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CACC 147 /2011
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CRIMINAL APPEAL NO 147 OF 2011
(ON APPEAL FROM HCCC 230 OF 2010)
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BETWEEN
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HKSAR
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Respondent |
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and
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|
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KONG PUI LAM (江沛霖) |
1st Applicant
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CHOW WEI KEI (鄒偉基) |
2nd Applicant
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| Before : Hon Stock VP, Lunn JA and Barnes J |
| Date of Hearing: 22 May 2012 |
| Date of Judgment: 22 May 2012 |
| Date of Reasons for Judgment : 6 July 2012 |
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REASONS FOR JUDGMENT
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Hon Lunn JA (giving the reasons for judgment of the court):
1. At the outset of the hearing the 1st applicant abandoned his application for leave to appeal against his conviction after trial before Saw J and a jury of the attempted murder of Ms Chen Fan and we dismissed that application. In that application, he appeared for himself. Mr Donald appeared for the 1st applicant in his application for leave to appeal against the sentence of 21 years’ imprisonment that was imposed upon him for that offence. Mr McCoy SC appeared on behalf of the 2nd applicant in his application for leave to appeal against his conviction, after his joint trial with the 1st applicant, for the murder of Ms Chen Fan. At the conclusion of the hearing we refused those applications and indicated that we would give our reasons for doing so in due course. That we do now.
THE TRIAL
Background
2. In the early morning of 12 February 2010 police officers on a Marine Police launch, who were responding to an emergency call, retrieved the body of Ms Chen Fan from the sea adjacent to the Waterfront Promenade in Tsim Sha Tsui. Ms Chen Fan was unresponsive and no pulse was detectable. She was certified dead at Queen Elizabeth Hospital at 05:47 a.m. Three other persons were rescued from the sea by police officers on the Marine Police launch. They were the 2nd applicant, a fireman and a passerby, the latter two of whom had jumped into the sea to rescue Ms Chen Fan. The 1st applicant was on the shore nearby and had attracted the attention of the passerby to the presence of Ms Chen Fan in the water. That passerby, Chow Kai Pong, had summoned the police.
The prosecution case
3. It was the prosecution case that the 1st and 2nd applicants were parties to a joint enterprise, the intention of which was to kill Ms Chen Fan, so that they could benefit from an insurance policy on her life in the sum of $2.8 million of which the 2nd applicant was the sole beneficiary. Pursuant to that plan they had successfully set about getting Ms Chen Fan inebriated in the early hours of the morning. In that state, she had been pushed into the sea where her head had been held down beneath the water whilst she was strangled.
4. In the opinion of the forensic pathologist, who had conducted an autopsy on the corpse of Ms Chen Fan, there were two causes of deaths: drowning and pressure that had been applied to her neck. The latter had caused petachiae beneath the eyelids and the white of the left eye, which injuries were consistent with asphyxia by manual strangulation. There was deep bruising around the left greater horn of the hyoid bone and the adjoining thyroid membrane, as there was at the right angle of the jaw and at the right middle outer front of the neck. This could be caused by the application of finger pressure, which was commonly found in the victims of strangulation. At the time of her death Ms Chen Fan’s blood contained 174 mg of alcohol per 100 millilitres.
The out-of-court statements of the applicants
5. In respect of each of the applicants the prosecution relied upon various admissions, albeit different accounts, made in respect of the circumstances leading to the death of Ms Chen Fan, that had been given by each of the applicants to police officers on 12 and 13 February 2010.
6. Initially, each of the applicants had given accounts to the police, in which they described the death of Ms Chen Fan as having been an accident, she having fallen into the sea, and their role as being that of rescuers.
The 1st applicant
7. However, following an interview in the early afternoon of 12 February 2010 the 1st applicant was arrested for the murder of Ms Chen Fan after he had said, “It was done by Chow Wai Kei, who was with me at the time.” Later that afternoon a video recorded interview under caution was conducted of the 1st applicant, in which he admitted that he had agreed with the 2nd applicant to kill Ms Chen Fan by pushing her into the sea next to the promenade in Tsim Sha Tsui. Pursuant to that agreement he had pushed her into the sea. Then, the 2nd applicant jumped in after her and pushed her head under the water. At the 2nd applicant’s request he too had jumped into the sea and together they held her head under the water. However, because he was scared and felt guilty he had then desisted and swum to the shore, telling the 2nd applicant that he was going to report the matter to the police. On the shore, he had encountered a passerby and asked him to contact the police.
The 2nd applicant
8. Although the 2nd applicant had given a witness statement to the police in the afternoon of 12 February 2010, in which he had said that Ms Chen Fan had fallen into the sea by accident, following the 1st applicant’s admissions in his first video recorded interview, that she had been pushed into the sea pursuant to a plan to kill her, the 2nd applicant was arrested and cautioned in respect of her murder. Then, in the late evening of 12 February 2012 a video recorded interview was conducted of the 2nd applicant, during which the video recorded interview conducted of the 1st applicant was played to him. The 2nd applicant declined to answer almost all of the questions posed of him. Certainly, he made no admissions. In the late afternoon of 13 February 2012 a second video recorded interview was conducted of the 2nd applicant. Again, he declined to answer almost all of the questions. At 7:30 p.m. on 13 February 2012 the 2nd applicant was charged with the murder of Ms Chen Fan, in response to which he said and then wrote, “I wish to clearly state the facts of the case”. Within an hour a third video recorded record of interview was conducted of the 2nd applicant. In proof of their case, the prosecution relied on admissions made by the 2nd applicant in the course of that interview.
