R. v. CHUEN WUI SHING AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

(Criminal Jurisdiction)

HIGH COURT CASE NO. 176 OF 1992

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[Voir dire - effect of the common law rule contained in para. (d) of the 1964 Judges' Rules - comment on R. v. LAI Kin-ming (CA380/83)

Video-recording of Defendant at scene of crime - intention of police to persuade Defendant to confirm visually an earlier confession - admissibility of video-recording

Hostile witness - power to treat prosecution witness as hostile during re- examination]

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R U L I N G S

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1. [The Defendants were charged, inter alia, with false imprisonment, robbery and murder. As an alternative to the charge of murder, D1 was charged with assisting D2 to conceal the deceased's body. D1 pleaded guilty to all the charges against him, save for the charge of murder, and the Crown accepted that plea of not guilty. D2 pleaded not guilty to all the charges against him. Before a jury was empanelled to try D2, a voir dire was held.

2. D2 had been interviewed on 10 separate occasions over a period of six days. In some of those interviews, including the 1st interview, D2 was alleged to have orally confessed his guilt. At the end of each interview, he was alleged to have signed a contemporaneous record of the interview made by the Senior Inspector who had interviewed him. Between the 4th and 5th interviews, D2 had been taken to three locations referred to by him in one or other of the earlier interviews, and had been filmed on videotape allegedly confessing to what he had earlier confessed had happened there. He was also alleged to have shown the police the three bank dispensers at which he confessed to having used the deceased's ETC card. Between the 7th and 8th interviews, he had formally been charged with the offence of murder. In the 8th and 9th interviews, he was alleged to have agreed to demonstrate to the police how he had disposed of the deceased's portable telephone. In the 10th interview, he was alleged to have been asked questions about a knife which the police had by then discovered.

3. At the conclusion of the evidence called by the Crown in the voir dire, it was argued that there was no case for D2 to answer.]

4. In these voir dire proceedings, the Defendant challenges the admissibility of four parts of the evidence which the Crown proposes to rely upon at his trial. They are

(I) the written records of various interviews between him and Sen. Insp. LAU, which the Defendant is alleged to have signed as correct,

(ii) a videotape recording of the Defendant's visits while in police custody to three locations,

(iii) the evidence relating to those visits and the Defendant's visits to a number of others locations, and

(iv) the written record subsequently made of those visits, which the Defendant is alleged to have signed as correct.

5. Mr. Wong for the Defendant now submits that there is no case for the Defendant to answer on the admissibility of the evidence relating to any of these matters. However, the real thrust of his submission related to the period after the stage during the Defendant's first interview when the Defendant is alleged to have admitted that he had chopped the deceased with a knife. That submission is derived from the evidence of Sen. Insp. LAU. Sen. Insp. LAU accepted that, by the time the Defendant made that admission, he thought that there was sufficient evidence to charge the Defendant with the offences alleged against him in the indictment. Although the decision as to whether the Defendant was to be charged was not his, he thought by that time that the Defendant would be charged.

6. The decision of the Court of Appeal in R. v. LAI Kin-ming (CA 380/83) reiterated the common law principle enshrined in para. (d) of the 1964 Judges' Rules that when a police officer, who is making enquiries of any person about an offence, has enough evidence to prefer a charge against that person for the offence, he should without delay cause that person to be charged or informed that he may be prosecuted for the offence. This common law rule was repeated in the Rules and Directions for the Questioning of Suspects and the Taking of Statements promulgated by the Secretary for Security on 2nd October 1992, though those Rules, of course, were not in force when the Defendant was arrested.

7. Be that as it may, since Sen. Insp. LAU thought that there was sufficient evidence to charge the Defendant, and since he did not cause him there and then to be charged, he should have informed the Defendant there and then that he may be prosecuted for the offences. The decision of the Court of Appeal in the United Kingdom in R. v. Hudson (1981) 72 Cr. App.R. 163 is authority for the proposition that the Defendant should have been informed of that before he was asked any further questions. Mr. Wong submits that, in those circumstances, it was so obviously oppressive for the Defendant to be questioned further, and to be asked to visit various locations, and to be asked to participate in what has been called a reconstruction of the crime, that I should at this stage in the proceedings rule everything which happened after the time when he should have been given a warning inadmissible.

