THE QUEEN v. KWOK CHI WO

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JUDGMENT OF THE COURT

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Macdougall, J.A.:

1. The applicant was convicted of murder after a trial before Wong J. and a jury. He now applies for leave to appeal against that conviction.

2. On the evening of 1 July 1988 the deceased, a girl aged 19 years, attended a school graduation dinner held at a hotel in Tsimshatsui East. At about midnight when the festivities had concluded she and a girl friend took an MTR train and travelled together as far as Causeway Bay. There the friend. alighted. The deceased continued the journey to Shaukiwan where she lived with her family on the 6th floor of a 25 storey block of flats. She never reached home.

3. On the morning of 5 July the caretaker of the block of flats detected a foul smell emanating from the No. 1 lift shaft. He reported the matter to the company responsible for servicing the four lifts in the building, and that afternoon a technician arrived and discovered the naked body of the deceased lying face downwards at the bottom of the shaft.

4. Dr. Beh, the forensic pathologist who performed the autopsy on the deceased's body, found that she had suffered numerous injuries, most of which, not surprisingly, were consistent with a fall down the shaft. He was of the opinion that a bruise on the left side of her forehead, abrasions to both nipples and a bite mark over the outer aspect of her left breast had been caused before death, and that a bruise at the front of her neck was more likely to have been sustained prior to her fall. However, due to the decomposed state of the body, Dr. Beh was unable to determine the cause of death. Thus it was not known whether the deceased had died before or after the fall.

5. During the course of door to door enquiries throughout the building the police came to learn of an assault on another girl which had occurred in a lift in the same building in April that year., The victim was able to provide them with a description of her attacker.

6. Subsequently, on the evening of 6 July, in the course of their continuing door to door enquiries, they came to a flat on the 14th floor which was occupied by the applicant and his parents. On noticing that the applicant's features matched the description that had been given to them, the police took him to Police Headquarters. There he voluntarily admitted that he had assaulted a girl in a lift on the 12th floor of the building at about midnight one night in April. When shown a photograph of the deceased, however, he denied that he knew or had ever seen her.

7. On the following day he was taken to see a pathologist to provide hair and blood samples. He was then taken to a police station and was again interviewed by the police. It is at this point that there is a divergence between the evidence for the prosecution and that of the applicant.

8. Police officers testified that under caution the applicant made a confession, exhibit P.10, the substance of which was that at about 1 a.m. on 2 July he followed the deceased into the No. 2 lift. We pause here to observe that this lift and the No. 4 lift serviced the even numbered floors and the other two lifts serviced the odd numbered floors. When the lift was ascending he seized the deceased around the neck from behind using both arms. After an initial struggle she became limp and he laid her on the lift  floor.

9. On arriving at the 24th floor, which was the highest floor the lift could reach, he carried her up a staircase to the 25th floor and from there to the roof of the building where he removed all her clothes and raped her. He then carried her down to the 25th floor and laid her on the floor outside the No. 1 lift. From there he took that lift to the 15th floor, alighted and descended the staircase to the 14th floor where he obtained a length of welding rod from behind a smoke lobby door. With this he returned to the 25th floor by taking the No. 1 lift. Having alighted, he reached inside and pressed a button to cause it to descend. He then inserted one end of the welding rod into a hole specially provided for servicing at the top of the door, disengaged the locking mechanism and prised open the door. This had the effect of automatically stopping the lift. Using his foot to prevent the door from closing, he dragged the deceased onto the roof of the lift and dropped her down the shaft through a gap between the right hand shaft wall and the lift.

10. The gist of his explanation for what he had done was that after he had raped the deceased he noticed that she did not appear to be breathing. However, fearing that she might subsequently recognise him, and not knowing whether she was dead or alive, he decided to drop her down the shaft.

11. He then returned to the roof, inserted her clothing into a cloth bag that she had been carrying, took it downstairs and placed it in an Urban Services litter bin a short distance away in Shaukiwan Main Street. Returning to the 14th floor, he replaced the welding rod behind the smoke lobby door and returned to his flat.

