HKSAR v. LAI MAN CHOI AND ANOTHER

[English Translation — 英譯本]
CACC 628/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL JURISDICTION

APPLICATION FOR LEAVE TO APPEAL AGAINST CONVICTION

CRIMINAL APPEAL NO. 628 OF 2002

(ON APPEAL FROM HCCC NO. 289 OF 2002)

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JUDGMENT

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Hon Woo JA (giving the judgment of the Court):

Introduction

1. The two applicants for leave to appeal herein are respectively the 1^st and 2^nd defendants at first instance.  They were jointly charged with one count of assault with intent to rob, contrary to section 10(2) of the Theft Ordinance (Cap. 210, Laws of Hong Kong) and were tried before Deputy Judge Pang of the Court of First Instance (the ‘Judge’) and a jury.  The particulars of the offence were that on 6 May 2002, in Room I on the 12^th floor of New Lucky House, 13-15 Jordan Road, Yaumatei, D1 (i.e. the 1^st applicant for leave to appeal) and D2 (i.e. the 2^nd applicant for leave to appeal) assaulted Madam Lam Lai Chu with intent to rob her.  The jury unanimously found both defendants guilty after trial.  The Judge sentenced D1 to 6 years’ imprisonment and D2 to 6½ years’ imprisonment.

2. D1 and D2 now apply for leave to appeal against conviction.  D1 is not represented, whereas D2 is represented by Mr Wong Man Kit SC and Mr Edwin Choy of counsel.

The prosecution case

3. At the trial, the evidence adduced in support of the charge was the testimony of PW1 Madam Lam Lai Chu in court.  Madam Lam was 66 years old.  She was a cleaning worker in the unit specified in the charge.  She was employed by a Ms Chan, who was carrying on the so-called “one-floor-one-prostitute” business in the unit as a prostitute.  Shortly after 5 a.m. on 6 May 2002, someone pressed the doorbell outside the unit.  Ms Chan happened to be in her own room, so she told Madam Lam to open the door.

4. After Madam Lam opened the door, two men darted into the unit from outside the door, one following the other.  These two men, who were subsequently arrested, were D1 and D2.  According to Madam Lam’s evidence, D2 entered the unit first.  Then he grabbed hold of her right shoulder with one of his hands, covered her mouth with the other and pushed her into the interior of the unit.  D1 followed closely behind D2 into the unit.

5. Upon being pushed into the interior, Madam Lam immediately screamed.  D2 ordered her to be on her knees and not to scream or shout, and told her that all they wanted was money.  Someone got a towel from somewhere inside the unit, gagged Madam Lam with the towel and tied her hands.  Then D2 took out a cutter and threatened her by pointing it at her throat, at two to three inches away from her.  D2 said that all they wanted was money and told Madam Lam not to scream or shout, otherwise she would be killed.

6. Following that, D1 went into a room at the far end of the unit.  After a few minutes, he came out and told D2 to leave the unit quickly.

7. Madam Lam untied herself after the two defendants left.  She checked the premises and saw signs that the rooms had been ransacked.

8. The agreed facts were that Ms Chan heard Madam Lam scream and therefore telephoned the police from her room.

9. Approximately 3 minutes after they were notified by the console that someone had called the police, police officers arrived at the building where the incident had taken place.

10. According to the evidence of the police officers, when they were keeping guard on the ground floor of the building, they saw the two defendants walk into the lobby of the building via the staircase in quick paces.  They were stopped by the officers and taken to the staircase where they were questioned separately.

11. After a short while, Madam Lam was brought to the staircase.  She identified the two defendants as the two men who had attempted to rob her in the unit.

12. Subsequently the two defendants were taken to the police station.  How they responded to the questions by the police and what they said during the video-taped interview will be dealt with in detail later in this judgment.