8. I decline to do that. If a Defendant is genuinely willing to continue to assist the police in their enquiries, whether by continuing to answer their questions, or by agreeing to participate in a reconstruction, or by taking the police to various locations, and if the Defendant would not have been deterred from continuing to assist the police in their enquiries if he had been warned that he might be charged, I do not see how the mere failure to warn him that he might be charged amounts to oppression. If oppression is conduct which results in the Defendant speaking when he would otherwise have remained silent, no oppression arises if the Defendant would have acted in the same way if he had been given the appropriate warning. Again, if oppression is conduct which takes away the Defendant's will to make an informed decision as to whether he should continue to assist the police in their enquiries, no oppression arises if the giving of the appropriate warning would not have made a difference to the Defendant's subsequent conduct. The genuineness of the Defendant's willingness to continue to assist the police in their enquiries, and the extent to which he would have been deterred from doing so if he had been given the appropriate warning, are matters of fact. I should not decide them at this stage of the proceedings. I should wait until all the evidence has been heard. Suffice it to say that the evidence of Sen. Insp. LAU, if I find it to be true, is capable of satisfying me that the Defendant's willingness was genuine, and that the giving of the appropriate warning would not have affected his future conduct.

9. I turn to Mr. Wong's alternative grounds for his submission. He submits that, even if the Defendant was genuinely willing to assist the police in their enquiries, and even if the giving by Sen. Insp. LAU of the appropriate warning would not have affected the Defendant's future conduct, I should nevertheless, in the exercise of my discretion, exclude evidence relating to matters which occurred after the Defendant is alleged to have admitted that he had chopped the deceased with a knife.

10. That submission is based on what the Court of Appeal in LAI Kin- ming said was the intention and effect of the common law rule to which I have already referred:

"[It] is not to call a halt to the process of investigation but only to inhibit the manufacture as distinct from the uncovering of evidence."

In other words, the questioning of a suspect can continue after a Defendant should have been warned that he may be prosecuted if it is intended to elicit answers which advance the enquiry, or which uncover new avenues of investigation, or which increase the investigating officer's knowledge of the details of the offences being investigated. Questioning should not continue if it is designed merely to encourage the Defendant to say or do things which would make the existing case against him stronger. Mr. Wong contends that that was the reason why the Defendant continued to be questioned.

11. I confess that I regard what was said in LAI Kin-ming as an unwarranted gloss on the plain words of the rule. In my judgment, what the rule seeks to do is merely to reinforce the Defendant's privilege of not incriminating himself. Since he might be less likely to answer further questions if he knows that he may be prosecuted for the offence about which he has already been questioned, fairness requires that he be told that he may be prosecuted for the offence if it is not proposed to charge him there and then. But if the Defendant is willing to answer further questions, despite knowing that he may be prosecuted for the offence, and despite knowing that the further answers he gives may incriminate him further, I simply do not understand why the questioning should be limited in the way in which the Court in LAI Kin-ming prescribed. The rule itself assumes that questioning of a suspect can continue even after the police officer has enough evidence to prefer a charge: causing the suspect to be charged, and informing him that he may be prosecuted, are expressed as alternative courses for the police officer to take. The fact that the former course involves a limitation on the power to question a suspect further does not mean that the latter course should involve such limitation, let alone a similar one.

12. However, I must not presume to know better than the Court of Appeal, and I must abide loyally by what was said in LAI Kin-ming. It is, therefore, necessary for me to determine whether the questions which were asked of the Defendant in the first interview after he had admitted that he had chopped the deceased with a knife, and the questions which were asked of him in all subsequent interviews, were designed merely to encourage the Defendant to say or do things which would make the existing case against him stronger. However, the purpose of the further questioning of the Defendant is again a matter of fact. I should not decide that question of fact at this stage of the proceedings. Suffice it to say that one possible construction of the record of the various interviews, if they are a true and accurate record of the questions asked and the answers given, is that Sen. Insp. LAU was doing no more than tying up the loose ends of the case, by asking the Defendant to give the details of what he had already admitted, so that Sen. Insp. LAU's knowledge of the Defendant's involvement in the case was complete.

13. Next, Mr. Wong submitted that, in the exercise of my discretion, I should exclude all the evidence relating to the 8th, 9th and 10th interviews of the Defendant, because they all took place after the Defendant had been charged. It is plainly established that the questioning of a suspect after he has been charged is permissible only for the purpose of preventing harm, or minimising loss, or clearing up ambiguities. I do not see how it can possibly be said that that was the purpose of questioning the Defendant in this case. Asking him to take part in a reconstruction of the disposal of the deceased's portable telephone was undoubtedly capable of furthering the enquiry. It could have given a lead to where the divers should search for it. And asking him whether he recognised a knife which had been recovered by the police was also capable of advancing the enquiry. If he recognised it, the police would know that they would not have to search any more for the weapon used to kill the deceased. But these cannot, in my view, be said to be for the purpose of clearing up ambiguities.

