R. v. SO CHI SHING and Another

IN THE COURT OF APPEAL

1995, No. 61
(Criminal)

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J U D G M E N T

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Mortimer, J.A. (giving the judgment of the Court) :

1. On 5 January 1995 the applicants (described as D1 and D2 at trial) were each convicted of a number of offences before Ryan, J. and a jury. D1 was convicted of robbery and four counts of theft all jointly with D2.

2. D2 was convicted of murder and three counts of theft. He had already pleaded guilty on 7 December 1994 to the offence of robbery and one count of theft jointly with D1. D1 at trial was acquitted of murder.

3. Each seeks leave to appeal against his convictions.

The facts

4. A number of versions of the facts have been given at different times by the applicants. But it would appear that the jury convicted on the basis that D2 planned the kidnapping of a young girl. A Mainlander - possibly two - were recruited to help. A tent, barbecue equipment, food, adhesive tape and cord laces were purchased with this plan in mind. A vehicle was required for the plan, so a taxi was taken to a place in the country near Sai Kung. There, the driver was held up at knife point, taken to a remote place, bound and gagged, and put in a tent. He was robbed of his money and bank cards, then tortured until he revealed his personal identification numbers. Money was taken from his accounts in Hong Kong and later in Macau - those were the theft charges.

5. Part of the circumstances in which the taxi-driver was killed were described by D2 in a statement to the police in which he described cutting the taxi-driver's throat accidentally.

6. He first described it in this way:

"I saw that Ah Sum and the taxi driver were still inside the tent. I then asked the taxi driver whether he had given false information as the telephone line could not be put through. The taxi driver said that the telephone number was correct. I then hit the taxi driver and accused him of lying to me. The taxi driver insisted that the telephone number was correct. I became furious and took out a knife from the tent. I intended to scare him. I continued to ask him for his home telephone number. He just replied and gave the same number. I became even more furious. I asked him if he was going to tell the truth or not but still he refused to tell (me). I therefore threatened to cut his neck with (the) knife. But he kept moving. Accidentally, the knife I was holding came into contact with his neck and the taxi driver cried out aloud. I became frightened and cut his back or waist once with (the) knife. But I do not remember clearly. Later, I saw that the taxi driver was not moving. I was very frightened and therefore said to Ah Sum that (we) should leave quickly."

In a later statement, he said this about the taxi-driver:

"(I) told him not to shout, but he kept on shouting and struggling. I failed to bring him under control and the grip from my left hand/arm was loosened. His head fell to the ground and his throat was cut by (the) knife. As regards the cut on the back of (his) neck, (it was caused) while he was struggling when I put the knife against the back of his neck to force him tell his home telephone (number)."

7. There was evidence from Dr Li that in his opinion the injuries could not have been caused accidentally.

8. D1 admitted the robbery and the thefts in cautioned statements but denied taking part in the murder. He said that he saw the killing from a distance.

9. Both the applicants gave evidence at trial. D1 denied presence and implication in any offence. So far as other evidence was concerned, fingerprints of his were found inside the taxi and also on tape used for the gag. His case was that if they were his fingerprints, it was possible that he had taken this taxi on a previous occasion. As to the tape, he suggested that the fingerprints were lifted by the police and placed on the tape in order to implicate him. There were difficulties in this account as he was not arrested until long after the fingerprints from the tape had been removed by the police. Alternatively, he suggested through counsel that the fingerprint officer was in error in identifying the fingerprints as his.

10. D2 also denied being involved in the offences, giving an account of being elsewhere save for an earlier involvement in taking the taxi with other men to the place where the killing later took place.

D1's application

11. D1, through Mr McLanachan, seeks to argue one point. He submits that the judge erred in directing the jury on the fingerprint expert's evidence in that he failed to direct them on the factual basis for his opinion and wrongly told them not to examine and interpret the fingerprints themselves.

12. His complaint concerns the direction which the judge gave to the jury in these terms:

"You should not try to turn yourselves into instant fingerprint experts by examining the photographs and trying to interpret and read what appears there."

He submits that by that direction, the jury were invited not to consider the factual basis upon which the fingerprint expert based his view but simply to accept the fingerprint expert's opinion. He supports his proposition by citing R. v. Abbey (1982) 68 CCC 394 at p. 412 where Dickson, J. (as he then was) said:

"While it is not questioned that medical experts are entitled to take into consideration all possible information in forming their opinions, this in no way removes from the party tendering such evidence the obligation of establishing, through properly admissible evidence, the actual basis on which such opinions are based. Before any weight can be given to an expert's opinion, the facts upon which the opinion is based must be found to exist."

What was the position here?

13. The evidence was given by Detective Inspector Li. He produced the usual comparison photographs of the fingerprints - the control fingerprint taken from the applicant and a photograph of the fingerprint which had been removed from the tape. Those enlarged photographs were put before the jury so that the detective inspector could explain his opinion to the jury and so that the jury could follow it.

14. Mr McLanachan, cross-examining, sought to point out that the characteristics on one of the photographs did not match the other. The expert did not agree with him. It was against that background that the judge gave his direction which was followed by this sentence:

"What you should consider is whether or not the answer given by Detective Inspector Li is one which you find satisfactory when you come to consider what Mr McLanachan was putting to him."

That relates to an earlier passage when the judge said:

"What was put to Detective Inspector Li by Mr McLanachan was that some of the ridge characteristics that appear in the photographs were not compatible and because of that the opinion of Detective Inspector Li could not be relied upon. He denies that that was so so that there is no evidence to support what was being suggested to him."