9. In the third record of interview the 2nd applicant said that he and the 1st applicant were partners in a loss-making mahjong parlour business. The 1st applicant had suggested a way to obtain ‘quick money’, namely to take out an insurance policy on the life of Ms Chen Fan and obtain its benefits on her demise. As instructed by the 1st applicant he had caused such a policy to be issued. Thereafter, the 1st applicant frequently raised the topic of how it was that Ms Chen Fan was to be killed. It was the 1st applicant who had suggested the plan, which they put into effect, of getting Ms Chen Fan drunk and then pushing her into the sea. The 1st applicant pushed Ms Chen Fan into the sea. In response to her cries for help the 2nd applicant had thrown her life buoy and then jumped into the water to assist her. The 1st applicant followed him into the water but then pushed and held Ms Chen Fan’s head under the water.
THE DEFENCE CASE
The 2nd applicant
10. The 2nd applicant gave evidence to the effect that he enjoyed a sexually intimate relationship with Ms Chen Fan and that they had agreed to marry. He and the 1st applicant were long-standing close friends. He said that the two of them had been joined by Ms Chen Fan in the early hours of 12 February 2010 and they had spent some hours in a bar. The other two were affected by their intake of alcohol. Eventually, the three of them had arrived at the Waterfront Promenade in Tsim Sha Tsui, where Ms Chen Fan had fallen into the water accidentally. He threw a life buoy, to which a rope was attached, to Ms Chen Fan as she struggled in the water. Then, first he and then next the 1st applicant jumped into the water to try to save her. At his suggestion the 1st applicant swam ashore to raise the alarm. Eventually, a passerby joined him in the water, where he was holding-up Ms Chen Fan.
11. The 2nd applicant said that he had given an account to the police in a witness statement on the afternoon of 12 February 2010 of how it was that Ms Chen Fan had fallen into the sea accidentally. However, shortly after the completion of that statement he had been arrested and cautioned for the murder of Ms Chen Fan. He had said that it was nothing to do with him. Having consulted a barrister and a solicitor he had exercised his right of silence in video recorded interviews conducted of on the evening of 12 February and the late afternoon of 13 February 2010.
12. After the second interview, he had been threatened and physically assaulted by police officers who urged him to admit his part in the murder of Ms Chen Fan and coached him what to say. Then, he had been charged with the murder of Ms Chen Fan. He had provided the inculpatory answers that he had given in his third video record of interview, which began within an hour of his being charged, in consequence of the threats and assaults of the police officers and as a result of having been coached as to what he was to say.
THE ISSUE OF THE ADMISSION INTO EVIDENCE OF THE 2ND APPLICANT’S THIRD RECORD OF INTERVIEW
13. Objection was taken earlier in the trial to the admission into evidence of the third video record of interview of the 2nd applicant and the judge conducted a voir dire, in which the 2nd applicant testified.
A chronology of the material events leading to the third record of interview of the 2nd applicant
14. The following is an extract from a summary ‘Chronology of Events’ attached to the respondent’s submissions, with which no issue was taken.
| 12 February 2010 |
|
| 3:00-5:14 p.m. |
----- a witness statement was taken from the 2nd applicant; |
| 8:43-9:50 p.m. |
----- the 2nd applicant had a conference with a barrister and solicitor; |
| 10:30-11:20 p.m. |
----- the first record of interview was taken from the 2nd applicant; |
| 13 February 2010 |
|
| 10:00 a.m. |
----- the 2nd applicant declined to participate in a re-construction; |
| 10:40 a.m. and 5:03p.m. |
----- the 2nd applicant made calls to his lawyers; |
| 6:33-6:44 p.m. |
----- a second record of interview was taken from the 2nd applicant; |
| 7:27-7:30 p.m. |
----- the 2nd applicant was charged with murder; |
| 7:45 p.m. |
----- the 2nd applicant made a telephone call to his older brother; and |
| 8:20-10:00 p.m. |
----- a third record of interview was taken from the 2nd applicant |
15. In the first record of interview, having been reminded that he was not obliged to say anything, the 2nd applicant asserted that he had the right to remain silent and declined to answer a short series of questions, after which he was shown the video record of interview taken from the 1st applicant from 4 p.m. that afternoon. When asked, after the whole of the video recording of the 1st applicant’s interview had been shown to him, whether he had any explanation to offer the 2nd applicant twice responded that he wished to speak to his lawyer first. Then, the interview came to an end.
16. In the second record of interview, having said that he did not wish to participate in an interview, the 2nd applicant stated that he would not reply to the several questions that were asked of him. The interview concluded with the 2nd applicant responding to the question as to whether or not he had anything to supplement by stating that he had nothing to say, “... for the time being”.
The 2nd applicant’s third record of interview
17. At the outset of the third record of interview the 2nd applicant confirmed that the ‘Notice to Persons in Custody’ then shown to him had been shown to him earlier and that he knew his rights, that he was willing to take part in the interview and that he did not need to have a lawyer present. Then, after he had been shown the Charge Sheet and reminded that he had answered the caution after being charged by saying “I would like to give an account of the facts clearly” and after he had been cautioned again, the 2nd applicant was asked “For what you said earlier, do you wish to clarify?” In response to his enquiry about what procedure would follow the 2nd applicant was told that it was not about procedure but that the purpose was “... to let you tell what account of facts you would like to give”. Immediately, the 2nd applicant referred to having seen the video record of interview of the 1st applicant and then embarked upon an account of the circumstances in which the 1st applicant had jumped into the water at the Waterfront Promenade at Tsim Sha Tsui and strangled Ms Chen Fan. He too had jumped into the water. In response to the enquiry as to why the 1st applicant had jumped into the water the 2nd applicant embarked upon an explanation, “... starting from the beginning”.
