THE QUEEN v. MAK FOON THAN

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JUDGMENT

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Roberts, C.J -

1. MAK Foon Than ("Mak") sought leave to appeal against his conviction of the murder of JAM Bin Hj Ibrahim ("Jalil") on 18th July, 1983, in the Regent Hotel in Kowloon.

Crown Case

2. The Crown case depended upon circumstantial evidence, since there was no witness to the killing of Jalil, reinforced and supported by admissions made by Mak, in the course of a series of protracted interrogations by police offices.

3. About noon on 18th July, 1983, Mak booked Room 609 at the Regent Hotel, for one night, using his own name. Not long afterwards, Jalil arrived and joined Mak in Room 609.

4. During the afternoon, members of the hotel staff made several visits to the room; on one occasion, the room boy saw one person there; on the other occasions two men were present in the room.

5. Between 12.30 and 1.30, though the time contested and the evidence as to this somewhat confused, a large suitcase was sold to the defendant (who did not dispute having bought it though he asserted that he did so much later) by a shop in the New World, a building adjacent to the Regent Hotel.

6. About 5.00 p.m., a suitcase of similar size was removed from Room 609. It contained the body of Jalil. Mak left a few minutes later in a taxi, with the suitcase in its boot.

7. On the instructions of Mak, the taxi took him to three car hire firms, at the third of which he hired a Nissan car. The suitcase was transferred to its boot.

8. The hired car was parked in a car park at Mayfair Gardens, Tsing Yi, where Mak's wife had a flat, from 7.00 p.m. to 8.25 p.m. These times were substantiated by a parking ticket which bore Mak's fingerprint. Mak was identified as being in his wife's flat "around 8 to 9 p.m."

9. The Nissan was returned to the car hire company shortly after 11 p.m. the same evening. A police officer gave evidence that, on 10th August, he had driven the same car, to the place where Jalil's body was found at Tai Po Kau on 19th July, and thence to the premises of the car hire firm, in about an hour and a half, at the same of the day. Thus, the Crown said there would have been ample time for Mak to have driven from Mayfair Gardens, dump the body at Tai Po Kau and return the Nissan to its owners. It is noted that the suitcase itself has never been found.

10. Jalil' s body was found by accident by a local resident, in a grove at the bottom of a steep slope, near Tai Po Kau at about 5.25 p.m. on the following day, 19th July. The medical evidence was that he had been strangled with a towelling belt. This was round his neck. It was identified as of the same kind as those attached to bath robes provided by the Regent Hotel for their guests. There was evidence that Mak, who returned with his wife to Room 609 about 11.30 p.m. on 18th July, had asked for a replacement belt for his bath robe and that this was supplied.  Fibres corresponding to those found in a suit case of the same kind as that sold to Mak were identified on Jalil's clothing.

11. The Crown also placed some reliance on admissions made by Mak during a long interrogation of him, conducted in the custodial ward of the Queen Elizabeth Hospital on 4th, 5th and 6th August, 1983.

12. In the record of the interview of Mak by Senior Inspector MacKillop on 6th August, there appear the following passages -

13. Shortly after Mak had made these admissions, the Inspector put further questions to him, among them the following -

14. As will be seen when considering the defence, Mak alleged that the killing was done by a Korean "hit man" named Shin.

15. The Crown disputed the presence of Shin, or of anyone else except Jalil and Mak, in Room 609 at the appropriate times, but put its case in the alternative, that is to say, either-

16. It is not, of course, necessary to the Crown's case to prove any motive for the murder of Jalil, though no doubt juries are happier in their minds if there is such evidence. And efforts were made to establish a reason for it.

17. It was suggested that Jalil was disposed of because he had refused to approve a loan of US$4 Million being made by the Hong Kong Branch of the Bank Bumiputra, which employed Jalil as manager of its loan department, to one of the Carrian Group of companies.

18. Alternatively, it was hinted that he might have been the victim of a robbery, since he is known to have taken HK$35,000 with him to the hotel, supposedly in order to hand it to Tan Sri Ibrahim, a Malaysian businessman and a well-known customer of the bank. The money was never traced.

19. The judge correctly warned the jury that they must not permit speculation as to motive to distract from the real issue, which was not why Mak killed Jalil (if he did) but whether he did so, or assisted the killer.

The defence

20. Mak gave evidence on his own behalf, both during the lengthy voir dire which preceded the admission in evidence of the record of his interrogations ("the record") and on the general issue. What he said in evidence largely confirmed and expanded what he had said to Inspector MacKillop in the record.

