R. v. LEUNG LAP SUN and Others

IN THE COURT OF APPEAL

1994, No. 276
(Criminal)

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J U D G M E N T

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Bokhary, J.A. (giving the judgment of the Court):

1. At about 8:30 on the night of March 18, 1992, the proprietor of a property agency firm was shot to death in his office in Tsuen Wan. He was shot twice. Both shots were fired from the same pistol. One shot entered at his lower lip and exited at the back of his neck. The other shot entered at the front of his neck and exited at the back of his torso.

2. Three men were charged with his murder. How they were traced by the police is not relevant. They were tried before Bewley J and a jury. On May 18 last year, the jury convicted each accused of murder. It was quite late by then, so sentence was passed on the following day, when each of them was sentenced to imprisonment for life.

3. They now seek leave to appeal against their convictions.

4. Before the applications commenced, an adjournment was sought by counsel for the 2nd and 3rd accused and supported by counsel for the 1st accused. Essentially, the adjournment was sought to investigate the implications of an incident which involved members of the deceased's family showing funeral photographs of the deceased to the jury in court during the trial. We have been able to ascertain what the trial judge was asked to do as a result. All that he was asked to do was to warn those persons not to repeat what they had done. He so warned them. And no repetition occurred. We do not see how that incident could have affected the result of the trial. The adjournment was refused.

5. Once it was refused, counsel for the 2nd and 3rd accused, whose instructions were limited to seeking an adjournment, withdrew.

6. We have had the advantage of a detailed submission by counsel for the 1st accused.

7. The 2nd accused's grounds of appeal read:-

"(1) The Judge accepted the prosecution and witnesses' statements mistakenly which led to the Jury's verdict of guilty.

(2) In his summing up, the Judge misled the Jury to pass a verdict of guilty on me."

8. The 3rd accused's grounds of appeal read:-

"(1) The judge accepted the prosecution and witnesses' statement mistakenly leading to the Jury's verdict of guilty.

(2) The judge misled the jury."

9. In the course of his oral presentation, the 2nd accused in person made certain points. So to a lesser extent did the 3rd accused also in person. Essentially, both adopted the arguments of counsel for the 1st accused. Quite simply, the 2nd and 3rd accused could not possibly succeed if the arguments for the 1st accused do not prevail.

10. In the rest of this judgment, we will be dealing at some length with the arguments of counsel for the 1st accused.

11. In the prosecution's hands were confessional statements by each accused to the police. Looking at those statements, what each accused, taking them a reverse order, admitted may be summarised as follows.

12. The 3rd accused admitted: that he accepted money to procure the murder of the deceased; that he got the 2nd accused to do the actual killing; and that he himself assisted as a "lookout".

13. That would be enough to convict the 3rd accused of murder.

14. Next, the 2nd accused admitted: that he accepted money from the 3rd accused as a "middle man" to murder the deceased; and that he shot him. He also said that he had only meant to shoot him in the leg. So, he said, the killing was accidental.

15. What he admitted, taken as a whole, would be enough to convict the 2nd accused of murder if, as it was entitled on the evidence to do, the jury wholly rejected the suggestion of accident.

16. Finally, the 1st accused admitted that he had, for money, carried the 2nd accused as a pillion passenger on his motor cycle to and from the killing, knowing from the start that the 2nd accused's mission was a murderous one.

17. That would be enough to convict the 1st accused of murder.

18. Apart from his own confessional statements, there was insufficient evidence to convict any of the accused.

19. All the confessional statements were disputed at the trial. They were put forward by the prosecution as voluntary and true. That was denied by each accused who alleged that they had been extracted by torture.

20. The judge, having investigated that issue in voir dire proceedings, felt sure that each accused's confessional statement was voluntary. So he admitted them in evidence before the jury.

21. Their reliability was an issue - and indeed the main issue - before the jury.

22. Obviously, the jury acted on each accused's confession since it convicted all of them of murder.

23. Turning to the first ground of the appeal urged on behalf of the 1st accused, we note, first of all, that in an interview by a detective sergeant which began at 11:45 hours on March 23, 1993, the 1st accused said to the interviewer:-

"Ah Sir, I have put this matter in my heart for almost a year. I feel very uncomfortable. I was made use of by Ah Chiu and Ah Chung. It is Ah Chung who opened fire. I only collected $20,000 by working as a driver. I wish you police can deal with it fairly."

24. Following that, the interviewer questioned the 1st accused at length in order, the interviewer said to him, to clear up ambiguities.

25. Such questioning, it is contended on the 1st accused's behalf, was in breach of rule III(b) of the rules issued by the Secretary for Security on October 2, 1992, for the guidance of investigators when interviewing suspects.

26. Rule III(b) reads:-

"It is only in exceptional cases at questions relating to the offence should be put to the accused person after he has been charged or informed that he may be prosecuted. Such questions may be put where they are necessary for the purpose of preventing or minimizing harm or loss to some other person or to the public or for clearing up an ambiguity in a previous answer or statement.

Before any such questions are put the accused should be cautioned in these terms:-

'I wish to put some questions to you about the offence with which you have been charged (or about the offence for which you may be prosecuted). You are not obliged to answer any of these questions, but if you do the questions and answers will be taken down in writing and may be given in evidence.'

Any questions put and answers given relating to the offence must be contemporaneously recorded in full and the record signed by that person or if he refuses by the interrogating officer."

27. Important as they may be, those rules are ultimately only rules of guidance. That is the first thing to note about them.

28. Moving on, we note that is not suggested that the 1st accused had been charged with the offence in question. It is suggested, however, that he had been informed that he may be prosecuted for that offence. In fact, what the interviewer did was to tell the 1st accused that he, the interviewer, believed that the 1st accused was connected with the case. Rule III(b) - which we repeat is only a rule of guidance anyway - did not apply in those circumstances.

