CHAU WAI KEUNG and Another v. R.

IN THE COURT OF APPEAL

1992, No. 448
(Criminal)

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J U D G M E N T

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Penlington, J.A.:

1. On 2nd October 1992 the applicant CHAU Wai-keung (D1) and YU Sun-wah (D3) were convicted by Deputy Judge Sharwood and a jury on a count of robbery. They seek leave to appeal against those convictions.

2. The indictment against the applicants included also one Yim Che-lam (D2). At trial D1 was represented by Mr. P. Wong, D2 by Mr. G. McKay and D3 by Mr. S. Franklin. Mr. S. Cunningham prosecuted for the Crown.

3. When the trial commenced on 23rd September 1992, the Crown indicated that it wished to produce three statements made by D2. Mr. McKay said that he objected to the admission of these statements and outlined the grounds for so doing. They were that D2 had been assaulted and also treated in a very oppressive manner. The usual voir dire was then conducted, at the end of which submissions were made by Mr. McKay and Mr. Cunningham. At the end of that proceeding the judge ruled that he was satisfied that the statements were voluntary and he would allow them to be produced.

4. On 29th September D2 was absent from the trial. The judge asked Mr. Cunningham what the Crown's attitude was as to the further conduct of the trial in view of the absence of D2. Mr. Cunningham said that the Crown wished to proceed against all three defendants notwithstanding the absence of D2. He said that this was the second time there had been a trial of the three defendants on this charge and that the matters went back to 1990. He referred the trial judge to R. v. Jones (No.2) 1972 2 A.E.R. which is referred to in Archbold, 1993 Edition, para.3/205. There it was held that if a defendant of his own volition refrains from attending his trial it must be presumed that he has waived his right to be present. The only information the judge had was that D2 had gone to see a doctor the day before and had not been seen since by his family.

5. Mr. McKay asked for time to consult the Director of Legal Aid, who was instructing him, which he duly did. In response to the instructions he received Mr. McKay asked he be discharged and removed from the record. The trial judge so ordered. Mr. McKay then took no further part in the trial which proceeded against D1 and D3 in the absence of D2. There was no objection by counsel for D1 or D3 to the trial proceeding against D2 in his absence.

6. The position was, therefore, that D2's statements which contained material prejudicial to D1 and D3 in that they named them as being members of the gang which carried out the robbery, was put before the jury as evidence against D2. There was again no objection by counsel for either D1 or D3.

7. All three defendants were convicted, the verdicts against D1 and D2 being unanimous and that in respect of D3 by a majority of five to two. D1 and D3 were then remanded until 16th October for sentence and on that day the court was advised by Mr. Cunningham that D2 was still absent and could not be traced.

8. It is the principal ground of appeal in respect of both D1 and D3 that the judge was wrong to allow the trial to proceed against D2 in his absence because it meant that his statement went before the jury without being properly challenged. Mr. Gary Plowman, Q.C. (who was not counsel for either applicant at trial) submits that despite the directions given to the jury by the judge that the statement of D2 was only evidence against D2 and not D1 or D3, there were other things said by the judge which may have caused the jury to have some regard to D2's statement when considering their verdicts against the other accused. In particular he draw attention to a passage from the summing-up in relation to the statements of D2 and the evidence given as to the way in which it was taken which reads as follows:

"This officer was not challenged, and you may think that you have no reason not to accept his evidence about the statements of the 2nd accused."

This, it is submitted, was harmful to both D1 and D3 because neither of them was in any position to challenge D2's statement. If D2 had been present no doubt counsel on his behalf would have challenged the statement in the same way that he had done in the voir dire.

9. In relation to D3, who did not give evidence, when he said:

"there is no evidence from the 2nd accused or the 3rd accused to undermine, contradict or explain the evidence put before you by the prosecution."

It is argued that that direction may have caused the jury to infer that there was an onus upon D3 to undermine, contradict or explain the evidence put forward by the prosecution. It is complained that the judge failed to direct the jury that they still had to assess the reliability and truthfulness of the prosecution evidence even if D3 had not called or given evidence himself. This was particularly so because the judge had directed the jury that any allegations or suggestions made to the witnesses, including police officers, that they had engaged in fabrication was not evidence. It was merely an accusation and no more than that.

10. It is further argued in respect of D3 that the trial judge failed to adequately direct the jury as to various matters which tended to undermine the credibility of the police officers. These were:

(a) Although D3 Was only 17 at the time of his arrest, no effort was made to arrange for a member of his family to be present when he said that he wished to say something to the police officers.

(b) The police constable to whom D3 allegedly made his oral confession did not immediately record it in his notebook but only some two hours after it was made.

