HKSAR v. LEE CHUNG TAI

CACC 43/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 43 OF 2003

(ON APPEAL FROM HCCC 346 OF 2002)

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

Introduction

1. On 15 January 2003, the Applicant was convicted by a jury in the Court of First Instance of wounding with intent, contrary to section 17(a) of the Offences Against the Person Ordinance, Cap. 212, following a trial before Deputy Judge McMahon (as he then was). He now seeks leave to appeal against conviction.

2. The single count on the indictment alleged that the Applicant, together with Lai Tsz-shun (D2) and others unknown, on 21 August 2001, wounded the victim outside the "Queen Disco" in Chung On Street, Tsuen Wan. D2 was acquitted by the jury.

3. The Applicant and D2 were each alleged to have confessed their guilt in interviews with the police. There was no other evidence on which the prosecution could rely to connect the Applicant or D2 to the attack itself which was described by three witnesses.

4. The victim (PW1) gave evidence of trying to run away from a few people before he was struck on the head and rendered unconscious. Two other witnesses (PW2 and PW3) said that they had seen ten or more people, some armed with water pipes, before they ran away. PW3 managed to escape by taxi. PW2, although he was caught and physically assaulted, eventually went back to the place where he had seen the victim being chased by about four men, some of whom carried water pipes. The victim was unconscious when he found him. None of these witnesses was able to identify any of the attackers.

5. The defence at trial sought to have the confessions allegedly given by the Applicant and D2 excluded on the ground that these had not been voluntary. It was alleged during a voire dire that undue pressure had been exerted on both defendants to make them sign false confessions. After the judge had ruled that this evidence was admissible, the same allegations were repeated during the trial.

Grounds of appeal

(1) Inconsistent verdicts

6. The main ground of appeal advanced by Mr Edwin Choy, on the Applicant's behalf, was that the verdict of guilty which was returned by the jury in the case of the Applicant was inconsistent with D2's acquittal.

7. In advancing this ground, Mr Choy placed emphasis on the fact that the only evidence against the Applicant and D2 connecting them to this attack came from records of interview which were, in each case, similar in layout and content, including the fact that both of them had admitted attacking someone in the course of their involvement in the events taking place near the "Queen Disco". Mr Choy submitted that the jury's rejection of D2's confession could only, realistically, mean they had accepted that D2 had to some extent been subjected to pressure. Bearing in mind that both D2 and the Applicant testified that they had been subjected to similar ill-treatment before they signed the records containing their alleged admissions, Mr Choy argued that the inconsistency in the verdicts was, therefore, plainly exposed.

8. For this ground to succeed, the two-stage test which this court adopted in HKSAR v Li King-sing, Ivan, CACC 288/2000 (unreported), taken from R v Clarke & Fletcher, an unreported appeal in the English Court of Appeal, was as follows:

".... the appellant must show, first, that the verdicts are logically inconsistent and, secondly, that they are so inconsistent as to demand interference by an appellate court - i.e. that there is no way in which the logically inconsistent verdicts can be sensibly explained."

9. Mr Vincent Wong, in his written submission on the Respondent's behalf, submitted that the Applicant could not pass even the first hurdle of this test. He pointed out that the Applicant's interview had taken place on 3 September 2001, some four days before D2 was interviewed, and that different Detective Police Constables (PW4 and PW6 respectively at trial) had conducted the two interviews. It was against these officers that the main allegations were levelled, suggesting that they had engaged in improper behaviour during the interviews in question. D2 also made allegations of improper behaviour against PW4 (the Applicant's interviewing officer) about events which were supposed to have occurred immediately before his interview with PW6 began. Aside from all other considerations, therefore, Mr Wong contended that the jury was entitled to have formed an adverse impression about PW6 concerning his conduct with D2 when compared to the view they may have formed about PW4's conduct during the Applicant's interview.

10. We did not need to call upon Mr Wong to respond, but the principal argument advanced in his written submission was that in all probability the jury had accepted the contents of both interviews but had adopted a course, which it was their prerogative to take, of avoiding the return of a guilty verdict against D2 despite strong evidence that he had been engaged on a joint enterprise with the Applicant. They may have done this, it was said, because the evidence against D2 had been that, unarmed, he had assaulted someone in the victim's group who was plainly not the badly injured victim identified in the count on the indictment. The evidence demonstrated that D2 had in fact struck PW2 in respect of whose assault the prosecution had decided not to include a separate count on the indictment.

11. The justification for Mr Wong's submission emerged from a straightforward comparison of what the Applicant and D2 had said in their respective interviews when explaining their individual roles in the attack.