21. Mak's evidence was that on 17th July he received a phone call from a Korean, whom he had met before, named Shin. Shin asked him to check in to the Regent Hotel on the next morning, which he did.

22. Shin told him, after he arrived at the Regent, to phone Jalil and asked him to come to see Tan Sri Ibrahim. Although Mak knew this to be a lie, he thought that this message, which he passed to Jalil, was in a code known to Shin and Jalil.

23. Jalil arrived in the room about 12.20 and discussions took place between them during the afternoon. At about 4.30, he was asked by Shin to buy a suitcase, which was to be-used to carry cash and documents. He insisted that he had no idea, when he left the room, that Jalil was to be killed; and was astounded on his return about twenty minutes later with a suitcase, which he had purchased from a shop in the New World, to find that Jalil had been killed.

24. He was told by the Korean that, unless he helped, his life and his wife would both be in danger and feared that the blame for the killing would be placed on his shoulders. Terrified by these threats, and by the finding of Jalil's body, he helped Shin to insert it into the suitcase. On Shin's instructions, he arranged for it to be taken to a taxi, for delivery to Shin at the Regal Meridien Hotel, where Shin was staying. Mak testified that he took the taxi to a car hire firm, transferred the suitcase, to the hired car and left it at the Meridien. The defence sought to explain this irrational conduct as being due to Mak's fear and panic.

25. He made no attempt to leave Hong Kong, though it would have been open to him to do so.

26. When a party of police officers arrived at his wife's flat in Mayfair Gardens on the morning of 3rd August, Mak was found with severe injuries lying on a podium two floors below the window of the flat. He explained that when he heard someone at the door, fearing that they weft men employed to beat him by his wife, with whom he was on bad terms and who suspected him of infidelity. He leaned too far out of his window and fell. He was not trying to escape from the police.

27. He insisted that there were inaccuracies in the record, due to him being tired and in pain at the time when he signed it as correct and that, although the bulk of it was accurate, those parts of it which suggested that he had known that Jalil's murder was planned were wrong, since he had no suspicion that anything of the kind would take place before he returned to Room 609 and saw Jalil's body there. He did not dispute that he helped to pack the body in the case and take it to the Meridien. But that was his only connection with Jalil's murder.

Taking of statements

28. Mak was taken by ambulance to the custodial ward at the Queen Elizabeth Hospital on the morning of 3rd August, where he was treated for his injuries and detained. He was found to have a broken bone in the lumbar region of his spine and another in the pelvis.

29. On the morning of 4th August, Mak was interviewed by Chief Inspector MacKillop, who cautioned him and asked him if he was willing to answer questions about the murder of Jalil.

30. The questioning of Mak lasted, according to the record, from 1310 to 1742 (with one fifteen minute break) on 3rd August in the custodial ward. Most of the questions and answers, of which there were 146, dealt with Mak's business activities and his relationship with his wife. The record of the interview on 4th August contains no significant admissions. Each page of the record was signed by Mak as correct.

31. The interview was resumed at 10.25 on 5th August, after a further caution, and continued until 1640. There were three short breaks for medical attention, a twenty-five minute one for finger-printing and one fifteen minute rest period. No significant admissions appear in this part of the record, each page of which was signed by Mak as correct. There were 85 Questions and Answers.

32. On the morning of 6th August, a further caution was administered. The interview began at 1045 and continued until 2010. There was a break of a little over an hour between 1131 and 1235, another of about 15 minutes at 1320, one from 1645 to 1708 when he spoke to his legal advisers, and a rest from 1850 to 1910.

33. The record of 6th August begins with a long statement by Mak, immediately after caution, in which he admits that he went to buy a suitcase and that he helped the Korean to put Jalil's body in it. This was followed by a further 76 Questions and Answers.

Challenge to admissibility of statements

34. After a voir dire, which lasted for several days, the judge admitted the statement as voluntary and ruled that he would not exercise his discretion to exclude it.

35. The admission of the record, at least that portion of it which dealt with the interview on 6th August, was vigorously challenged on six main grounds -

(a)    Inducement

36. This submission was based on Mak's assertion that Inspector MacKillop promised him that anything which Mak said to him would be recorded for use by himself and his superiors only. Otherwise he would not have made the admissions which he did, as they contained allegations against important persons of whom he was frightened. This assertion was said to be supported by a note at the end of the record "I wish Mr. MacKillop to keep this copy for his personal perusal."

