NG KAM CHUEN v. R.

IN THE COURT OF APPEAL

1992, No. 88
(Criminal)

__________

_______________

J U D G M E N T

_______________

Penlington, J.A. (giving the judgment of the Court):

1. On 12th February 1992 the applicant herein was convicted by Wong J and a jury of the murder of Chan Chak-tong (the deceased). He sought leave to appeal against that conviction and at the conclusion of the hearing of that application we said that the application would be granted, we would treat the hearing of the application as the hearing of the appeal which was allowed and the conviction set aside. We also ordered that the applicant be re-tried on a fresh indictment. We said we would hand down the reasons for our decision and this we now do.

2. The deceased was a co-owner of a fish market at Lau Fau Shan which had been opened in May 1990, the other partners being the deceased's brothers Chan Chak-lam, Chan Kiu-tong and Chan Wing-chi. It was the Crown's case that, following the opening of the fish market, pressure was put upon the deceased to pay protection money and there was evidence that at a meeting in the Hawaii Restaurant, Yuen Long, shortly after the opening of the fish market at which the applicant and the deceased were present, there had been discussion about the payment of a 1% commission. This is referred to in a statement made by the applicant shortly after his arrest. He said that the deceased had offered to pay the commission but had failed to do so.

3. On the 19th July, the deceased was working in his market. Suddenly two shots were fired, one of which entered the deceased's head from very short range and he died instantly. The person who fired the shots has never been located and it was the Crown's case that he was a contract killer hired by the applicant in mainland China. There was evidence that the applicant had travelled to China on 29th June 1990 returning on the 1st July. He went back on the 3rd July returning on the 4th and finally he left a third time on the 9th July. On this occasion however, he did not return until the 30th November. He was stopped at the immigration counter at Kai Tak Airport and taken back to Wong Tai Sin Police Station for questioning. Evidence was given that some time after he arrived at Wong Tai Sin Police Station the applicant indicated that he wished to see the Officer in charge of the case, which he did. He then said that there had been a personal grudge between himself and the deceased and that he had gone to China, located a man called Tsui and had paid him a total of $60,000 to kill the deceased. These was recorded in two statements signed by the applicant (P.8,P.9). These statements were strongly contested on the grounds that the applicant had been subject to physical abuse and the statements were not voluntary. However following the holding of a voir dire inquiry, it was ruled by the trial judge that they were voluntary and they were placed before the jury. The Crown's case relied solely on these statements.

4. In addition to evidence from the deceased's wife of the meeting between the deceased and the accused in the Hawaii Restaurant when the 1% commission was discussed, one of the deceased's brothers, Chan Chak-lam, gave evidence that there had been a payment made of $2,000 to Tse Hung-lit, alias Yau Chi-hung. He said it was "as bouncers fee" which he understood to be protection money. In giving that evidence however he used the term "Tor Dei" and he w s asked by the trial judge if that was a triad term. It was translated in court as being a "local bully". He then went on to give evidence about an inaugural banquet for the opening of the fish market being held at the Yue Wo Tong Restaurant at Lau Fau Shan on the same night and preceding the meeting at the Hawaii Restaurant. He said that there were two tables reserved for a group known as the "Kwong Shing Tong". He said these people were local bullies in the Lau Fau Shan area and they made trouble in the district. He said that the owners hoped that that group of people would not disturb the disturb the business of the fish market. The deceased was present on this occasion but there was no evidence that the applicant was also there.

5. Further evidence was then also called to show that the Kwong Shing Tong group was in fact a triad society. An expert on triad societies gave evidence to that effect, somewhat surprisingly without objection from counsel for the applicant. This expert, a Chief Inspector, Ip Pau-fuk said that the Kwong Shing Tong was a triad society, although not a large one. He said it was active in Yuen Long, Lau Fau Shan, Aberdeen, Shaukeiwan and Shamshuipo. Most of its members were in the trades of painting, dock working and fishing. He said that its activities in the Lau Fau Shan area included "receiving protection money, monopolising the market and smuggling".

