R. v. CHAN WAI KEUNG

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J U D G M E N T

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Hon. Yang, CJ:

1. This is the judgment of the Court.

2. The applicant was convicted of murder after trial. He now seeks leave to appeal against his conviction.

3. The sole issue at the trial was whether it was the applicant who had killed the deceased.

4. The case for the prosecution was as follows.

5. At or about the time of his death on the 21st February 1990, the deceased was assisting his friend in the operation of a canteen.

6. On the 20th February, the deceased met with his friends in a restaurant where he received a paging call. Then they collected another friend and went to a bar where the deceased's pager rang and he responded to that call. It was not in dispute that the deceased's call was made to a mobile telephone in the possession of the applicant at the time. That was very shortly before 10.50 p.m.

7. Immediately after his call, the deceased left the bar, having told his friend he was going to meet a friend and he would return in about 45 minutes. His friends never saw him again.

8. There was also evidence that in the vicinity of Cheung Hang Village in the early hours of the 21st February, a young man was seen being pursued by another man holding an object which looked like a knife. Those who saw this incident called the police at 1.31 hours. The police arrived at the scene at 1.45 hours and found the deceased lying in a pool of blood on the road.

9. The deceased was found to have received two very serious cut wounds to the throat and a serious stab wound to the heart area. He was found to have on his person $50,000 in one pocket and $210 in another pocket. A notebook containing the applicant's mobile telephone number was also found.

10. Also there was undisputed evidence that a call was made to the paging company of the deceased at 1.45 hours, and the message left was that a man called Ting had waited for the deceased for two hours and he was not waiting any longer. Ting was the nickname or another name which the applicant used.

11. Subsequently, blood stains which could have come from the deceased were found in the applicant's car. The incidence of the blood group of the deceased in the local population is one in 27.

12. At about 8 a.m. the same morning, the applicant borrowed $5,000 from a friend, Yau Kam-hung, without saying what he wanted a loan for.

13. Then came the evidence of Yip Wai-sheung (PW29), which is the subject of the second ground of appeal. Yip was the applicant's friend. He received a telephone call from the applicant in the morning of the 21st. He knew the applicant as Ting Kau, and he was asked by the accused to bring some keys to an apartment at Yee Kuk Street. The two men met at 9 a.m. and Yip gave the applicant the keys to the apartment. Yip said in evidence that when the lease of the apartment was taken, the applicant was under 21 years of age and therefore could not sign the document. He, Yip, signed and was therefore given a spare set of the keys. Yip also said that the applicant's knee was bandaged and he could see blood seeping through. He asked if the applicant had had a fight and the applicant replied, "Yes", and that he had possibly killed somebody. Yip asked if somebody had actually been killed, and the applicant said that when he left the scene, he saw that the person on the ground was not moving. The applicant told Yip not to concern himself as to who it was that had been on the ground.

14. This conversation was denied by the applicant.

15. The applicant left for Macau at 10.55 a.m. and went on to China. He returned to Hong Kong on the 1st of March. On his return he was not in possession of the keys to the apartment.

16. In his direction to the jury, the learned trial judge pointed out that without the evidence of the conversation between Yip and the applicant, the circumstantial evidence might not be sufficient for the jury to find that the applicant had murdered the deceased. However, if the jury accepted the evidence that the applicant had told Yip he thought he had killed somebody, then the jury might feel, with the circumstantial evidence and the evidence of Yip, that the only reasonable inference that the jury could draw would be that it was the applicant who had killed the deceased. Yip's evidence was therefore vital to the prosecution's case.

17. The complaint made in the applicant's second ground of appeal is that the judge failed to remind the jury that Yip, in an earlier trial in which he was the defendant, had given evidence on oath and had been disbelieved. Also the judge is said to have failed to tell the jury that it was not proper practice that a defendant tried and found guilty should have his sentence deferred pending his giving evidence as a prosecution witness in another totally unrelated trial, and to remind the jury of how this might affect his reliability and credibility.

18. The judge devoted some three pages of his summing-up to this aspect of the trial. He said, inter alia, "Although he was somewhat reluctant, in his evidence, to agree that he believed he would get some reduction from giving such evidence, I think you will have little difficulty in deciding that that must have been something that was in his mind when he gave the evidence that he did."

19. The judge also drew the jury's attention that Yip had, at the time of his summing-up, received a sentence of 18 years' imprisonment for the other offence, having been given credit for having given evidence in the murder trial.

20. The applicant, in giving evidence, said he left the message for the deceased that as he had been waiting for two hours, he was not waiting any longer. The prosecution's case however was that the call was made after the deceased had been killed as an attempt to set up some sort of a defence.

21. The applicant also gave evidence that he had earlier decided to go to China to visit his ancestors' graves and to tell his drug supplier that he no longer wished to participate in drug dealings. His main defence was simply that he did not do the killing and he was at home at the relevant time.

22. During prosecution counsel's cross-examination of the applicant, he was asked, "Mr. Chan, the story you told us this morning about your movements that night, is that what you told the police on 1st March?" The question was immediately objected to by applicant's counsel, who said, "We have had no evidence led by my learned friend. I seek to argue matters in the absence of the jury."

23. In the absence of the jury, it was argued on behalf of the defence that the question was objectionable "because what the applicant told the police has been the subject matter to (sic.) voir dire proceedings and those statements have been ruled inadmissible."

24. After hearing submissions, the judge did not allow the question as it "attacks the very basis of" his ruling on the inadmissibility of the statements. The trial then continued.

25. After the summing-up, the jury asked a number of questions, one of which was: "Is it possible to review the statements made by the accused to the police?" The judge, in discussing the issue with counsel in the absence of the jury, said, "of course, there is no evidence that any statements were made and I'll advise them of that." When the jury came into court, he directed them in those terms and told them not to speculate about that.

26. The matter of the applicant's statements to the police forms the subject matter of the first ground of appeal. The ground reads: "The Learned Judge erred in allowing the trial to carry on after prosecution counsel had adopted a line of questioning which suggested to the jury that the Appellant had made cautioned statements to the police upon his arrest which statements had earlier been ruled inadmissible. The prejudicial effect of this deprived the Appellant of a fair trial and the Learned Judge should have discharged the jury."

27. Counsel for the applicant argues before us this morning that in the light of these two grounds of appeal, and in the light of all the circumstances, the conviction was unsafe and unsatisfactory.

28. Having considered the submissions of counsel for the applicant as well as the authorities cited, we are of the view that the grounds of appeal must fail.

29. On the first ground, the true issue is whether the question asked by prosecuting counsel in cross-examination of the applicant about the applicant's statements to the police was so prejudicial that the judge should have exercised his discretion to discharge the jury.

30. In our judgment, the question asked by prosecuting counsel, improper or not, is not so prejudicial as to the oblige the judge to discharge the jury. The judge has, in categorical terms, told the jury that there was no evidence of any statements having been made by the applicant. In our view, that direction was sufficient.

31. On the second ground of appeal, we are aware of the authorities which permit a judge to defer sentence so as to give a defendant the opportunity to give evidence for the Crown against a confederate in a similar case.

32. The case before us is different in that sentence was deferred to permit Yip to give evidence in an entirely unrelated case. However, in our view, there is no realistic or logical reason why these two sets of circumstances should be treated any differently. In our judgment, there is nothing incorrect in the judge deferring sentence in this particular case.

33. We also note in passing that at the time Yip gave his first statement to the police about what the applicant had told him, Yip was in fact still a free man, and had not at that time been arrested for the crime which he was later convicted of.

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