R. v. NG KAM CHUEN

IN THE COURT OF APPEAL

1995, No. 87
(Criminal)

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J U D G M E N T

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

1. The Applicant seeks leave to appeal against his conviction for murder. He was charged with the murder of Chan Chak Tong on 19 July 1990 at Lau Fau Shan in the New Territories. He was found guilty by a jury after a trial before Ryan J in January 1995.

2. This is a rather extraordinary case. The conviction was entirely dependent upon the contents of two cautioned statements made by the applicant shortly after his return to Hong Kong on 30 November 1990.

3. According to the contents of the statements there had been bad blood between the applicant and the deceased shortly before his death. The applicant had thought that the deceased intended to arrange for him to be murdered. He had decided to forestall this plan by himself arranging for the deceased to be murdered.

4. With this object in mind he had gone to Shenzhen and arranged for a man called Choi, nicknamed Ah Ming to murder the deceased. The arrangement was that the applicant would pay an initial deposit of $10,000 to Ah Ming and a further $50,000 after the deed was done. After the deceased had been sufficiently identified the final arrangements were made. When the applicant made his plan he was physically in Shenzhen. He was there on 19 July at noon when Ah Ming reported to him that he had killed the deceased.

5. The applicant had remained in China until his return on 30 November.

6. When he arrived at Kai Tak Airport on that date he was intercepted by the Immigration Officers as his name was on the stop list. He was then passed on to the police.

7. At this point there is a considerable disparity between the evidence of the police officers on the one part and the evidence of the applicant who testified at the trial on the other part.

8. According to Chief Inspector Pong (as he then was) the applicant admitted almost immediately after his arrival at the Wong Tin Sin Police Station that he had arranged for the deceased's murder. This was in Chief Inspector Pong's experience a most unusual occurrence. The applicant claimed to be stricken by his conscience and said that he wanted to confess to this crime. Chief Inspector Pong did not immediately administer a caution as he had doubts concerning the applicant's state of mind. He felt it to be necessary to satisfy himself that the applicant was not under the influence of alcohol or some other drug. He thought that it was necessary to talk to the man and endeavour to ascertain whether the confession that he was attempting to make was genuine.

9. It was only after he had satisfied himself that the applicant was indeed wanting to make a genuine confession that he put in motion the necessary action for a caution to be administered and for a statement to be taken. This was done by himself and DPC 9546. These police officers gave evidence that the applicant's statement that evening and the following day had been made freely and voluntarily.

10. The applicant gave evidence that almost as soon as he came into police custody he was assaulted and his will was sapped. The assaults were brutal and included his scrotum being squeezed. It was only after he could stand the pain no longer that he agreed to go through the motions of making a statement.

11. On 3 December his brother visited him. The brother gave evidence that the applicant complained to him about assaults and as a consequence of this the brother arranged for a solicitor's clerk and a barrister to visit him the next day. On 7 December he was examined by Dr Tu but at this time there were no external injuries visible on the applicant's body.

12. There was a strongly contested voir dire before Ryan J. At the conclusion of the voir dire Ryan J made a ruling in these terms:

"I have carefully considered the evidence and the submissions that have been made and I am satisfied beyond a reasonable doubt that the statements were voluntary. I do not consider that this is a case where I should exercise any general discretion to exclude the statements on the grounds of unfairness."

13. The perfected grounds of appeal are directed towards the admission of the two statements as evidence.

14. It is convenient to take the first three grounds together. They are:

"1. The learned judge erred in allowing the admission of the first and second statements dated the 30th of November 1990 and the 1st of December 1990 respectively.

2. The learned judge in his ruling failed to distinguish between the two bases upon which their admissibility was challenged:-

(a) That the statements were induced by assaults, threats and inducements on the part of police officers, as to which the learned judge was required to make findings of fact;

(b) That the statements were obtained unfairly and by reason of admitted breaches of Rules (3), (4) and (7) of the Judges Rules and of the principle in Rule (3)(b) of the Judges Rules 1978, as to which the learned judge was required to exercise discretion.

3. The learned judge ought by reason of the separate issues, to have given reasons for his rulings on admissibility."

15. There is no necessity for a trial judge to give reasons for his decision on a voir dire. The authority of that proposition is R. v. Chan King Hei and Others Cr.App. No. 358/94 (unreported).

16. However as has been indicated above it is clear from the judge's ruling that he had separately considered the issues of voluntariness and the exercise of his discretion to exclude evidence consequential upon the breaches of the judges rules.

17. At this point it may be helpful to consider Ground 4 of the perfected grounds which is directed towards breaches of the rules and alleged oppression.

"4. The admitted breaches of the Rules were oppressive:-

a) The Applicant was a prisoner in custody and was interviewed without a caution so that:-

i) There was a strong inducement by the fact of his custody to speak when he would otherwise remain silent;

ii) He was never informed of his right to remain silent.

Further, he was not invited to consult a lawyer nor to be examined by a doctor, notwithstanding the startling admissions he was alleged to be making and the doubts expressed by the Superintendent as to his physical and mental condition.

b) If Superintendent Pong was telling the truth there was enough evidence to prefer the charge of murder at the commencement of the first interview. Nevertheless, he was not charged or cautioned.

c) The Superintendent failed to show his notes of the alleged oral interview to the Applicant for him to read and sign.

d) The administering of a caution before a formal interview following immediately after the uncautioned interview does not cure the taint of oppression, particularly when the first question as here, repeats the alleged admissions:-

'Q. Just now you told me you had employed somebody to kill Chan Chak, the deceased, in a homicide case that occurred in Lau Fau Shan. Can you tell me in detail actually how the whole incident happened?'

The interview goes on to repeat alleged admissions made in the course of the oral interview.

e) In respect of the second statement, there was no ambiguity to clear up under Rule 7 of the Judges Rules, as Superintendent Pong admitted. The reasons given by him did not justify a breach of the Rule."

18. The way in which the court should approach such a situation was dealt with by Roberts CJ at p423 of Lam Yip Ying [1984] HKLR 419:

"Unfairness may arise either by virtue of the circumstances in which a statement was taken or because its use in evidence would be unfair to the defendant.

The use of this discretion was referred to in the very recent case of WAN Kwong-on v. R. Crim.App.No. 1437/83 unreported in which Huggins V.P. observed:

'The initial question which the judge had to ask himself was whether the statement was voluntary and the second question was whether he ought in the exercise of his discretion to exclude an admissible statement on the ground that it had been obtained in a manner which was oppressive. In his ruling he appears to have taken these questions in the reverse order, but nothing turns upon that. In our view there was evidence upon which he could properly find that the statement was voluntary. We could interfere with his exercise of his discretion only in a clear case and we are not persuaded that he was wrong."

19. Assistance can also be derived from the observations of Mortimer JA in R. v. Chan King Hei and Others at p5.

"Residual Discretion

Clearly there is a residual discretion at common-law for the judge to exclude relevant and otherwise admissible evidence on the grounds that it is necessary in order to secure a fair trial of the accused. No exhaustive definition of this principle is possible. The most well known example is of course where the prejudicial effect of evidence outweighs its probative value. It is also possible that a judge will consider excluding evidence as unfair after substantial and significant breaches of the 1992 rules. But the circumstances when a judge will exercise his discretion will be rare and only in cases where it is clearly demonstrated that the exclusion is necessary to ensure a fair trial of the accused."

20. The circumstances of the present case do not warrant any interference with the exercise of the judge's discretion to admit these statements as evidence.

21. The judge's summing-up of the evidence was fair and impartial and there was no reason to believe that this conviction is in any way unsafe or unsatisfactory. The application is accordingly dismissed.