The judge’s ruling
18. At the conclusion of a voir dire the judge ruled that the interview might be adduced before the jury. All he said in that ruling was (Appeal Bundle 690):
“ … I am satisfied that the statement made by the 2nd defendant is voluntary, there are exceptional circumstances which permit its admission into evidence, notwithstanding that it was taken after he was charged, and that no unfairness would result from this course.”
GROUNDS OF APPEAL AGAINST CONVICTION
The 2nd applicant
19. On behalf of the 2nd applicant, Mr McCoy SC contended that the judge had erred in admitting into evidence the third video recorded interview conducted of the 2nd applicant. However, at the outset he confirmed the concession made in his written submissions, namely that he abandoned his ground of appeal that the judge had erred in determining that the answers of the 2nd applicant in that interview had been made voluntarily.
20. That interview had been conducted between 8:20 p.m. and 10 p.m. on 13 February 2010, after the 2nd applicant had been charged at 7:30 p.m. that evening with the murder of Ms Chen Fan. Mr McCoy submitted that the interview was conducted in breach of rule III (b) of the Rules and Directions for the Questioning of Suspects and the Taking of Statements issued by the Secretary for Security, which provides that:
“ It is only in exceptional cases that questions relating to the offence should be put to the accused person after he has been charged or informed that he may be prosecuted. Such questions may be put where they are necessary for the purposes of preventing or minimizing harm or loss to some other person or to the public or for clearing up an ambiguity in previous answer or statement.”
21. Mr McCoy submitted that rule III (b) operated as a codification of the factors of exceptionality. Only two exceptional cases were stipulated within the rule, namely the minimizing of harm or the clearing up of an ambiguity arising from a previous answer or statement. Neither circumstance arose on the facts in this case. He contended that a breach of the rule occurred when, after having been charged with an offence, an accused person was questioned in respect of the same offence. That is what had occurred in the 2nd applicant’s third video record of interview. A breach of the rule having occurred, then it was for the prosecution to prove that exceptional circumstances existed. A determination of whether or not exceptional circumstances existed required a judgment of the court. Then, in the event of an affirmative resolution of that issue, the court was required to consider whether in the exercise of its discretion the evidence ought nevertheless to be excluded.
22. Given that the determination that exceptional circumstances existed was the exercise of a judgment, not the exercise of a discretion, the judge was required to give reasons. He had not done so, saying only “... there are exceptional circumstances which permit its admission into evidence, notwithstanding that it was taken after he was charged, and that no unfairness would result from this course”. His failure to do so was an error of law (see the judgment of the Court of Appeal in HKSAR v Okafor [2102] 1HKLRD 1041). Mr McCoy acknowledged that the judgment in Okafor had been delivered many months after the judge’s ruling, namely, on 27 January 2012.
23. Mr McCoy submitted that in the absence of a judgment this court did not know the reasoning and evaluation by which the judge had determined that the admissions should be admitted. The importance of that issue was the long-standing rationale for the existence of the rule, namely that once charged an accused might feel under greater compulsion to answer questions, notwithstanding a caution, so that he might speak when otherwise he would have remained silent and that he might tell exculpatory lies to get himself out of trouble (see the judgment of the Privy Council delivered by Lord Carswell in Peart v The Queen [2006] 1 WLR 970 at page 980 F – 981 B, paragraph 20).
24. Finally, Mr McCoy submitted that, in all the circumstances, the judge had erred in exercising his discretion to admit the evidence.
THE RESPONDENT’S SUBMISSIONS
25. On behalf of the respondent, Mr Alex Lee accepted that there was a breach of rule III (b). The judge retained a discretion to admit an admission into evidence notwithstanding a breach of the rules. (See the judgment of Li CJ, with whom all the other judges agreed, in the Court of Final Appeal in the Secretary for Justice and Lam Tat Ming & Another (2000) 3 HKCFAR 168 at page 178 J – 169 I; and Peart at 982 D-F, paragraph 24.) It was clear from those cases that the judge was exercising a discretion. The finding of exceptional circumstances was not the making of a judgment, which required the giving of reasons.
26. Furthermore, he submitted that there were exceptional circumstances, in consequence of which the judge was entitled to admit the evidence: the 2nd applicant had initiated the events that led to his making the admissions, namely by stating orally and in writing after he had been charged and cautioned, “I wish to state clearly the facts of the case”. That statement was made after he had received legal advice on several prior occasions. Moreover, a court was entitled to admit admissions made in reply to questions of an accused in respect of an offence for which he had been charged, “even if there are no exceptional circumstances, if it regards it is right to do so but it would need to be satisfied that it was fair to admit it” (see Peart, paragraph 24). In such circumstances, an appellate court would not readily review the exercise of his discretion, “if the judge directed his mind to the correct considerations” (Peart, paragraph 26).
27. Next, it was contended that, in any event, the judge’s reasons for admitting the admissions of the 2nd applicant were self-evident from the exchanges between his counsel and the judge, in the course of the latter’s submissions in respect of whether or not the evidence ought to be admitted before the jury. The earlier statements of the 2nd applicant were consistent with his answer to the charge and evinced an intention to give his account of events to the police at some stage. In those circumstances, it was not required of the judge that he articulate with particularity his reasons for admitting the evidence. (See Okafor.)