(c) Another police officer who was seated in the same vehicle as D3 and the first police officer did not make a notebook entry of the conversation until some eight hours later.

(d) It was suggested that it was inherently improbable that an alleged conversation between two police officers at the time D3 was alleged to have made his confession was as related by those officers when they gave their evidence. The trial judge said this:

"The twelfth witness was detective sergeant 4748. He was present also at the arrest of the 3rd accused. He was standing outside the car when DPC 14310 informed him that the 3rd accused had just admitted that he was involved in the robbery and that at the Chai Wan Swimming Pool Restaurant he had been given $1240 and that in the afternoon he and Lau Tze-ming had had their hair waved at the Sea Wave Hair Salon in Heng Fa Chuen which cost $555, and that he had spent $417 on a Titus watch at the City Chain Store in Chai Wan MTR and the rest of the money on food and he could take them to get the watch at home.

He said he was the officer in charge of the team and decided to get the watch and they went up and the 3rd accused pointed to his jacket and it was found; and the 3rd accused also told them where the receipt was.

In cross-examination, this witness said he didn't know why DPC 14310 went into so much detail in informing him what the 3rd accused had said. He said a notebook entry sometime after 11 am at Tsim Sha Tsui police station and a statement in August 1991 based on that notebook entry."

11. The trial judge directed the jury in relation to the statements made by each accused as follows:

"In considering the matter, please treat each accused quite separately. The evidence against each is entirely different. As against the 1st accused, it consists essentially of the stolen jewellery which was found at his home; his alleged admission to the police at the time of the arrest and the gold-dust on his clothes.

As against the 2nd accused, it consists of his written admissions - which you have - and of the identification by CHAN Kai-ming. And as against the 3rd accused, it consists only of his alleged oral admissions to the police in the car downstairs at his flat. So you can readily see that the case against each accused is very different and you must therefore treat each accused quite separately.

Now the written admissions of the 2nd accused - I believe they are exhibits P1, P2 and P3 - are evidence against the 2nd accused only. Now the principle of law involved here is that a statement implicating accused A by accused B out of court and not in the presence of accused A is not evidence against accused A. So disregard the 1st and the 3rd accused when you come to read and consider the statements of the 2nd accused. The 2nd accused's statements are evidence against the 2nd accused only.

You should compare and contrast that situation with the evidence from the witness-box of the 1st accused. What the 1st accused said in the witness-box here in court is evidence in the trial. It is evidence not only against the 1st accused but also against the 2nd and 3rd accused. But in fact the 1st accused gave very little evidence concerning the 2nd and 3rd accused. He said that he knew the 3rd accused; he said that he was a sort of friend; he said that he also knew the 2nd accused but not very well."

12. Mr. Andrew Bruce, counsel for the Crown on this application, submitted that the directions given by the judge as to the manner in which the jury should consider the statements made by each of the accused could not be faulted in any way. They were very clear and full directions. The judge should consider the whole history of the case before deciding whether to proceed in the absence of one of the accused and there is no reason to suppose that he did not do so. For reasons which are not relevant to this appeal, the matter has taken a long time to come to trial and it was important that it not be further delayed unless there were very good reasons why that should happen. He conceded that the judge should have been seen to have considered the prejudice to D1 and D3 by continuing against D2 in that D2's statement would not be challenged by counsel on his behalf but in any event he had come to the right decision. That decision must be looked at in the light of the fact that no objection was taken by counsel for either D1 or D3 at the time and no doubt the judge anticipated that he would be giving the jury the very full directions which he did as to the manner in which they should consider the statements.

13. Mr. Plowman points out that if D2 had absconded before the trial his statements would not have been before the jury. This, however, is the position in any case of a joint trial where there is evidence admissible against one or more defendants but not against others. It is very common indeed for confessions to contain material implicating other accused being jointly tried. The authorities are, however, clear that unless the prejudice is so strong that no jury could possibly put it from their minds it can be cured by a firm and clear direction which was given in this particular case. In R. v. Lake (1977) 64 C.A.R. 172 at 175, Lord Widgery C.J., in considering this question, said:

"The most helpful modern case on this topic is the case of Smith (1966) 51 C.A.R. 22. The headnote reads:

'The case for the prosecution was that the appellant and two other men who had made statements incriminating both themselves and the appellant had plotted together a large scale theft. The three were tried jointly (an application by the appellant for a separate trial having been refused) and the judge gave a careful direction to the jury that the statements by the co-defendants could not be regarded as evidence against the appellant.'

I stop there. It is almost a mirror image of the present case."