37. The Inspector's explanation was that this footnote was made at Mak's request because Mak said, at that stage, that hedid not want his lawyers to receive a copy of it. The judge must, in view of the following passage from his ruling on the voir dire, have rejected Mak's allegations of inducement -

"I find that the defendant was not induced or threatened, nor in the circumstances was there oppression, nor was his will sapped; nor was he deprived of legal advice which he wished to have. The statements were made voluntarily; he exercised his free will with a clear mind when he made the decision."

(b)    Physical assault

38. Inspector Goode denied ever having pulled at Mak's toes, causing him pain, as Mak alleged. This was a narrow issue of fact. The judge believed the officer.

(c)    Refusal of access to legal advisers.

39. There was a conflict of evidence as to this also. The police officers insisted that he was not so refused and pointed out that his solicitor and counsel were permitted to see him, in the ward, on the afternoon of the 6th August. It was also said, in this connection, that his advisers were refused a copy of his statement, to which it was replied that they did not ask for one and that, when they did, it was supplied.

40. The judge made a specific finding of fact as to this, rejecting this allegation.

(d)    Oppression

41. This objection was based on the physical condition of Mak at the time of the interview and on their prolonged duration.

42. It would be expected that a man who had suffered the injuries sustained by Mak on 3rd August would be suffering pain during the next three days and there was medical evidence to this effect.

43. The testimony of the doctors who treated him in the ward, however, is that he was fit to be questioned and that they would not have permitted it had they considered otherwise.

44. Much emphasis was placed on the long periods of interrogation during the 4th, 5th and 6th August, amounting in total (including rest periods and breaks) to about 20 hours.

45. Undoubtedly, Mak must have been suffering some pain. The interviews lasted for longer periods than was desirable. The police officers concerned, in our view, allowed their zeal to carry them beyond the limits which prudence and consideration should have permitted.

46. But these matters were canvassed exhaustively during the voir dire and at great length during counsel's submissions at the end of it.

47. The judge decided, as a matter of fact, that the conduct of the police fell short of oppression. We confess that we would not have been surprised had he come to a contrary view, but there was evidence on which he could find as he did and we cannot accept that his finding of fact was so unreasonable that we should interfere with it.

(e)    Prolonged interrogation.

48. The length of the questioning of Mak on three successive days must, in the judge's mind, have approached the boundaries of what is acceptable, notwithstanding the administration of daily cautions.

49. There is, however, as this court has frequently said, no objection to the admission in evidence of the questioning of a suspect for long periods, so long as this is done in conditions which do not amount to pressure such as might sap his will, or amount to oppression, so as to throw doubt on the voluntary nature of his answers.

50. Police officers must realize, that intensive questioning of a suspect necessarily calls into question the voluntariness of the answers, at least after the point at which sufficient evidence to charge the suspect is available. It would not have been surprising if the judge had rejected the record on the ground that the degree of questioning vitiated its voluntariness. But the real test is whether the admissions were voluntary in character, not whether the police should have stopped their questions earlier.

51. We would have understood it if the judge had come to the conclusion that the length of the interviews and the number of questions were such that Mak's will had been weakened to a paint at which he was too tired to resist any further and so was overborne with the damaging admissions which he made.

52. Again, this is a question of fact for the judge, who decided that Mak's answers were voluntary and not forced from him by improper interrogation amounting to oppression.

(f) Charging of Mak.  The judge dealt with this in relation to the exercise of his discretion and decided that, although Mak should have been charged before his interrogation began on 6th August, with which we agree, this was not sufficient to justify him in exercising his residual discretion to exclude statements which he had found to be voluntary in character.

53. Only in the rarest occasions, when satisfied that no judge could reasonably have refused to exercise his power to exclude, should an appellate court interfere with such a refusal. We are not prepared to do so in this instance.

Misdirection

54. The judge's summing-up was criticized in relation to the issue of counselling or procuring the commission of murder. The main passage of the summing-up in which this question was dealt with was as follows -

55. Counsel for Mak conceded that this extract, by itself, was correct, but claimed that it was vitiated by the following later comment -

56. As we see it, the real issues which the jury faced, at the end of trial, were limited ones, accepting as they must have done, that Jalil was murdered in Room 609 on the afternoon of 18th July, by strangulation with a hotel bathrobe belt.

57. We do not know whether the jury convicted on the basis that they believed that Mak's story about the presence of Shin was untrue and that only Jalil was present in the room with Mak.

