Case Detail

CACC000553/1995

IN THE COURT OF APPEAL	1995, No. 553
	(Criminal)

THE QUEEN

AND

LAI YEE-WAH

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Coram: Nazareth V-P, Mortimer and Mayo JJA in Court

Date of Hearing: 2 October 1996 and 24 January 1997

Date of Judgment: 13 June 1997

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JUDGMENT

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Mortimer JA (giving the judgment of the Court):

1. On 26 July 1995 the applicant was convicted of murder before Stuart Moore J and a jury after a trial which lasted six weeks. He was given the mandatory life sentence.

The facts

2. On 21 August 1994 the applicant and a group of men armed with beef knives, including Chan Man-tam who pleaded guilty to manslaughter, chased Lui Wai-leung, the deceased, from a discotheque in Energy Plaza. They caught him in Chatham Road near some railings where they chopped him to death. The prosecution case was that D1, D2, D3, D4 and D6 escaped to Sai Kung where they hid until they were arrested later the same day. Four beef knives were found in a flower-bed where the assailants had thrown them. D5 was arrested at his home sometime later.

The evidence

3. The prosecution case against D2 to D6 depended upon confession statements each of them had made. The prosecution case against the applicant, however, depended not only upon the two confession statements made after his arrest but also the evidence of a witness who saw him with a beef knife chasing the victim with others before the attack. That witness later picked out the applicant on an identification parade.

4. Each of the accused at trial challenged the admissibility of his confession statements on a voir dire. At the end of the voir dire the judge ruled the confessions by D2, D3, D4 and D6 to be inadmissible and the prosecution was unable to continue against them.

The trial

5. The trial proper began against the applicant and D5 but during the trial, the judge reconsidered his ruling on D5's confessions when it became clear to him that an officer whose evidence he had rejected had been involved in bringing D5 to the police station immediately before he confessed. A point to which we will return.

The voir dire

6. Mr Jerome Matthews appears for the applicant. The main thrust of his submissions - to which we will turn - is that Stuart Moore J failed to properly evaluate the evidence of DPC12772 Leung, PW1 (Leung) and Station Sergeant Shum, PW2 (Shum) when giving his reasons after the voir dire.

7. A witness Chan Chi-ming was called by the defence. On the day following the offence that witness was taken in handcuffs to the police station to assist the police in their inquiries. They thought he knew the whereabouts of one of the accused. He was held in the police station for several hours and assaulted by various officers in an endeavour to persuade him to disclose information. He sustained bruising and abrasions together with a hairline fracture of the spine. On this the judge said (1129G-N):

"... I am quite satisfied that he (Chan) was exaggerating the number of officers and indeed the number of assaults upon him but it was in order to investigate that aspect that a number of witnesses were recalled on the day before yesterday for cross-examination and I can confidently exclude from the criticisms which are made against police who dealt with CHAN Chi-ming, two officers who I am quite satisfied were not involved in that kind of conduct.

They are DPC12772 ... Leung - I exclude him from the criticisms that were made. ... (his) evidence I found very impressive as it was when he was first called and I can also exclude from the criticisms that are made, Detective Sergeant SHUM."

The judge formed an adverse view of DPC4319 Lee whom he described as "not a truthful witness" and "that officer is simply not prepared to tell the truth about anything".

8. In these circumstances the judge found it difficult to find that statements made by accused persons which were either recorded by Lee or which were made in circumstances in which Lee was in control were voluntary.

9. It is suggested that the judge failed to take into account and evaluate evidence of the involvement of Leung and Shum in the assaults on the witness Chan Chi-ming because this was not drawn to the judge's attention and may have been overlooked. It is submitted that if this had been drawn to the judge's attention, he would have excluded the applicant's statements.