14. In Lake an application to order separate trials on the grounds that co-accused had made statements naming the appellant was refused. The Lord Chief Justice said:

"However the question of severance is primarily one for the judge. The discretion was properly exercised in the present instance and notwithstanding the fact that there must have been some risk of prejudice the decision of the judge was, we think, right. Of course if a case is strong enough, if the prejudice is dangerous enough, if the circumstances are particular enough, all the rules of this kind must go in the interests of justice but this is not the sort of case in which the ordinary rule of practice in our judgment will operate unduly to the detriment of the accused and therefore it is a case in which we should apply the ordinary rule."

He concluded:

"We are not in a position in which we feel we ought to say that the admissible evidence was so scanty that the jury probably relied upon inadmissible evidence"

The appeal was dismissed.

15. In Smith Edmund Davies L.J. referred, as a useful test, to a proposition put forward by Brabin J. in the course of the submissions made in that case.

"If one totally disregarded the prejudicial evidence would a jury be expected to convict upon what remained and, if they did convict, would the court regard the conviction as one which was safe and satisfactory to allow to remain."

16. In that case two co-accused who had made statements implicating the appellant had been acquitted as the jury were presumably not prepared to rely on the confessions they had made. On that basis the conviction of Smith was found to be unsafe.

17. The "ordinary rule" undoubtedly is that persons accused of taking part in the same crime should be jointly tried. R. v. Moghal 65 Cr.App.R. 56. That authority has relevance here as what Mr. Plowman was in essence submitting was that although there was no application for separate trials before the trial started that was on the basis that each accused was represented and D2's statements would, if admitted, be challenged by his counsel. When he absconded that was no longer the case and the judge should have ordered severance of D2's trial from that of D1 and D3.

18. Reliance is also placed on R. v. Silcott and others [1987] Crim.L.R. 765 which was concerned with the editing of statements to remove the names of co-accused. In ordering that this be done Hodgson J. said that otherwise it would require "mental gymnastics of Olympic standards" for the jury to be able to approach their task without prejudice. There was apparently no such application made in the instant case but Mr. Plowman submitted that the same mental acrobatics would have been necessary for the jury to disregard the statements of D2 in relation to their verdicts on D1 and D3. Even if no objection is taken to evidence or to the manner in which a criminal trial proceeds, the judge himself must be alert to prevent any injustice being done.

19. In R. v. Josephs and Christie (1977) 65 C.A.R., 250 at 255, Lord Widgery, C.J., with reference to this problem, said:

"In this case the incident with Lawrence as a co-defendant and the fact that some of his statements may rub off on the other accused, however hard the judge tried to avoid it is just one of those things that happens in the course of a multiple criminal trial. The advantages of having co-defendants tried together is so great that the right to order a separate trial will not be granted unless there are good reasons for it."

20. In our view the judge's direction to the jury that the statements of D2 were unchallenged must be seen in the light of his clear direction to the jury that those statements were not evidence against D1 or D3. Mr. Plowman submitted strongly that they went directly to the whole crux of the defence case - that neither D1 or D3 took part in the offence. D2's statement named them both as being members of the group that committed the robbery. The question is whether this evidence against D2 so prejudicial to D1 and D3 that, as was said in Silcott, as would require too much mental agility on the part of the jury to ignore it.

21. We do not consider that the prejudice here was so great that the judge should have found that it could not be cured by a clear direction and, notwithstanding there was no application by defence counsel, he should not have continued the trial against D2 in view of the fact that D2's statements would not be challenged by Mr. McKay. While Mr. Bruce very fairly conceded that he should have been seen to consider that aspect nevertheless the decision to proceed against D2 was correct. We agree. If D2 had not absconded there could have been no quarrel with the joint trial of all three accused. D2's statements, even if unchallenged at the trial, were not evidence against D1 and D3 and the jury were so directed in the clearest possible terms. We do not consider that the absence of such a challenge made them so prejudicial that there should have been a separate trial in respect of D2 when he was re-arrested.

22. In Lake Lord Widgery clearly considered that the question of possible prejudice should also be considered in the light of the admissible evidence. If it was strong it was unlikely that the prejudicial statements would have influenced the jury despite the judge's direction. Here evidence against D1 was very strong indeed. He made a confession to the police when arrested which was disputed but ruled admissible. He pointed to a wall unit in his home in which a great deal of the stolen jewellery was found. Gold dust similar to that in the jewellery factory which was robbed was found in his clothes. His fingerprints were found on boxes in which the jewellery in his home was stored.