The defence case

13. At the trial, D1 elected not to give evidence and not to call any witness, while D2 elected to give evidence.

14. As D1 did not give evidence, the relevant part of the evidence was provided by the prosecution. According to the evidence, when PW4, DPC 46461 asked D1 at the staircase of the building for what purpose he went to the building, he replied that he went to the 9^th floor to obtain the service of a prostitute.  PW4 went on to ask him why he chose to come down from the floor above via the staircase, but he did not answer that question.

15. Further, in the afternoon of the same day, PW6, DPC 45341 and PW7, Detective Sergeant 22563 interviewed D1 in a room at the police station.  The course of the interview was video-recorded and a transcript of the record of interview was produced as Exhibit P7.

16. In his summing up and directions to jury, the Judge briefly described the contents of P7 as follows:

“A very brief account is this: D1 said that he was taken to that place by D2, that he had never been there before, and that his aim of going there was to obtain the service of a prostitute.  But immediately afterwards he said that he found the place by reading newspaper advertisements.  He said that they had been to a disco and had consumed a lot of alcoholic drinks.  They wanted to look for more entertainment and bought the newspaper for that purpose.  In any event, at the material time it was D2 who entered the unit first.  But very soon he quarrelled with the old woman who opened the door.  The old woman was frightened and screamed.  He therefore went inside to see what was going on and only then did he realise that it was all because D2 had no money.  To resolve the matter, D1 said that he would go to borrow money, that’s because he discovered that he himself had no money either.  But the old woman refused.  Under such circumstances the two sides exchanged angry words, and finally D2 took out a cutter to scare her and D1 forcefully held her and told her to keep quiet.  Then D2 wanted to tie up the old woman with a towel and said the words ‘All we want is money’. D1 went into the interior of the unit and checked the rooms to see if there was anybody to whom he could explain what had happened and to see if there was any weapon, because he worried that the old woman might be over-excited.  He found that one of the rooms was locked and heard that a woman in that room was calling the police.  Therefore he left and also told D2 to leave quickly.  The cutter was thrown away at the rear staircase.” (Appeal bundle p.133 P-U)

17. Furthermore, PW5, PC 58941 gave evidence that when he asked D2 at the staircase why he ran down the staircase to the lobby, D2 said that he went to the 9^th floor to “visit a hooker”.  After Madam Lam identified D1 and D2 as the two men who had tried to rob her in the unit, PW5 arrested and cautioned D2.  Under caution D2 gave a lengthy response, which was repeated by the Judge to the jury in his speech.  D2’s response was as follows:

“Before that my friend Choi Chai (i.e. D1) said that he would take me to ‘visit a hooker’, so I went there with him. [We] knocked on the door.  A woman opened the door and said something which [we] couldn’t understand.  Then my friend Choi Chai and I quarrelled with her.  My friend Choi Chai took out a cutter to scare her.  The woman resisted.  Then Choi Chai covered her mouth with his hand and I tied her hands with a towel which I picked up from the floor.  After that, Choi Chai and I left together via the staircase.  When we got to the ground floor we were stopped by you people.  Sir, please give me a chance.  We just wanted to have fun.  We just wanted to scare her.  We didn’t take away any money.” (Appeal bundle p.135 M-P) (underline supplied)