10. For convenience, this is referred to as "tainting". That is where a judge excludes a statement taken by an officer on the grounds that he is satisfied that the officer has been involved in improper conduct in the taking of statements from other accused. Clearly, if a judge has rejected the evidence of a statement taker about the taking of a statement from accused A, it may be difficult for the prosecution to rely upon the same officer's evidence to establish beyond reasonable doubt that when he took a statement from accused B - who makes complaints against him - that the second statement was voluntary. However, this is no more than a factor which a judge will bear in mind in assessing the evidence.

11. In the voir dire the judge saw and heard both witnesses give evidence. Leung recorded the applicant's statements and Shum was present. Both these witnesses gave evidence, were cross-examined (originally and on recall), and the judge formed a favourable view of them.

12. Although he took an adverse view of DPC Lee, the judge specifically found that

"it is not a case where because some interviews are tainted, necessarily they all must be. There are cases in which that might well be so ... But this is not a case where the police squad or team necessarily causes other interviews to be tainted. But where there is an overlap between a defendant and an officer who is undoubtedly tainted as a result of this voir dire. I need to step very carefully indeed and there is such an overlap in my judgment that is so serious that I cannot overlook it".

He then found it necessary to exclude the statement of another accused taken by DPC Lee. He found that he was lying about the circumstances in which the statement was taken.

13. The judge finally ruled that the statements given by this applicant and one other - the 5th defendant - were voluntarily given. "Having seen and heard the evidence, I am no doubt at all that they were".

D5's further application

14. Counsel who represented D5 on the voir dire later had to withdraw from the case and be replaced. His new counsel, Mr Stirling, invited the judge to reconsider his ruling on the admissibility of D5's statement.

15. The basis of the application was the consequences of the judge's adverse view of the police evidence relating to the arrest and interview of D6. In ruling D6's statement inadmissible, the judge concluded

	"But the overwhelming feeling that I have been left with at the end of all of the evidence as it relates to the 6th defendant and having had the advantage of seeing as well as hearing the witnesses who have been called, I cannot trust the police interviewers' evidence and I am far from satisfied that the interviews in his case were freely given and recorded.
	I am fortified in that belief by hearing that DPC Lee Wing-him, 4319, I think, who recorded the interview with the 6th defendant was one of the officers concerned in the activities connected to Chan Chi-ming which in turn give rise to additional question marks over that officer's conduct."

Mr Stirling pointed out that an officer - referred to by his number 22826 -had arrested D6 and had been working with DPC Lee Wing-him, 4319, the statement taker. It had not been brought to the judge's attention on the voir dire that the officer 22826 was the interviewing officer in D5's case. Both interviews and enquiries - although two months apart - were also under the overall supervision of the same officer.

16. The judge concluded that there may be a direct overlap with an officer who may be tainted and ruled out D5's statement.

The application

17. Mr Matthews submits that, as with D5, the judge overlooked similar "tainting" of Leung and Shum and was in error when he excluded them from the criticism he made of other officers. He therefore failed to evaluate the evidence - or the evidence was overlooked - that the two officers were involved in the assault on Chan Chi-ming and possibly others when D1 and others were arrested at the Beach Hotel. It is submitted that their credibility is tainted by that involvement, that the judge ought to have ruled out the applicant's statements and would have done so had he had these matters in mind.

18. Mr Matthews also submits that the judge did not give sufficient weight to admitted breaches of the "rules for questioning suspects".

The possible "tainting" of Leung and Shum

19. The first involvement relied upon is the arrest of the applicant and other accused at the Beach Resort Hotel. There were certain discrepancies in the evidence between these officers and Inspector Chow. Although these matters were relied upon by Mr Matthews, it is not necessary to consider them further because the judge was well aware of them, he was not of the view that these matters were of sufficient importance to influence him in his decision. During Mr Stirling's submissions for D5 at 1176 Q-S, he said:

"... I am not very impressed by the nature of the allegations concerned with the ... hotel, I am not impressed by that."

There were so many officers involved that it could not be said that each was aware of the acts of the others.