A CONSIDERATION OF THE SUBMISSIONS
The residual discretion
28. There is no dispute that, notwithstanding a judge’s finding that an out-of-court admission against interest made by an accused at trial was made voluntarily, the judge retains a residual discretion to exclude that evidence in order to ensure a fair trial for the accused (see the judgment of Li CJ in the Lam Tat Ming at page 178 J – 179 I). There, Li CJ said:
“ 26. The judge has the overriding duty to ensure a fair trial for the accused according to law. For this purpose, he has what should be regarded as a single discretion to exclude admissible evidence, including a voluntary confession, whenever he considers it necessary to secure a fair trial for the accused.
….
The court’s function is to consider whether it would be unfair to the accused to use the confession though voluntary against him at his trial.
…….
28. The requirement of a fair trial for the accused involves the observance of principles including the following which are relevant in this appeal: (1) No man is to be compelled to incriminate himself; his right of silence should be safeguarded. (2) No one can be convicted except upon the probative effect of admissible evidence. To ensure a fair trial for the accused, the court will exclude admissible evidence the reception of which will compromise these principles. R v Sang at 436 H – 437 D (Lord Diplock) and 455 C - E (Lord Scarman).
29. Thus, where a confession has been obtained in breach of the Secretary for Security’s rules and directions (and previously the Judges’ Rules), this is a matter to be considered by the court in deciding whether to exercise its discretion to exclude. This should be regarded as relating to the principle in (1).”
29. At issue in Peart, an appeal from Jamaica, was the admissibility of admissions made by the appellant in an interrogation conducted of him by a police officer the day after he had been charged with murder. After caution the appellant had given a single sentence reply, which was not in any way specifically directly inculpatory. The appellant had been interviewed by a police officer after he had learnt that after his arrest the appellant had said that he wished to speak to the officer. The interview consisted of 63 questions of the appellant in respect of his personal circumstances, his knowledge of named persons and his movements on the night of the killing. The appellant was 18 years of age, in custody for capital murder and had not received any legal advice.
30. The revised 1964 Judges’ Rules, in force in Jamaica, included a provision identical to rule III (b) of the Secretary for Security’s rules and directions. The Privy Council rejected the findings of the lower courts that there were exceptional circumstances to justify the questioning after charge of the appellant, namely that there were ambiguities in what the appellant had said earlier to the police and that the police were seeking information in respect of another suspect in the murder, noting that the subject matter of the questioning was more related to pinning down the appellant as to his movements. Moreover, they were not satisfied that the appellant’s answers were given voluntarily adding, that even if they were, it was unfair to admit them. (See page 983 B-C, paragraph 25; page 984 B, paragraph 29.)
31. In his judgment Lord Carswell identified four propositions relevant to the Judge’s rules (page 982 C-F, paragraph 24) :
“ (i) The Judges’ Rules are administrative directions, not rules of law, but possess considerable importance as embodying the standard of fairness which ought to be observed.
(ii) The judicial power is not limited or circumscribed by the Judges’ Rules. A court may allow a prisoner’s statement to be admitted notwithstanding a breach of the Judges’ Rules; conversely, the court may refuse to admit it even if the terms of the Judges’ Rules have been followed.
(iii) If a prisoner has been charged, the Judges’ Rules require that he should not be questioned in the absence of exceptional circumstances. The court may nevertheless admit a statement made in response to such questioning, even if there are no exceptional circumstances, if it regards it as right to do so, but would need to be satisfied that it was fair to admit it. The increased vulnerability of the prisoner’s position after being charged and the pressure to speak, with the risk of self-incrimination or causing prejudice to his case, militate against admitting such a statement.
(iv) The criterion for admission of a statement is fairness. The voluntary nature of the statement is the major factor in determining fairness. If it is not voluntary, it will not be admitted. If it is voluntary, that constitutes a strong reason in favour of admitting it, notwithstanding a breach of the Judges’ Rules; but the court may rule that it would be unfair to do so even if the statement was voluntary.”
32. Earlier in his judgment, Lord Carswell had addressed in more detail the circumstances of vulnerability that an accused person may be under after charge (paragraph 20) :
“ Once the suspect has been charged, the efforts of the police interviewers are directed to establishing his guilt. He is under a greater disadvantage at that stage, in that he may feel under greater compulsion to answer questions, notwithstanding a caution. These factors may tend to produce a feeling of pressure upon the accused to speak where he might otherwise have remained silent and to result in unreliable statements from him when seeking to tell exculpatory lies to get himself out of trouble.
……..
But the basic fundamental reason for the prohibition is the principle that to interrogate the prisoner at this stage tends to be unfair as requiring him possibly to incriminate himself.”
The judge’s ruling
33. As noted earlier, at the conclusion of the voir dire the judge ruled that the third record of interview of the 2nd applicant might be adduced before the jury having found that it had been made voluntarily by the 2nd applicant and that he was satisfied that (Appeal Bundle 690):
“ … there are exceptional circumstances which permit its admission into evidence, notwithstanding that it was taken after he was charged, and that no unfairness would result from this course.”
