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CACC000551/1990
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IN THE COURT OF APPEAL
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1990, No. 551
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(Criminal)
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BETWEEN
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THE QUEEN
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AND
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CHAN CHI WAH
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FOK KWONG CHUN
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SO HOI PO
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Coram: Silke, V.-P., Power & Penlington, JJ.A.
Date of Hearing: 9 August 1991
Date of Judgment: 4 September 1991
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J U D G M E N T
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Silke, V.-P.:
1. This is the judgment of the court.
2. Chan Chi Wah, aged 23, Fok Kwong Chun, aged 21 and So Hoi Po, aged 19, appeared for trial before Saied, J. on an amended indictment filed on 13th September 1990 which contained two counts. The first was that of robbery and the particulars alleged that they did on, 28th September 1989 at No.7, Chung Ying Street, Sha Tau Kok, New Territories, Hong Kong, rob Siu Kon Keung of gold necklaces, gold pendants, gold bracelets, ear-rings, finger-rings and a personal gold necklace and jade pendant. The second alleged that they did, on the same date and place, murder Mr. Siu.
3. At the conclusion of voir dire proceedings relating to confessional cautioned statements made by each one of the accused, which the judge ruled to be voluntary, each pleaded guilty to the robbery count. Each proffered pleas of manslaughter to the murder count which pleas were not acceptable to the Crown. At the conclusion of the ensuing trial Chan and Fok were found guilty of murder and So, having been found not guilty of murder, was found guilty of manslaughter.
4. Chan and Fok now seek leave to appeal against their conviction and, if necessary, the sentences passed upon them on the robbery count of 15 years imprisonment. So seeks leave to appeal against the totality of the sentences passed upon him, 12 years on the robbery count and 15 years on the manslaughter count set to run concurrently.
5. At the hearing of these applications we heard argument from counsel as to the conviction and the submissions as to sentence on behalf of So. We reserved our decision on all matters.
6. It is not disputed that the only verdicts open to the jury at trial were either murder or mansiaughter.
7. Mr. Siu was partner in a family business called the Yick Kwan Goldsmith Shop which had premises at 7 Chung Ying Street on the Hong Kong side of the street which forms the border between Hong Kong and China at Sha Tau Kok. He was last seen alive on 28th September at 4:40 p.m. when a passer-by saw him standing by himself at the middle of the half opened iron grille of the shop. Mr. Siu told that man that he was waiting for some friends to come. He had previously intimated to his family that he was going to visit Shenzhen.
8. The same witness repassed at about 7:10 p.m. and by that time the iron grille was closed. There was a light in the shop itself but the outside light and signboard were unlit.
9. At about 7:30 p.m. another passer-by saw that the iron grille was a little open and he, again on repassing at about 8:30 p.m., saw a man - and it was accepted that this was Fok, D2 - closing and padlocking the iron grille.
10. On 27th June a brother of Mr. Siu and one of the parthers went to the shop at about 7:00 a.m. On entering he saw the usually raised venetian blinds on a glass partition in the shop were still drawn and that a swivel chair was missing.
11. Another visit was paid by another one of the brothers at about 1:00 p.m. and he noticed a slight odour. He went back on 28th June together with an uncle and both then noticed a strong odour and some dark fluid oozing out of the closed metal door of the strong room. They could not find the key to the strong room. The police were informed and subsequently the strong room door was forced and the body of Mr. Siu was found tied up and in the missing swivel chair.
12. While his clothing was heavily stained with decomposition blood there was no blood found in either the outer officer or the area leading up to the strong room. Red nylon string, packing tape and white electric wire were used to tie the body. The first two could have come from the shop. The wire did not. There was a tight red nylon string loop around Mr. Siu's neck. Forensic examination placed the death at about 2 days - that is on 26th - before the discovery of the body. The cause of the death was asphyxia due to ligature strangulation.
13. Gold ornaments valued at about $610,000 were stated to be missing as was the gold necklace and jade pendant Mr. Siu usually wore. About $500,000 worth of ornaments had been left behind in the strong room safe.