20. Both Sergeant Shum and DPC Leung were recalled to give evidence of their dealings with Chan Chi-ming. Chan Chi-ming had been brought to the police station at about 3 pm on 21 August 1994 and at 7.20 pm Shum and Leung were instructed to take Chan Chi-ming to his home for Chan Chi-ming to use his pager to call one of the defendants.

21. Leung gave evidence that after Chan Chi-ming's arrival at the police station, he, together with DPC4319 - the officer about whom the judge had the severest criticism - interviewed Chan in a room. But, that after about 10 minutes Inspector Chow took over and he, Leung, stood guard outside the door.

22. It was suggested that this was inconsistent with Leung's notebook which recorded:

"1640 hours instructed by DSl Lee, took over c/m Chan Chi-ming from D.Sgt 17392 and 45849 at Room 309 to find out particulars and whereabouts of the assailants. 1820 hours I reported to DSI Lee the result. 1900 hours led by D.Sgt Shum together with DPC9455 went to Chan Chi-ming's place of abode and he was willing".

DPC4319 and Inspector Chow both supported Leung that he had only spent about 10 minutes with Chan Chi-ming before Inspector Chow had taken over. It was open to the judge to accept Leung's account.

23. The suggestion is that even if Shum and Leung were not personally violent or threatening towards Chan Chi-ming as they took him to his home at 7.20 pm and as Leung was on guard outside the room in which Inspector Chow was interviewing Chan, they must at least have been aware of the violence used against him.

The issues

24. Two issues arise. The first is whether the judge overlooked the involvement of these two officers with the witness Chan Chi-ming. The second is, if so, ought he to have found that they were so "tainted" with their involvement with other officers that the judge ought to have rejected their evidence on the taking of the applicant's statements?

25. As the applicant's confessions were an important part of the evidence against him in this most serious case, these are issues which an appellate court must approach with great care. Equally, this Court will not interfere in a judge's ruling on a voir dire unless good grounds are demonstrated.

26. The judge exercised the greatest care in assessing the evidence on the voir dire and kept an open mind on the admissibility of the confession statements during the trial. In D5's case, he had himself reviewed the evidence before Mr Stirling made the second submission. He had alerted himself to previous counsel's oversight.

27. We have received considerable assistance from counsel on this appeal but it has also been necessary for this Court to review the transcript in some detail before reaching our conclusion. This has not been an easy task.

Conclusion

28. The applicant's contentions were themselves unusual. His case was summarised by his counsel, Mr Young, who at the outset of his submission on the voir dire said:

"It must just assist if I summarise his position and I hope your Lordship will find that helpful. So straightaway, the nature of his allegations are neutral from the point even of being unique, because whereas one is in a normal course of events used to hearing from defendants either that they didn't want to say anything but were forced to and they didn't want to say much and were forced to say more than they wanted to say, my client says that he wanted to say more than they would let him say.

He says that he gave twice verbally a full and detailed account of exactly what had happened, but that the police really were not interested it in recording that fully or accurately, ...".

In other words that the applicant had twice given a full account of the events but Leung and Shum forcefully made him make statements which only set out part of the account he had given.

29. Then at the forefront of his submissions for the applicant, counsel said:

"Now your Lordship will probably recollect only yesterday Messrs Leung DPC and Shum Detective Station Sergeant - were paraded before us in a different context. It was said that they had been involved in the maltreatment of Chan Chi-ming. So your Lordship will no doubt wish to bear in mind what was put to them about that and what they had said."

30. Chan did not give evidence that either Shum or Leung assaulted him. Leung gave evidence that he interviewed Chan with DPC4319 for about 10 minutes and was relieved by Inspector Chow. Chan said that Chow assaulted him without giving details. He said the assault was "slight, less than the others".

31. In contrast therefore to counsel then defending D5 on the voir dire, counsel for the applicant brought to the judge's attention - if it was necessary - the evidence of Leung and Shum. Further, these witnesses, together with Chan, had been recalled to deal specifically with their involvement with Chan at the end of the voir dire and immediately before the applicant's counsel made submissions - including those we have set out.

