CHEUNG SHU-TAI & OTHERS v. R.

IN THE COURT OF APPEAL

1993, No. 609
(Criminal)

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J U D G M E N T

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Mortimer, J.A. (giving the judgment of the Court) On 4th October 1993 the two applicants (D1 and D4) and one other, Wong, were convicted after trial by Deputy Judge Yeung and a jury of causing an explosion likely to endanger life contrary to s.53 of the Crimes Ordinance, Cap.200. The next day these applicants were sentenced to 5 years and 9 years imprisonment respectively.

2. The facts were, briefly, that on 13th August 1992 a bomb made out of a cut plastic Coca-Cola bottle packed with commercial explosives exploded in a car park in Park Tower, Causeway Bay. The bomb was attached to a car owned by Ho Kwok-leung who was saved from jury or death by the fact that he noticed smoke coming from the car when he arrived at it. He used a fire extinguisher and when it was emptied he left to collect another. At that moment, the bomb exploded.

3. There were four participants according to the evidence. One of them, Law Tin-ho, pleaded guilty and gave evidence at the trial of the others.

4. On the evidence, the roles which each played in the offence were as follows. Yim Chung-lung (D4) was a business associate of the victim, the owner of the car to which the bomb was attached. Yim wanted him seriously injured or killed for reasons which are not entirely clear. Wong was Yim's brother-in-law. According to Wong's cautioned statements, he was asked by Yim to assist him to kill or seriously harm the victim. He complied by recruiting Law who had access to explosives in Mainland China which were used to stunning fish. According to Wong, Yim was the pay master and the prime mover in the offence. Law knew both Wong and Cheung, D1. Law owed money to Wong who persuaded him to become involved to clear the debt. Consequently Law obtained the necessary explosives, detonator and fuse from Mainland China and he made the bomb.

Law, it would appear, later recruited Cheung. Late in the day, on 11th August, he was persuaded to become involved, according to Law, with a promised payment of $10,000. According to Law, Cheung was to place the bomb and light the fuse. In evidence, however, Law admitted placing the bomb by attaching it beneath the car. According to Law but denied by Cheung, Cheung volunteered for no apparent reason at the time to light the fuse. In a cautioned statement Cheung denied this indicating that his task was to keep a lookout.

5. The bomb was timed to detonate at about the time when the victim and his wife usually returned to the car. The timing proved to be correct. After the offence Law and Wong left for Mainland China where they were arrested and returned.

6. Broadly, the evidence against each applicant was this. Yim made four voluntary statements. In the first two, he denied the offence but after Wong was arrested, he made one more and then a final statement which was interrupted by the presence of his legal advisers. If true, the last two statements are full admissions of the offence. He admits both a grudge against the victim and asking Wong to assist. e did not give evidence at trial.

7. The other applicant, Cheung, in voluntary statements admitted that he was present with Law at the time when the bomb was placed and at the time when the fuse was lit; but denied in evidence having any part in the offence. Evidence was given by Law that Cheung had lit the fuse but, as we have said, this he denied.

8. It is convenient to deal with the application made on behalf of D4 first. The main ground which, through Mr Jerome Matthews, he seeks leave to argue is a direction of the Deputy Judge which appears on p.50 of the transcript. The direction complained of is this:

"The police officers involved in this case had been seriously criticised by counsel for the defendants, particularly Mr Down and Mr Hodain. You may think that police officers are not always the most popular people around until perhaps their assistance is required. You may feel that there has been incidence of misconduct by police here in Hong Kong as elsewhere in civilised world. But you may also feel that most police officers do a difficult and thankless task involving long hours and heavy responsibility. Being a disciplinary force, they have received special training and are subject to rules and regulations that they have to follow. They have also orders to obey. At the same time, just like any of us, they are also liable to make mistakes and to have a lapse of memories. They may also pay less attention to matters that they may consider to be less important. This is just human nature. Do bear this in mind when you consider the attack by counsel on the evidence of the police officers."

9. The submission is that the trial judge compared the evidence given by the police officers with that given by other witnesses, to the effect that police officers were less likely to tell lies and that police officers were to be regarded in a higher category of credibility. That submission does not stand alone. Mr Matthews also argues that if coupled with other passages in the summing-up this passage becomes even more unfair and objectionable. He refers to remarks made by the judge such as, "Naturally the police denied this", and in other places where he used the words "of course". Further, he refers to passages in the summing-up which can be found on p.25 onwards where the judge deals with allegations described as "very serious allegations made against the police officers" by the applicants and their counsel. He submits that those passages are also important because of the way the jury would be affected when considering the police evidence in contrast to the way in which the jury were invited to approach the evidence of Wong, the 2nd accused and his alibi witness.

