HKSAR v. WONG WAN HEUNG AND OTHERS

CACC 339/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 339 OF 2004

(ON APPEAL FROM DCCC 315 of 2004)

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Before:   Hon Stuart-Moore VP, Stock and Tang JJA

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

Introduction

1.  On 30 June 2004, the applicants (D1, D2, D3 and D5 respectively) were all convicted on the 1^st charge, following a trial in the District Court before Judge Yuen, of conspiracy to steal Buddhist pines or parts of such trees, contrary to section 9 of the Theft Ordinance, Cap. 210 and section 159A of the Crimes Ordinance, Cap. 200.  Charges 2 and 3 were alternative charges of handling the same goods which were ordered to remain on the file.  The judge also convicted D1 on the 4^th charge, which concerned him alone, of assisting the passage within Hong Kong of unauthorised entrants, namely D2, D3, (D4) and D5, contrary to section 37D(1)(a) of the Immigration Ordinance, Cap. 115.

2.  Following the convictions on the 1^st charge, the prosecution applied for enhanced sentences to be imposed on the applicants, pursuant to section 27 of the Organised and Serious Crimes Ordinance, Cap. 455.  Sentencing, for this reason, was adjourned to 22 July 2004 when the judge imposed a term, after enhancement, of two years and eight months’ imprisonment on each of the applicants.  So far as D1 was concerned, he was sentenced on charge 4 to four-and-a-half years’ imprisonment, thirty months of which was ordered to run consecutively to his sentence on charge 1, making five years and two months’ imprisonment in all.

3.  The applicants now seek leave to appeal against conviction and sentence.  D4, who was similarly convicted and sentenced, has thus far made no application.

Prosecution’s case

4.  The prosecution’s case was that on 12 February 2004, the four applicants and D4 boarded a sampan in the Mainland at Nan’ao with the express purpose of stealing Buddhist pines from land situated in Hong Kong waters.  Shortly before 6:30 p.m., when marine police officers spotted the applicants’ sampan about half a nautical mile south of Waglan Island, they gave chase after their signals to stop were ignored.  The sampan accelerated its speed from fifteen to twenty-five knots.  Eventually, the sampan was intercepted and nine cut pine trees, valued at about $60,000, were found on board. 

5.  In subsequent interviews, each of the applicants gave predominantly exculpatory answers.

Defence case

6.  None of the applicants gave evidence but the case for the defence was largely presented on the footing that there was no clear evidence that the trees had been removed from territory inside Hong Kong’s jurisdiction.  There were other islands in the vicinity outside the jurisdiction, such as Dangan Island, where there was evidence that trees of the same kind grew. 

The application

(1) 1^st charge

7.  The grounds of appeal in relation to charge 1 effectively make the complaint that the judge was wrong to have concluded that the trees found in the sampan were stolen inside Hong Kong waters.

8.  We do not need to concern ourselves with these grounds.  There was, so far as we can see, ample evidence on which an inference could properly be drawn that the pine trees had been stolen inside Hong Kong waters.  There was strong circumstantial evidence to that effect. 

9.  This is, of course, what the judge concluded but, in reaching this conclusion, she found that each of the applicants had made “mainly exculpatory” statements which were in conflict with some or all of the accounts given by the others.  The judge then proceeded to reject the various accounts given by the applicants, having compared each of the accounts with the others.

10.  In regard to D1, she said:

“... his statement is incredible and contradictory with the statements given by the rest of his co-accused.”

The judge then went on to give examples, illustrating where the story D1 had given differed from other accounts given by co-defendants.

11.  Turning to D2, the judge said that:

“... his statement, viewed collectively with the statements of the other defendants in this case is total(ly) illogical.”

12.  Similarly, with regard to D3’s case, the judge said:

“Equally, the 3^rd Defendant’s accounts about reaching the island and gathering the pine trees were totally incredible when viewed together with the accounts supplied by the rest of the defendants.”

13.  In D5’s case, the judge said that his account was:

“equally unbelievable in light of what was said by all the other defendants.”

14.  Then, in relation to all the applicants, the judge said:

“32.  The different accounts given by all the defendants were so drastically different and inconsistent amongst each other that one can hardly distil a logic(al) version to try to understand what could possibly have happened about the identity of the island they visited and the process in which the trees were selected, excavated and taken on board of the sampan.”

15.  As the law presently stands, a judge or jury is not permitted to use the statements made by a defendant to the police against another defendant for the purpose of undermining the latter’s case.  The matter is covered in Archbold Hong Kong [2005] at paragraph 15-112, in the following way:

“(7) Use of a defendant’s confession by or against a co-defendant

In R v Gunewardene [1951] 2 KB 600, (1951) 35 Cr App R 80, Lord Goddard stated the principle in simple terms:

‘If no separate trials are ordered, it is the duty of the Judge to impress on the jury that the statement of one prisoner not made on oath in the course of a trial is not evidence against the other and must be entirely disregarded.’

