R v. WU CHUN PIU

IN THE COURT OF APPEAL

1991, No. 38
(Criminal)

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H E A D N O T E

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Criminal law - "Admissions of guilt" made in the course of counsel's speech in mitigation after trial - The need for counsel to make clear his client's intention to "gainsay and set at naught" the original plea of not guilty - Observations of Privy Council in Wu Chun Piu v. The Queen [1996]2 HKC 165 followed.

In allowing the appeal the Court of Appeal refused to order a re-trial.

Observations by Court of Appeal on "expressions of remorse" made to Probate Officers and through the mouth of counsel. "Remorse is meaningless without acceptance of full criminal responsibility."

IN THE COURT OF APPEAL

1991, No. 38
(Criminal)

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J U D G M E N T

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Hon Yang, C.J.:

1. By an admission made on behalf of the Crown, we allowed Wu Chun Piu's ("Wu") application for leave to appeal against conviction and allowed the appeal. We accordingly quashed his conviction and set aside the sentences. We are therefore concerned with the question of retrial only.

2. On 14 December 1990, Wu was convicted by a jury after trial of one count of robbery and one count of possession of a real firearm or an imitation firearm while committing a robbery. He was sentenced to concurrent terms of imprisonment of 14 years on the robbery count and six years on the firearm count.

3. Wu sought to appeal against his conviction out of time. By Ground 2 of his Grounds of Appeal, Wu submitted:

"That the learned judge failed to direct the Jury upon special weaknesses in the identification evidence, namely whether the identifying police officers had 'colluded with each other about the case and about the identifying features and had told lies about so doing'."

4. On 1 July 1993 the Court of Appeal dismissed his application for leave to appeal against his conviction out of time.

5. The Court of Appeal took the view that his counsel at trial not only accepted the verdict of the jury he was also prepared to accept the truth of Wu's admissions of guilt made to the Probation Officer. He in effect asked the trial judge to sentence upon the basis of those admissions.

6. In conclusion, the Court of Appeal said:

" We are satisfied that the applicant admitted, through his counsel, that he had committed the offence and that we are entitled to take that admission into account when considering whether there has been any miscarriage of justice. We are satisfied that, although the point raised in his appeal might have been decided in his favour, no miscarriage of justice has occurred. In the circumstances, we are satisfied that the proper course is to refuse the application for leave to appeal against conviction out of time."

7. The matter then went to the Judicial Committee of the Privy Council with special leave. The opinion of their Lordships: [1996] 2 HKC 165, delivered on 14 May 1996, was (at 174):

" However if that which was said in mitigation by Mr. Iu on the appellant's behalf when he was brought up for sentence is to be held against the appellant to the extent contended for and indeed upheld by the Court of Appeal, then defendants and their counsel mitigating on their behalf after a jury's verdict are in a difficulty."

8. They said in conclusion:

" In their Lordships' view, at least in the present case, one must ask how one should realistically interpret counsel's remarks in mitigation. Was he intending to gainsay and set at naught his client's original plea? Or was he bound in the circumstances to accept the jury's verdict and do what he could from that starting point to mitigate the consequences. In their Lordships' view, in this case at least, the latter is the realistic approach and it would be unjust to attribute to the appellant from counsel's mitigation an admission that he had in fact committed the offence which he had only very recently been contending against.

In the result the Board is respectfully of the view that the Court of Appeal were wrong to dismiss the appellant's application for the reason that they gave for doing so. Their Lordships will humbly advise Her Majesty that this appeal should be allowed, that leave to appeal out of time should be granted and that the case should be remitted to the Court of Appeal of Hong Kong for further consideration in the light of their Lordships' judgment."

9. The case having been remitted to this Court, the Crown argue that it is appropriate for us to order a retrial of Wu.

10. It is convenient here to note that their Lordships were dealing with the facts in the present case and therefore not stating a general principle. R. v. Turner (1975) 61 Cr. App. R. 67 is still good law. There Lawton LJ said (at 82):

"Whenever a barrister comes into Court in robes and in the presence of his client tells the judge that he appears for that client, the court is entitled to assume, and always does assume, that he has his client's authority to conduct the case and to say on the client's behalf whatever in his professional discretion he thinks is in his client's interest to say. If the Court could not make this assumption, the administration of justice would become very difficult indeed."

11. Mr Cross QC submits on behalf of the Crown that had the Judicial Committee not considered the issue of retrial to be a live issue they would have simply quashed the convictions and not remitted the case to this Court "for further consideration".

12. At the retrial, the Crown would seek to adduce evidence that Wu has admitted the offences on three occasions, namely:

(a) In writing, in his homemade grounds of appeal against sentence;

(b) Orally, to the probation officer;

(c) Through counsel, acting as his spokesman.

13. Wu has been detained in custody for some six and a half years.

14. Wu's counsel, Mr Oderberg, made the following points in opposition to a retrial.

15. It is firstly urged that the offences were committed on 27 February 1990 and that Wu had been in custody for some six and a half years for a 14-year sentence: vide R. v. Saunders (1974) 58 Cr. App. R. 248 at 255 (final paragraph on the page) concerning the experience of the English Court of Appeal at that time.