6. After the Crown had closed its case, application was made to call a witness from the Immigration Department, whose evidence had previously been agreed. This evidence as to the movements of the applicant to and from China was not in dispute but the Crown sought to introduce evidence as to two other men Tse Hung-lit and Chan Yat-sing. This was because the accused in his first statement of the Police confirmed that Chan Yat-sing was at the meeting in the Hawaii Restaurant and the deceased's wife also said he was there. Tse Hung-lit, alias Yau Chi-hung was also there. The Immigration Department witness gave evidence that the applicant had travelled to China with Tse Hung-lit and Chan Yat-sing. Prosecuting Counsel was asked specifically by the trial judge whether there was any allegation of a conspiracy. His reply was:

"My Lord, I agree that it is not alleged, the Crown hasn't alleged, obviously, a conspiracy."

Objection was taken to this evidence on the basis that the Crown had already closed its case but it was allowed.

7. The applicant gave evidence himself and said that he was present in the Hawaii Restaurant on the occasion referred to by the Crown witnesses. He said he was there purely by chance. He said however he did not speak to the deceased. He also said that he went to China quite frequently to go horse-back riding but that on the occasion when he was there between 9th July and 30th November 1990 he was in fact trying to arrange some "smuggling matters". He said that when he went to China to go horse-back riding he went with Tse Hung-lit and Chan Yat-sing. He then went on to give evidence regarding the manner in which he had been assaulted by the police prior to making the confession statement upon which the Crown relied.

8. Various grounds of appeal were argued with his customary eloquence by Mr. Adrian Huggins, Q.C. who appears in this Court for the applicant. The first was that there was a failure on the part of the trial judge to direct the jury that the question of whether the statements were voluntary was a relevant factor which they should consider when deciding what weight should be attached to those statements. This was particularly necessary because in his final address to the jury, Crown Counsel had said:

"Now his Lordship will tell you the statements exhibits P8 & P9, of course, were made voluntarily and properly admitted as evidence. The only question for you is what weight if any you attach to them in your consideration of whether the statements are true."

9. This may have misled the jury into believing that the issue of whether the statements were or were not made voluntarily was not for them to consider.

10. The direction given to the jury as to the weight they should consider these vitally important statements was as follows:

"What I am going to direct you in relation to these two statements is this: you have to decide two issues. You will adhere to this direction when you consider the statements. First, you must decide whether or not the accused actually made the statements and, that is, whether he gave the answers contained in these two documents. Second, but only if you are sure that he did make the statements, you will consider whether or not what he said was true. In determining that, you should take into consideration all the circumstances in which you find these statements were or may have been made. And for whatever reason you are not sure whether the confessions were made or not, or not sure they were true, then you must disregard them. In that case, you will return a verdict of not guilty. If, on the other hand, you are sure of both - they were made by the accused and they were true- you may rely on them and bring in a verdict of guilty. The statements, exhibit P8 and P9, are full confessions to the count of murder, if you are sure that they are true."

11. It is complained that there is no reference in that direction that the jury should consider the question of whether or not the statements were voluntarily in arriving at their conclusions as to whether the statements were true which was vital in the light of what had been said by Crown Counsel. The direction that they should consider all the circumstances in which they found the statements had been made was not sufficient.

12. Mr. Andrew Bruce, Senior Assistant Crown Prosecutor, who appeared here for the Crown, in his usual helpful submissions pointed out that in two previous decisions of this court R. v. Kwok Chi-wo Cr App 294 of 1989 and R. v. Chan Ying-choi Cr App 469 of 1989, it was held that it is not strictly incumbent on a judge to always give a direction that the jury should consider the question of voluntariness in deciding whether or not they were satisfied that a confession statement was true. We said there that it was inconceivable in the circumstances there that a jury would be in any doubt that the issue of force being used was not relevant to the question they had to determine. In R. v. Yuen Kwok-wing and another Cr. App. 406 of 1992, Silke ACJ held that it was nevertheless preferable to give such a direction. It was submitted that in the context of this case the jury must have been aware that voluntariness was a matter they should consider in relation to the question of the weight they should place on the statements.