14. Chan and Fok made witness statements as well as cautioned statements. So made cautioned statements. There were video reconstructions. That which was said in the cautioned statements and the events shown in the video reconstruction were the main evidence against the accused. There was in respect of Fok, D2, additional evidence as to meetings on three separate occasions with Mr. Siu Wai Nin, a brother of the deceased. The first was on 30th September at about 8:00 a.m. in a restaurant at which Fok told the brother that he had been with the deceased in the shop on 26th September. They had intended to go to Shenzhen but, as Fok's permit had not come through, he suggested to Mr. Siu that they go to Kowloon instead, this suggestion was rejected.
15. The next was on 3rd or 4th October when Fok visited the shop. Having stood at the door of the accounts office for a little time he then entered the strong room and stood there for some minutes. Mr. Siu Wai Nin said he appeared to be in a trance.
16. On the third occasion Fok told Mr. Siu Wai Nin that his girlfriend had told him to ask Mr. Siu Wai Nin if he had approached a medium on behalf of the dead man. Wai Nin said he had not whereupon Fok said if a medium implicated him, he, Fok, would be in great trouble and he went on that he did not know if the police were collecting evidence against him. He thought that if such had happened in China nothing could be done but if it took place in Hong Kong he could get a lawyer to get rid of it for him.
17. In respect of Chan, D1, his palm print was found on the strong room door handle and his finger prints on the sealing or packing tape.
18. Both Chan and Fok were friends and well acquainted with the deceased. So lived in the area and knew the deceased by sight and may well have been known to him.
19. The only issue at trial was the intention of the accused. Was it that sufficient to bring home a charge of murder or was it such that the jury could properly find a verdict of manslaughter. Each in their various statements had eventually admitted the robbery and that the deceased had died in the course of it. Each were shown, in the course of the investigation, the cautioned statements of the others. Each attempted to minimise his role and to avoid responsibility for causing the death.
20. In cross-examination of the prosecution witnesses questions were put to the interviewing officers directed to showing pressure and intimidation which could, if the jury accepted it, have rendered the statements of little weight. None of the applicants gave evidence. The jury were properly directed on the evidential aspects as it emerged in the course of the trial relating to the cautioned statements.
21. Mr. Sedgwick, who with Miss Maggie Poon, appears for Chan and Fok in this court - Mr. Bruce appears for the Crown - submits two grounds of appeal followed by the general ground that the convictions were unsafe and unsatisfactory. His first ground relates to the directions given by the trial judge to the jury as to how they should approach mixed cautioned statements. Mr. Bruce has, valiantly, attempted to suggest to us that these statements were not exculpatory given their admission of a joint enterprise and in the light of that which was said in Chan Wing Siu v. The Queen [1985] 1 AC 168 (P.C.) on the directions to be given in such a case. With respect, these statements which contained excuses, explanations and attempts to avoid culpability - coupled with positive statements by each of them that they had no intention to kill - were such that it was proper for the trial judge to consider them as mixed and thus require the appropriate directions in law.
22. What the judge said was this:
"Having set out these various allegations, you will recall learned Crown Counsel said that they remained allegations only and had not been established by evidence. He is clearly right in that comment. And I say this to you: If an accused person, in his statement not made on oath in court, denies his guilt saying, for example, 'I am not guilty. I was not there.' and no more, that statement is not evidence of the truth of his absence from the scene of the crime, and thus of the truth of his alibi. But if such a statement consists partly of an admission and partly of an explanation, for example, 'I shot him. It was an accident.' or 'I shot him. I was provoked.', the admission is plainly admissible, and common fairness requires that the entirety of that statement should be admitted so as to show the precise context in which that admission was made, even though what is said by way of explanation or excuse is not evidence of its truth. (Emphasis supplied)
I have referred not only to their admission as stated in their statements, but I have also tried to point out to you the accompanying explanations or excuses. As you have seen, those explanations or excuses have not been supported by evidence on oath before you. It is for you to evaluate the admissions and the unsworn explanations or excuses as you think fit, in the light of your finding on the credibility of the officers concerned, whom you saw in the witness box give evidence about those matters."
23. That direction, in particular the words emphasised, is clearly based on R. v. Leung Kam Kwok [1986] HKLR 188 (P.C.) in which Lord Roskill delivered the judgment of the Privy Council. That decision overruled, in part, R. v. Cheng Chiu [1980] HKLR 50. However, in R. v. Sharp [1988] 1 WLR 7 the House of Lords reconsidered the position of mixed statements and the authorities which lay on both sides of the argument, the strict view and those such as Duncan [1981] 73 Cr App R 359 in which Lord Lane, L.C.J., independently, took very much the same line as did Sir Denys Roberts, C.J. in Cheng Chiu.
