very unusual person indeed. He had been behaving in a most extraordinary fashion even in the presence of the police. He had confessed to two extraordinary murders. He had been undergoing treatment for a mental illness since 1969. And his physical health seems to have been no better than his mental health. One led to his death. The other led to the death of two men at his hands.

52. We are not concerned for present purposes with what the position might be if the judge had considered all of those matters and nevertheless convicted. He did not consider them.

53. That being so, we are of the view that these convictions are unsafe and unsatisfactory.

54. Treating the hearing of these applications for leave to appeal as the hearing of the appeals themselves, we allow the appeals and quash the convictions.

[After hearing argument thereon, the court: (i) refused to order a retrial; and (ii) awarded the applicants the costs of the trial and of the appellate proceedings]