HKSAR v. LO YAU FUK

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No. 355
(Criminal)

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J U D G M E N T

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Mortimer, V.-P. (giving the judgment of the Court) :

1. The applicant applies for leave to appeal against his conviction for murder. He was convicted not only of murder but also of robbery and preventing the lawful burial of a corpse on 3 June 1997 after a lengthy trial before Yeung J and a jury.

The facts

2. It was a gruesome murder. The victim, Madam Chan, was an insurance agent who had been introduced to the applicant in September 1995 with a view to him buying a policy. He never did so. He was unemployed.

3. At the end of January 1996, the applicant had a gun and some handcuffs at his home. It was a .22 hand gun converted from a starting pistol. The barrel had no rifling so that the missile when fired did not maintain its axis. He tested the gun by firing it into some fibreboard sheets. These were later examined and the unusual behaviour of the missiles was noted.

4. On 3 February 1996 the applicant went with Madam Cheung, his girlfriend, to Lantau for the weekend. On the ferry, he produced the gun and asked her to put it in her rucksack. When asked by Madam Cheung about the gun, he said it would be useful and she was not to ask further questions. She saw the gun again when she and the applicant went for a walk on Lantau. He had it in his waistband.

5. The applicant returned from Lantau on the evening of 5 February and stayed that night at his home. He left again on 6 February and at about 12.20 pm he, accompanied by the victim, boarded the ferry for Lantau. The victim never returned.

6. When later interviewed by the police, the applicant said that he had lured the victim to Lantau in order to rob her with his accomplice, Cheung Moon-keung. For this purpose the accomplice rented a flat where the victim was handcuffed and robbed. He said it was Cheung Moon-keung who killed the victim by shooting her in the head to prevent her from giving evidence. He had tried to dissuade Cheung.

7. About $5,000 was taken of which the applicant received $3,000 and the accomplice the balance.

8. After the murder, Cheung dismembered the body. The parts were put in black plastic bags and transported in a van borrowed by Cheung but driven by the applicant to the vicinity of the Po Lin Monastery. The bags were thrown down a hillside. Later, the applicant took the police to that place and the body was recovered.

The evidence

9. In summary, the evidence against the applicant at trial consisted of:

(a) His confessions to the police during video interviews and a reconstruction of the crime. He admitted he knew the victim, had lured her to Lantau, had been present when she was handcuffed, robbed and eventually shot by his accomplice. That he was present when the applicant dismembered the body and he drove the van with his accomplice and the body parts to the place where they were dumped.

(b) The evidence of his common law wife who testified to introducing him to the victim in September 1995, to the applicant's possession of handcuffs and a gun which he test-fired at their flat into fibreboard ten days before the murder, and to the applicant taking the gun to Lantau a few days before the killing.

(c) Forensic evidence which demonstrated that the victim died from gunshots to the head. The missiles recovered were of the same calibre and fired from a gun with the same characteristics as that which had been used by the applicant to test-fire.

(d) A video tape showing the applicant accompanied by the victim taking the ferry to Lantau on the day of the incident and a further tape showing the applicant and his accomplice returning later the same day.

10. The applicant did not give evidence at trial. His defence was that he was involved in the robbery and disposal of the body with his accomplice, but that he was not a party to the killing which was carried out by the accomplice in spite of his protests. This defence was advanced in a video interview with the police.

The application

11. The substantial ground of appeal which the applicant, through his counsel Mr Stirling, seeks leave to argue is that the applicant's confession to presence at the killing in the video interview on 15 February 1996 and admissions the following day during the video reconstruction were inadmissible because they were the consequence of oppression from prolonged, aggressive and repetitive questioning and of inducements offered.

12. The judge considered this evidence on a voir dire. There were video interviews and a video reconstruction. The first interview took place on 14 February 1996. The applicant made no confessions during this interview. The second interview on 15 February 1996 started at 6.18 pm and ended at 8 pm. The reconstruction was from 11.56 am until 4.26 pm on 16 February. There was a final interview between 9.44 pm and 10.43 pm on the same day.

