THE QUEEN v. WONG KIM WAH AND ANOTHER

IN THE COURT OF APPEAL

1993 No. 258
(Criminal)

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J U D G M E N T 

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Penlington, J.A.:

1. On the 4th of November we granted leave to Ma Kim Fung to appeal against his conviction. We treated the hearing of the application as the hearing of the appeal which was allowed. We said we would give reasons for that decision which we now do.

2. This is an application for leave to appeal by Ma Kim Fung (Ma) against his conviction by Deputy Judge Yeung and a jury on counts of conspiracy to rob and having with him at the time an imitation firearm, with intent to commit such a robbery. Wong Kim Wah (Wong) also applied for leave to appeal against conviction but abandoned that application before the hearing. However he has also applied for leave to appeal against sentence out of time.

Background

3. The Crown’s evidence was that on the 13th of April 1992 at 11 a.m. a party of three police officers were patrolling in the Yau Ma Tei area near Shanghai Street and Ning Po Street. Two of them, including a sergeant, were in uniform and there was one constable in plain clothes. When they were near at the branch of the Hong Kong and Shanghai Bank they noticed two men in a small park opposite the bank sitting at a table. It is not in dispute that these two men were the applicants. The police officers gave evidence that they considered the applicants were behaving in a suspicious manner and approached them. However both applicants then got up, left the park and walked hurriedly along Ning Po Street towards Canton Road. The police officers followed and stopped them opposite Number 7 Ning Po Street. Their evidence, which was not disputed, was that Wong was carrying a black travelling bag and when it was searched it was found to contain an imitation hand-grenade, two pairs of gloves, two pieces of green cloth, which apparently were masks, a “shark dart” and a portable telephone. Wong was also found to be carrying a .45 calibre imitation pistol in the waist-band of his trousers.

4. The applicants were taken to Yau Ma Tei police station in two separate police vehicles and were then handed over to the Regional Crime Unit of Kowloon West Headquarters. There Wong was interviewed by a police constable in the presence of a detective sergeant and under caution he made a statement. This statement was that the items which had been found in the bag he was carrying or in his waist band had been given to him that morning at his home on Tsing Yi Island by Ma “ready to be used for robbing the cash transit van of Hong Kong Bank”. He then went on to answer various questions that were put to him as to precisely how they were going to rob the transit van. He said that they were supposed to be joined in carrying out the robbery by another man, Wong Chun Fai, but he did not arrive.

5. Ma was also interviewed after he had been fingerprinted and an antecedent statement had been taken from him. He then also made a cautioned statement in which he said that he would tell the police everything. The gun and the grenade were toys which he had purchased. He also bought the gloves. The black bag and the “shark dart” were not his but belonged to Wong. He said that together with Wong he intended to rob the cash transit van of the Hong Kong and Shanghai Bank. He also was then asked a series of questions which he answered.

6. These statements were challenged as being not voluntary and a voir dire was held at which the police officers concerned gave evidence, as did the applicants. The statements were held to have been freely made and were admitted in evidence.

7. The applicants each gave evidence on the general issue. They repeated the allegations which they had made against the police officers saying they had each been assaulted in a violent manner, including an assault in the vehicles which took them from the scene of the arrest back to the police station, and these assaults continued when they were in police custody. Ma in particular alleged that he had water poured down his nostrils and he was beaten on the soles of his feet with an iron rod.

8. The applicants also gave evidence that they had no intention of robbing the Hong Kong and Shanghai Bank but were going to Cheung Chau where they were to take part in a mock war game. That was why they had the imitation grenade and pistol and also the “shark dart”. The gloves and masks were also needed in playing the war game.

9. Grounds of appeal. Several grounds of appeal against the conviction were argued by Mr. Jerome Matthews who appears for Ma here but did not below. First was that the trial judge in his summing up had repeatedly used the word “claimed” in relation to the evidence given by the applicants but he had not used that word in relation to the evidence called for the Crown. This, it was argued, may have led the jury to believe that, whereas what was said by the applicants was only what they claimed had happened, a different consideration should be given to the evidence of the police officers. In addition, this was exacerbated by the manner in which the trial judge directed the jury in respect of the applicants’ complaints against the police.

10. We did not consider that this ground of appeal has been made out. While it is true that the judge did use the word “claimed” on several occasions he also used the word “alleged” and on many occasions simply said that the applicants “said” something. We did not think that the use of the word “claimed” would have had the effect submitted by Mr. Matthews. As far as the second part of this ground of appeal however, this has caused us concern and we will deal later with it.