24. Lord Havers, with whose judgment Lord Mackay, L.C., Lord Keith, Lord Bridge and Lord Griffiths agreed, having considered both Leung Kam Kwok and Duncan said this at page 15:
"My Lords, the weight of authority and common sense lead me to prefer the direction to the jury formulated in Duncan, to an attempt to deal differently with the different parts of a mixed statement. How can a jury fairly evaluate the facts in the admission unless they can evaluate the facts in the excuse or explanation? It is only if the jury think that the facts set out by way of excuse or explanation might be true that any doubt is cast on the admission, and it is surely only because the excuse or explanation might be true that it is thought fair that it should be considered by the jury."
25. While the differing approaches between their Lordships in the Privy Council and the members of their Lordships' House could well give rise to argument on application of the doctrine of stare decisis, this court has in the Attorney General v. Li Siu Lam [1989] 2 HKLR 370 followed the line indicated by Lord Havers in Sharp. It is of note that Duncan was not cited to the Board in Leung Kam Kwok.
26. While Li Siu Lam was directly concerned with another aspect an accused's statement, that is one which was entirely self-serving, and held that such could only be admitted to show the reaction of an accused to police enquiries, nevertheless, the court made clear that it preferred the more liberal line of Lord Lane in Duncan as approved by the House of Lords in Sharp as the general applicable law in Hong Kong. Mr. Bruce has, and properly, not advanced any further submissions on the stare decisis matter. Neither Sharp nor Li Siu Lam appear to have been drawn to the attention of the trial judge, an unfortunate omission.
27. A jury should now be directed on the lines of that which was said by Lord Lane at page 365 in Duncan:
"Where a 'mixed' statement is under consideration by the jury in a case where the defendant has not given evidence, it seems to us that the simplest, and, therefore, the method most likely to produce a just result, is for the jury to be told that the whole statement, both the incriminating parts and the excuses or explanations, must be considered by them in deciding where the truth lies. It is, to say the least, not helpful to try to explain to the jury that the exculpatory parts of the statement are something less than evidence of the facts they state."
28. Having adopted that passage from Duncan in Li Siu Lam the court went on to say at page 373A:
"Of course, the weight to be attached to an admission differs from the weight to be attached to the explanation or the excuse and a jury should be so directed but the whole is before the court as evidence of the facts stated."
29. We, therefore, view the directions given by the trial judge to have been in error.
30. Mr. Sedgwick's second ground relates to the trial judge's directions on intent with special reference to that which he saw fit to say as to foresight of consequences.
31. What the trial judge said was this - having just before directed the jury to consider the medical evidence and the nature of the injury caused to the deceased, having commented to them that they might think that a person who strangles another has the intention at least of doing that person really serious injury especially if a ligature is tied around the neck of the deceased and a gag is put in his mouth and then further directing them that if they were so satisfied they may go on to consider the various statements bearing well in mind his warnings about their use and the way in which they should approach them, - went on:
"If, after close scrutiny of those statements, you find that in that very small and limited space where what was being done to the deceased was not difficult to see, if you find that all of them having tied up the deceased with the red nylon string and adnesive tape, gagging him as well, and while two proceeded to collect the contents of the safe and the third wound the string twice around the neck of the victim in full view of his companions who did nothing to intervene, then you may find that those other two had lent themselves to the one who had wound the string round the neck in carrying out the joint enterprise which they realised might involve murder."
32. We would interpolate here that there was evidence capable of belief by the jury that these men, two at least well known to the deceased, had co-opted So as a bully boy and that the group had gone to rob, armed with knives. The trial judge continued - and it is these passages which have attracted the criticisms of Mr. Sedgwick:
" 'Foresight of consequences' was mentioned by Mr. ONG in his final address. This concept of 'foresight of consequences', members of the jury, belongs to the law of evidence and is a matter for you to consider.
