HKSAR v. CHAN YIU HONG

CACC399/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 399 OF 2002

(ON APPEAL FROM HCCC 78 OF 1994)

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REASONS  FOR  JUDGMENT

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McMahon J (giving the judgment of the Court) :

1. On 18 July 2002 the applicant was convicted on a single count of robbery after a trial before Deputy Judge Toh and a jury.  The offence had taken place on 13 December 1993 and was allegedly committed by the applicant and an accomplice.

2. The trial of the accomplice, a person called Ng, took place in March 1995.  Prior to that trial the applicant, while on bail, had absconded from the jurisdiction.  A warrant for his arrest was issued but was not able to be executed until his return to Hong Kong and his arrest for other unrelated offences in February 2002.

The prosecution case

3. The prosecution case was that the applicant and Ng had gained access to the victim’s flat by posing as employees of a parcel delivery service who wished to deliver a parcel to the victim (PW1 at trial).

4. PW1, a calligraphy teacher, testified that she was alone in the flat with her two-year-old daughter.  Because the applicant and Ng appeared to be carrying a parcel, she let them into her flat.  Once inside, the applicant produced a knife and pointed it at PW1’s chest.  He then pushed PW1 into her bedroom and tied her hands with nylon string which he had brought with him.  While the applicant was dealing with PW1 in this way Ng had remained with her daughter in the sitting room of the flat where he stuffed a cotton glove into the child’s mouth to prevent her crying.

5. The applicant found various paintings in the bedroom of PW1 and a collection of stamps.  He took those items and he and Ng left the flat.

6. PW1 managed to free herself and made a phone call to the police who intercepted and arrested both the applicant and Ng nearby in a car driven by a third man.  That person was not charged with any offence due to a lack of evidence.

7. In the car the police found the stolen items.

8. When interviewed under caution the applicant admitted he had gone to PW1’s premises with Ng, though he thought there was an honest reason to do so, that is, to assist Ng to collect certain items from PW1.  In the record of that interview however the applicant also admitted that he had tied up PW1 in the course of collecting those items.

The defence case

9. When giving evidence at trial the applicant said the incriminating parts of his recorded interview were fabricated by the police and that though he had gone into PW1’s flat with Ng, both Ng and PW1 had gone into the bedroom.  Ng had then come back out into the sitting room with the paintings and given them to the applicant and asked the applicant to wait outside in the lobby.  The applicant did so, and shortly afterwards Ng had come out and they had left.  The appellant thought that Ng had simply retrieved the items and that there was no dishonesty involved.

10. The applicant sought leave to appeal against his conviction.  At the conclusion of proceedings on 24 January 2006, we dismissed the application and ordered that 3 months of the time the applicant had spent in custody pending the hearing should not be counted towards the sentence he is currently serving. We now give our reasons for the conclusions we reached.

11. The grounds of appeal advanced by Mr Allen on behalf of the applicant may be summarised as follows :

(1) that the judge failed to direct the jury that the burden was on the prosecution to prove the applicant’s statements under caution were given in the circumstances the police witnesses had said they were given (“the statements ground”);

(2) the judge failed to direct the jury that they could take into account in the applicant’s favour the fact that Ng, his accomplice, had been acquitted in the earlier trial (“the accomplice’s acquittal ground”);

(3) the judge failed to direct the jury on the evidence given at trial as to the applicant’s flight from the jurisdiction (“the flight ground”);

(4) that the applicant’s counsel at trial had failed to apply for a permanent stay of the proceedings in the face of the applicant’s instruction to do so (“the stay ground”).

We will deal with those grounds individually.

The statements ground

12. In support of this ground Mr Allen argued simply that in her directions the judge had failed to expressly direct the jury that the prosecution had the burden of proving beyond reasonable doubt that the admissions made by the applicant were the product of his own mind and that they where true.

13. In this regard the judge said :

“The defendant’s case, however, is that he did not say these things and that they were fabricated by the police officer and he was forced to write it because of the treatment he had received prior to these interviews and so the admissions are not true.

In deciding whether you can safely rely upon these admissions, you must decide two matters.  First of all, did the defendant in fact make these admissions.  If you are not sure he did, then you should ignore them.  If however you are sure that he did, then you go on to consider the second point.  Are you sure that the admissions are true?

When deciding whether the admissions are true, you should have regard to all the circumstances in which you find the admissions were or may have been made and consider whether there were or may have been any circumstances which might cast doubt upon the reliability of these admissions.  In deciding whether admissions are true, decide whether they were or may have been made or given as a result of oppressive or improper conduct on behalf of the police or improper circumstances.