18. In his speech, the Judge also gave a detailed account of the evidence given by D2 in court.  It can be summarised as follows: D1 and D2 had been colleagues.  In the evening of 5 May 2002, the two of them went to 348 Disco at Jordan Road for entertainment and did not leave until 4 a.m..  During their stay in the disco, D2 consumed a lot of alcoholic drinks, but he said that he was only a trifle tipsy.  After that D1 suggested that they visit prostitutes and took D2 to the 12^th floor of the building where the alleged offence took place.  D2 pressed the doorbell.  Madam Lam opened the door and led them into a room where they sat down.  When Madam Lam told them about the price sought by the prostitute, D1 found that he had no money and D2 also found that he had less than $20 on him.  The rest of the money might have been lost when they were dancing.  The two defendants had no choice but to say “I’m sorry” and wanted to leave.  But Madam Lam swore at them, saying, “You just come to fool around in the early morning and don’t want to pay for anything.  If you don’t have money, don’t bother to visit a hooker.”  D1 swore back at her by saying “Crazy”, pushed her aside with his hand and went out of the unit.  Although D1 had just come into slight contact with Madam Lam’s shoulder, she immediately yelled, “Robbery!”  The two defendants, who were already in the corridor outside the unit, turned round and told Madam Lam not to “frame” (falsely accuse) them, but they could not stop her.  Then D1 walked into the interior of the unit, saying that he wanted to see if there was anyone to whom he could explain.  However, he came back alone after one minute, saying someone had called the police and telling D2 to leave.  At that time Madam Lam was still yelling “robbery”.  The two defendants went out of the door, saw a staircase and went down via the staircase.  D2 said that he had no physical contact whatsoever with Madam Lam that day, nor did he come into contact with any towel or similar thing.  They were stopped by the police when they got to the ground floor.  After a while, Madam Lam was brought to them by the police and she identified them.

Grounds of appeal

19. D1’s ground of appeal is that he “believes he is innocent”.  He has also pointed out that the Judge had made a wrong statement in his summing up, but this in our view is of no significance.

20. Counsel for D2 puts forward five grounds of appeal, some of which are also applicable to D1.  We can therefore focus on these grounds of appeal, which are as follows:

(1)     The Judge erred in directing the jury that, in respect of D2’s case, they could not take into account contents in D1’s statements which were favourable to D2;

(2)     The Judge erred in withdrawing from the jury the defences raised by the two defendants under caution;

(3)     The Judge erred in failing to properly direct the jury in respect of the evidence that the two defendants, having consumed alcohol, wanted to have fun and subdued PW1 by force but had no intention to rob;

(4)     The Judge erred in failing to properly direct the jury in respect of the evidence that the two defendants fled from the scene of crime; and

(5)     The Judge erred in failing to point out to the jury that the reiteration by PW2 of PW1’s out-of-court allegations against the two defendants was hearsay evidence and could not be evidence of the truth of their contents.

Discussion

21. It is a fundamental principle of the common law that in a jury trial, the judge is under a duty to clearly present all the defences of the accused to the jury, regardless of the strength or otherwise of such defences, and fairly direct the jury to consider such defences.  See R v Fraser Marr (1990) 90 Cr App R 154 at 156.  Even though the accused has not relied on a particular defence at trial, but if that defence is one which finds support in the evidence, the judge is still bound to direct the jury to consider that defence and to ensure that the jury consider that defence before they arrive at the verdict.  See Kachikwu (1968) 52 Cr App R 538 at 543-544.

22. In the present case, D1 did not give evidence.  Nevertheless, the answers he gave to the police after he was arrested and what he said during the video-taped interview were evidence which should be considered by the jury.  The Judge clearly pointed out to the jury that the contents in D1’s record of interview contained two aspects, one being his confessions and the other being his exculpatory remarks.  The Judge explained as follows:

“… Here I have to remind you of one thing, which is very material, very important.  It is this: no matter what conclusion you may reach in respect of the record of interview, it can only be against D1 himself.  That is because when D1 was being interviewed, D2 was not present and had no opportunity to refute any allegation against him, right?  In any event, can all of you please bear in mind that, when you consider D2’s case, D1’s record of interview is not evidence which you can take into account.  It is as simple as that.”  (Appeal bundle p.134 D-F)

“… Same as the position in relation to the record of the video-taped interview of D1, the prosecution does not fully accept the contents of the verbal statements and post-recorded cautioned statements made by D2.  The prosecution still takes the stance that you can believe some and disbelieve the others.  Furthermore, you must remember that the contents of these statements can only be used against D2.  When you are considering D1’s case, D2’s verbal statements or his statements as post-recorded in the notebook are not evidence which you can take into account.  I have referred to this principle earlier on.  In short, whoever said anything under caution, what he said can be used only against himself and not against any other person.  Do you remember that?” (Appeal bundle p.136 G-J) (underline supplied)

