Lam Tuk Yu v The Queen

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Criminal Appeal No. 111 of 1968

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JUDGMENT

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1. At 11 a.m. on 2nd November 1967, a police party raided 92 Wing Lok Street, 2nd floor. They found the 1st accused sitting at a table in the corridor of the flat scooping up some powder with a spoon. He was the only person in the flat at the time and the doors of the first and third cubicles were locked. When asked where he lived, he pointed to the middle cubicle. In this cubicle the police found other powders of various kinds lying on wax and cellophane paper spread out on the floor. The powders on the table in the corridor and on the floor of the cubicle were subsequently examined by the Government Chemist who certified that they consisted of potassium chlorate, sulphur, carbon, red phosphorus, and potassium nitrate all of which are explosive substances within the meaning of the Explosive Substances Ordinance Cap.206.

2. At 12.20 p.m. after caution, the 1st accused wrote out a statement in a detective police constable's note-book. He was then taken back to the police station. This statement was subsequently admitted in evidence as Exh.p33.

3. Certain members of the police party remained on the premises; and at 1.30 p.m. the 2nd accused knocked at the door of the flat. When asked by the police what he wanted, he pointed to the middle cubicle and said that he was looking for Chan, the person who occupied that cubicle

4. He was later taken back to the police station where he was interviewed at 3.10 p.m. by the police constable who had previously interviewed the 1st accused at 92 Wing Lok Street 2nd floor. The 2nd accused was told that he was going to be prosecuted for conspiring with the 1st accused "to prepare and manufacture bombs"; and, after being cautioned in the usual terms, he wrote in the notebook (Exh.p.35):-

"I did agree with Chan Nam to make bombs to blow up police car and snatching revolver."

Later, he was formally charged that on or about the 31st October 1967 at 37 Hill Road, ground floor, he conspired with Chan Shu Nam and another person unknown to cause by an explosive substance an explosion of a nature likely to endanger life or to cause serious injury to property. In answer to this charge he said: "I thought he was joking".

5. The indictment contained a number of counts, mostly against the 1st accused who has not appealed against his convictions. In this appeal we are concerned with the first count which charged both accused with conspiring together and with another person unknown to cause by an explosive substance an explosion of a nature likely to endanger life or to cause serious injury to property contrary to s.4(a) of the Explosive Substances Ordinance. Both accused were found guilty; the 2nd accused has appealed against his conviction; and his one ground of appeal is framed in these terms:-

"That the trial was conducted in a manner which was erroneous, unfair, and unsatisfactory by reason of the fact that the appellant was cross-examined on behalf of the Crown upon the contents of a statement alleged to have been made by him which had not been proved to be voluntary or admissible."

6. Counsel for the Crown admitted to this court that his object in cross-examining the appellant in the manner complained of was not merely to discredit him but to incriminate him if possible and he sought to justify his cross-examination on two grounds. He argued firstly that all his questions were based on information in the 1st accused's voluntary statement (P.33) which was in evidence and which could properly be used for the purpose of cross-examining the appellant; and secondly that even if certain questions could not be said to fall within the ambit of P.33 there could be no objection to his cross-examining the appellant on a statement made by the appellant himself quite irrespective of whether such statement had been proved to be voluntary and admissible provided that the existence of the statement was not revealed to the jury by any act or gesture on his (counsel's) part. It was common ground, of course, that counsel for the Crown did not ask the appellant to look at any statement and that he studiously avoided doing anything or saying anything which could be described as a direct revelation to the jury of the existence of any statment made by the appellant which was not in evidence.

7. The voluntary statement (P.33) made by the 1st accused reads:

"I bought the bomb-materials beforehand. Day before yesterday, 31st, LAM Tuk-yu and a Chiu Chau people asked me to make an explosion for them to see. I took from my room small amount of sulphur and white powder to test. Tested and exploded. That night, three people met in LAM Tuk-yu's room at Hill Road and went to the junction of Ka Wai Man Road and Police Married Quarters to see going up and down police vehicles to prepare how to blow up the car and snatch revolver. After having snatched the revolver, (we) planned to climb through the hole of the wire fencing at hillside of Sai Yuen Terrace to Mount Davis. Firstly conceal the revolver on the hillside and then go back to Hill Road through Pokfield Road. Yesterday afternoon at half past four, three people met in LAM Tuk-yu's house at Hill Road LAM Tuk-yu made out a plan for tonight, at 8 o'clock to blow up police car and snatch revolver at junction of Ka Wai Man Road and Police Married Quarters. LAM Tuk-yu said that he finished his work early in the morning and that he would go to my house. Today, in my house, when I was mixing the sulphur with the white powder, the police (came and) arrested me. I did not agree with LAM Tuk-yu to blow up Chinese policemen, but I did not mind blow up European."

8. The cross-examination of the appellant to which exception has been taken begins with a reference to an alleged meeting between the 1st accused and the appellant at the factory where they were employed in September when the 1st accused is alleged to have said: "The Hong Kong British are so persecuting the Chinese that we must think out a way to make revenge." Counsel for the Crown submits that the jury might well have taken this question as being based on the 1st accused's assertion in Ex.P.33 that he did not plan to blow up Chinese police but that he did not mind blowing up Europeans. We find ourselves quite unable to accept that submission. The question put to the appellant alleged that the 1st accused, in the appellant's hearing, made a specific statement, and the question as framed was:

"Did he" (i.e. the 1st accused)" say to you: 'The Hongkong British are so persecuting the Chinese people that we must think out a way to make revenge"?"

In P.33 the 1st accused had not admitted to having said anything like that either in September or at any other time; and no other witness had testified to having heard the 1st accused make such a statement.

9. The cross-examination then proceeded thus:-

Counsel for the Crown submits that the jury might well have assumed that these questions were based on the 1st accused's statement in Ex.P.33 that he "bought the bomb materials beforehand." Again, we find it quite impossible to accept that submission. In this part of the cross-examination counsel for the Crown put to the appellant the actual words of the alleged conversation between the 1st accused and the appellant at this alleged meeting in September at the factory where they were employed.

10. It was then put to the appellant that on 28th October in his own house he discussed with a person named NG Chun Nam how to blow up a policeman and his car, Ex.P.33 does not contain any reference to a meeting on 28th October.

11. Up to this point counsel had retorted to almost every negative answer a further "question" in the form "I put it to you that he did". This practice is never helpful and in the present case it had the effect of fortifying the impression that counsel had positive evidence upon which his questions were based. The judge felt constrained to interrupt with the observation: "You have got to accept his answers. He said 'No'". The judge was, indeed, placed in a...