If the defendant is correct or may be correct when he alleges that he was threatened and beaten up, then you may think it is unsafe to rely on these records of interview.  If you think that the defendant is correct or may be correct when he alleges that he was denied toilet visits and denied the change to contact his home, again you may think it is unsafe to rely on these records of interview.  It is a matter for you.” (Emphasis added)

14. That was a perfectly proper direction based as it was on the current directions approved by the judicial studies board in Hong Kong.

15. But Mr Allen relies on the judgment of this court in R. v. Yu Ho Man (1995) 1 HKCLA 87 in regard to a judge’s directions to a jury on the subject of a defendant’s alleged admissions to the effect that the jury could rely on those admissions if they were sure that the defendant made the admissions and that they were true, even if the admissions may have been made as a result of ill-treatment.  Yang CJ said :

“Complaint is also made of one passage in the summing up where the judge in directing the jury on the confession statement said this :

‘If, on the other hand, you are sure both that the defendant made the confession and that it was true, you may rely upon it even if it was made or may have been made as a result of ill-treatment or inducement or other improper circumstances.’

It is submitted that this direction may have confused the jury.

While such a direction is strictly correct we consider that it is undesirable for judges to tell juries that they may rely on a confession even if it was made or may have been made as a result of ‘ill-treatment or inducement or other improper circumstances.’

We strongly advise judges to omit this formula.  Having referred the jury to the defence allegation that the statement was given as a result of violence, threats, promises and inducements or such one or more than one of these that are alleged, it is advisable for the judge to say no more in his direction to the jury that that before they can use the statement against the accused they must conclude that it was made by him in the sense that it was the product of his mind and that it is true.”

16. Mr Allen places particular emphasis upon the phrase in the judgment “in the sense it was the product of his own mind” and argues that as that phrase was lacking in the judge’s directions to the jury in the present case her direction was additionally unsafe.

17. In our view there is no merit in these arguments.  Firstly, it is quite plain from the judge’s direction to the jury that the jury could have been under no illusion that they had to be sure that the applicant said the admissions attributed to him and that those admissions were true.  For the judge to have gone further and directed the jury also that the prosecution had to prove these matters beyond reasonable doubt was unnecessary.

18. Nor is there any basis in law for the applicant’s complaint that the judge should have directed the jury that they had to be sure that the applicant’s statements were taken in the circumstances as alleged by the police witnesses.  The judge’s direction to the jury that they should consider the applicant’s evidence as to his being mistreated and, if they concluded it may be correct, then to further consider whether it would be safe to rely upon the contents of his instructions, is sufficient.

19. Finally in this regard Mr Allen’s suggestion that the judgment in Yu Hon Man requires an express direction that the jury be satisfied that a defendant’s admissions came from his own mind in our view seeks to replace principle with semantics.

20. It is plain from the context of that phrase in the judgment that it was said to emphasise, in the circumstances of that case, the fundamental principle that the prosecution must prove, before a defendant’s statement can be used as evidence against him, that a defendant’s words were his own and not fabricated.  Whatever form of direction given is most appropriate will depend on the circumstances of the case, though we suggest the standard form of direction contained in the specimen directions issued by the judicial studies board is the appropriate starting point.

21. In the present case the judge’s directions, in the context in which they were given, adequately instructed the jury.  The jury could have been under no misapprehension that if they concluded the applicant’s recorded interview was or might have been a fabrication that they had to ignore that interview.

The accomplice’s acquittal

22. PW1 in her evidence at the trial of the applicant had been cross-examined, though it is fair to say not at length, about the fact that Ng had been acquitted after she gave evidence against him at his trial for the same robbery offence in 1995.

23. Mr Allen complains in this regard that the judge’s direction to the jury concerning that evidence was insufficient.  That direction was :

“… we do not know the real reason why Ng was acquitted and you must not speculate why he was acquitted.  It is not relevant in this case before you that Ng was acquitted because you are charged with deciding this case on the evidence that you have heard in this court room.”

24. Mr Allen says that the jury should have been reminded that the primary evidence against Ng was that of PW1 and that they could take into account in assessing her credibility in the present case the fact that a jury had disbelieved her on a previous occasion.

25. We disagree.  As a starting point cross-examination of PW1 as to her giving evidence at the trial of Ng should not have been permitted, because it had not been established before the judge that Ng’s acquittal was brought about as the result of the jury in that trial concluding that PW1 had lied or that they had disbelieved her.