13. Mr Stirling's submissions concentrated upon passages in the second interview which we set out:

"647) CHAN : If we investigate further, if your assistance can be obtained, we will seek advice from the Attorney General. Under appropriate circumstance, we can offer you some special pardon. If the case did not wholly involve you, but of course we need to obtain your 100% cooperation before we can get the Attorney, Attorney General's permission.

648) CHAN : I have read over the statement clearly to you.

649) LO : Know.

650) CHAN : What is your decision to what I have said earlier?

651) LO : No need to think?

652) CHAN : Then what is your reply?

653) LO : I know nothing about CHAN Lan-kiu's case."

This passage was followed by repeated denials. Then at answer 898:

"898) LO : Now I have a request.

899) CHAN : What is the request?

900) LO : I would like to see my girl-friend.

901) CHAN : I can arrange this, but not at this stage.

902) LO : But I now wish very much to see her.

903) CHAN: You have the right to see anyone. But I am now investigating this, a serious case. It can't be arranged for the time being, not convenient, not convenient for you to contact outsiders.

904) LO : When can I see her?

905) CHAN : After seeing, after the statement is taken, after this record of interview is seen, you will have a chance to see her.

906) LO : Now can you, can you stop the video-recording for the time being.

907) CHAN: Why?

908) LO : Because I have something to tell you.

909) CHAN : What have you to tell me and can you say it here?

910) CHAN : If it is of justice, all along we have justice.

911) LO : I know.

912) CHAN : The whole course is being video-taped for the purpose of justice. If you feel you have something to tell me, I would like you to tell me quick.

913) LO : Now I very much would like to see CHEUNG Kwai-fong

914) CHAN : Very much?

915) LO : Yes.

916) CHAN : Very much like to see who?

917) LO : CHEUNG Kwai-fong.

918) CHAN : CHEUNG Kwai-fong is now a witness in our case, (LO : Mm) and you are an arrested person. You are a suspect.

919) LO : Yes.

920) CHAN : I at this stage, I cannot, am not convenient to arrange for you to see her. Just now you told me you have something to tell me. I would like you to tell me quick because if you do not say, there will not be many chances. I can promise you. If you say, I will make every effort to arrange for you to see CHEUNG Kwai-fong. I can do that.

921) LO : I only want to see her (cannot hear clearly)

922) CHAN : In a minute I can make every effort to make an arrangement. I will seek advice from my senior officer to see if it can be done. But what do you want to tell me?

923) CHAN : If something wrong has been done, this is a very good chance to rectify it. Hope you do not miss this chance. The sooner you tell me, the more chances I will have to help you. We have new development about the case. I fear that it was be too late when you want assistance.

924) LO : I understand.

925) CHAN : Then what have you to tell me?

926) LO : I hope you (cannot hear clearly) really can, can help me.

927) CHAN : I will try my best.

928) LO : Hope you will not deceive me.

929) CHAN: I will not deceive you. All along I, from the beginning to the end I definitely have not deceived you. I am trying my best to help you. If the case develops, I

930) LO : (cannot hear clearly) Really would like to see CHEUNG Kwai-fong.

931) CHAN : OK. I will try every effort to make an arrangement. I will seek advice from my senior officer. This can be done within our capability.

932) CHAN : I know you love her very much. But something when people do something wrong, it was a momentary mistake. If you treasure the love between you and CHEUNG Kwai-fong, help yourself early. In future there is chance to be together, to be together.

933) LO : I do not dare to talk about future.

934) CHAN : But you now, you do not face the present, how will there be future. Just now, I saw it, you, you love CHEUNG Kwai-fong very much. I heard, felt that you had done something wrong. But the matter (LO : Mm) can be rectified. Like what I have said, case (cannot hear clearly) has different development every day. At this stage, when I still can give you a chance to atone, you have to tell. I cannot help you tomorrow. I really cannot help you.