10. In his main submission Mr Matthews relies upon the decision of this Court in R. v. Ma Kim-fung (unreported) 1993 No. 258 (Crim.). In that case the Deputy Judge gave a direction to the jury in almost the same words. The court in that case examined that similar passage and considered that when the judge referred to the police officers as being members of the disciplinary force with strict rules and regulations to follow, the clear implication was that police officers were less likely to tell lies than others. The judge was referring to the cases of R. v. Culbertson, 1970, 54 Crim.App.Rep. 310 and R. v. Fisher 1983 Crim. Law Review 486 which are clear authority that it is wrong to compare the evidence given by police officers with that given by other members of the public or the defendants themselves on the basis that police officers are less likely to tell lies.

11. The real issue in this case is whether when directing the jury at p.50, taken in its full context, the jury understood the judge to be saying here that the police are more worthy of belief than other witnesses. We make it clear that it is fundamental that juries must not be directed to deal with any witness in a special category, whether that witness be an accused, a police officer, an expert or any other.

12. The direction given by the judge can properly be said to be gratuitous and unnecessary. Such words should not be used. This Court has said so on other occasions. Our view in this case does not detract in any way from what has been said before or the inappropriateness of the words themselves.

13. Taking this summing-up as a whole, did the jury here understand that they were to regard police officers in a different category? Was there any danger that the jury might have thought that the evidence of these police officers should be treated in a different light or in a different way from other witnesses? Were they to be regarded in a special category of credibility? The evidential context in this case is very different from and is to be distinguished from the other cases which have been cited to us in which this judge and others have given similar directions.

14. Perhaps it was clear in the course of argument that we have given anxious consideration to this matter, especially we have had in mind and have carefully considered the decisions in the earlier cases together with Mr Matthews's forcible submissions. But considering the whole of the summing-up - as is necessary - we conclude that unfortunate though those words were, there is no danger here that the jury could have thought that they were to treat the credibility of these officers in any special light. In these circumstances, this ground of appeal fails.

15. It is not necessary to deal with the supporting submissions which Mr Matthews attractively argued. Once the main ground has failed, the others must also fail.

16. We can turn briefly to the other grounds. Reference to Yim's exculpatory statements was made by the judge. Indeed he read out the denial in p.5 to the jury. It was submitted in ground 2 that the judge ought to have dealt with those matters in much greater detail; that he ought to have reminded the jury that it was the applicant's initial reaction and that he was a man of no previous convictions.

17. With the greatest respect, however, the matter was before the jury and it was not necessary for the judge to go into that point in any greater detail.

18. It is not necessary for this Court to deal with ground 3.

19. Turning to ground 4 it is submitted that the judge was in error in directing the jury about motive. In the passage complained of, there appeared these words:

"Was there any motive for the 3rd defendant to do what was alleged against him? That is a question you have to decide. In any event the issue involved is not whether he had any motive. The question that you have to decide is whether he took part in doing what was alleged against him. Of course, motive would have some bearing on the issue that you have to decide."

It is submitted that the direction was confusing and misleading. Undoubtedly, there are passages dealing with motive, if taken on their own, are misleading and could be said to be wrong. When the judge said "That is the question you have to decide", that direction is not correct in isolation. However, taken as a whole and read with the rest of the summing-up, the jury could not have been in any doubt as to the real issues they had to decide. Whereas motive is a relevant matter for the jury to consider, they can never have been of the opinion from this summing-up that it was central to their consideration. This is not a matter which vitiates the summing-up in any way.

20. Finally, it is submitted that the judge should have directed the jury that evidence given by either Cheung (D1) or Wong (D2) could be taken into consideration when evaluating the case of the applicant. Particularly, that applies to the alibi evidence given by the 2nd accused. Mr Matthews points out that the judge did direct the jury that the evidence of one defendant given in the witness box could amount to evidence against another defendant. He submits that to add point to his submission because the jury may have thought that they were not entitled to take into account the evidence of one accused in favour of the other. But with the greatest respect, there is nothing in this ground. The evidence was before the jury. It is of course necessary where evidence is given against one accused but not another for the jury to be carefully directed. It is not necessary for a judge to direct the jury specifically about all the evidence that is admissible against each accused. This ground also fails.

21. We turn now to consider the application of Cheung - D1. He is unrepresented. Some of the grounds advanced by Mr Matthews on behalf of his client would have been relevant to this applicant's case had they been valid. But so far as this applicant is concerned, on his own behalf, he repeats the defence which he advanced before the jury. In particular, that Law had lied against him in the witness box. In fact, however, that matter was fully before the jury. Law was cross-examined by counsel to demonstrate that he had not implicated this applicant initially in his statement even though he did in evidence. But there was another basis upon which the jury may have convicted. That was on the admission in his voluntary statement that he was acting as a lookout. The main danger in his case was that the jury would assume from his presence at the planting of the bomb and the lighting of the fuse, that he was implicated but consequential upon prosecuting counsel's intervention the judge directed the jury clearly on that particular matter. Therefore, although it is not entirely clear on what basis the jury convicted this applicant, there are no grounds which are arguable against his conviction.

22. Having regard to the matters that have been advanced, it is proper that we should give leave to appeal, and treat the application as the appeal itself. Having considered the submissions for the reasons we have given, the appeals are dismissed.