12. On the following day, 8 July, he was again cautioned and asked whether he was willing to perform a  video recorded reconstruction of the incident. According to the police he consented to do so, and the reconstruction was witnessed by a Superintendent, the Commander of the Police Training Unit, who was chosen because he was not attached to the investigation.

13. Later that day when charged with murder before another Superintendent the applicant stated under caution that he had been unable to control himself, that he did not intend to kill the deceased and that he felt remorseful.

14. There was also a cautioned statement which the applicant had made to the police on the preceding day in which he confirmed that in April he had assaulted the other girl as was she leaving a lift, that he had pursued and caught her and was dragging her along the floor to a smoke lobby when a man emerged from a flat on whose door the girl had pounded during the course of her attempt to escape. This alarmed the applicant and caused him to flee. In this statement he said that he had fabricated part of the first statement he had made concerning the April incident and explained that he had done so because he was afraid that when the police made further enquiries they would discover he was connected with the killing of the deceased.

15. Counsel who appeared for the applicant at the trial raised no objection to the admission of either of the two statements relating to the incident in April. Indeed he sought to use them to snow that it was because of the admissions made in the first of them that the police sought  to place the blame for the death of the deceased on the applicant.

16. After a voir dire as to the admissibility of the confessional statement, Exhibit P.10, of the confession made at the formal charging and of the video recording of the reconstruction of the crime, all three were admitted in evidence before the jury. It was on these confessions that the Crown relied to convict the applicant.

17. The applicant's defence was that he did not kill the deceased, that he had not left his home after 9.15 on the evening of 1 July until departing for work as usual the following morning, that the confession he made to the police as to having killed the deceased consisted partly of material concocted by the police and partly of answers invented by himself, and that he had cooperated in the recording of the confession only after having been threatened, punched in the stomach, slapped on the face and kicked in the calf. He claimed that the answer to the charge had been suggested by an inspector, written down by the interpreter and that he had signed it.

18. As to the video recorded reconstruction the applicant claimed that he had been told by the police that he "only had to do in accordance with what the statement said". Notwithstanding the allegations of police violence, the applicant, when asked by a medical officer during the course of a physical examination at Laichikok Remand Centre on 14 July whether he had been assaulted by anyone, replied that he had not.

19. Mr. Eddis, who appeared for the applicant in this court but not at the trial, advanced, in effect, five grounds of appeal.

20. First, it was said that the judge erred in law in that in telling the jury that it was for them to decide what inferences or conclusions to draw, failed to direct them that the absence of reasonable doubt sufficient to justify a conviction should apply equally to facts found as to inferences drawn. we can find no substance in this complaint. There is no suggestion that the judge failed to give a proper general direction on the burden and standard of proof. Having reviewed the various authorities this court made it plain in The Queen v. Pang Shun-yee [1988]2, HKLR 146 that, in the absence of special circumstances and providing that a proper direction is given on the burden and standard of proof, no specific direction is required as to the drawing of inferences.

21. Secondly, complaint was made of the way in which the judge directed the jury in relation to confessions. Mr. Eddis cited two passages on which he placed reliance. The first was an observation by the judge that "there is nothing mysterious or sinister about confessions". The second, is the following direction which was given after a recitation of the defence case and the allegations made by the applicant as to the circumstances in which the confessions were made:

"It is your function to decide whether or not the confession is true. In so doing you should consider all the circumstances in which it was made when assessing he weight to be attached to it. It you are unsure, for `.whatever reason, that the confession is true, then you must disregard it. If, on the other hand, you are sure that the confession is true, the you may rely on it, even if it was, or may have been made as a result of oppression or other improper circumstances."