26. In HKSAR v. Wong Sau Ming [2003] 2 HKLRD 90, the Court of Final Appeal dealt generally with the question of admissibility at trial of the evidence of a witness who had been found to have lied in an earlier trial.  In the majority judgment of the court delivered by Li CJ it was held :

“32. In principle, in order to satisfy the test of relevance, cross-examination as to credit on the ground of veracity by reference to an acquittal in an earlier case should only be permitted where the following threshold requirements are met : It must clearly be established that :

(1) The verdict of acquittal in the previous case involved a finding by the court that the witness in question had lied (or which amounts to the same thing, that the court had disbelieved the witness); and

(2) The circumstances of the previous case are of such a kind when compared to those in the instant case and the previous finding is not so remote in time that the finding of lying in the previous case would materially affect the court’s assessment of the witness’s veracity in the instant case. Unless these requirements are satisfied, cross-examination by reference to the acquittal in the previous case should not be permitted.”

27. A jury may acquit a defendant at trial on the simple basis that they do not know who to believe or disbelieve.  More commonly perhaps, a jury in a particular case may simply not be sure of a witness’s evidence and place lesser weight upon it, but still not go so far as to conclude that the witness was lying or disbelieve the witness.

28. The basis of a jury’s acquittal of a defendant is very often difficult to determine.  As was said in Wong Sau Ming :

“… A jury verdict would ordinarily be a non-speaking verdict, so that the respective reasons of the several jurors leading to their unanimous or majority verdict cannot be ascertained.  The verdict is opaque.  That being so, it would only be in very exceptional circumstances that a jury verdict would be able to meet the first requirement; for example, where the jury expresses its view that the witness in question had lied in a rider to its verdict….”

29. In the present case there was simply insufficient evidence that PW1 had lied or was disbelieved so as to satisfy the first threshold requirement referred to in Wong Sau Ming; although it seems clear that there was sufficient nexus on the issues raised in the two trials, relating as they did to the same robbery, to satisfy the second of the threshold requirements.  In the present case when PW1 was cross-examined about her evidence in the trial of Ng and it was put to her she had been disbelieved she denied this.  The question itself was not evidence and no other evidence was separately adduced to show she had been disbelieved. Such a course would not have been prevented by the finality rule : Wong Sau Ming (supra) pp. 104.  Accordingly, apart from the bare fact of the acquittal of Ng there was no evidence going to establish that the jury’s verdict in that trial involved a finding that PW1 had lied.  In those circumstances the judge’s direction to the jury was sufficient and there was no need for her to go further.  There is nothing in this ground.

Flight

30. During the cross-examination of PW1 on the subject of the acquittal of Ng the following exchange occurred :

“Q:  You accept he was found not guilty?  You said he was guilty from the witness-box and the jury from the jury box said he was not guilty.

A:    One of the reasons for his being acquitted was that he had been instructed to do so.  The main culprit had fled, he was just an accomplice. …”

31. In other words the evidence revealed to the jury, albeit very briefly, that the applicant “had fled”.

32. The judge was aware of the possible prejudicial effect of this evidence and before summing up the case to the jury raised the matter with both counsel at trial :

“COURT:   Before the members of the jury are brought in, I would like to ask counsel, there is one matter that hasn’t been covered and it is that Madam Chun, when giving her evidence, you will recall under cross-examination she mentioned something about the accused in this case had fled…

MR EGAN:  Absconded.

COURT:  … now do you wish me to deal with it in this case by saying that — to ignore what she said because even if there is no evidence on what happened she mentioned he fled but that is not evidence of anything.  It does not prove guilt or otherwise.

MR EGAN:  My Lady, I think…

COURT:  Or do you — I think it’s better for me to just ignore that.

MR EGAN:   Right, you will recall that when she said that in cross-examination I completely ignored it and moved on to something else.

COURT:   Yes, yes.

MR EGAN:   My learned friend and I have both discussed this.  What we were going to ask you to do is to ignore it.

COURT:   All right.

MR EGAN:   On the basis that we think more harm that good will be done by reminding them of this because then they may start to ask questions of themselves and puzzle about it whereas if it’s not mentioned then with any sort of luck it will have just drifted off into the history of time.

COURT:  Yes, I’m inclined to agree.

MR EGAN:   But we both wanted it put on the record that we actually asked you to do that to protect ourselves in case it goes any further, that’s all.

COURT:  Yes, all right.

MR EGAN:   So you’ve pre-empted us from making that particular application to you.

COURT:  I see.

MR TAM:   Could I address you further in relation to this matter.

COURT:  Yes.

MR TAM:   Since our discussion, since my discussion with my learned friend I have re-thought the matter and I said to myself, if this case had happened say — sorry, if this trial were to take place say in 1995 or maybe one year later, 1996, then I would certainly be inclined to go along the way that my learned friend has suggested that simply to ignore it because there was only just one outburst, as far as I could recall about the accused having fled or absconded.