This is a fundamental rule, (subject to some exceptions, which are referred to below).  It is the duty of the judge to impress upon the jury that the out-of-court statement is not evidence against another defendant for any purpose.”  (Emphasis added)

This rule does not, of course, have any application to statements, whether in the presence or absence of a co-defendant, in circumstances where it is alleged that they have been made in the course of or in pursuance of a joint criminal enterprise to which the co-defendant is allegedly a party.

16.  In the same way that a jury must be properly directed, so also must a judge necessarily adopt a course which involves the proper application of legal principles.  Unfortunately, the rule restricting the use to which a co-defendant’s statement may be put appears, with respect, to have been overlooked.  The matter is set out with clarity in the Specimen Directions issued by the Judicial Studies Board as follows:

“31.  STATEMENT TO POLICE BY CO-DEFENDANT, NOT EVIDENCE AGAINST DEFENDANT

Where maker of statement has not given evidence:

The statement which B [or any other person] made [to the police] in A’s absence implicating A is not and cannot be evidence against A.  A was not present and had no opportunity to contradict it.  You must therefore disregard it when you consider the case against A.

Where maker of statement has given evidence:

The statement which B made [to the police] in A’s absence cannot by itself be evidence against A, for he was not present and had no opportunity to contradict it.  However, B has now given evidence in court [adopting the statement and] implicating A.  This evidence has been given in A’s presence, and A has had the opportunity to challenge and contradict it.  It is therefore evidence in the case generally, which you are entitled to consider.”

In a further note on this topic, it is stated:

“Where there is more than one defendant and each has made a written statement, tell the jury when considering the evidence against each defendant, to consider only the statement made by that defendant.”

17.  As it is plain that the judge used the statements of the co-defendants in determining the guilt of each of the applicants in turn, none of whom had given evidence, we are satisfied that the error was one which amounted to a material irregularity at trial.  The error, we should add, was also overlooked by both counsel appearing in these proceedings in circumstances where we would have expected to have it drawn to our attention.

18.  We have considered the application of the proviso at the invitation of Ms Lai on the respondent’s behalf, but we do not consider that this, in the present circumstances, would be appropriate. 

(2)  4^th charge

19.  The 4^th charge concerned only D1.  It was submitted, amongst other things, that the judge had been wrong to conclude that the circumstantial evidence surrounding the presence of the sampan within Hong Kong waters was, without more, sufficiently compelling to draw an irresistible inference of guilt against D1.  Again, the grounds advanced were not to the point.

20.  In the course of her Reasons for Verdict, the judge made a number of brief references to the 4^th charge against D1, saying:

“2.  The 1^st Defendant is additionally charged with the offence of assisting the passage of 4 unauthorized entrants, the 2^nd to 5^th Defendants, within Hong Kong.

…

16.  Regarding the 4^th charge, it is the defence’s submission that according to the 1^st Defendant’s statement, he entered Hong Kong by mistake.  Mistake ought to be accepted as a valid defence to a s.37D offence though the offence is one of strict liability.

…

49.  On the assisting passage charge, as I have been satisfied beyond reasonable doubt that the 1^st Defendant was consciously and deliberately heading for an island within the Hong Kong waters (and there was no dispute that the 2^nd to 5^th Defendants do not have the permission to enter Hong Kong), the suggested defence of mistake does not arise.” 

21.  Unfortunately, as we have already said, the judge had utilised the answers given by one or more of the co-defendants at trial in forming the view that D1:

“… in his statement is incredible and contradictory with the statements given by the rest of his co-accused.” 

22.  There was a considerable amount of evidence pointing to D1’s guilt, but as it is impossible to say that the judge’s consideration of evidence which was inadmissible against D1 was not an important factor when finding him guilty on this charge, this again must be regarded as a material error.  Again, we do not consider the application of the proviso to be appropriate. 

Conclusion

23.  In all the circumstances, we shall grant leave.  Treating the hearing in each case as the appeal, we allow the appeals of D1, D2, D3 and D5 on the 1^st charge and D1’s appeal on the 4^th charge.  All the convictions, and the sentences imposed on them, are quashed.

24.  Having heard counsel, we shall in each case order a re-trial of these charges on a fresh charge sheet.  Meanwhile, D1, D2, D3 and D5 will remain in custody.

25.  For the record, it is plain to us that the judge made the same error in her approach to D4’s case as the others.  She said, firstly, that his account was “beyond one’s reasonable comprehension”.  In coming to this conclusion, the judge noted that D4 told the police for the first time in his third statement, which was some twenty-two hours after his arrest, that they had gone to Dangan Island and that it was D3 who had told him the name of the island.  The judge added, secondly,

“One cannot avoid mentioning the observation that (D3) never said he knew the place they visited in gathering the pine trees.”

We can add, therefore, that counsel for the respondent has kindly indicated that she will assume responsibility for ensuring that D4 (Lee Wan-fung) is notified of the outcome of this matter, inviting him, should he wish to do so, to enter a late application for leave to appeal.