32. With respect, it is inconceivable that when ruling on the applicant's statements this careful judge had overlooked the matters advanced by counsel on this appeal. As he said,

"It is not a case where because some interviews are tainted, necessarily they all must be."

Further, it is clear from his ruling that he had the relevant evidence in mind when he said about Leung:

"(his) evidence I found very impressive as it was when he was first called ..."

He well recognised the unsatisfactory nature of some of the evidence given by the police officers. He gave effect to his findings and clearly gave the benefit of the doubt to the accused. He was impressed by the evidence of Leung and Shum. There is no reason to think that he did not properly evaluate and take into account the evidence which he had recently heard. Indeed, it is clear that he did.

33. There was no duty upon the judge to give any reasons for ruling the statements to be admissible. The only reason he gave was that he found Leung and Shum to be reliable. Similarly, of course, it is not incumbent upon him to give any reasons for ruling any statement out but in this case he chose to do so.

34. Finally, the concessions made by the officers of breaches of the rules for questioning suspects do not reflect any credit upon them but in this case were not of sufficient moment to influence the judge's decision on its admissibility.

35. It is not necessary to deal specifically with any of the other matters raised.

36. We are satisfied that the matters relied upon in support this application are not made out in spite of Mr Matthews's careful and well reasoned submissions.

37. The application for leave to appeal against conviction is refused.

(G.P. Nazareth)	(Barry Mortimer)	(Simon Mayo)
Vice President	Justice of Appeal	Justice of Appeal

Representation:

Mr J. Matthews (M/s Raymond M.K. Wu & Co) for Applicant (conviction and sentence)

Mr D.G. Saw (Crown Prosecutor) for Crown/Respondent

CACC000553A/1995

IN THE COURT OF APPEAL

	1995, No.553
	(Criminal)

BETWEEN
	THE QUEEN
	and
	CHAN MAN-TUNG

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Coram: Hon. Power, V.-P., Bokhary & Mayo, JJ.A.

Date of Hearing: 2nd July 1996

Date of Judgment: 2nd July 1996

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JUDGMENT

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Power, V.-P. (giving the judgment of the Court):

1. The applicant in this matter originally faced one count of murder. It was particularized that he and others on 21st August 1994 at Kowloon in Hong Kong murdered Lui Wai-keung. He pleaded guilty to manslaughter and was in consequence sentenced to imprisonment for eight years. He now seeks leave to appeal against that sentence.

2. It was the Crown case that he and three others waited for the victim to come into view and that, when he did so, the group chased him, all being armed with knives. Eventually the victim was caught and savagely wounded. The wounds were fatal.

3. The counsel for the applicant, Mr. Stirling, said when advancing matters in mitigation that:

	" the basis of the plea was that evidence, which showed that this defendant was taking part in an unlawful and dangerous act, namely an assault by chasing and brandishing a beef knife outside the Energy Plaza. That unlawful and dangerous act continued on sort of round the corner when Mr. Yim lost sight of the three or four (and I think we know that it was four persons) and when he got round the corner his view was obstructed by the red car (and in those circumstances he again said he thought there were three or four persons chopping). That was in relation to Mr. Yim - I'm sorry - in response to Mr. Young's cross-examination, but he couldn't say who.
	So, on the admissible evidence, I would submit that the Crown can prove unlawful and dangerous act which clearly in the joint enterprise resulted in this death."
	The judge when sentencing said:
	"Although the attach was at 4 o'clock in the morning, there were a great many people around and about. This was a cowardly attack that took the form of an ambush on a young man who was unarmed. The motive arises from a desire by a friend of yours to gain revenge which in turn seems to arise from some trivial dispute which had been going on for months. You were one of the four youths who were carrying knives. Having seen the knives, they can only be described as murderous. Seventeen very serious cut wounds were inflicted on that young victim's body.
	I have considered similar cases to this case. In the case of Ko Kam-hung which is unreported (No.587 of 1990), an attack took place in which no conventional weapons were used. This appears, unlike the case I have referred to, to have been a planned ambush, but the similarity is that you and the appellant in the other case both pleaded guilty. A second case in which a very strong court in the Court of Appeal pronounced judgment is Cheung Chi-man. And in the course of the judgments I have referred to, I have also been able to see that Tam Ka-lok is a case of some similarity too this.
	I have no doubt that the plea was offered by you and accepted by the prosecution for perfectly good reasons. I'm prepared to give you full credit for the plea of guilty which I shall regard as having been from the outset of the trial.
	In my judgment, the correct starting point for this crime of manslaughter is one of twelve years' imprisonment. In giving you full credit as I have said for your plea and ignoring your previous convictions, the sentence is one of eight years."

