HKSAR v. CHAN KEUNG MING

CACC 137/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 137 OF 2001

(ON APPEAL FROM HCCC NO. 222 OF 1999 & 7 OF 2000)

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J U D G M E N T

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Hon Hartmann J :

1. On 22nd March 2001, after a trial before Jackson J and a jury, the applicant was convicted of five counts of robbery, two counts of false imprisonment and one count of rape. He was sentenced to a total of 16 years imprisonment.

2. The indictment contained one additional count, that of manslaughter. However, at the end of the prosecution case the judge ruled the applicant has no case to answer on that count.

3. The applicant chose not to have legal representation at his trial and conducted his own defence.

4. The applicant now seeks leave to appeal against each of his convictions.

5. Of the five robberies of which the applicant was convicted, one of those robberies took place in private premises, two took place in shops and two were robberies of taxi drivers. In each case, at least two persons carried out the robberies. Knives were used, the victims were threatened and assaulted and were tied up. The evidence revealed that the applicant had participated in three of the robberies while, in respect of the remaining two, he had planned them, ordered that they be carried out and had received the proceeds.

6. In respect of the single count of rape, the evidence revealed that a young woman, Fung Hoi Yan, had fallen in with the applicant and his associates. She had gone to an apartment used by them and it was there that she was raped by the applicant. After the rape she was tied up and prevented from leaving. These latter actions formed the basis of the applicant's first conviction of false imprisonment.

7. It appears that at all material times drugs were taken by the applicant and his associates. One of the associates was an addict named Leung Kam Wing. The evidence revealed that the applicant distrusted this man and, fearing that he might make a report to the police, had him tied up and gagged, preventing him from leaving the apartment. These actions formed the basis of the applicant's second conviction of false imprisonment.

8. Leung Kam Wing was to die shortly thereafter. His body was dismembered, most of it being disposed of. However, when the police conducted a search of the apartment, they found the man's severed head. Not surprisingly, initially at least, the ensuing investigation was classified as a murder investigation.

9. The prosecution case against the applicant relied heavily on the evidence of two accomplices, a man named Law Ka Kit and a woman named Lam Wai Fan. The rape victim, Fung Hoi Yan, was also an important witness for the prosecution. The judge instructed the jury how they must approach the evidence of these witnesses. His directions cannot be criticized.

10. As to the grounds of appeal, the applicant has over a period of months submitted a number of grounds. To a degree, but not exhaustively, these have been consolidated in his grounds of appeal dated 8 August 2002. Today, the applicant has raised a number of matters which either mirror what has already been put forward by him or which are new. A number of the matters put forward as grounds of appeal are not material to his application. The balance are considered hereunder.

The first ground

11. The applicants' original ground of appeal was to the effect that there had been inconsistencies in the evidence of a number of the prosecution witnesses. The applicant has today highlighted certain of these inconsistencies. No doubt there were inconsistencies. The trial judge, however, was alive to the matter and directed the jury as to how they should approach the problem of inconsistencies. His directions cannot be faulted. It was thereafter, in our view, quite properly a matter for the jury.

The second ground

12. In his consolidated grounds of appeal, the applicant has complained that he was somehow prejudiced by questions put by prosecuting counsel to various police officers. These questions suggested that, when the officers commenced their investigation, they believed that they were part of a murder inquiry. The applicant has in his written submissions complained also of various references made during the prosecution case to body parts, those parts being of Leung Kam Wing.

13. Considering that, when the police first searched the apartment used by the applicant and his associates, they found a severed head, it is hardly surprising that initial investigations were classified as murder investigations. The prosecution case, of course, was advanced in part to prove that the applicant was guilty of the manslaughter of Leung Kam Wing. Some evidence as to the body parts would therefore be almost inevitable in the course of the prosecution case.

14. There is no evidence, however, that having been acquitted of manslaughter at the end of the prosecution case, anything was said thereafter by prosecuting counsel or the trial judge to connect the applicant with the death of Leung Kam Wing and by that means somehow to prejudice him in the eyes of the jury.

15. During the course of the hearing before us, the applicant also has complained that, when the judge directed the jury to acquit the applicant of manslaughter, one of the jurors queried why that was. The applicant has complained that he was prejudiced because the judge failed to answer the juror's question. The judge, however, quite properly, directed the jury that they should return the verdict that he had in law directed them to return. There is nothing in this point.

The third ground

16. The applicant has complained that his cross-examination of the prosecution witness, Fung Hoi Yan, the one who testified she had been raped, was unfairly obstructed or impeded by the judge. On reading the transcript it is apparent that there was no such obstruction. When necessary, the trial judge clarified the applicant's questions so that they were capable of eliciting a rational answer. When necessary, he curtailed irrelevant or repetitive questioning. There is nothing in this point.