34. In Okafor this Court addressed (page 1045, paragraph 3) the issue of the need for the reasoning of a tribunal to be stated or discernible where the tribunal determined to admit a statement against interest in the face of a challenge as to its voluntariness or a refusal to exercise its discretion to exclude the evidence on the basis of unfairness. In his judgment, with which the other judges agreed, Stock VP noted (paragraphs 22 and 23) that in their judgments in Chau Ching Kay v HKSAR (2002) 5 HKCFAR 540 and in Wallace v R [1997] 1 Cr App R 396 the Court of Final Appeal and the Privy Council respectively held that there was no general requirement that in such circumstances a judge give a reasoned ruling. However, he also observed that they had gone on to say there were occasions when ‘good practice’ required such a reasoned ruling. Noting that the resolution of a challenge to the admissibility of the admission against interest or the exercise of the court’s residual discretion was a matter of importance in a trial, Stock VP said (paragraph 29)
“ ... the reason for the rejection of the argument or the refusal to exercise discretion in favour of the defendant should not be a secret. The reason should be clear either from what has transpired in the court of trial during the canvassing of the issues, from the nature of the issues themselves, from the evidence or a combination of these; or, indeed, from a reasoned ruling. This means that if the basis of the tribunal’s determination is clear from the circumstances as revealed by the record, there is no need for the provision of reasons; for in such a case the tasks of the adviser and of the appellate tribunal are not obstructed. If the basis for the decision is not clear from the circumstances – which includes the evidence, the nature of the challenge, exchanges in the course of the proceedings – then reasons should be provided, otherwise the convicted defendant is effectively deprived of his right of appeal in relation to a material issue in the case.”
35. Clearly, that is the appropriate approach for this Court to take in this case. In particular, from the available transcript this Court is in a position to have regard to the nature of the issue itself, the evidence led in that regard and the exchanges in the proceedings between counsel and the judge as those issues were canvassed and crystallized.
36. Although the judge gave no reasons for his ruling, other than those set out earlier, in the course of closing addresses by counsel for the prosecution and for the 2nd applicant there were numerous exchanges in which the judge stated unequivocally the approach that he took to his task. In an exchange with counsel for the 2nd applicant, the judge made clear the sequence in which he approached the issues: firstly, a determination of the voluntariness of the admission having regard to the evidence; and secondly, the issue of a breach of rule III (b) (Appeal Bundle 706).
37. Of the issue of a breach of rule III (b) the judge stated, in an exchange with counsel for the prosecution (Appeal Bundle 696 S – 697 F), that he approached matter on the basis that the questioning of the 2nd applicant after he had been charged, “amounts to a breach, but nevertheless exceptional circumstances would permit the court to admit it into evidence”.
38. Of the issue of whether or not there were exceptional circumstances, and having adverted to the judgment of the Privy Council in Peart, the judge identified the relevant factors in an exchange with counsel for the prosecution (Appeal Bundle 697 I - Q):
| “ COURT: |
Yes, and your argument being that the initiative coming from the defendant, the 2nd defendant, to provide an explanation which hitherto he has not done is a matter to be taken into account in the context of whether in those circumstances it is fair to admit it into evidence. The test being fairness. |
| MR ARTHUR: |
Yes, I mean... |
| COURT: |
Bearing in mind I would have to take into account, of course, the observations that once an accused has been charged with an offence there is inevitably, one would assume, some degree of pressure to come forth with an explanation. |
| MR ARTHUR: |
Right. |
| COURT: |
Your point being, whilst that may be the case this situation clearly indicates the initiative was that of the 2nd defendant. |
| MR ARTHUR: |
Yes. |
| COURT: |
That in summary is what you are saying? |
| MR ARTHUR: |
Yes. ” |
39. Having quoted from the passage cited earlier from paragraph 20 of the judgment of Lord Caswell in Peart, in respect of the issue of the pressure on an accused to provide an explanation after he had been charged, the judge said to counsel (Appeal Bundle 698 G):
| “ COURT: |
This is a matter then (sic) I have to guard against when I consider whether it should be -- whether in the face of the breach, fairness would permit you to lead the evidence.” |
40. The relevance of the four propositions stipulated by Lord Carswell to the resolution of the issue of the admissibility of the 2nd applicant’s admissions was addressed in an exchange between his counsel and the judge (Appeal Bundle 707 Q – 708 I):
| “ MR CHAU: |
Your Lordship has reminded me yesterday of the leading case of Peart v The Queen. |
| COURT: |
Yes, and I think that we can safely say that the principles that emerge are set out in paragraph 24 on page 982. |
| MR CHAU: |
That’s correct. If I can dispel it even further, just because it’s a breach doesn’t rule it inadmissible. |
| COURT: |
No. |
| MR CHAU: |
No, it’s not a rule, these are just rules to guide police officers to ensure that prisoners, suspects, detainees, are treated properly and fairly in a nutshell. |
| COURT: |
Yes. Paragraph 24-1 makes that clear. |
| MR CHAU: |
Yes. I think the four points there I cannot take issue with, I think these are... |
| COURT: |
I think they are very succinct and an accurate statement... |
| MR CHAU: |
Of course. |
| COURT: |
... of the law as I understand it. |
| MR CHAU: |
And that’s how your Lordship will apply... |
| COURT: |
Yes. |
| MR CHAU: |
... these principles to the case at hand. |
| COURT: |
Yes.” |
41. As noted earlier, the judge said that he proposed addressing the issue of voluntariness first, before considering whether the breach of rule III (b) was justified. In an exchange between the judge and counsel for the 2nd applicant, the issue of what factual findings the judge would have had to have made in reaching a finding of voluntariness was canvassed (Appeal Bundle 710 Q – 711 N):
| “ COURT: |
………. |