4. The basis upon which the applicant was sentenced was that there had been an ambush by four persons armed with knives, and that all chased the victim but that there was no evidence that the applicant was involved in the final fatal attack.

5. Mr. Haynes, who appears for the applicant today, submits that the sentence was manifestly excessive. He contends that the sentencing guidelines for an offence of this king were set out in The Attorney General v. Tam Ka-lok others which was Application for Review No.4 of 1990. In that application a starting point of six years was indicated as being proper in circumstances of a triad revenge attack. The facts of that case must, however, be examined before it can be used as a guideline in relation to other cases in which circumstances which might be very different. In that case the facts were as follows: At a playground the victims were met by a group of 10 to 12 young men including the defendants. Apologies were demanded and refused: Insults uttered. The group, having thereupon armed themselves with a variety of weapons such as poles, clubs and at least one knife and one water pipe launched a concerted attack upon the victims. The victims split up and fled. This was, as Mr. Haynes urges, a typical triad encounter. He submits that it sets the guideline starting point of six years for future sentences involving triad attacks in which there is a plea to manslaughter. He concedes that to the later case of The Queen v. Cheung Chi-man No. 14 of 1992 also involved a triad encounter and that, after a plea to manslaughter, a sentence of eight years was imposed which was upheld by the Court of Appeal. Mr. Haynes submits, however, that the sentencing judge and the Court of Appeal took a wrong turn in failing to apply the guideline enunciated in Tam's case.

6. We refer, however, to the words of Sir Derek Cons in the case of Ko Kam-hung (1991) 2 HKLR p.433 :

"With regard to some offences, as for example the possession of dangerous drugs for the purpose of unlawful trafficking, where there is often little to choose between the circumstances in which actual offences are committed, this court has been able to suggest guideline tariffs, in that instance related to the amount of drug involved. This obviously cannot be done with regard to manslaughter, by reason of the infinite variety of the ways in which it may be committed, making it proper perhaps to pass in some circumstances merely a probation order and yet in others, up to ten years' imprisonment."

That observation is pertinent to the decision of the court in Cheung Chi-man's case. A sentencing court must look to the facts of each particular case. A sentencing judge must, of course, bear in mind the desirability of maintaining internal consistency but bearing that need in mind that he has, at the end of the day, to assess sentence in accordance with the particular facts of the case before him. The facts of the present case reveal sinister elements of particular aggravation. It was an ambush. It was planned. The deceased was alone. There were four persons involved. They were armed. They carried what the judge described. as "murderous weapons". In consequence of the ambush a death resulted. We are by no means persuaded that the starting point of 12 years was too high. The discount of 4 years for plea was proper.

7. The application is refused.

(N.P. Power)	(K. Bokhary)	(Simon Mayo)
Vice-President	Justice of Appeal	Justice of Appeal

Representation:

Mr. Veltro S.C.C. (Crown Prosecutor) for the Respondent

Mr. John Haynes instructed by Messrs. Stephen Lo & P. Y. Tse for the Applicant.

THE QUEEN v. CHAN MAN-TUNG

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