The fourth ground

17. This ground of appeal also relates to the applicant's cross-examination of the witness, Fung Hoi Yan. The transcript shows that, during the course of this cross-examination, the applicant sought leave to make reference to certain unused materials. The trial judge queried the relevance of these materials. To enable the applicant to make submissions, the jury was asked to retire. The applicant had commenced his submissions when, with the witness still in court, he requested that she also retire. This was done. The applicant then continued with his submissions. When the matter was resolved, the jury returned and so did the witness. It is the applicant's contention that somehow the presence of the witness in court during the opening part of his submissions has prejudiced him in the conduct of his defence.

18. Mr Shiu, for the respondent, has been of considerable assistance in mapping out the broader relevance of the applicant's submissions made in relation to the unused material. There is no need to explore them in detail. Suffice to say that the submissions made by the applicant in respect of those materials were unexceptional. Nothing of moment turned on them, not at least in so far as the witness would have been capable of comprehending for the brief period that she remained in court. Accordingly, there can be no suggestion that the applicant was prejudiced.

The fifth ground

19. This ground too concerns the presence of prosecution witnesses in court. The witnesses were two police officers, Senior Inspector Wong and Detective Constable Chan. Before they themselves testified, both these officers were in court at a time when other prosecution witnesses gave their evidence. It is for that reason, the applicant has said, that their presence prejudiced the conduct of his defence.

20. It should be said that Inspector Wong was the officer in charge of the investigating team and, as is routine in matters of this kind, was in court to assist prosecuting counsel. Constable Chan was the designated exhibits officer. There were a large number of exhibits in this trial, some 400. Again as is routine, Constable Chan's presence was required so that he could in a practical way assist in the smooth presentation of the exhibits and ensure their safe custody. He also assisted the prosecuting team by calling witnesses.

21. During the course of the investigation, Constable Chan, in addition to his duties as exhibits officer, had been tasked to take various witness statements including the statement of the accomplice, Law Ka Kit.

22. Witnesses for the prosecution began to give evidence on 19 January 2001. On the eighth day of the trial, the applicant objected to the presence of one of those officers in court, namely Constable Chan. The objection was made when the accomplice witness, Law Ka Kit, had completed his evidence-in-chief and was about to be cross-examined by the applicant. By this time Inspector Wong had already testified. At the request of the applicant, Constable Chan left the court. He was absent during Law Ka Kit's cross-examination and was absent too for the full duration of the testimony of the other accomplice witness, Lam Wai Fung, which followed that of Law Ka Kai. As the trial judge emphasized to the jury in his summing up, these two witnesses were central to the prosecution case.

23. Thereafter, when the applicant thought that it was appropriate, he requested that one or both of the officers absent themselves from court. For example, he made that request when another police officer, the original exhibits officers in the investigation, gave his evidence. The applicant, although a layman, well understood therefore that he had the right to request the removal of a potential witness from court when, in his opinion, that witness's continued presence might damage his case. In the conduct of his defence, the applicant chose when to make those requests and when not to do so. For that reason, it is difficult to see how he can now complain that the presence of Inspector Wong or Constable Chan in the court at the time when he did not seek their removal prejudiced his defence.

24. The law, in any event, is clear. There is no rule that witnesses who are to be called to give evidence must remain outside the court until their turn to give testimony arises. In this regard, see for example R v Thomson (1966) 110 SJ 788 in which the Court of Appeal held that the fact that a person who the defence decided at a late stage to call as a witness had been in court and had heard evidence did not enable the court thereafter to refuse to allow the witness to be called. It was open only to the prosecution or to the trial judge to comment on the situation.

25. The applicant, if he felt aggrieved by the presence of the two police officers, had an opportunity to comment on that issue to the jury. As to any potential prejudice that the applicant may have suffered, Mr Shiu has again been of assistance in placing the relevance of the two officers' testimony into context. In the light of that, we can see no material prejudice - or indeed prejudice at all - accruing to the applicant in the conduct of his defence by the presence of the officers in court at the times when they were there.

The sixth ground

26. Among the matters raised by the applicant for the first time before us was the submission that, in respect of drawing inferences, the judges' summing up was confused and prejudicial to him. We disagree. The judges' direction to the jury was clear, unambiguous and balanced.

Conclusion

27. During the course of his submissions, the applicant has accepted that his various grounds of appeal, taken on their own, may not be sufficient. He has contended that in totality, however, they demonstrate that he was not afforded a fair trial. We disagree. In our view, there is no substance in any of the grounds of appeal advanced by the applicant, considered either in the singular or in totality. The application for leave to appeal is therefore dismissed.