On the issue of intent by reference to foresight consequences, the probability of death or serious injury resulting from the act done is of particular importance; so that the greater the probability of the consequence, the more likely it is that the consequence was foreseen. And if that consequence was foreseen, the greater the probability that the consequence was also intended. I hasten to remind you, members of the jury, that the decision is yours to be reached on a consideration of all the evidence."
33. It is necessary to place that direction in the general context for the judge went on to say:
" If you find that in the circumstances the act which resulted in death was done in the execution of the joint enterprise and the requisite intention is proved beyond reasonable doubt, then you will find the three defendants guilty of murder. But should you find that the act of causing death was outside the scope of the joint enterprise, then only the perpetrator of the act, if you find he had the requisite intention, will be guilty of murder and the other two not guilty of murder but guilty of manslaughter.
On the other hand, if you find that the intent is not so proved as to convict of murder or you are left in any doubt about it, you will find them guilty of manslaughter on the basis that the act they were engaged in was unlawful and dangerous such as was likely to injure another person and quite inadvertently had caused the death of that person by their act. These are the only verdicts relevant in this case - guilty of murder or guilty of manslaughter."
34. With respect to the trial judge, this was a case in which the only direction needed to be given to the jury was on the lines indicated in Chan Wing Siu, as applied in R. v. Slack [1989] 3 WLR 513, and followed since its delivery in this jurisdiction. It was quite unnecessary to devolve into the R. v. Hancock and Shankland [1986] 82 Cr App R 264 and R. v. Nedrick [1986] 83 Cr App R 267 line of country. Despite Mr. Sedgwick's submissions to the contrary, those cases, relating to foresight of consequences, were concerned with the very act which led to the killing itself. Here, death was caused by strangulation and the direction which Mr. Sedgwick suggests should have been given, that is that the attention of the jury should have been drawn to the fact that they were not entitled to infer the necessary intention by reference to foresight in relation to any of the appellants unless they felt sure that death or serious bodily harm was a virtual certainty as a result of the actions of Chan and Fok and that both Chan and Fok appreciated that to be the case, were, in the light of all the circumstances, unnecessary. It is possible that the trial judge was to an extent misled by counsel's reference to foresight of consequences or had, possibly, misunderstood it for it was not set out in the clearest terms.
35. Had that ground stood alone it would not have been such as to cause us to interfere with the verdicts of the jury. However, we must confess that we do not understand upon what basis the jury came to the conclusion that so could have been guilty of manslaughter. There was evidence before them which, if they believed, was to the effect that So had arm-locked the deceased as the robbery began and was certainly present in the shop and the strong room when the deceased was being strangled. The issue here was solely and only the intention of these men. In coming to their decision on that major issue the jury were entitled to consider the whole of those portions of their statements which related to intention and to consider it as evidence of the facts stated and not to have certain of those facts effectively excluded from their consideration by being told that they were not evidence of their truth. A proper direction on weight would, of course, have been necessary but this did not fall into the context of this summing up because of that we hold to have been the erroneous direction given.
36. As this went to the heart of the matter and despite the views which we have formed of the general evidence in the case we do not find ourselves in a position to make use of the proviso. We do not feel that we can positively say that had the jury been properly directed they would inevitably have come to the same conclusion.
37. Before leaving this appeal, we would again remind judges that it is unnecessary to go into explanations as to the meaning of reasonable doubt other than to make it clear to the jury that they must be satisfied so that they are sure of the guilt of an accused before they can convict. Expressions such as "there must be a doubt which is based upon reason as opposed to a fanciful, stupid and ridiculous doubt" are to be avoided.
38. Leave is granted and the appeals of Chan and Fok on the murder convictions are allowed. It is open to us to either substitute a verdict of manslaughter or to order a re-trial. In the last moments of the hearing Mr. Bruce urged upon us that, if we should think it proper to allow the appeals, he would wish to be heard upon the issue of re-trial. Therefore, before making any order we shall hear counsel.
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(William Silke)
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(N.P. Power)
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(R.G. Penlington)
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Vice President
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Justice of Appeal
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Justice of Appeal
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Representation:
A.W. Sedgwick, Esq., Q.C. & Miss Maggie Poon (D.L.A.) for 1st and 2nd Applicants
R. Forrest, Esq. (D.L.A.) for 3rd Applicant (on sentence)
A.A. Bruce, Esq. for Crown/Respondent
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