But since we are now in 2002, and the facts of this case happened in 1993, I’m afraid that there is a temptation for the jury to speculate as to what had happened between 1993 and 2002.  In itself I think that’s bad enough but now with the addition of this single outburst from the witness, Miss Chun, it may have reinforced actually what they already suspected.

So in that light I wonder if it might be appropriate perhaps just to ask them not to speculate about why the trial is held in 2002.  Perhaps without reference to the outburst of the witness.  I mean it’s certainly a matter worth thinking about.  I don’t have any particular strong view either way and if your Ladyship is minded to just ignore the matter altogether I’m happy to live with it.

However, the fact that we are now in 2002 and the events in question happened in 1993 already I think the jury must be starting to think.

COURT:  Well, perhaps I should say that — tell them not to speculate about the timing of this trial because it is not relevant to the decision in this case.

MR TAM:  I don’t know how my learned friend feels but of course it is a conscious decision on the part of the prosecution not to bring in the evidence of the absconding.

COURT:  That’s the thing you see, because it was never mentioned in evidence in any — either way by either party that if I should highlight it, it may have the opposite effect, that is what I’m concerned about.

MR TAM:  Yes.

COURT:  And I do not wish to highlight matters that is better left alone.

MR TAM:  Yes

COURT:  Mr Egan?

MR EGAN:  I adhere to my original view, my Lady.

COURT:  Yes.

MR EGAN:  Which is, I think more harm that good is likely to be done by your advising them not to speculate because then they’ll say, ‘Oh that’s right, PW1 said something about him having absconded.’

COURT:  That’s the thing.

MR EGAN:  Whereas nobody’s made any mention of that and I think now that the trial’s gone, or will have gone for them eight days…

COURT:  Yes.

MR EGAN:   … I think they will have forgotten about that.”

33. It can be seen that considerable thought was given to the particular matter by counsel as well as the judge.  They were in the best position to assess the effect of the brief mention of the applicant’s flight in evidence.  The trial stretched over eight days.  It is a matter of discretion as to whether a judge directs a jury to ignore objectionable or prejudicial evidence which has come before them.  Where reference to that evidence is fleeting or vague it may well be the best course to make no further reference to it.  That is because by referring the jury to it, even to tell them to ignore it, the judge may simply bring afresh to their attention the very evidence which they have been directed to ignore and to which otherwise, because of the minor part it played in the evidence as a whole over the period of the trial, the jury would have given no further thought.

34. In the exercise of its direction a court will give full weight to the views of counsel.  In the present case, defence counsel was adamant that the better course was to make no further reference to the offending evidence.  The judge, in view of the fleeting reference to the applicant’s flight in the early part of an eight-day trial, cannot be criticised for acceding to that view.  There is no merit in this ground.

The stay application

35. Mr Allen sought to adduce evidence before us that the applicant had instructed his counsel Mr Egan at trial to make an application for a permanent stay of the trial proceedings.  The complaint was that Mr Egan had failed to follow his instructions and had refused to make such an application.

36. Mr Allen sought to adduce evidence from the applicant and trial counsel Mr Egan and the then instructing solicitors in this regard.  We refused the applicant leave to do so.  That was because it was quite plain that any application for a stay of the trial was doomed to fail as it was based upon the non-availability of the original trial transcript, including the transcript of the evidence of PW1.  That transcript was unavailable simply because it had been destroyed in the normal course of time during the absence of the applicant.  Any stay application made would in effect have sought to reward the applicant for his absconding.

37. Because any such application could never have succeeded, it was completely immaterial to the course of the trial as to whether Mr Egan was in breach of his instructions in this particular regard or not.  Whether any such breach, in any event, was within the realm of counsel’s proper discretion as to the conduct of his client’s case was also therefore irrelevant, as the applicant can have suffered no prejudice from the application not being made.

38. Mr Allen informed us that the applicant had a sense of grievance as senior counsel who had acted prior to Mr Egan had advised that a stay application based on the non-availability of the transcript had a chance of success.  But even if such advice had been given, and we have difficulty understanding any legal basis for it in the circumstances of this case, it does not alter the position that the failure to make such an application prejudiced the applicant’s case not at all.

39. There is no merit in this final ground, and the application for leave to appeal against conviction is dismissed.

40. As the application was entirely bereft of merit, we not only dismissed the application but also ordered 3 months’ loss of time, pursuant to section 83W of the Criminal Procedure Ordinance, Cap.221.