14. Having said that, however, I would not be inclined to exercise my discretion to exclude the evidence if I were sure that the Defendant was entirely willing to continue to assist the police, and if he knew that, by continuing to do so, he could be making the case against him stronger. That is a question of fact which I cannot determine at this stage of the proceedings. Suffice it to say that the evidence of the prosecution, if true, is capable of satisfying me that that is the case.

15. Finally, Mr. Wong submitted that, in the exercise of my discretion, I should exclude all the evidence relating to the reconstruction of the crime, because that reconstruction in truth was no more than an attempt to get the Defendant to admit the offences on videotape at the scene of the crime, so as to make it all the harder for him subsequently to deny both the fact and the voluntariness of his earlier confession. In other words, the reconstruction was not a re-enactment of the crime at all. It was merely a device to get the Defendant to confirm visually his earlier confession.

16. I do not see how the intention and effect of the video-recording could have been anything other than that. But does that mean that I should exercise my discretion to exclude evidence relating to it? TAM Wing-kwai v. R. [1976] H.K.L.R. 401 is clear and unambiguous authority for excluding it. In that case, the Defendant had made five oral statements between 17th and 25th July. The fourth statement was a full oral confession made under caution on 21st July. On 7th August, the Defendant was taken to the scene of the crime, and further questioned about what happened, and he illustrated his answers by demonstration. The interview was recorded on videotape. The Court of Appeal held that the judge should have exercised his discretion to exclude the videotape of this final interview. In giving their reasons, Huggins J.A. (as he then was) said at pp. 406-407:

"It seems to us that the over-all intention was to bolster up the Crown's case, it being hoped that the Appellant would confirm visually what he had already said in his fourth statement ... [W]e think it was wrong here to try to obtain confirmation of the fourth statement in this way and we think that the sixth statement ought to have been excluded in the exercise of the judge's discretion."

17. No reason was given as to why it was wrong to obtain confirmation of the fourth statement in this way. However, TAM Wing-kwai was considered by the Privy Council in R. v. LI Shu-ling [1989] 1 H.K.L.R. 82. In giving the Board's opinion, Lord Griffiths said at p. 86F-H:

"The truth is that if an accused has himself voluntarily agreed to demonstrate how he committed a crime, it is very much more difficult for him to escape from the visual record of his confession than it is to challenge an oral confession, with the familiar suggestions that he was misunderstood or misrecorded or had words put into his mouth. Provided an accused is given a proper warning that he need not take part in a video recording and agrees to do so voluntarily the video film is in principle admissible in evidence as a confession and will in some cases prove to be most valuable evidence of guilt."

At p. 87D-F, Lord Griffiths said this about the passage from the judgment of Huggins J.A. in TAM Wing-kwai which I have already cited :-

"In so far as the opening sentence of this passage may seem to suggest that the prosecution should never make a video recording after an oral confession, their Lordships cannot agree with it. There can be no point in making a video film of the demonstration of the crime unless the accused has confessed orally to the crime. Provided the video film is made reasonably soon after the confession and is made voluntarily it should not be excluded on the ground that it may strengthen the prosecution's case by making it more difficult for the accused to resile from his confession."

18. It is true that the Board was focusing in that passage on the effect of the video-recording rather than on the purpose for which the Defendant was asked to allow himself to be filmed at a reconstruction of the events leading to the death of the deceased. However, the Board upheld the admissibility of the video-recording, even though, on the facts of that case, the purpose of inviting the Defendant to allow himself to be filmed at a reconstruction of the crime could only have been to make it, to use Lord Griffiths' words, "more difficult for the [Defendant] to resile from his confession". Although the Defendant in that case had initially claimed that he had strangled the deceased accidentally, he subsequently confessed to strangling her first with his hands, and then on seeing a piece of rope nearby, taking it and strangling her with that - a version of events wholly inconsistent with accidental strangulation. I therefore hold that the mere fact that the reconstruction and the filming of it was a device to get the Defendant to confirm visually his earlier confession is not by itself a valid ground for the exclusion of the video-recording in evidence.

19. For all these reasons, I rule that the Defendant has a case to answer on the admissibility of all the evidence to which these voir dire proceedings relate.

[D2 elected to give evidence in the voir dire. At the conclusion of the voir dire, Keith J. ruled that all the evidence whose admissibility was challenged in the voir dire was admissible.]