22. It is the last sentence in that passage to which Mr. Eddis took objection. He conceded that while it is correct that whether a confession was made voluntarily and thus admissible in evidence is a matter for the trial judge, and that the function of the jury is to determine whether it is true (see Prasad v. R. (1981)72 Cr. App. R.218), the direction embodied in the last sentence of that passage had the effect of leading the jury to think that the use of oppression or other improper means to obtain a confession was irrelevant to an assessment of its truth.

23. We accept that where a judge directs a jury in the terms in which the judge directed the jury in the present case, he should normally go on to tell them that if they thought the accused had been forced to make a confession they might think that was a good reason why it was not true. However, since the very basis of the defence was that the confessions were not true because they had been extracted by violence and threats, and consisted of inventions by the police and by the applicant himself, we find it inconceivable that the jury could have been in the slightest doubt that the question of whether the applicant had been threatened and beaten was highly material to the issue of the truth or falsity of the statements.

24. Indeed the judge made it plain that the allegations of threats and violence were central to the defence case. He said:

"The crux of the accused's case is that he did not kill the deceased, and as regards the statement, P.10, that it was extracted from him by threats and violence from police officers and the contents of that statement were composed by the sergeant from material in possession of the police, and partly by him out of his own imagination."

25. After outlining the allegations the applicant had made, the judge continued:

"He told you that it was under those circumstances he concocted the statement with the assistance and prompting of the sergeant. The video reconstruction was just a play acting with him playing the male leading role according to the written script, and that was Exhibit P.10, the statement. He was still in fear of being beaten by the police at that time."

 

Finally he said:

 

"As I have already told you that the only evidence to connect the accused with the death of Yau Tsz-kwan (the deceased) is his confession, and if you come to the conclusion that the confession is untrue, that would be the end of the matter and you must find the accused not guilty of murder or any other offence which I will direct you to find. But if you are satisfied so that you are sure   that the confession is true and you will attach such weight to it as you consider proper and go on to consider whether the accused is guilty of murder or of the lesser offence of manslaughter."

26. We are therefore of the view that this ground of appeal must fail. We would add that in our opinion the jury, having seen the video recorded reconstruction - as have we in the course of this hearing - would have been entirely justified in concluding that the applicant was there giving a comprehensive and voluntary account of how the crime had been committed.

27. A further ground of appeal was that there had been a material irregularity in the course of the trial in that the judge permitted the prosecution to introduce into evidence admissions made by the applicant in response to questions asked of him by his father when the applicant in the company of police officers visited his home after the video recorded reconstruction had been completed.

28. The prosecution evidence as to what had happened was this. Shortly after entering the flat the applicant's father asked him whether he had committed the offence. The applicant replied "Yes I did". A few minutes later his father asked him how he had been treated by the police and whether they had forced him to admit the crime. To this the applicant replied that the police had treated him well, that he had really done it and that he had not been forced to admit it.

29. The officer who had overheard this exchange recorded it in his notebook, but although he later notified his superior officer as to what had happened, it was apparently thought that this evidence would not be required. It was not until the morning after an overnight adjournment during the course of the officer's evidence that the police officer assisting prosecuting counsel advised him that he had just come to learn of the existence of this recorded conversation. Prosecuting counsel immediately notified defence counsel and, when court resumed, he informed the judge of what had happened and that he proposed to lead that evidence. Defence counsel then sought and was granted an adjournment to consider the matter. The following morning the court reconvened and the evidence was given without objection.

30. Mr. Eddis submitted that the judge should have excluded it for three reasons, first, because its introduction at this stage of the trial constituted a material irregularity, second, because the father's words amounted to an inducement held out to the applicant in the presence of a person in authority, and third, that although what the applicant was alleged to have said to his father was highly probative, the fact that the officer had not requested them to sign the recorded conversation had so dissipated the force of that evidence that its prejudicial effect greatly outweighed its probative value.

31. Mr. Eddis also contended that the judge, having admitted the evidence, misdirected the jury by saying:

"The police party and his son spent many hours in the premises. So there was ample opportunity for the accused to tell his father that he did not commit the murder, and that he had been ill treated by the police."