| |
Before I get to that point I will have had to have rejected the suggestions of assault and impropriety on the part of the police officers. |
| MR CHAU: |
Yes, you would have. |
| COURT: |
In which case I would be in a position where I would have accepted the evidence of the officers that the 2nd defendant when charged indicated immediately that he wished to give an account of this matter and wrote that out of his own motion. No one had told him to say it; no one had suggested he should say it. |
| MR CHAU: |
In those circumstances I think I would have to concede that that would be an exceptional circumstance, I think I would have to concede that much. [Italics added.] |
| COURT: |
Yes. Because leaving aside what I might find or not. |
| MR CHAU: |
Yes. |
| COURT: |
If a witness of their own motion, on their own initiative indicates they wish to give an account, irrespective of whether they have been arrested or not, it’s entirely proper for the police officers to allow them to give the account. I do have to then go on to consider whether the element of fairness has been impugned. But the fact that it is of his initiative is directly relevant to that. |
| MR CHAU: |
Yes, I can see that much. I don’t think... |
| COURT: |
Yes. |
| MR CHAU: |
There’s no other position I could take on that. |
| COURT: |
Yes, I think that’s a very sensible... |
| MR CHAU: |
It would be a -- put it another way... |
| COURT: |
A sensible concession, Mr Chau. |
| MR CHAU: |
It would be remiss of the police officers not to conduct further. |
| COURT: |
No, they’ve got to do that. |
| MR CHAU: |
Yes, of course.” |
42. As noted earlier, the judge approached the matter on the basis that the very fact of questioning of the 2nd applicant after he had been charged with the offence of murder constituted a breach of rule III (b). Then, he turned to examine whether the breach was justified by the existence of exceptional circumstances, determining that it was so justified. He said that that was what “the Privy Council appears to be indicating it Peart”, although he did not identify any particular passage in the judgment. Perhaps, he had in mind the statement and Lord Carswell’s judgment stating the resolution of the issue in that case (page 983 B - C, paragraph 25) :
“ the asking of the 63 questions was a breach of rule III (b) and there were no exceptional circumstances to justify it.”
On the other hand, that statement is to be viewed in the context of their Lordship’s determination that the interrogation of that appellant appeared to have been “intended to and it had the effect of pinning down the appellant in relation to his movements…”, rather than to have been intended to afford him an opportunity to give his account if he wished.
43. In our judgment, the language of the rule itself suggests that a breach is established only if the case at hand is not an exceptional case, “It is only in exceptional cases that questions relating to the event should be put to the accused person after he has been charged…” However, in practice, it matters little which way the issue is approached.
Exceptional cases
44. There is no dispute that the rules are not rules of law. They are administrative guidance to the police and other law enforcement agencies. We do not accept that the two circumstances, described in rule III (b) in which questions may be put to such an accused person, is a codification, limiting the circumstances in which such questioning may be permitted. They identify the two most obvious and important circumstances. The ambit of the phrase “exceptional cases” is not circumscribed by those examples.
45. Even were that not so, we respectfully accept as accurately stating the law in Hong Kong the propositions articulated by Lord Carswell in Peart, in particular proposition (iii) namely that:
“ the court may nevertheless admit a statement made in response to such questioning, even if there are no exceptional circumstances, if it regards it right to do so, but would need to be satisfied that it was fair to admit it.”
46. It is clear from the issues canvassed by counsel with the judge, as illustrated in the exchanges between them, that the judge was alive to the appropriate factors to take into consideration in determining whether there were exceptional circumstances making the appellant’s case an exceptional case permitting questioning of him after charge. In particular, it is clear that he had regard to the issue of the pressure that the fact of having been charged might have upon the 2nd applicant, “to speak when he might otherwise have remained silent” (Peart, paragraph 20).
47. Sensibly, in the course of oral argument, Mr McCoy conceded that the evidence relevant to the judge’s consideration in the instant case was quite different from that of the appellant in Peart. There, the appellant was an 18-year-old man who had not received any legal advice prior to being questioned after charge. Here, the 2nd applicant was a 30-year-old insurance broker. On the evening of 12 February 2010 he had received legal advice, in a conference with a barrister and a solicitor, to remain silent and had exercised that right repeatedly in two video records of interview conducted of, one later that evening and, the other, late the following afternoon. In his answer to charge the 2nd applicant had invited or initiated the steps taken to conduct a further interview. Finally, after having been charged at 7:30 p.m. on 13 February 2000, he spoke to his older brother by telephone before the third video record of interview commenced at 8:20 p.m.
48. Furthermore, of considerable relevance was the nature of the third interview itself. As counsel for the prosecution had pointed out to the judge, the 2nd applicant had confirmed that he was aware of his rights, that he did not require a lawyer and when formally charged he had said that he would like to give an account of the facts clearly. Then, the 2nd applicant was told that the purpose of the interview was, “to let you tell what account of the facts you would like to give…”
49. In the result, we are satisfied from the material before us that it is crystal clear why it is that the judge reached his determination that there were “exceptional circumstances” which permitted the admission into evidence of the third video record of interview of the 2nd applicant. Similarly, it is clear why he reached his determination that no unfairness would result. The judge had regard to the relevant factors and was entitled to reach those determinations.