23. In respect of D1’s record of interview which contained confessions and exculpatory remarks, the Judge said:

“… If, and I stress the word ‘if’, you are sure that you can rely on the record of the video-taped interview of D1 as a basis for reaching your verdict, although you have to consider all the statements made throughout the interview in order to see where the truth lies, you may feel that the parts which contain the confessions, i.e. the parts where the accused admitted something, are more believable than the parts which contain the exculpatory remarks.  That is to say, the confession parts are probably more believable and the exculpatory parts are probably less believable.  Why? If what he confessed were not true, he would not have made such confessions, right?  Furthermore, since D1 did not give evidence, the exculpatory parts have not been tested by way of cross-examination, right?  No one has asked him any question, right?  As for D2, he has given evidence and put forward his version of the relevant facts; therefore, it all boils down to how you evaluate his evidence as a whole.” (Appeal bundle p.138 P-T)

24. With regard to the 1^st and 2^nd grounds of appeal, Mr Wong Man-kit SC emphatically urges on us that the Judge erred in directing the jury that in respect of D2’s case, they could not take into account contents in D1’s statements which were favourable to D2, thereby erroneously withdrawing from the jury the defences raised in the responses given by the defendants under caution.  The emphasis of the Judge’s speech on p.134 of the transcript was on the direction to the jury that D1’s out-of-court statements could not be used as evidence against D2; but at the same time, the Judge also excluded those parts of D1’s statements which could be used to buttress D2’s defence.  This, it is submitted, was a misdirection.  See R v Myers [1998] AC 124 at 137C-E and 142A-C.

25. In his summing-up (on p.138 of the transcript in the appeal bundle), the Judge said that part of the record of interview of D1 was exculpatory, yet he did not specify to the jury which part was exculpatory.  Regarding D2, the Judge read out the entire cautioned answer given by D2 to the police, which stated that D1 took out a cutter to scare Madam Lam while D2 picked up a towel from the floor to tie up her hands, and that they merely wanted to have fun with intent to scare her but without demanding any money from her.  However, the Judge did not clearly point out that this might be a defence for D2.

26. In fact, D1’s interview with the two police officers took place from 4:32 p.m. to 5:37 p.m. on 6 May 2002.  During this interview which lasted about an hour, over 500 questions and answers were asked and given by the police and D1 respectively.  The following paragraphs neatly summarise D1’s explanations (the underlined statements are to be noted):

(1)  He was very drunk at that time.

(2)  “Basically we did not (do that) intentionally, (we) just wanted to have fun.  At that time, (we) were too drunk, at that time.” (Appeal bundle p.54)

(3)  “Having consumed alcohol, we were speaking incoherently and did not know what we were doing.  Then, upon seeing a way, (we) left.” (Appeal bundle pp.62-63)

(4)  “Maybe – maybe Ah Lun [i.e. D2] said “We are coming for money, don’t move”, then the woman thought that we would really rob her.” (Appeal bundle p.116)

(5)  “He [i.e. D2] – did also say the words “We are coming for money”.  “It was said by Ah Lun, because be-before that the la-lady, er – the lady and – I don’t know what (she) had argued with him about, as a result of which he was very agitated.  And at that time, (he) had one glass too many.”  (Appeal bundle p.115)

27. As can be discerned from the above paragraphs, D1’s explanation for this matter was that, since he and D2 were drunk at that time, they did not know what they were doing. D2 said something like “We are coming for money only” and at that time they spoke incoherently, not knowing what they were doing.  They merely said or did something to scare Madam Lam for fun with no intent to rob, but she thought that they would really rob her.

28. Under caution, D2 also said in his answer, “We just wanted to have fun.  We just wanted to scare her.  We didn’t take away any money.”