32. According to Mr. Eddis this passage is objectionable because the words "ample opportunity" suggest the applicant and his father had been left alone to discuss matters in private.

33. In our view this evidence was plainly admissible. we are of the opinion that the case of Kane (1977)65 Cr. App. R 270, which Mr. Eddis cited in support of his submission that the reception of this evidence at that stage of the trial amounted to a material irregularity, does not give him any assistance. In the present case the prosecution, as it was perfectly entitled to do, introduced the evidence during the course of the presentation of its own case. Moreover, the defence was given notice that the evidence would be called and, after an adjournment was granted by the judge to enable the defence to consider its position, no objection was raised. This is entirely different from the situation in Kane where the evidence in question was introduced without prior notice through the medium of cross examination of the accused.

34. As to the contention that the father's words amounted to an inducement in the presence of a person in authority, Mr. Eddis sought to rely on the case of Cleary (1964) Cr. App. R 116. The facts of that case are clearly distinguishable from those of the instant case where the undisputed evidence was that the father had merely asked the applicant "Was this case done by you?". In Cleary the prisoner's father had said "Put your cards on the table. Tell their the lot. If you did not hit him, they cannot hang you."

35. We think that counsel was right hot to object to the reception of this evidence as there was no possible ground on which he could have founded a proper objection. There is no force in the contention that the police officer should have asked the applicant and his father to sign the record he had made of what they had said to each other. The judges rules did not require him to do so. He simply recorded the conversation for the benefit of his own recollection.

36. We are also of the opinion that nothing the judge said could reasonably have been interpreted by the jury as suggesting that the applicant and his father had been left alone, thereby leading to the conclusion that the admissions were all the more credible.

37. A further ground of appeal was that "the judge failed adequately to direct the jury on the danger of putting any weight on the alleged confession, (P.10), in the light of the fact that the supposedly true and voluntary confession concerning the disposal of the body had to be radically changed when the audio visual replay was enacted".

38. In that confession the applicant said:

"After I had inserted the welding rod and prised open the door, I then blocked the door with my foot/feet. Then with my hands I pushed the girl along the floor towards the lift shaft. At that juncture, the lift stopped at the position which was one or two floors below. There was some space, about two feet in width, on the side close to the door, in the lift shaft. Therefore the girl fell straight down to the base from this space."

39. At the video recorded re-enactment the applicant, having indicated the precise position of the roof of the lift in relation to the 25th floor after he had prised open the door with the welding rod on the night in question, was asked what he then did. He replied:

"I dragged the female deceased to the lift gap on the right side and pushed her down."

40. We have the greatest difficulty in accepting this contention. The reference in the confession, P10, to using his foot to block the door was a description of what the applicant did while pushing the deceased towards the lift shaft, not of what happened subsequently when he entered the shaft and dragged her to the gap through which she was dropped.

41. We do not think that the applicant's failure to make any reference at the re-enactment to the means he had used to keep the door open when manoeuring the deceasing from the floor outside the lift entrance into the shaft constitutes a contradiction. It is, at most, an omission.

42. Similarly, the applicant's assertion at the re-enactment that he had used paper as a wedge does not contradict anything he said in the confession, P10. On the contrary, it seems to us that the two accounts are perfectly consistent in this regard. During the course of the re-enactment when describing that he dragged the deceased to the gap and pushed her down, the applicant, as in his confession, made no reference to having wedged open the door with paper. It was not until he was specifically asked "What happened to the lift door?" that he gave that information. We do not consider that his mention of this detail in response to a direct question about the condition of the lift door at the relevant time can fairly be characterised as a "radical change" in his story.

43. We do not find anything sinister in the applicant's explanation that he used paper as a wedge for the door. Plainly there were pieces of paper on the roof of the lift at the time of the re-enactment even though he claimed that he had used another piece on the night of the crime and had discarded it in a bin in the building. There was no suggestion that the police had rehearsed the re-enactment with the applicant. Indeed, as we mentioned earlier, he alleged that he had simply been told that he "only had to do in accordance with what the statement said".

