LEUNG KA FAI v. R.

1993, No.177
(Criminal)

HEADNOTE

Murder suspect in police custody asked to see a solicitor - Vital and urgent searches requiring suspect's presence about to take place - Matter legitimately postponed by senior officer - But his subordinate may have left suspect with mistaken impression that even after searches he would still be denied access to a solicitor so long as he was in police custody - Admissions then made by suspect - Question was whether there was any real danger that any of his admissions resulted from such mistaken impression - On facts, no such danger.

Suspect questioned even after formal charging (and made admissions during such questioning) - Such course justified only in exceptional circumstances - On facts, there were here exceptional circumstances fully justifying that course: suspect had blamed killing on someone else; and, after formally charging suspect, police discovered that the person blamed had been in custody at time of killing.

Admissions voluntary.

Not a case for exercising residual discretion to exclude admissions on ground of unfairness - Such discretionary power should seldom be employed.

IN THE COURT OF APPEAL

1993, No.177
(Criminal)

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J U D G M E N T

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Bokhary JA:

Introduction

1. Back in 1989, at the Shing Mun Reservoir, a man was slashed and stabbed to death. The Crown's case was that the killing was murder and that the murderer was this applicant.

2. On April 16 last year, before Ryan J and a jury, at a retrial, the applicant, a man in his early twenties, was convicted of murder and sentenced to death.

3. He now seeks leave to appeal against that conviction. That he does on the ground of misreception of evidence. The evidence in question consists of admissions by him to the police.

4. Before coming to those admissions, a word should be said as to how he came to be a suspect. The last message recorded on the victim's pager was from someone calling himself "Ah Fai" who had left a telephone number which turned out to be the applicant's. That is what put the police on his trail.

5. He was interviewed by a Detective Sergeant on November 24, 1989, which was two days after the killing. At first, he denied that he knew the victim. But when shown the victim's photograph, he admitted knowing him and having had business dealings with him. A receipt from him had been found on the victim's body. He denied that it was to the victim that he had given it. And he said that he had not been to the Shing Mun Reservoir for at least 10 years.

6. What he did admit was that he had sent certain clothes of his, including a jacket, to the laundry on the day before the interview: in other words, on the day after the killing.

7. A number of things then happened in quick succession. The police searched his home. They collected those clothes from the laundry, and handed them over to the Government Chemist for examination. The Government Chemist reported that the jacket bore a stain which could have been blood.

8. When that report was received, the applicant was formally arrested for murder.

Crucial admissions

9. We come now to the admissions in question. The crucial ones are contained in the records of three interviews of the applicant by a Chief Inspector and in two video reconstructions in which the applicant participated.

10. Those three interviews took place on November 25, 26 and 27, 1989. The first video reconstruction took place following, but on the same day as, the last interview. The second video reconstruction took place on the following day.

11. According to the records of those three interviews, the applicant did this.

12. At the first interview, he "admitted" being present when the victim was killed but alleged that the killing was done by a man to whom he referred by the nickname of "Lam Chai". At the second interview, he "admitted" that he had known beforehand that the victim was going to be robbed.

13. Following the second interview, and on the same day, the applicant was formally charged with murder.

14. Next, the police discovered that Lam Chai (whose pager number had been given to them by the applicant) had in fact been in custody at the time of the killing. They confronted the applicant with that fact at the third interview. Thus confronted, he broke down and admitted that he had killed the victim in the course of a violent encounter which had broken out during a business dispute. But he alleged that the victim had attacked him first.

15. Turning to the video reconstructions, the first is consistent only with his being present when the victim was killed. The second, on the other hand, is consistent with his killing the victim.

16. At the trial, the Crown put his admissions forward as voluntary. He, on the other hand, maintained that all the admissions which he made, whether by signing records of interviews or participating in video reconstructions, were the product of violence, threats, inducements, oppression and unfairness on the part of the police.

Ruled admissible

17. The voluntariness or otherwise of the applicant's admissions was investigated by the judge, in the jury's absence, in a trial within a trial. At the end of it, the judge ruled those records and videos admissible in evidence. As a result, the jury read and viewed them.

18. In ruling as he did, the judge must have been satisfied beyond reasonable doubt that the police did not do or say the things which the applicant had alleged and they had denied.

Request to see a solicitor

19. But there are two things which they did not deny. One is that they had turned down a request by the applicant to see a solicitor.