[In the course of D2's trial, D1 was called as a witness by the Crown. In evidence-in-chief, he gave evidence consistent with his own pleas of guilty, and he implicated D2 on all the charges which D2 faced. However, in cross- examination, he claimed that his evidence-in-chief had been untruthful, that he was not guilty of the charges to which he had pleaded guilty, that he had no knowledge of the offences which had given rise to his and D2's arrest and trial, that confessions of guilt which he had made to the police after his arrest had all been involuntary, and that he had only pleaded guilty pursuant to a plea bargain agreed between his solicitors and the Crown whereby the Crown would offer no evidence against him on the charge of murder if he pleaded guilty to the other charges against him and if he agreed to give evidence for the Crown at D2's trial. In the course of D1's re-examination, the Crown applied to treat him as hostile.]

20. CHUEN's evidence in cross-examination is wholly inconsistent with the statements alleged to have been made by him in the aftermath of his arrest in March 1992, and with the witness statement made by him three weeks ago on 19th March, as well as being inconsistent, of course, with his evidence-in-chief. I have no doubt that in these circumstances CHUEN is a witness hostile to the Crown. The fact that he claims that his out-of-court statements were all made by him involuntarily does not mean that they were not his statements upon which he can properly be cross-examined if leave to treat him as hostile is granted.

21. The question arises, though, whether CHUEN can be treated as hostile during his re-examination. In R. v. Little (1883) 15 Cox C.C. 319, Day J., after consulting with Cave J., held that a witness who had given evidence in examination-in-chief could be declared hostile in re-examination, and could be cross-examined on an out-of-court statement, when her evidence in cross-examination had been inconsistent with that out-of-court statement. That is the situation in this case.

22. R. v. CHENG Chung-hai [1988] 2 H.K.L.R. 50 is distinguishable from the present case in two vital respects. First, in that case the witness had not been examined in chief. He had been tendered by the Crown for cross- examination. Secondly, in that case there had been no application by the Crown to treat the witness as hostile at all. The issues in the case were whether the witness could have been re-examined in such a way as to discredit him without him having been declared hostile, and whether it was proper to address the court disparaging his evidence in the absence of a successful application to treat him as hostile.

23. Finally, I come to R. v. Foxford [1974] N.I. 181. There the Crown in opening its case said that it would call two witnesses, but did not do so and only tendered them for cross-examination. That cross-examination produced evidence favourable to the defence, and the witnesses were then re- examined by the Crown, querying their evidence. It was held that that should not have been allowed. At p. 204 of his judgment, Lowry L.C.J. said that the re-examination was irregular on four grounds:

(I) because re-examination was only to clear up points raised in cross- examination, and no new material could be introduced;

(ii) because leading questions must not be asked;

(iii) because cross-examination is not permissible; and

(iv) because unless the witness has proved hostile, and the judge has granted leave, a party may not attack his own witness' version of what had happened.

24. That last ground of irregularity does not arise, of course, if I grant leave. The second and third grounds, in my view, are not persuasive. Leading questions may not be asked, and cross-examination is not permissible, in examination-in-chief, but that does not prevent a witness who has been declared hostile in chief from being asked leading questions or being cross-examined during his evidence-in-chief.

25. As for the first ground of irregularity - that re-examination is only to clear up points raised in cross-examination and no new material can be introduced - there are exceptions to that rule. For example, during the course of re-examination, it is permissible to introduce evidence which would have been inadmissible in examination-in-chief. The proof of a previous consistent statement following an allegation of recent fabrication during cross-examination is an example. The previous consistent statement would have been inadmissible in examination-in-chief. It only becomes admissible once the allegation of recent fabrication has been made.

26. For these reasons, I do not regard the grounds for declaring the re- examination in Foxford to be irregular to be persuasive, apart from the last ground, namely, that the judge had not granted leave. It seems to me that once the judge grants leave, then that is the end of the matter. Accordingly, I conclude that I have the power to give the Crown leave to treat CHUEN as a hostile witness, and in the exercise of my discretion, having regard to all the circumstances of the case, I give the Crown leave.

27. I shall hear Mr. Halley on which statements he wishes to cross- examine CHUEN on. But before any questions are asked on the contents of those statements, the proviso to section 12 of the Evidence Ordinance must be complied with, namely, the circumstances of the statements sufficient to designate the particular occasion must be mentioned to the witness, and he must be asked whether or not he has made such a statement.

28. [D2 was subsequently acquitted.]