44. It was also suggested that the position of the lift demonstrated by the applicant at the re-enactment conflicted with the description in his confession that "the lift stopped at the position which was one or two floors below." We do not agree. It was plain to us from our viewing of the video film that at the re-enactment the roof of the lift was a little below the level of the 25th floor. That being so we do not think that there was any material inaccuracy in the description in the confession. If the top of the lift was a little below the level of the 25th floor, it would not be unreasonable to think that the bottom would be slightly below the level of the 24th floor and thus projecting into the upper part of the shaft on the 23rd floor.

45. On the hypothesis that the applicant had confessed to the crime as the prosecution maintained he had, it is inconceivable that he would have meant that the roof of the lift was between the 23rd and 24th floors at the time when he entered the lift shaft with the deceased from the 25th floor. On the alternative hypothesis that the police had concocted this passage in the confession, it is equally inconceivable that, if the passage bears the meaning that Mr. Eddis submits it does, the police would have been responsible for such an absurdity.

46. Much was sought to be made of the fact that in his confession the applicant described the space from which the deceased fell as being about two feet in width on the side close to the door, and that he drew a sketch in which he inserted the word "space" with an arrow pointing to a position on the right side a little closer to the front than to the rear of the lift.

47. Since a plan of the lift shaft indicated that the width of the space between the right side of the lift and the shaft wall varied between 280mm at the right rear and 200mm at the right front, it was suggested that it was unlikely that the deceased's body could have fallen to the bottom of the shaft in the manner in which the applicant had described in his confession, P.10, and at the re-enactment.

48. However, a Scientific Evidence Officer from the Forensic Division of the Government Laboratory testified that he had personally examined the space between the lift and shaft walls by stepping out from the lift roof. He was sure that a body could fall freely down the shaft from the rear end of the space, and that, although it could also slip through the space nearer the front of the lift, it would rub against the wall in the process. It was not suggested to him in cross-examination that he was wrong.

49. We think it highly unlikely that anyone concocting an account of how a girl happened to fall to the bottom of a lift shaft would tell a story such as that in the confession, P.10. In his testimony at the trial the applicant alleged that he was not aware that it was possible to lever open the door of a lift by inserting an instrument into the hole in the door. According to him it was the officer taking the confession who invented the passage in which he is recorded as saying that he took a welding rod to the 25th floor, used it to open the door and then, holding the door open with his foot, pushed the deceased down the gap between the lift and the shaft wall.

50. Indeed, we cannot help but observe that if a story was to be concocted, the obvious invention would be that the rape was committed on a staircase behind smoke lobby doors on the 24th or a lower floor, and that the lift had been sent to a higher floor before the door was levered open, thus enabling the body to be thrown down an unobstructed shaft.

51. During the video recorded reconstruction the applicant took the police by lift from the 25th to the 15th floor in order to show them the route he took by staircase from the 15th to the 14th floor where the welding rods were kept. Because it was not possible at that time to use the No. 1 lift, they took the No. 3 lift which is situated on the opposite side of the lobby. It is plain from the conversation between the applicant and a police officer after they had alighted from the No. 3 lift that, owing to the direction in which it was facing, the officer was under a mistaken impression as to the correct turn to take, and that the applicant had corrected him. This did not present the picture of a prisoner simply doing what he thought the police expected of him.

52. Moreover, we are of the opinion that the jury would have been entirely justified in concluding that the  account which the applicant gave during the re-enactment as to the position of the lift after he had used the welding rod to open the door on the 25th floor, was spontaneous and truthful. It was noticeable that he had the lift technician adjust the height of lift several times before he finally said that it was in the same position as it was on the night when he dropped the deceased down the shaft.