29. When giving directions to the jury, the Judge did read out the entire answer given by D2 under caution, but did not clearly point out to the jury that the answer contained the above explanation.  The Judge only said that, since D2 had given evidence, it was ultimately nothing more than a question of the jury’s overall assessment of D2’s evidence.  He did not tell the jury that, when testifying in court, D2 only explained that he did not have any contact with Madam Lam, not to mention having anything to do with the cutter and the towel.  Nor did the Judge referred the jury to the explanation given by D2 under caution, namely that he only wanted to have fun by scaring Madam Lam.

30. Nowhere in his speech did the Judge make it clear that what D1 said during his interview with the police contained his explanation of the matter, i.e. he said at that time he was drunk (his claim varied between “very drunk” and “a little drunk”), and he and D2 did not intentionally do what they did.  They merely wanted to have fun by scaring Madam Lam but their conduct caused her to think that they would really rob her.

31. Mr David Leung, Senior Government Counsel for the Respondent, emphasizes before us that the jury had obviously rejected the D2’s evidence, otherwise they would have acquitted him.  However, D2’s evidence in court only contained the assertion that he did not have any contact with Madam Lam and he had nothing to do with the cutter and the towel.  It did not contain the explanation given in his confession statement.  Although the explanation in his confession statement was inconsistent with his evidence in court, the jury must also take into account such explanation.  We refer to the legal principle set out in paragraph 21 above and the judgment of HKSAR v Chiu Fung-kuen and Yim Chi-shing, CACC 475/2001, at paragraphs 103-107.

32. Following the summing-up, the jury retired to consider the evidence.  Later, the Judge received from the jury a note with this question: “If someone subdued the victim with violence and claimed that he came for money, did that constitute an intention to rob?”  After discussing with counsel for both parties, the Judge dealt with the question.  The record in the transcript reads as follows:

“Court:   Yes, members of the jury, a written question has been received from you.  I would like the foreman to confirm this.  The question is: ‘If someone subdued the victim with violence and claimed he came for money, did that constitute an intention to rob?’  Is that the question?

Foreman:   (no audible reply)

Court:   Yes.  Our answer is that basically this involves a finding of fact to be determined by you.  However, we would usually decide on the issue of intention by considering what the accused did or did not do and what he did or did not say.  You should look at his conduct before, during and after the commission of the alleged offence.  All these may give you some clues regarding his intention at the material time.  I repeat, what you have asked basically involves a finding of fact to be determined by you.  However, usually, we can decide on the issue of intention by considering what the accused did or did not do and what he did or did not say.  You should look at his conduct before, during and after the commission of the alleged offence.  All these may give you some clues regarding his intention at the material time. That’s all for the answer. …” (Appeal bundle p.141 E-K) (underline supplied)

33. The question raised by the jury above shows that they had doubts about the issue of “intention” in respect of the intention to rob.  In their confession statements, the two defendants explained that since they were drunk, they neither said nor did anything intentionally, and that they scared Madam Lam just for fun and not to rob her, but she thought that they would rob her.  If the jury took the view that these explanations might be true, they must have found that the two defendants did not have the intention to rob.  Yet nowhere in his speech or his answer to the jury’s question did the Judge clearly point out the explanations given in the two defendants’ statements.

34. Mr Leung for the Respondent contends that, although the Judge did not clearly point out to the jury the explanation given by D1, he did read out the entire answer given by D2, after which he directed the jury in clear terms to consider the evidence regarding the defendants’ intention.  The relevant part of the speech reads as follows:

“In any event, please bear in mind that the burden of proof is on the prosecution.  You have to be sure that each of D1 and D2 did take part in assaulting Madam Lam and that their intention was to rob her before you can convict him or them.  Otherwise, you have to acquit him or them.

Finally, there is something tricky here.  That is, if, and I say if, for whatever reasons, you can only be sure that D1 or D2 did the act of assault but did not have the intention to rob, you may, and should, still find him or them guilty of common assault.” (Appeal bundle p.138U to 139C) (underline supplied)

35. It is true that the Judge did direct the jury to consider whether the two defendants had the intent to rob Madam Lam and on what grounds it could be concluded that both defendants or either one of them did not have the intent to rob.  However, in his summing-up, the Judge never pointed out any evidence in the confession statements of the two defendants that the jury should consider and that might give rise to a reasonable doubt as to the defendants’ intent to rob.