However, the judge had made it quite clear that the jury were not bound to accept the expert's opinion when he said:

"Of course the final decision of whether you accept the expert's opinion is a matter for you."

15. In the result, having considered these submissions - attractively made by Mr McLanachan - there is nothing in them. The judge left this matter properly to the jury for their consideration and the directions were impeccable.

D2's application

16. Mr Grounds who appears for D2 submits that the trial judge erred in law and wrongly gave a direction on lies when no such direction was required, and secondly, that the lies warning served only to confuse the issues and contained misdirections. The particular misdirection relied upon is that it might have been thought by the jury that if they concluded that this applicant had lied, then it was open to them to convict on that basis alone.

17. As to whether the jury ought to have been given any direction upon lies at all, we are firmly of the view that it was necessary for the judge to advert to the lies which must have been in the jury's minds. It suffices to say that many different accounts were in front of the jury from this applicant, not only different accounts in his cautioned statements but also in the evidence he gave.

18. We turn to the direction. It is necessary in this respect to consider the directions given both in respect of D2 and D1. As to D2, he said this:

"You will need to ask yourselves: Is the 2nd accused telling the truth about the non-involvement of the 1st accused? If you think he might be, then that would be strong support for the 1st accused's evidence that he was never involved.

If, however, you feel that the 2nd accused is lying about this involvement or non-involvement of the 1st accused, then you would not accept him as a credible witness in this particular matter. And when you come to consider the guilt or innocence of the 1st accused, you would not include the 2nd accused's evidence about him as part of your deliberations."

That is the lead-in which made it necessary to say something more about lying. He continued:

"If, after reviewing the evidence of the 1st accused, you come to the conclusion that he has lied to you in whole or in part, as the prosecution alleges he has, then you must consider why he has lied. There might be a natural tendency to say, 'Well, he has lied, therefore, he must be guilty.' I have to tell you that would be the wrong approach because the burden of proof is on the Crown. He does not have to prove or disprove anything.

The mere fact that a defendant has told lies is not itself evidence of guilt. A defendant may lie for many reasons. He might lie to bolster a true defence. He might lie to protect somebody else. He might lie to conceal some disgraceful conduct short of committing an offence. He might panic and tell lies out of confusion.

If you found that he has lied but you think there is or might be an innocent explanation for his lies, you would take no notice of them in considering the case against him. However, if you are sure he did not lie for some innocent reason, then the lies that he has told can support the prosecution case."

Finally, he referred to lies again:

"I'll remind you of what I told you about lies when dealing with the case of the 1st accused, that if you felt the 2nd accused was telling lies in whole or in part in his evidence, then you would have to consider as to why those lies might have been told and that it would only be if you were satisfied that they were told for other than an innocent reason that they would give any support to the prosecution case."

19. The force of Mr Grounds' submission on those directions is that he says that no assistance was given to the jury as to what support the lies could give to the prosecution case nor to what issue they could be taken into account by the jury. He submits that where the judge said if they were sure that the accused did not lie for some innocent reason the lies he told could support the prosecution case, the jury might have thought that they could convict on lies alone.

20. As is well known, directions on lies have caused judges many problems in recent years, both in this jurisdiction and in others. The question here is simple. The lies could only have been taken into account by the jury as support for any inference of guilt which they might otherwise make. There was, of course, overwhelming evidence - viewed from the prosecution side - that this applicant was guilty of the offences for which he was convicted.

21. But here, looking at the direction as a whole, was there any danger that the jury could have thought that lies were sufficient to convict? The answer is straightforward. The judge clearly told the jury that the mere fact the defendant had told lies was not evidence of guilt. The jury could not have gone into the jury room thinking that the lies were alone sufficient to prove guilt. That is sufficient to dispose of this ground of appeal which has been persuasively argued.

22. This Court has repeated on many occasions that which was originally said in R. v. Wong Kim Wah [1994] HKCLR 185 at 190 by Penlington, J.A.:

"Unnecessary directions on lies serve only to confuse a jury."

It could be said with point in this case that elaborate directions on lies were unnecessary. Perhaps all that was necessary was to tell the jury that an accused person may lie for many reasons other than guilt and the fact that an accused person lies is not evidence of guilt.

23. There is a further point advanced by Mr Grounds. He submits that the trial judge misdirected the jury on the necessary mens rea for murder. The direction which he first gave was this:

" 'Murder' is 'The unlawful killing of another person with intent to kill that person or at least to cause to that person grievous bodily harm', and in the circumstances of the case 'grievous bodily harm' is 'very serious bodily injury'."

No complaint is made, nor could be made of that. However, later, the judge in referring to this direction used slightly different words. He directed that the intent included the intent to cause "serious bodily injury/grievous bodily harm" and in other places, he used the words "grievous bodily harm".

24. It has been said on many previous occasions that it is better when giving this direction that the words "grievous bodily harm" should not be used in case the jury do not fully understand them. The standard direction refers to "really serious bodily harm or really serious bodily injury".

25. Was there in this case any danger that the jury might have been misled by the direction that was given? In the view of this Court there was not the slightest danger of that. The original direction given was clear and throughout that was the direction to which the later words referred. In those circumstances, this, also, is not a point which we should give leave to argue.

26. In the result, both these applications are dismissed.