11. Complaint is also made that while the Crown in no way relied upon lies told by the applicants either in their statements or in their evidence as supporting its case the trial judge directed the jury as to the manner in which they should treat such lies. In doing so he did not however follow the guidelines which have been set out in R. v Lucas 1981 73 Crim. App. Rep. 159. There the court was considering the question of lies as providing corroboration and said that the jury should be told that they should consider four criteria. These were :

a.) was the lie deliberate

b.) did it relate to the material issue

c.) was the lie said from a realisation of guilt and a fear of the truth. Jury should be reminded that people sometimes lie for other reasons.

d.) was the statement clearly shown to be a lie other than by evidence of the accomplice who is to be corroborated.

12. This was taken further by the recent decision in, as yet unreported, R. v. Goodway CA No. 922/4559/Z2 delivered on 29th July 1993.

13. In Bey (1993) 3 All ER 253 the English Court of Appeal had held, as encapsulated by the headnote, that:

“Where the defendant’s lies were relevant to an issue in a criminal trial, apart from where the question arose whether his lies amounted to corroboration or were evidence supporting identification, when a direction on lies was mandatory, the trial judge had a discretion, but not a duty, whenever fairness demanded to direct the jury that the mere fact that the defendant had told a lie to the police was not of itself evidence of guilt and that the burden remained on the Crown to prove the defendant’s guilt. The greater the importance of lies in the case, the stronger would be the case for giving such a direction.”

The court in Bey specifically declined to hold, in the absence of full argument, that the special direction on lies should be given whenever they are relevant or an important part of the prosecution case.

14. In Goodway it would appear that, while in the circumstances there a “Lucas direction” was required - lies were relied on to support identification - Lord Taylor L.C.J. accepted that the special direction in Bey - and going further than Bey - should from now on be given.

15. Taylor L.C.J. qualified his acceptance of that broad proposition by reference to Dehar [1969] NZLR 763. In Dehar, at p.765, the New Zealand Court of Appeal made it clear that it was not holding that “it is always necessary for the trial judge to give any specific direction. How far a direction is necessary will depend on the circumstances”.

16. In our judgment, and as was indicated in R. v. Chen Tai Hwa and Another CA321/92 (unreported) where at p.20 Yang C.J., giving the judgment of the court said:

“... the important issue is whether, as. Lord Devlin said in Broadhurst v. R. [1964] AC 441, the jury are likely to be misled by their natural tendency to think that lying is inevitably proof of guilt, and thus to convict ‘without more ado’”,

that which was said by the English Court of Appeal in Bey  and by the New Zealand Court of Appeal in Dehar on this very vexed question should be considered by trial judges before they embark on either a “Broadhurst direction” or a “Lucas direction”. It has to be borne in mind, of course, that, if the prosecution specifically rely on lies told by an accused as an important element supporting - and that word is important - evidence of guilt or, specifically, supporting an identification which in turn indicates guilt then a “Lucas direction” may well be required.

17. The mere fact that an accused has given evidence at court differs from that given by the prosecution, of itself, does not in the majority of cases require any specific or general direction.

18. Where an accused seeks to place reliance on an out of court statement but does not support it in the witness box the same applies unless, of course, the prosecution seek to rely on that which it stigmatizes as lies contained in the statement to support evidence of guilt.

19. Unnecessary directions on lies serve only to confuse a jury. A jury must be treated as having the common sense of ordinary men and women. Further we conceive it to be the duty of this court to avoid, if at all possible, adding to the battery of required directions already asked of a judge - directing either himself or a jury. (cf Archbold News: Issue 9: 29th October 1993 p.5).

20. Here the direction was in the following terms.

“You have heard the defendants both of them giving evidence and it may well be that you decide in some areas of their evidence that they may not have been telling you the truth. It may well be human reaction to say “well they are not telling us the truth therefore they must be guilty of the offence.” It is my duty to tell you that would be a wrong approach because the burden of proving the guilt of the defendants states with the Crown throughout the trial and it is for the Crown to establish that these charges had been proved beyond a reasonable doubt. The mere fact that a defendant tells a lie is not in itself evidence of guilt. A defendant may lie for many reasons for example to bolster a true defence, to protect someone else, to conceal disgraceful conduct short of the commission of the offence or out of panic or confusion. If you think that there is or may be some innocent explanation for the lies then you should take no notice of them. But if you are sure that he did not lie for some such or other innocent reasons then his lies can be evidence supporting the prosecution case."

21. This was a perfectly adequate direction based on Broadhurst. Mr. Matthews submits that it was defective in that there was no direction that lies, which the jury might find had been told by the defendant, were not evidence in support of the prosecution case if they did not relate to a material issue. Furthermore there was a failure to tell the jury that a lie told by one defendant should not be regarded as evidence against another defendant.