36. For the above reasons, we are of the view that the Judge had failed to give a clear and fair direction to the jury on the explanations given by the two defendants. Accordingly, the appeal should be allowed on this ground, which comprises Grounds of Appeal (1) and (2) and part of Ground of Appeal (3).

37. Grounds of Appeal (3) and (4) relate to what the two defendants said in their confession statements about their being drunk and running down the staircase to the lobby of the building.

38. In considering whether a defendant had the necessary mens rea of the offence, the jury should be directed along these lines: that the mind of a defendant was influenced by drunkenness so that he acted in a way in which he would not have done had he been sober does not amount to a defence if he had the necessary intent; a drunken intent is nevertheless an intent. The jury should also be directed to consider all the evidence, including that relating to drunkenness, and to draw the proper inference, that is, having accepted that the defendant was drunk, the jury should ask themselves whether they are sure that the defendant had the requisite intent at the time of the offence. See R v Sheehan (1975) 60 Cr App R 308 at 312.

39. Turning to the issue on the two defendants running down the staircase to the lobby of the building, the Judge had, in answering the written question of the jury, told them that they had to consider each defendant’s conduct before, during and after the commission of the offence, and that such conduct might provide some clues to the defendant’s intent at the material time.  It follows that the fact that the defendants ran down the staircase to the lobby of the building must have been a matter which the jury had been asked to consider.  Mr Leung, Counsel for the Respondent, has argued that, insofar as the case is concerned, the ‘subsequent’ act mentioned by the Judge referred to D1’s act of entering the premises and ransacking the room.  With respect, we do not agree. In our view, the acts done before, during and after the commission of the offence which the jury had been directed to consider, obviously included the act of running down the staircase to the lobby of the building. In the present case, according to their confession statements, the defendants’ explanation was that they did not mean to commit a crime, that they did the act in question for fun, but their conduct led Madam Lam to think that they would rob her and to cry out “robbery”, and that they fled not because they had committed the offence in question, but because D1 heard someone inside the room calling the police.  On the evidence, the two defendants had used the staircase instead of taking the lift, and this was something that the Judge had also mentioned in his summing-up. The jury might probably regard this episode of running away as a “subsequent” act of the defendants which they had been told to consider.  As there existed such a possibility, the Judge should have directed the jury that flight per se was not evidence of guilt and that they had to carefully consider the evidence of the case, including the oral admission of the two defendants, which suggested that they might have fled following commission of an offence or they might have fled for innocent reasons.  The Judge had obviously failed to do so, and this might have deprived the defendants of a fair trial.

40. Indeed, in the present case, the explanations given by the two defendants were entirely relevant to the mens rea.  Their explanations may be summarised as “they had no intent to commit the offence and did the acts in question simply for fun to scare Madam Lam”.  The Judge had failed to clearly direct the jury to consider this crucial explanation.

41. As we are already of the view that the appeal should be allowed on the above four grounds, it is not necessary for us to deal with Ground (5).  Suffice it to say that, in the circumstances of the case, Ground (5) is unfounded and cannot be established.

Conclusion

42. For the above reasons, we grant leave to appeal to both defendants and, treating this application as the appeal hearing, we allow the appeal, quash the convictions and set aside the sentences.

43. We have heard submissions from the parties on the issue of retrial.  The main reason for allowing the appeal is that the Judge had failed to clearly and adequately point out to the jury in his summing-up the explanations of the two defendants which could constitute a defence, rather than there was insufficient evidence or the jury had refused to accept the prosecution evidence.  In the circumstances, we decide to remit the case for retrial at the request of the Respondent. At this stage, we order that the two defendants be remanded under the custody of the Correctional Services Department, with liberty to apply to the Court of First Instance for bail pending retrial should they wish to do so.