935) LO : I do not want to waste (cannot hear clearly) a girl-friend.

936) CHAN : You don't want to waste the girl-friend. Every woman wishes her own husband or boy-friend to be a brave man, and to brave what has been done wrong.

937) LO : I admit.

938) CHAN : Admit what?

939) CHAN : (Cannot hear clearly) Say towards the microphone. What do you admit. Please say?

940) LO : Mm. CHEUNG Moon-keung instructed me to kidnap CHAN Lan-kiu."

There followed the challenged admissions.

14. In these interviews the police were inquiring into the whereabouts of a person whom they believed had been kidnapped. They had the video of the applicant leaving for Lantau followed by the victim. Counsel at trial submitted that the police were pursuing their first duty to discover the whereabouts of the victim for the purpose of effecting a rescue. The inducements, it was said, were offered and the questioning was oppressive to achieve this purpose which may have been justified but rendered the consequential confession inadmissible.

The judge's decision

15. The judge considered this and recognised the police's duty. However, having done so, he put the right question at 605D:

"Having said that, of course, the issue that I have to decide or resolve was whether the information given by the accused at the various interviews had been given by him freely and voluntarily."

16. The judge saw the video tapes of the interviews and heard evidence from the witnesses. He concluded that there was no basis for asserting that the questioning was oppressive and then said:

"Further, the mentioning of the possible pardon and assistance were made with a view to persuade the accused to tell the truth by revealing the whereabouts of the victim. It was made clear to the accused that the pardon was possible only in certain specific circumstances. I do not accept such matter constitutes an inducement at all."

This passage has been the focus of Mr Stirling's submissions.

17. The judge's later findings were:

"In any event, as can be seen from the video recording as well as the transcript, the accused himself clearly was a man of very strong and firm views. It was clear that the accused said what he said because he was either remorseful or he realised that he could not continue to maintain his earlier stance in the light of the information that the police had against him, including, finally, the video recording showing he was leaving Mui Wo Pier with another person in the evening of 6 February 1996.

I do not accept the accused's evidence that he was hoping for a pardon when he made the various admissions at different stages. The accused was clearly not a truthful witness in his evidence. I do not accept that the accused's will had been sapped so that he did or said things that he otherwise would not have done or said. I do not accept that any alleged inducement would have any effect on the accused.

I cannot ignore in each of the interviews the accused had been fairly and properly cautioned. The accused clearly was aware of his rights, it was also clear that the accused was willing to answer all the questions put to him by Senior Inspector CHAN. As he had admitted in his evidence, he had never raised any complaint about the suggestion of oppression or inducement."

The approach to admissibility

18. When deciding the admissibility of confessions challenged as not voluntary but the results of threats, oppression or inducements, the judge must exclude them unless he is sure that they were made freely and voluntarily. On a number of previous occasions, this Court has confirmed that a judge will not be criticised for not giving reasons for his decisions on admissibility after a voir dire in spite of the urging of the editors of Archbold (1998 Edn). See paragraph 15-440:

"There is no requirement for the judge to give reasons in deciding to admit confession evidence on the voir dire or to admit other evidence challenged under section 78. The absence of a detailed ruling will not give rise to criticism see R v Moss, 91 CrAppR 371 at 375, CA. It is submitted, however, that it would greatly assist defence counsel, in considering an appeal and in formulating grounds of appeal, and also the Court of Appeal, if an appeal proceeds, if the judge were to give a short judgment. This should include any findings of fact, a summary of the arguments, a statement as to which matters have been taken into account, and the reasons for not excluding the evidence."

Here, however, the judge gave detailed reasons for admitting the evidence and we must consider them.

19. As is clear from Detective Senior Inspector Chan's evidence on the voir dire, he was faced with conflicting priorities. His first was to discover the whereabouts of the victim and secondly, if her disappearance was the result of crime, to gather admissible evidence to prosecute the offender. It is no answer to a challenge on admissibility that the police were fulfilling the primary duty in order to discover the truth. The judge must resolve the issue always on the same principle - has the prosecution established so that he is sure that the confession was made freely and voluntarily? The truth or falsity of a confession is irrelevant to admissibility.