29. Moreover, the admission which we have quoted did, in any event, call for clarification. And indeed, the 1st accused express wish that the police deal with the matter fairly positively invited further questions to get to the bottom of precisely how he says that he had been made use of.

30. It is also to be noted that if it were to be said that there was no ambiguity in the admission which we have quoted, so that it is a clear confession to the murder, then further admissions could not really be made to subject-matter of material complaint by a man who had already made a clear confession to murder anyway.

31. We now turn to the other grounds advanced on behalf of the 1st accused. And it is convenient to do so by reference to the skeleton argument prepared by his counsel.

32. Paragraph 2(i) of the skeleton argument reads as follows:-

"The Learned Judge inadequately directed the jury on the onus in regard to the burden of proving that the statements were genuine. At

1S-T to 2A-G

he gave a general direction as to onus of proof. However at

6

whilst correctly telling the jury that the only evidence against the Defendants was the confessions (6D-E) the direction as to how they should approach the reliability of those confessions was wholly inadequate.

6F-P"

33. What the judge said to the jury was this:-

"... you will acquit all the defendants unless you are sure that the police are telling the truth about how these statements were taken."

34. For the complaint made about that, we turn to item (ii) of that paragraph. It reads:-

"The jury should have been directed that they had to be sure beyond all reasonable doubt that the police evidence as to the voluntariness of the statements, was true."

35. The expression "sure beyond all reasonable doubt" is not one which we would encourage any judge to use. The expression "satisfied beyond reasonable doubt" is a well-known one. It is well-established that the expression "sure" means exactly the same thing. Combining the two expressions is unnecessary and, indeed, unhelpful.

36. Paragraph 3 of the skeleton argument reads as follows:-

"(i) The direction, deficient as it was, was further enfeebled by the Learned Judge's immediate strong indication that the confessions were probably genuine.

6T-7S

(ii) In the litany of reasons given why a person might confess and then withdraw his confession, the Learned Judge failed to point out that the reason might well be that the confession was indeed made under duress."

37. It is undoubtedly true that the judge gave the jury a long discourse on the reasons why a person might make a genuine confession. But it has to be pointed out that the so-called "litany" is introduced by this sentence:-

"But if a man confesses to a crime when there is no pressure on him to do so, then you may think that is convincing proof."

The expression "when there is no pressure on him to do so" cannot be ignored.

38. Paragraph 4 of the skeleton argument reads as follows:-

"The Learned Judge told the jury that if it accepted the medical evidence, this would rule out the Defendants' versions of the police violence.

25E-G

32D-F

62A-63D"

39. The actual summing-up does not bear out the assertion made in that ground. If one looks at page 25, one will see that the judge said at E-F:-

"Members of the jury, if you accept the doctor's evidence, you may think that this rules out police violence as described by the defendants."

40. That was no higher than the judge was entitled to put it.

41. Turning to page 32, the judge said at D-F:-

"There was no recent injury and you would ask yourself: Would not such a beating have left some marks which the doctor might have seen the following day?"

42. Again, inviting the jury to consider that question was no more than the judge was entitled to do.

43. Finally, there are the passages at page 62A-63D. They are lengthy and there is no need to recite them. Naturally, we have looked at them with care. They do not go as far as paragraph 4 of the skeleton argument suggests. They do not go further than the judge was entitled to go.

44. Paragraph 5 of the skeleton argument reads as follows:-

"However this was misleading because a large part of the 1st Defendant's complaint was that he was threatened by the police in regard to his own personal well-being and that of his girlfriend and of course the doctor's evidence did nothing to nullify this evidence.

33A-F
37J-L"

45. We do not see that paragraph 5 has anything to do with paragraph 4. Paragraph 4 concerns police violence. Paragraph 5 concerns voluntariness in general.

46. Certainly, the police violence alleged would go to voluntariness. But it was not the only thing that affected voluntariness. And the allegations in regard to the 1st accused's girlfriend were distinct from the allegations of police violence. So paragraphs 4 and 5 of the skeleton argument cannot be combined in that fashion with a view to using one to support the other.

47. Paragraph 6 of skeleton argument reads as follows:-

"The Learned Judge in the whole course of his judgment continuously denigrated the 1st Defendant's version of events and sought to persuade the jury that the police were telling the truth. The judgment was not balanced and every opportunity was taken to cast doubt upon the 1st Defendant's evidence.

e.g.

7J-O 21K-P 25E-G 31D-E J-K 32D-F 33K-O 34Q-35A 61O-R 62F-63I 64K-65I"

48. That is a very strong thing to say of any judge's summing-up. And it demands careful consideration.

49. The truth of the matter is this. The judge summed up in a way with which the accused may not be happy. But he did not sum up unfairly.

50. However, we would say this. The judge did at one point invite the jury to consider whether the police officers concerned would risk disciplinary proceedings by doing what it was alleged that they had done. That invitation was unfortunate. It was wrong. And invitations of that sort should not be made in future. In the present case, however, we see no danger that the invitation affected the result.

51. Coming to the end of the skeleton argument, paragraph 7 thereof reads as follows:-

"In particular the Learned Judge should have emphasised the major improbability that three, presumably hardened criminals, would all immediately and spontaneously confess."

52. That kind of consideration is one upon which different people have different views. And generalization is dangerous. Defence counsel are entitled to urge one approach even as prosecuting counsel are entitled to urge another. But the law is this. The prosecution has to prove its case beyond reasonable doubt. And where that case depends on the reliability of a confession statement, it has to prove that beyond reasonable doubt.

53. The judge made that clear. And having done that, he had done enough.

54. In all the circumstances, we are satisfied that there is no basis on which any of these convictions can be disturbed. The applications for leave to appeal against conviction are all dismissed.