16. The second argument is that it would be unjust to act on admission (c) above and admissions (a) and (b) above were not specifically dealt with by the Judicial Committee because the Crown did not rely on them to show that there had been no miscarriage of justice. And these two admissions are tainted in precisely the same way as admission (c).

17. Thirdly, it is pointed out that this Court in the appeal of Yu Sze Ming (Wu's co-accused) upheld his ground of appeal which was similar to Wu's Ground 2 (see above) and ruled that the evidence of identification by the police officers should have been the subject of a fuller direction. On Yu's retrial, he was acquitted: The Queen v. Yu Sze Ming, Crim.App.No. 38 of 1991.

18. Fourthly, none of the items of evidence which the Crown may rely on, whether taken singly or cumulatively, amount to sufficient evidence to give rise to a prosecution upon which a jury could properly convict given the unsatisfactory state of the identification evidence. The items of evidence which the Crown may rely on as being over and above the evidence of identification are as follows:

(i) That the Appellant was seen by the identifying officers to have an injured right hand at the time of the offences and was found to have an injured right hand some weeks later at the time of his arrest,

(ii) That he was a friend of another accused and had been with him the evening before the alleged offences and,

(iii) Had then seen a box containing inter alia two knives which fitted the description of knives used in the commission of the offence.

19. Mr Oderberg therefore submits that these items of evidence are, at best, circumstantial and tenuous, and in all the circumstances the ends of justice would not be served or enhanced by a retrial.

20. In arriving at our judgment, we should acknowledge the assistance we received from both Mr Cross for the Crown and Mr Oderberg for the appellant Wu. We are particularly indebted to them for their written arguments.

21. Returning now to the three so-called admissions of guilt relied on by Mr Cross (see above), we are of the view that none of them can now assist the prosecution.

22. By an affirmation made after the date of his homemade grounds of appeal against sentence, Wu resiled from his statement to the effect that he was deceived by the first accused into committing the crime of armed robbery. In his affirmation, he affirmed that he only admitted the offences with which he was charged because he was told by fellow prisoners that he ought to make the admission in his grounds of appeal against sentence in order to show remorse. A jury might well entertain a reasonable doubt as to the truthfulness of his admission of guilt.

23. The second admission was alleged to have been made orally by Wu to the probation officer during an interview. In the probation officer's report (made after conviction but before sentence), Wu was said to have "frankly" admitted that he was involved. He gave the reason for committing the crime as follows: because he and Yu Sze Ming had betted heavily on horse-racing and lost and were forced to repay $110,000 within two days. The probation officer has left the service in 1993 and is now residing in Australia. There is nothing to indicate whether she still retains a clear recollection of the interview, or whether the interview was tape recorded, or whether there were contemporaneous notes kept. The weight of the officer's evidence (if available at all) after such a lapse of time will be questionable.

24. Respecting the alleged admission made through defence counsel in mitigation, their Lordships in the Judicial Committee have made clear their views in the passages cited above, i.e. the realistic approach is that defence counsel was simply accepting the jury's verdict and did not make an admission of guilt on Wu's behalf.

25. In our judgment, the Crown can derive little comfort from any of the three so-called admissions.

26. As to the three factual matters relied on by the Crown in their application for a retrial, namely, (i) Wu's injured right hand, (ii) his association with another accused on the evening before the alleged offences and (iii) the finding of the knives, these by themselves are not in our view sufficiently cogent as to entitle the jury to find Wu guilty.

27. For the reasons given above, we refused to order a retrial.

28. Before we leave the matter, we wish to say a few words about post-conviction "admissions" and "expressions of remorse". Their Lordships have pointed to the context in which the matters ultimately relied upon by the Crown were made.

29. It is not uncommon for a convicted person to make a show of remorse when being interviewed by a probation officer, or in a plea for a lenient sentence. He well knows both conduce to leniency. As defence counsel may unwittingly make what appear to be an admission of guilt on behalf of the convicted person when making his plea in mitigation, so the accused may conduct himself in a similar way in appearing in person or in front of the probation officer.

30. We think therefore that use of such post-conviction "admissions" should only be relied upon with caution and only where a court addresses that risk and is satisfied that there is a genuine admission of the offence with acceptance of the verdict.

31. If counsel has in fact received firm instructions to the effect that the accused now accepts full responsibility for the crime, and admits having taken part in the manner averred by the prosecution, this should be stated clearly and unequivocally. Remorse is meaningless without acceptance of full criminal responsibility.

32. In this case counsel said to the judge in mitigation:

"Also my Lord, apparent from the probation officer's report is some sort of remorse on his part since the conviction. He gave to the probation officer the reason why he committed the robbery now, namely that he was in debt, in a gambling situation, that the robbery was committed really to get some money to repay the gambling debt ....."

33. This should never have been taken by the judge as expression of remorse which weighed in the sentencing scales. So-called remorse expressed in front of a probation officer which the accused is not prepared to repeat in court before the judge is meaningless.

34. Where counsel, in mitigation, confines himself to the circumstances of the crime as emerged in the course of the evidence in court, the judge will, of course, sentence the accused according to the degree of his criminal participation: in this regard "remorse" plays no part.

35. Hopefully by exercise of such caution, the kind of problem which has arisen in the present case may be avoided.