20. We are told by Mr Stirling that this conflict arises from time to time during questioning by the police under the anti-terrorism legislation in the United Kingdom.

The judge's reasons examined

21. The judge had the advantage of seeing and hearing the witnesses on the voir dire and also seeing and hearing the video interviews in which the challenged confessions were made. Having posed the correct question his decision was a question of fact on the evidence.

22. The challenge was twofold. First, that the questions were oppressive to the extent that the applicant's will was sapped and secondly, that the confessions were the consequence of inducements. In either case, therefore, it was said the confessions were neither free or voluntary. Also, the combined effect of oppression and inducements was relied upon.

Oppression

23. The judge found that the Detective Chief Inspector's questioning was not oppressive in the circumstances. This was a decision open to him on the evidence. There is no indication that the judge applied the wrong test or misunderstood the evidence. Mr Stirling's submissions on this must fail.

Inducements

24. His main thrust, however, related to possible inducements. He submitted that there were two. First, in question 647; the offer of a "special pardon" for "his hundred per cent cooperation". And later, the offer of assistance - which seems to have been related to him seeing his girlfriend - between questions 912 and 937.

25. We repeat the judge's initial reasons:

"...the mentioning of the possible pardon and assistance were made with a view to persuade the accused to tell the truth by revealing the whereabouts of the victim. It was made clear to the accused that the pardon was possible only in certain specific circumstances. I do not accept such matter constitutes an inducement at all."

Mr Stirling says that having made this finding, it was not open to the judge to hold that the admissions were not the consequence of inducement or oppression.

26. If the judge found in these extempore reasons that the offer of a pardon was not a potential inducement he was wrong. Further, the judge's finding that the offer of the possible pardon was made with a view to persuade the accused to tell the truth by revealing the whereabouts of the victim would render inadmissible the confessions provided that they were made as a result of the offer.

27. However, the judge went on to find that "in any event" the accused confessed because he was:

(a) Remorseful, or

(b) Realised that he could not continue to maintain his earlier stance in the light of the information held by the police.

Further, he found that the accused's evidence on the voir dire that he was hoping for a pardon when he made his confessions was not true. Consequently, he held that any inducements offered had no effect. So that in spite of the inducements the admissions which followed were not made in consequence and the confessions were free and voluntary.

28. On such a finding of fact, this Court will reverse the judge only if either there is no evidence upon which he could hold that the prosecution had established the admissibility to the requisite standard, or if it is demonstrated in some other way that his finding was wrong.

Conclusion on the first issue

29. The first confession followed almost immediately after the Detective Chief Inspector's offer of assistance which seems to have been related to the girlfriend. The natural inference to be drawn from a simple reading of the transcript would be that the two were related and the confession was consequential upon the inducement. But this Court must not fall into the trap of trying the issue on the transcript. The decision on admissibility is for the judge.

30. An examination of the evidence demonstrates that the applicant's case on the voir dire was that his confession was induced by the promise of a special pardon. This the judge rejected. It is obvious even from the transcript that this offer had no immediate effect. The applicant persisted in his denials. The admissions came later after the applicant said that he would like to see his girlfriend. The offer of a special pardon was a much more powerful incentive to confess than the second somewhat vague offer of assistance. As the first offer had no immediate effect and the admissions only followed the second, it was open to the judge to find as he did. It is impossible for this Court to say that he was wrong. He was in a much more advantageous position to find the facts.

31. We have examined the reasoning of the judge and the evidence in some detail because the principle that confessions will only be admitted into evidence if they are made freely and voluntarily is so fundamental to our system that it must be jealously protected and rigorously applied. However, the judge considered the voir dire with great care. He chose to give reasons. In the special circumstances of the case he was right to do so because of the apparent close relationship between the second inducement and the admission. In spite of his apparent error that the offer of a pardon and assistance could not amount to an inducement, his finding on the facts that the confessions were made freely and voluntarily is unassailable.