13. In the light of what the Crown Counsel had said to the jury in his closing address concerning the question of the voluntary nature of the statements and of the fact that the Crown's case depended entirely on those statements, we consider that a specific direction from the trial judge that the jury should consider the question of voluntariness in deciding whether the statements were true was highly desirable.

14. It was a further ground of appeal that irrelevant and highly prejudicial evidence was adduced concerning the status of the Kwong Shing Tong triad society. The connection between the members of that group who were present at the inaugural banquet and the applicant, who was not, was, to say the least, tenuous and there was no link between the evidence of the deceased's offer to pay a 1% commission to the applicant with a decision of the deceased's partners to pay $2,000 per month protection money to Yau Chi-hung. The evidence that the Kwong Shing Tong group who were present at the banquet was in fact a triad society which was active in the Lau Fau Shan area in the obtaining of protection money was highly prejudicial and inadmissible. There was evidence that the Kwong Shing Tong were local bully boys even though there was no evidence directly linking them with the applicant. That was as far as the matter should have been taken. Although no objection was raised by Counsel at the time the judge should have not allowed this evidence to be called (Stirland (1945) 30 Cr. App. Rep. 40). The judge directed the jury in relation to this evidence as follows:

"The evidence of Chief Inspector IP Pau-fuk, members of the jury, is about triad societies and triad activities only and you must approach it and approach it strictly on this basis. It is not evidence of propensity to commit the crime of murder against the accused and you must not approach it in this way."

It is submitted that that direction did not go far enough even if the evidence should have been before the jury at all.

15. The third ground of appeal was that the trial judge was wrong to allow the Crown to adduce the additional evidence of the Immigration Officer after it had closed its case. The evidence was not called ex improviso and had always been on the Crown's file. The reason given by the Crown at the time that the evidence was to show that Chan Yat-sing was at the meeting at the Hawaii Restaurant was not a point which was even in issue. Defence Counsel had put it to the deceased's wife that in fact Chan Yat-sing was indeed present. The evidence did however establish a link between the applicant and Tse Hung-lit who in the evidence called by the Crown had been identified as a member of the Kwong Shing Tong. It was to be noted that the Crown had specifically disavowed the suggestion that the Crown was alleging a conspiracy between the applicant and the other two men, Chan Yat-sing and Tse Hung-lit. In ruling on this, the trial judge had said:

"Apparently, there is some relevancy in this matter and I would therefore allow the application to call this witness."

16. Mr. Huggins submits that the judge does not make clear what he meant by "some relevancy" and submits that in fact there was none. Nevertheless, despite this concession by the Crown, the Crown Counsel was allowed without objection to put to the applicant in cross-examination that there was such a conspiracy. This meant that the additional evidence was used for the purposes totally different from those for which its introduction was sought and was prejudicial to the applicant. He was required to meet a case which had never been overtly relied upon, i.e. a joint venture of three people with triad associations going into China to hire a contract killer.

17. We considered these grounds of appeal with anxiety. While even if not satisfied the statements were voluntary, the jury was entitled to put weight on them but nevertheless they should have been directed that the question of voluntariness was one to which they should give careful consideration when deciding whether they were able to put such weight on the statements so as to convict on them alone. Secondly we consider that the evidence given by the triad expert irrelevant and highly prejudicial. Thirdly, we are satisfied that the evidence of the Immigration Officer should not have been allowed to be used in the way it was and indeed this was conceded by the Crown. Taking all those factors into consideration, we were satisfied that the conviction was unsafe and unsatisfactory, should be set aside and a re-trial ordered on a fresh indictment.