22. We do not accept these submissions. In our judgment a direction on lies was not required in this case - the issue was credibility. But„ given that the judge saw fit to give such a direction, that direction was correct.

23. Finally Mr. Matthews submitted that the judge diminished the impact of his direction that they should give weight to the fact that Ma had a clear record. The judge said that they should consider this as supporting his credibility and also that it meant he was less likely than otherwise to have committed the offence. No complaint whatever can be taken with that direction in itself but Mr. Matthews submitted that it was unfortunate that it came immediately after the judge’s direction on lies. We do not think any complaint can be made on that ground. The direction was in itself perfectly proper and would not have lost its impact because it followed the direction on lies which was favourable to the applicants.

24. What has however caused us concern as to whether this conviction is safe and satisfactory is the second part of the applicant’s first ground of appeal in relation to the way the jury were directed as to the allegation made by the applicants of the manner in which they had been treated by the police officers prior to the recording of their statements. The judge said this:

“Some people can get very excited when it comes to police brutality. Some people can be very emotional about such matter. I ask you not to be and please do not be affected by what you might have seen on telephone or in movies as they may not be real. You may think that police are not always the most popular people around until perhaps their assistance is required. You may feel that there had been incidents of misconduct by police here in Hong Kong as elsewhere in any civilised world, but you may also feel that most police do a difficult and thankless task involving long hours and heavy responsibility. Being a disciplinary force they have strict rules and regulations to follow.

Was it possible that the police party would assault the defendant in the street and on board the police vehicle at the scene of crime when, on the evidence, there was quite a crowd gathering, and in fact when there were, according to a witness, ten to twenty journalists taking photographs? Is it possible that the defendants, in particular the 2nd defendant, had been so brutally assaulted by the police? And despite such brutal assaults the matter was not pursued?

If the allegation that the 2nd defendant was not fingerprinted at all on 13 April 1992, if such allegation was correct, it would mean that not only did the police lie on such matters they actually falsified written records on such matters.”

25. There is clear authority that it is wrong to compare the evidence given by police officers with that given by other members of the public or by the defendants themselves on the basis that police officers are less likely to be telling lies. R v Culbertson 1970 54 Crim. App. Rep. 310. R v Fisher 1983 Crim. Law Review 486. That however was the clear implication when the judge referred to the police officers as being members of a disciplinary force with strict rules and regulations to follow. Nobody would disagree with his comments that most police officers have a difficult and thankless task involving long hours and heavy responsibility but those are not matters to be considered by the jury. They should consider the evidence of police officers in the same way as that of any other witnesses. This matter came before this court recently in R v Mok Wing Hung Crim. App.404 of 1990, where the trial judge commented on the police evidence and said that the jury should consider whether police officers would risk their career by behaving in the way that they were alleged to have done and by then coming to court to commit perjury. We said :

“It has been said on many occasions that a trial judge is entitled to comment and to comment strongly on the evidence provided that he makes it clear to the jury that questions of fact are entirely for them. We are satisfied however, and with some reluctance in view of the Crown’s evidence, that here the judge went too far and that his remarks, coupled with the comments made by Crown Counsel in his closing address, that jury may have been inhibited from giving the apparent evidence the impartial view to which he was entitled.”

26. We feel that similar considerations apply here. Again with some reluctance in light of the Crown evidence we consider that this conviction is unsafe and unsatisfactory and the application for leave to appeal against conviction is allowed. We treat this as the hearing of the appeal and quash the conviction.

27. The Crown having applied for a retrial we order that the applicants be retired on a fresh indictment.

Silke V.P.:

28. Before we leave the matter there is one issue, not germane to the appeal itself, but contained in a portion of the summing up at the very end and relating to the verdicts of the jury. The trial judge said this:

“Now having summed up all the evidence and the law, I do not think I can usefully add anything without repeating myself. When you retire to consider your verdict you must reach, if you can, a unanimous verdict.”

So far, so good. He then went on to say:

“However, as you may know, the law allows me in certain circumstances to accept a verdict which is not the verdict of you all. Those circumstances have not yet arisen.”

That is a direction based on statute and practice in another territory and has no relevance to the practice in Hong Kong. The practice here has always been that the jury is informed of what is required of it: unanimous if they can but, if they cannot, then a verdict of a majority is acceptable. This is the better practice and is the one which should be followed in the future.

29. We directed that Wong be granted legal aid so that he could be properly advised as to his position in relation to sentence and adjourned his application for leave to appeal against sentence.