12. Taking first the Applicant's account, he allegedly admitted that he had been armed with a water pipe and had used it to strike someone out of revenge for the attack on his friend "Chow Chai" some hours earlier. The attack, as he described it, clearly related to the victim named in the indictment. He described how his group was armed with two water pipes in all. The second water pipe was held by "Ho Chai", which was established by evidence not to have been a reference to D2. Ho Chai was another member of their group.

13. The Applicant's record of interview also made reference to him wearing a rubber glove and chasing the victim, with Ho Chai, to the vicinity of a school where they hit him with water pipes. It was, the Applicant was alleged to have said, his own idea to take revenge on the victim's group. Also, importantly, the Applicant stated that the two men who were attacked had run in separate directions and that he had learnt later that "Tai Kam and Shun Chai" had caught up with the second person and "punched him there". The Applicant's reference to "Shun Chai" related to the nickname by which D2 is known.

14. D2 allegedly confessed to an attack on "Ah B" (shown on the evidence to have been PW2) which was carried out with punches and kicks although, for his part, D2 said that he had only used his fists. The other victim "Ah Dee" (which the prosecution have very properly accepted was the victim identified in the count on the indictment) had, according to D2, run in another direction.

15. The evidence presented the jury with an obvious problem. The sole victim named in the indictment had been severely injured in an attack by two men armed with metal pipes. There was evidence that one of those men was the Applicant. There was no evidence that the other man directly responsible for this attack, in the physical sense, was D2. On the contrary, all the evidence pointed to D2 being involved in a separate attack elsewhere.

16. As to the issue of joint enterprise, the jury were directed in detail by the judge, during the course of his summing up, in the following terms:

"The second thing the prosecution must prove in respect of each defendant is that that defendant wounded PW1. What if you conclude that the prosecution have proven that PW1 was wounded by the attack of a group of people, or some of them that we have heard about in evidence, but you are not sure that they have proven either or both defendants themselves personally struck the blow or blows which wounded PW1? Or perhaps you conclude that a particular defendant did not personally wound PW1 because, perhaps, he was attacking PW2 in a different street at the time that PW1 was being attacked. I think that that may be a consideration you have when you come to consider the case against the 2nd defendant.

Well, the law is this; if you are sure a defendant was a member of a group of people or a gang and that he and they all shared a common intention that PW1 be attacked, then the acts of the other members of the gang who hit and wounded PW1 in the course of that attack are regarded in law as the acts of all members of the gang, including the defendant, even though that defendant did not personally strike PW1. I emphasise that there must have been a common intention shared by the particular defendant with the other members of the gang that PW1 be attacked. It does not matter that that common intention to attack PW1 included also an intention to attack PW2 or even PW3, but you must be sure that there was in the particular defendant's mind, an intention that PW1 be attacked by the gang. As I say, if you are satisfied as to that, then it does not matter that you are not sure whether the particular defendant personally struck PW1, or that the particular defendant was attacking someone else at the time that PW1 was attacked and wounded." (Appeal bundle pp. 10-11)

17. It is plain that there existed a major factual distinction between the Applicant's case when contrasted with the case against D2. In the Applicant's case, a conviction was virtually inevitable if the jury accepted that he had given the answers recorded in his interview. So far as D2 was concerned, the jury may well not have been satisfied that D2 shared a common intention that the victim who was attacked with water pipes should be subjected to such an attack. Even if they were so satisfied, there is a real possibility that the jury may not have wanted to convict D2 in circumstances where it had been shown that he played no part in the physical attack on the victim.

18. In our view, these verdicts were plainly not inconsistent. They were readily understandable on the evidence which the jury had heard.

19. This ground has no merit and it fails.

(2) Remaining grounds of appeal

20. The remaining points raised by Mr Choy were closely related to the principal ground with which we have already dealt. Indeed, Mr Choy took them first and we were invited to consider the combined effect of all the grounds taken together.

21. It was submitted by Mr Choy in one of the two remaining grounds that the judge had "erred in failing to direct the jury that they should consider the evidence given by D2 on the treatment he received from the police officers prior (to) and during the making of his cautioned statement when they assessed the truthfulness of the Applicant's version".

22. Again, the judge gave lengthy directions to the jury which covered the points made by Mr Choy in his submissions:

"Well, what is the prosecution's case? The prosecution say in this regard that the confessions made to the police by each defendant as set out in their records of interview, or as recorded in their records of interview, in respect of the case of each defendant is powerful proof of that defendant's involvement in the attack. That is because, the prosecution say, each defendant admitted his role in that attack in those recorded interviews. It is fair to say that so far as the prosecution case against each defendant is concerned, that case consists so far as the role of each defendant and his presence at the scene of the attack is concerned, wholly and entirely of the contents of the recorded interview of that defendant. The record of interview of each defendant is therefore potentially a very important piece of evidence against him and so far as each defendant's case is concerned forms the most fundamental issue between the prosecution and the defence.