50. Having determined that the 2nd applicant participated voluntarily in that interview the judge’s findings in respect of the operation of rule III (b) and his determination to permit that evidence to be produced, it not resulting in unfairness to the 2nd applicant, was the exercise of his discretion. At issue was whether or not in the exercise of his discretion the evidence ought to be excluded. He determined that it ought not to be so excluded. We are satisfied that he was entitled to reach that conclusion. Furthermore, in the circumstances of this case, we are satisfied that he was entitled to reach that conclusion, even if he was wrong in his finding that there were exceptional circumstances.
THE 1ST APPLICANT’S APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE
The reasons for sentence
51. In imposing sentence on the 1st applicant for attempted murder, the judge said (Appeal Bundle 97 L - O):
“ ... I have never encountered a more callous and genuinely heinous crime than you two together contrived to effect. This was no-spur-of-the-moment action on your parts, this was a cold and calculated decision made by the two of you to take the life of this innocent young woman for the very basest of reasons, namely, that you were in need of money.”
52. The judge went on to note that, having succeeded in getting Ms Chen Fan inebriated and having pushed her into the water:
“ Both of you entered the water and pushed her head under the water, clearly intending to kill her. You both knew that she could not swim.”
53. Of the conduct of the 1st applicant, the judge said:
“ ... it was only at the 11th hour after this…that you decided that you would take no further part in the action. That is to your credit. But it was too late.”
54. The judge determined that the 1st applicant’s culpability lay at the “upper extreme of that offence”, noting that the maximum penalty was life imprisonment. In the result, he imposed a sentence of 21 years’ imprisonment on the 1st applicant.
THE 1ST APPLICANT’S GROUNDS OF APPEAL AGAINST SENTENCE
55. On behalf of the 1st applicant, Mr Donald advanced two grounds of appeal against sentence. Firstly, that in sentencing the 1st applicant the judge was not made aware that prior to his trial he had made an offer to the prosecution to plead guilty to the offence of which he had been convicted, namely attempted murder. In consequence, he had not been afforded a discount of one third, to which he was entitled, from the starting point taken for sentence. Secondly, it was submitted that the sentence of 21 years’ imprisonment was manifestly excessive and did not afford the 1st applicant appropriate credit for having withdrawn from the plan to kill Ms Chen Fan.
The 1st applicant’s offer to plead guilty to the offence of attempted murder
56. At the hearing, the respondent not opposing the application, this court acceded to the application made on behalf the 1st applicant that he be granted leave to adduce evidence relevant to the issue of his offer to the prosecution to plead guilty to the offence of attempted murder. That evidence comprised two affirmations from the applicant and two affidavits from his erstwhile barrister and solicitor, respectively Mr Paul Loughran and Ms Jessie Wong Chui Yee.
57. There is no dispute that by a letter headed “WITHOUT PREJUDICE” dated 31 May 2010 from counsel, Mr Albert Luk, on behalf of the applicant to the prosecution the possibility of the applicant pleading guilty to a lesser count than that of murder, namely attempted murder or manslaughter was canvassed:
“ The purpose of writing this letter is to ascertain from your Department the possibility of reducing the present charge to one of “attempted murder” or “manslaughter” as appropriate.”
58. Counsel pointed out that in a video recorded interview the 1st applicant had “… confessed everything by detailing the parts that he played”. The prosecution was informed that the applicant was willing to testify as a prosecution witness. The letter concluded with an invitation to the prosecution to consider “our offer”, in which event it was stated:
“ ... my lay client will plead guilty to the charge and will withdraw all his complaints at the CAPO Office.”
59. By a letter dated 26 July 2010 to the Director of Legal Aid, Senior Government Counsel in the Prosecutions Division of the Department of Justice informed the Director, as the current representative of the 1st applicant, that at an earlier stage the 1st applicant had been represented privately and advised him of the offer made in the letter of 31 May 2010. The letter stated that the offer was rejected.
60. On 23 July 2010 the 1st applicant had been committed for trial in the High Court from Eastern Magistrates Court for the offence of the murder of Ms Chen Fan. The 1st applicant was represented by Legal Aid counsel. Having been informed of his options available pursuant to section 80C(3) of the Magistrates Ordinance, Cap. 227 the 1st applicant did not plead guilty to the charge.
61. On 25 August 2010 the 1st applicant’s trial was fixed by the Listing Judge, Tong J, to commence on 21 February 2011. In advance of arraignment, Saw J conducted pre-trial reviews on 6 and 27 January and 21 February 2011. In a Pre-Trial Review Questionnaire dated 28 December 2010 counsel for the 1st applicant informed the court that the plea to be tended by the 1st applicant was not guilty to the count of murder. By a notice dated 11 February 2011, counsel for the 1st applicant provided the court with particulars of objections to the admissibility of the 1st applicant video recorded interview, namely oppression and threats by police officers. On arraignment the 1st applicant pleaded not guilty to the count of murder. He did not tender any other plea.
62. Ms Jesse Wong testified that, prior to the grant of legal aid, her firm, Edmund Cheung & Co, had been instructed privately by the 1st applicant. She had instructed Mr Albert Luk to write the letter dated 31 May 2010. Subsequently, her firm was assigned by the Legal Aid Department to act as the solicitor for 1st applicant. When no reply was received to the letter, she enquired of the 1st applicant if he wished her to pursue the matter. She said that the applicant informed her that he was no longer interested in a plea bargain and instructed her not to follow up the matter.