58. It is, perhaps, more likely that they did accept that Shin was there, or at least may have been, and most of the summing-up proceeds on the basis of the presence of a third person, a view supported by evidence from a member of the staff that the door of Room 609 was double-locked from the inside during the evening, at a time when Mak was shown to have been at Mayfair Gardens.

59. The evidence of the purchase of the suitcase then becomes crucial. The judge has told the jury in effect, in the second passage quoted, that if Mak knew that Jalil was to be killed before it happened and then went to get the bag to dispose of the body, this was evidence on which they could convict.

60. Read with his earlier direction as to agreement, this is surely correct. When Mak went to get the bag, either Jalil was alive, or he was dead.

61. If Jalil was dead, Shin would never have let Mak out of the room to fetch the case, unless he was sure that Mak would not raise the alarm. He could surely only have felt so sure, if there had been a prior agreement to dispose of Jalil, before the murder occurred.

62. If Jalil was alive before Mak left the room to buy the case, Shin would not have allowed Mak to enter the room with the case, when Jalil was dead inside it, unless he had secured Mak's agreement to assist before he left the room.

Other grounds

                1.        It was contended that the judge misdirected the jury on the alternative verdict of assisting an offender contrary to section 90 of the Criminal Procedure Ordinance, by suggesting to the jury that a burden lay on the defendant to establish that he had lawful authority or reasonable excuse for impeding the apprehension or prosecution of Shin, if they were satisfied that he was guilty of "an arrestable offence" - i.e. the murder of Jalil.

63. Section 94A(2) declares that in criminal proceedings the burden of proving any matter to which the section applies lies on the "person seeking to avail himself thereof" (i.e. the defendant in the case).

64. Among the matters to which that subsection applies are "lawful or reasonable authority, purpose, cause or excuse".

65. The application of the section is not limited in any way. It will therefore apply to an offence under section 90, so that a burden does lie on the defendant to establish the defence of lawful authority or reasonable excuse on the balance of probabilities.

                2.        The direction on duress was also criticized, as suggesting that, on a charge of assisting the offender, a burden lies on the accused to establish this defence, although the authorities establish that the Crown must establish beyond reasonable doubt that the defendant was not acting under duress.

66. The judge directed the jury that they must not convict if they thought "there was a reasonable possibility that the defendant acted" solely because he feared that if he did not the Korean would carry out the threats to kill or injure him or his wife or family.

67. Taken by itself, this might have been misleading. But it is shortly afterwards followed by -

"The defendant does not have to prove that he acted under such threats. If you think it's a reasonable possibility that he did, then you could not convict of the alternative offence of assisting the killer to evade arrest."

68. We think that this makes it sufficiently clear to the jury that it is for the Crown to disprove the plea of defence raised by Mak.

                3.       The summing-up was criticized in a general way as being too short, as failing to direct the jury on the crucial issues and as containing comments weighted against the defence.

69. We see no substance in the suggestion that, because the trial lasted 21 days, a summing-up of l¼ hours must necessarily be too short. The proper length must depend on the facts of each case. There must, of course, always be general direction on such matters as the duties of judge and jury, the burden and standard of proof, the ingredients of the offence and (where appropriate) on such matters of law as accomplice evidence, corroboration and identification.

70. Beyond this, what is required is a concise and fair summary of the case for the Crown and the defence. A judge need not do more than point out the main issues, which have usually been discussed at length by both counsel shortly before the summing-up.

71. We deprecate any attempt to suggest that the length of a summing-up must necessarily bear any relationship to the duration of the trial; a very short trial may give rise to complex questions which require detailed direction; a very long trial can sometimes be adequately distilled into a short direction.

72. We see no substance whatever in the argument that the judge did not put the defence adequately to the jury. This is done both in relation to witnesses favourable to Mak - e.g. the room butler, about the double-locking of Room 609, and the air-conditioning engineer, about Mak's visit to Mayfair Gardens on July 18th, and in a more particular way by frequent references to "the defence" throughout the transcript - e.g. pp. 50, 9S, 11C, 11I, 12D, 12P, 14L, 14D, 20H, 23S.

73. The judge did make comments on some aspects of the case. A few of these were critical of the defence. There is no objection to a judge acting in this way, so long as his comments remain fair and he makes it clear to the jury that it is open to them to ignore his views of the evidence, since the finding of fact is solely for them. We see no error in this respect by the judge, whose summing-up was fair and sufficient.

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