Interview after formal charging

20. And the other is that he had been interviewed even after he had been formally charged.

Two complaints

21. Accordingly, Mr Franklin for the applicant pursues before us two complaints based on those matters. The first complaint is that the police had unjustifiably turned down the applicant's request to see a solicitor. And the second complaint is that the police had, in the absence of exceptional circumstances justifying such a course, interviewed the applicant after he had been formally charged.

Seeing a solicitor

22. The applicant's request to see a solicitor was made before any of the crucial admissions. It was made on the same day as, but earlier than, his first interview by the Chief Inspector. At the time of his request, the police were about to take him to his home and the laundry for the purpose of conducting vital and urgent searches in his presence there. The request was made to one of the Chief Inspector's subordinates. When the request was conveyed to him, the Chief Inspector decided that those searches ought not to be held up while the applicant sought legal advice. Mr Franklin does not quarrel with the legitimacy of that decision.

23. But the trouble is this. When the Chief Inspector's decision was conveyed by one of his subordinates to the applicant, the decision was, the evidence suggests, inaccurately conveyed as a flat refusal of the request rather than a postponement of the matter until after the searches.

24. Thereafter, the Chief Inspector and the applicant may well have been at cross-purposes on this basis. The applicant, under the impression that his request had been turned down flat, did not renew it, mistakenly thinking that no renewed request would be acceded to. The Chief Inspector, receiving no renewed request and unaware of how his decision on the first one had been conveyed to the applicant, mistakenly thought that the applicant no longer wished to see a solicitor.

25. In such circumstances, this question arises. Is there any real danger that the making of any of the applicant's admissions resulted from a belief on his part that, even after the searches, he would still be denied access to a solicitor so long as he was in police custody?

26. There is, in our view, no such danger. The applicant did not say that he made any admission as a result of any such belief. Indeed, his evidence is to the opposite effect. For he said that he was tortured and threatened with victimization of his family before he made the admissions which he alleges that the police forced him to make. Those are the reasons which he gave. The judge rejected them. And there is no basis for upsetting such rejection.

27. Before moving on to the second complaint, we should mention a question put in cross-examination to the applicant by counsel appearing for the Crown below (not Mr Bruce who appears for the Crown before us). On its face, the question seems to contain a suggestion by the cross- examiner that the applicant had indeed wanted a solicitor for the purpose of rescuing him from some perceived compulsion to provide the police with statements. That question exercised us for a time in the course of the argument. But, having further studied the question in the context of the cross-examination as a whole, we are now satisfied that the cross- examiner did not really mean to make such a suggestion.

Formal charging

28. Turning now to the second complaint, our view thereof is quite simply that there were here exceptional circumstances fully justifying the unusual course of police questioning even after formal charging. The applicant had accused a certain person of having killed the victim. Then the police discovered that that person had been in custody at the time of the killing. They were right to put that fact to the applicant even though he had already been formally charged. Indeed, they would have been remiss in their duty if they had not gone back to him on the matter.

Voluntariness

29. Neither complaint is of any substance. They provide no basis for impugning the voluntariness of any of the applicant's admissions. Nor do they provide any basis for excluding any of his admissions on the ground of unfairness, which Mr Franklin raised as an alternative to involuntariness.

Residual discretion

30. It is well-established that, beyond the exclusion of admissions on the ground of involuntariness, there exists a residual discretionary power to exclude admissions on the ground of unfairness. But it is equally well-established that such power should seldom be employed. To begin with, the stringency with which judges vet admissions for any reasonable possibility of involuntariness leaves little scope for admissions obtained in unfair circumstances getting past that stage of the inquiry. And if admissions pass the stringent test of voluntariness which judges apply, then it is no small matter nevertheless to withhold from juries evidence which, in the normal way, is for them to weigh.

31. Those points have been made before. They were first made as long ago as 1984 by Roberts CJ delivering the judgment of this Court in R. v. Lam Yip-ying [1984] HKLR 419 at p.424. And they were reiterated as recently as last year by Litton JA delivering the judgment of this Court in R. v. Choy Tak-hing, Criminal Appeal No.382 of 1992, April 1, 1993, (unreported) at p.7. But they are worth repeating - and with emphasis, too. For any loose-thinking in the matter can lead to confusion in an area where confusion would be particularly harmful.

Result

32. This application for leave to appeal against conviction must be dismissed. And, with an expression of our indebtedness to counsel on both sides for their assistance, we dismiss it.