63. On 2 March 2011, following a voir dire, Saw J ruled the 1st applicant’s video recorded interview admissible in evidence before the jury. In their affidavits Mr Paul Loughran and Ms Jessie Wong testified that following the ruling they approached the 1st applicant and advised him to consider making an offer to the prosecution to plead guilty to attempted murder. Ms Jessie Wong testified that on 3 March 2011 she received instructions from the 1st applicant that he would not offer to tender that plea, explaining to her that the sentence of “10 or 20 years’ imprisonment” for attempted murder was “still too long”. She made a note of those instructions, but the 1st applicant refused to sign it.
64. The 1st applicant accepted the accuracy of those accounts. He explained that, having come to learn of the prosecution’s refusal of his offer from the 2nd applicant whilst they were in custody together, he judged it pointless to make another approach to the prosecution.
65. Mr Paul Loughran and Ms Jessie Wong denied the assertion made in a letter dated 22 February 2012 by Messrs James Li & Co, solicitors acting for the 1st applicant in this application, that the 1st applicant was, “prepared at all times to plead to the lesser charge of either Attempted Murder or Manslaughter.”
Mitigation
66. In mitigation Mr Loughran informed the court of unrewarding discussions that he had had with counsel for the prosecution prior to the trial in respect of the issue of the 1st applicant pleading guilty to attempted murder. He accepted that “no formal offer was made”. Mr Loughran testified that he had not advanced the fact of the offer made in the letter of 31 May 2010 in mitigation as a factor entitling the applicant to a discount of sentence because
“ I believed the original offer, made some 10 months before, and before I had come into the case, had been resiled from, was superseded by the defendant’s change of mind and had become immaterial.”
The 1st applicant’s defence at trial
67. Given that the letter of 31 May 2010 had raised the possibility of the 1st applicant pleading guilty to a lesser charge than murder, it is relevant to consider how his defence was conducted at trial.
68. The 1st applicant did not give or call evidence. His case, as advanced in cross-examination, was that insofar as he had made admissions of culpability to the police he had done so in consequence of inducements and oppression visited upon him by the police. As a result, the jury was invited to reject the evidence of his admissions to the police and acquit him of the charge of murder and its alternative of attempted murder of Ms Chen Fan. Also, the judge directed the jury to have regard to the evidence of the 2nd applicant, to the effect that Ms Chen Fan had simply fallen into the water accidentally and that each of them had acted simply as rescuers only.
69. Alternatively, it was contended that, if the jury accepted as true the inculpatory admissions made by the 1st applicant to the police, such admissions were mitigated by his assertion that he had withdrawn from the planned murder of Ms Chen Fan and that it was the 2nd applicant only who carried the agreed plan to fruition. Even if the jury were to accept his admissions to the police that he was a party with the 2nd applicant to a plan to kill Ms Chen Fan, and that he had carried out a plan to the extent that he had pushed her into the sea, jumped into the sea after the 2nd applicant had jumped into the sea and assisted the 2nd applicant to hold Ms Chen Fan’s head under the water he had desisted from carrying the plan to fruition. As he swam away from Ms Chen Fan he had told the 2nd applicant that he was going to make a report to the police, which report he caused to be made when he was ashore. At most he was guilty of attempted murder.
70. Clearly, in the conduct of his defence at trial the 1st applicant had resiled from the position taken on his behalf in the letter of 31 May 2010. Far from accepting that he was guilty of attempted murder, the primary case advanced on behalf of the 1st applicant was that he was not guilty of anything.
71. The position adopted by the 1st applicant at trial was consistent with his having resiled at a very early stage from the offer made in the letter of 31 May 2010. Even before the prosecution’s reply of 26 July 2010 the applicant had been committed for trial. Although he had an opportunity to do so, he did not enter a plea of guilty to any offence on that occasion. Similarly, no intimation of any such plea to a lesser offence was made at the hearing for the listing of the trial or at any of the several pre-trial reviews. Finally, no plea of guilty to the lesser offence was tendered on arraignment. No application was made that the 1st applicant be re-arraigned.
72. In our judgment, Mr Loughran was correct in determining that counsel’s intimation in the letter dated 31 May 2010 of an offer to plead guilty to a lesser offence than murder was superseded by the consistent position adopted by the 1st applicant thereafter. It was immaterial. The bare intimation of an offer to plead guilty was of little substance. It was not given any substance by repetition in any court proceedings or by the tendering of a plea of guilty to a lesser offence. It was not relevant to the determination of the appropriate sentence to impose upon the 1st applicant following his conviction of the offence of attempted murder.
73. In our judgment the judge was entirely correct to describe the offence committed by the 1st applicant in the terms that he used. It was a very grave offence. The killing was premeditated and done for monetary reward. Advantage was taken of the trust of Ms Chen Fan. The 1st applicant participated in a sustained attempt to ensure her death, withdrawing only when it was too late. The sentence imposed on the 1st applicant was fully deserved and entirely appropriate.
CONCLUSION
74. For the reasons set out above the applications of the 1st and 2nd applicants for leave to appeal against sentence and conviction respectively were dismissed.
(Frank Stock)
Vice-President |
(MICHAEL LUNN)
Justice of Appeal |
(JUDIANNA BARNES)
Judge of the Court of First Instance |
Mr. Alex LEE, SADPP, of the Department of Justice, for the Respondent
Mr. Richard D. Donald, instructed by James W. L. Li & Co., assigned by Director of Legal Aid, for the 1st Applicant
Mr. Gerard McCoy, SC, instructed by Ip, Kwan & Co., assigned by Director of Legal Aid, for the 2nd Applicant
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