32. The application to argue this ground fails.

Remaining submissions

33. Mr Stirling advanced a number of other grounds which he seeks leave to argue. He helpfully summarised these submissions to cover the grounds in the notice.

Was the defence left to the jury?

34. He complains first that the defence was never properly left to the jury. In particular he contends that the jury were not directed upon the possibility that the accomplice Cheung was the "sudden and sole" killer. Also, he relies upon the possibility that the jury may have thought that they should ignore Cheung's role altogether as a result of the following passage in the summing-up:

"You have heard Mr Oderberg emphasise on those matters pertaining to CHEUNG Moon-keung. You are aware of the allegations by the accused in his interviews with Senior Inspector CHAN. Some of you may wonder what is happening to CHEUNG Moon-keung and whether he has been charged as well. Whether someone else is also charged with the offences or whether someone else is guilty of the charges is not a matter that you need to decide. There can be all sorts of reasons as to why a suspect is charged or not charged with an offence. You must not speculate on those matters. Your duty, as I said, is not to decide if someone else is also guilty of the offences in question. The only issue that you have to decide is whether on the evidence before you, you can be satisfied beyond a reasonable doubt of the guilt of the accused. Therefore please try not to be side-tracked."

But with respect, this is an impeccable direction. The jury could not have been misled by it. They were told to focus on the real issue before them. They cannot have understood that they were to ignore Cheung's acts as described by the applicant in his interview when considering the issue.

35. Mr Stirling accurately submits that the judge did not summarise the defence case in one cohesive passage in the summing-up. Ideally, this ought to have been done for the jury's assistance but they cannot have been in doubt having heard the whole of the summing-up about the nature of the defence they had to consider. Although the applicant did not give any evidence to contradict the prosecution case, his defence to murder was conveniently set out in his interview and his answer to the charge.

36. There is no basis upon which we can give leave on these submissions.

Misdirections

37. Next, it is contended that the judge gave some inappropriate and unnecessary directions upon unintended killing during robbery amounting to joint manslaughter. It is not necessary to consider these submissions. They are not relevant to the question whether the verdict on the murder count was the consequence of a material misdirection or was otherwise unsafe.

38. Also challenged are the judge's directions on lies. He told the jury that in certain circumstances "lies could be evidence to support the prosecution case". The complaint is that lies in relation to the lesser charges may have been accepted by the jury as supporting the prosecution case on murder. Whereas we accept that save in a very limited category of cases, it is unnecessary and confusing to the jury to give a direction that lies may support the prosecution case and that this stricture applies with greater force when there are a number of separate counts, the judge here was careful to indicate that the jury were to act only "if you are sure that the lies are relevant to the allegation made against him but are not prompted by any innocent explanation ...".

39. This was sufficient to indicate to the jury that they were not to act upon lies relevant to one count in considering another count. The jury cannot have been misled in the way suggested.

40. With respect there is nothing in these submissions.

The gun

41. There is one remaining submission which we need to consider. It is suggested that as there was no proof that the gun test-fired by the applicant into the fibreboard and taken to Lantau was the same gun which was used to kill the victim. Therefore, the evidence about the gun ought to have been excluded as its prejudicial effect outweighed its probative value.

42. This Court will rarely interfere with a judge's discretion to admit probative evidence, but leaving that aside, this evidence was highly probative and properly admitted. The gun used by the applicant to test-fire into the fibreboard had unusual characteristics. The forensic evidence showed that the victim was killed by missiles from a gun of the same calibre with the same unusual characteristics. Further, there was evidence that the applicant took the gun to Lantau shortly before the murder and was present during the killing. The evidence about the gun was an important part of the prosecution case, it was highly probative and there is no basis upon which such evidence could have been properly excluded.

Conclusion

43. For these reasons the application for leave to appeal against conviction is dismissed.