So it is important that you approach your considerations of each defendant's admissions as set out in those exhibits, P9 and P12, properly. In that regard I am going to give you directions which you must follow carefully. Firstly, before you can rely upon the contents of the record of interview in respect of each defendant as evidence against him you must be sure of two things. The first thing you must be sure of is that that defendant did, in fact, say the things attributed to him in the record of his interview. In other words, you must be sure the record of his interview accurately records what was said by that defendant.

The second thing you must be sure of is that what the defendant is recorded as having admitted in the record of interview is true. In other words, before you use any part of a defendant's record of interview as evidence against him you must be sure what he said in that interview is true.

In deciding these two questions consider all of the circumstances of the making of the records of interview as you heard in evidence. Consider whether there was any circumstance which you heard of in the evidence in this case which might cast doubt as to the reliability of a defendant's recorded interview. In this regard consider whether the records of interview may have come about or have been signed as a result of police violence or improper behaviour. If you think either defendant is or maybe correct in his allegations of police violence or improper behaviour, and that that was used or directed against him to force him to make the record of interview then you may well think it unsafe to rely on that record of interview. I think, members of the jury, again that is common-sense.

Of course, in respect of either defendant if you have any doubt about the reliability of the record of interview he is alleged to have made then you must acquit him. Because in respect of both defendants their record of interview is the only evidence against them as to that defendant being involved in the attack on PW1 on 21 August 2001.

The second important thing I want to direct you about concerning each defendant's record of interview is this; what each defendant says in that record of interview can be evidence only against him. The contents of a defendant's record of interview cannot in any way be used as evidence against the other defendant. You must not be tempted to take into account the contents of one defendant's record of interview when you consider the case against the other defendant, to do so would be very wrong. I think that is common-sense, members of the jury, a person should not be implicated in a criminal offence just because somebody has said something about him behind his back when he was not there.

While bearing that in mind let us look at what admissions the prosecution say the defendants make in their records of interview. Remember the prosecution case against each defendant is contained within that defendant's record of interview." (Appeal bundle pp. 28-30)

23. Mr Choy did not criticise the directions as they stand. His complaint was, as he put it, that by taking these directions no further forward there had been a "non-direction" in the sense that the jury were not told that an acceptance of D2's version about the impropriety of police conduct towards him would give rise to additional doubts about the circumstances in which the Applicant's interview record was made.

24. The judge's directions as to the approach to individual defendants' interviews had followed the standard form usually given to juries to ensure the separate treatment of co-defendants. In this case, it was vitally important for the jury to appreciate that the evidence against the Applicant, which was entirely derived from the answers he was alleged to have given in his interview, could only be used against himself. The same, of course, equally applied with regard to D2. The judge had also to make clear, as indeed he did, that because the jury might find one of the defendants in their charge guilty it did not necessarily follow that the other should also be convicted.

25. These directions were far from amounting, as Mr Choy suggested, to an indication to the jury that they were not allowed to use D2's testimony, if they accepted it, as material which tended to support the complaints, similarly made by the Applicant, about the way the police had treated him. The judge had specifically told the jury, in the long passage which we have cited, that when deciding whether to rely on the records of interview they should consider "all the circumstances of the making of the records of interview" they had heard in evidence. Looking at the summing up as a whole, this would have been obvious to the jury and, putting this aspect into its full context, the judge had earlier said as follows:

"Well, let us now turn to the defendants' evidence that they gave in support, each of them, of their cases. Now, each defendant was not obliged to give evidence, but he did, he chose to do so. Each defendant could have said nothing, but both chose to come forward and give evidence. A defendant does not have to prove anything, he most certainly does not have to prove his innocence. If you think a defendant's evidence might be true in its important parts, then you must acquit that defendant of the charged offence. And, indeed, if you think a defendant's evidence might be true in respect of the other defendant's case in its important parts, for example where one defendant says he and the other defendant left before these events at the Queen's Disco on 21 August, then you must acquit that other defendant of the charged offence as well." (Appeal bundle p. 20)

26. There is no substance in this ground and it fails.

27. In the final ground of appeal, which was only recently added to the perfected grounds, it was argued that the judge had erred by failing to give a direction to the jury that "they could compare the striking similarities between the Applicant's cautioned statement with that of D2 for the purpose of attacking but not supporting the case against the (Applicant)".

28. There was no requirement on the part of the judge to give any such direction. Indeed it was not even a point made by counsel in their speeches. It is hardly surprising, therefore, that defence counsel never invited the judge to give such a direction and, even if such a request had been made, there would have been no duty on the part of the judge, in the circumstances of this case, to have acceded to it.

29. This ground also fails.

Conclusion

30. The application is dismissed.