23. All the evidence against D1 was challenged and he gave evidence himself saying he did not take part in the robbery but he did store some goods in his home for a friend and that friend's associate. He said the statement he made was a fabrication and there was no identification evidence against him. Nevertheless, as in Lake, we have no doubt that there was ample evidence before the jury against D1 without them relying in any way on D2's statements in reaching their verdict.

Additional Grounds for D3.

24. In addition to the grounds of appeal relied on by D1 in relation to D2's statement Mr. Plowman has also submitted for D3 that there were other aspects of the evidence against him which make his conviction unsafe, particularly as the evidence against him was not as strong as that against D1, consisting as it did of his confession.

(a) Complaint is made about a direction given in the light of D3's failure to give evidence himself. The judge said:

"the fact that any accused has not given evidence proves nothing one way or the other. It does nothing to establish his guilt. On the other hand, it means that there is no evidence from the 2nd accused or the 3rd accused to undermine, contradict or explain the evidence put before you by the prosecution."

In using those words he clearly was following the "model" direction set out in Archbold (1993) Vol.1 para.4-410. It reads as follows:

"The defendant is not obliged to give evidence. He is entitled to sit in the dock and require the prosecution to prove its case. You must not assume he is guilty because he has not given evidence. The fact that he has not given evidence proves nothing one way or the other".

The rest of the direction is in identical words to those used by the judge here.

The addition of the words "from the 2nd or 3rd accused" to the model direction, it is submitted, may have caused the jury to think that there was some onus on D3 to undermine, contradict or explain the prosecution evidence and that the judge did not fully explain to the jury that they still had to fully consider the evidence as it stood and to decide if they could rely on it as truthful. This was particularly so as the judge had directed the jury that

"allegations, accusations and suggestions made to a witness by counsel are not evidence. Thus Mr. Franklin suggested to a number of police officers that they had engaged in fabrication; that is not evidence. Its merely accusation and allegation and suggestion."

That direction is in our view perfectly proper when police evidence is challenged as being deliberately false but the accused does not choose to give evidence to support the allegations. We do not consider this ground of appeal has been made out and that the slight deviation from the model direction could have left the jury with the impression suggested.

(b) No record was made in the notebooks of the two police officers who were present. Clearly they should have done so if possible and it can well be argued that if a suspect does make a statement which is a confession it is surprising that it was not immediately recorded. However it is not fatal to the admission. The police officer may not fully appreciate the significance of the statement at the time. He may not have an opportunity until later to record the statement. There may be other reasons. It is for the court to take those factors into account when assessing the weight which it can put on the statement. Here clearly it was necessary for the jury to place very substantial weight on the statement before they could safely convict D3 as it was the only evidence against him. They were however fully aware of the fact that there was the delay in the recording of the statement in the note-books and the post-recording of the statement. It was fully argued before them that they should place no weight on the statement because of that. They were, however, entitled to do so.

(c) It is submitted that the whole circumstances relating to the making of the alleged confession were such that it was unsafe for the jury to rely on it in the way they have. However again all the evidence relating to those circumstances was before the jury and was the subject of full submissions by the defence. The credibility of the police officers was essentially a matter for the jury and clearly they accepted their evidence.

(d) It is a further ground that the statement should not have been admitted because D3 was only 17 years old at the time he was alleged to have made the written statement which was post-recorded and no effort was made to have a member of his family present.

It would have been desirable to have a senior member of D3's family present when the statement was recorded but it is not obligatory. The jury were aware that D3 was a young man and no doubt gave that consideration when deciding if he had been over-borne by the police officers when he signed the statement. It was a matter for them to consider.

25. Mr. Plowman further submitted that even if none of the grounds raised in relation to D3's statement are enough in themselves to make the conviction unsafe, cumulatively they do have that effect. We have considered this submission with some anxiety, particularly in relation to the evidence of DPC 16276 as to what had been said to him by DPC 14310 relating to the alleged confession of D3. We are however satisfied that the points raised are not in total such as to make the conviction of D3 unsafe or unsatisfactory.

26. We have also given very full consideration to the question of whether, in light of the dicta of Lord Widgery in Lake, which we have already referred to, the evidence against D3 was so weak that there was a real danger that the jury may have taken into account against him the statements of D2 which put him at the scene of the robbery. There was however some clear independent evidence in that in his statement D3 admitted that part of the proceeds of the robbery was used to buy a watch. He told the police officers where it was and they duly found it, together with the receipt for its purchase. That was a significant piece of evidence supporting the authenticity of D3's statements.

27. We do not consider that there was a real danger of the jury wrongly taking into account D2's statements when considering the evidence against D3.

28. These applications for leave to appeal against conviction are granted. We treat the hearing of the application as the hearing of the appeals which however are dismissed.