53. Mr. Eddis had no complaint about the judge's direction on murder. He contended, however, that the jury were not given the assistance they should have received on the possible verdict of manslaughter. Since the prosecution was unable to establish whether the girl had met her death before or after she was dropped down the shaft, and since the applicant had said in his confession, P.10, that after he had seized the deceased from behind she struggled for a while and then her body had gone limp, the judge directed the jury as to the intention of the applicant with reference to the alternative ways in which it was possible to deduce from his pretrial statements that she could have met her death.

54. The contention of the prosecution was that notwithstanding the applicant's assertions both in his confession and in the answer to the charge that he had not intended to kill the girl, the truth of the matter was that this had all along been his intention and that these pretrial protestations to the contrary were merely attempts to mitigate his guilt.

55. Reliance was placed on the passage in the applicant's confession in which he said that, having raped her, he feared that she might later be able to recognise him, and not knowing whether she was already dead, had decided to drop her down the shaft. The inference from this admission was that the realisation she might subsequently be able to recognise him if she were allowed to survive must have been obvious to him at the very outset.

56. Immediately prior to giving his directions on murder and manslaughter the judge referred the jury both to the applicant's pretrial account of how he had seized hold of the deceased around the neck and to the evidence of Dr. Ben as to the possible consequences of such an act. He said:

                "In the statement, Exhibit P.10, and the video, the accused said: -

'I grabbed hold of her from behind with my right arm and gripped my right hand with my left hand to give reinforcement. She struggled immediately. However, she did not make any noise. I did not know how long she had struggled. Anyway before the lift reached the 6th floor, she stopped struggling any more. I did not know if she had fainted.'

He also said that he grabbed her like this for about thirty seconds.

 

well, in his evidence he told you that it only took about 15 seconds to get to the 6th floor from the ground floor by lift. It was suggested that if he had grabbed her, it could only have been for 15 seconds. That of course is a matter for you.

 

Now from this statement it does appear that considerable force was used when the accused was grabbing the deceased from behind. You will recall the evidence of Dr. Beh that if a moderately built girl like the deceased was grabbed around the neck in an arm-lock for about 30 seconds it was possible she would lose consciousness and it is also possible that instantaneous death would occur. On the other hand, the doctor also said that the person might recover very quickly without any lasting effect or permanent injury. It all depends on the time and the force used Dr. Ben also said that even a slight degree of force had been used, death might still have occurred because of the vaso-vagal mechanism."

57. After he had directed the jury on murder the judge gave the following direction on manslaughter:

"On the other hand, having reviewed all the evidence, in particular the confession, if you come to the conclusion that the accused did not intend to kill tire deceased or cause her serious bodily injury when the grabbed her in the lift but death nevertheless occurred as a result of an unlawful act by the accused, and that is the grabbing in the lift, which constitutes an unlawful act of assault, and at the same time he believed that she was already dead when he pushed her down the lift shaft, in that situation you will find him guilty of the lesser offence of manslaughter instead. When you consider manslaughter you will again have regard to the passages in the answers to questions 13 and 32."

58. The two questions and answers to which the judge referred are as follows:

                "Question: Why did (you) have to do so

59. The gist of Mr. Eddis's complaint was that although the judges direction on manslaughter was a correct statement of the law, he should then have repeated to the jury not only what the applicant had said in his confession, P.10, and at the re-enactment as to what had happened in the lift, put also Dr. Beh's testimony of the possible medical consequences of putting a head lock on the deceased.

60. We do not think there is any merit in this contention. Having adequately summarised the applicant's version of the events in the lift and Dr. Ben's testimony as to the possibility that death might have occurred as a result of vaso-vagal inhibition, it was not incumbent on the judge to repeat these matters when giving his directions on the law immediately afterwards. The jury could not have been otherwise than fully aware of the significance of this evidence in relation to the question of manslaughter.

61. From what we have said it follows that we do not consider the conviction to be either unsafe or unsatisfactory. The application for leave to appeal against conviction is refused.