Poon Chi Kwong v The Queen

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 232 OF 1968

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JUDGMENT

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1. This is an appeal against conviction for the murder of one Tam Sze, a lady aged sixty who lived in Flat E on the 9th floor of Kam Wai Building, Kam Wah Street, Shaukiwan.

2. In the court below there was evidence that, on the 14th of December, 1967, Shum Mui, the daughter of the deceased visited her mother at those premises, and that when Shum Mui left the flat shortly after 10.30 a.m. her mother was then the only person in the flat. There was nothing in the evidence to suggest that the deceased was not then in a state of ordinary health.

3. At about 6 p.m. the same day the husband of the deceased, Shum Leung, returned home and found the door of his flat closed, but the grille on the outside of the door was half open. When he entered the flat he found his wife lying on the floor with a piece of string looped twice around her neck. Her gold necklace and two finger rings, one gold and one made of metal, were missing; in her clothing there was a sum of $3.55 in coins but there were no currency notes although the daughter, Shum Mui, gave evidence of having personally placed notes to the value of $15 in the pocket of her mother's inner clothing upon the occasion of her visit that morning.

4. The unfortunate victim was dead when she was found by her husband, but when the police arrived they found no indication that either the door or the windows of the flat had suffered any interference. The forensic pathologist placed the time of death as being most probably between 11.20 a.m. and 12.20 p.m. though he was prepared to concede the possibility of that estimate being imprecise within half an hour in either direction. The forensic pathologist did not include his estimate of the time of death in his written report and mentioned it only to Inspector Whitton who was in charge of the investigation. The pathologist's opinion was that death was due to asphyxia as a result of strangulation with the string.

5. On the 30th of December, 1967 the Shaukiwan police received a report of another crime, and Lam Kwai, the victim of the crime committed on that date, testified in the court below that her son was friendly with the appellant whom he frequently brought to their flat at Tai Shun House, Shaukiwan, and that she was very fond of the appellant treating him as her own son. This lady gave evidence of the accused calling upon her on the 30th of December when she was alone in her flat and of his declining, after a conversation lasting about 25 minutes, her invitation to stay for a meal. This witness said that she then went into the bathroom to wash some rice and that the appellant there upon came upon her from behind, hit her on the forehead with a hard object, put his arm around her neck and dragged her into the sitting room where, from a position behind her, he put a ligature of string or wire around her neck. After this she felt herself hit by some hard object on the back of the head and lost consciousness. When she came to it was to find her husband helping her. A gold ring, a gold necklace, one other ring, a lady's wrist watch, and a small silver chain were missing from the flat, as also was a sum of $500 in bank notes.

6. Because the victim of this robbery was able to tell the police just who had assaulted her, the appellant was arrested on the morning of the 2nd January, 1968 at about 10.30 a.m. when he was immediately cautioned. He made no verbal reply to the caution but nodded his head and took from his pocket the lady's wrist watch stolen from Lam Kwai on the 30th of December. The appellant then took the police to his home where he produced Lam Kwai's gold necklace and silver chain. Subsequently he took the police to a gold smith's shop where, he said, he had sold the gold ring: the ring, however, was not recovered having, according to the evidence of an employee of that shop, already been ...(illegible) down.

7. It need not be stressed that the similarity of method between the crime of the 14th of December and that of the 30th December was apparent to the police.

8. Following the visit to the goldsmith's shop the appellant was taken to Shaukiwan Police Station where, at 11.30 on the morning of the 2nd January 1968, under caution, he made a statement which amounted to a confession of the crime of the 30th of December.

9. From evidence, which is no longer in dispute before this court, it appears that, having obtained the appellant's admission to the offence of the 30th of December, Inspector Whitton instructed five detectives headed by a corporal to interrogate the appellant in regard to the murder on the 14th of December, and that such interrogation began at about noon or shortly after noon on the same day, the 2nd of January. By 1p.m. the interrogation had yielded nothing either to incriminate or exonerate the appellant in regard to the murder. At 1 o'clock the interrogation was adjourned, all concerned had lunch, and at about 1.30 pm. the appellant took the five detectives to Tai Shun House, the scene of the crime of the 30th of December, to recover a wooden stool with which, he said, he had attacked Lam Kwai. On the return of the party to the police station the interrogation was renewed at about 2 p.m., and continued until about 3 p.m. with the same inconclusive results as had characterised the pre-lunch interrogation.

10. Numerous suggestions of improprieties on the part of the detectives during these two periods of interrogation were rejected by the learned trial judge on the voire dire, but these allegations having been repeated before the jury the learned trial judge in his summing-up reminded the jury of each such allegation and its denial.

11. At approximately 3 p.m. Inspector Whitten asked Detective Sergeant Wong Man to take over the interrogation of the appellant, and the Sergeant proceeded to question the appellant in the office of Detective Inspector Cheung, who was present but engaged in other work and took no part in the interrogation. The five earlier interrogators were not present. It seems that in the early stages of the Sergeant's interrogation the appellant was prepared to talk about such matters as his general background and he let it emerge that amongst his friends was a man called Lau Kwong his reputed, though not actual, godfather. It so happened that the Sergeant knew Lau Kwong. After being questioned for about half an hour, the appellant announced that ...(illegible) refused to answer any further questions until he had seen Lau Kwong. Interrogation then ceased. Following two telephone calls from the Sergeant, Lau Kwong arrived at the police station at about 4.40p.pm. 4.50 p.m.. In the intervening period between the appellant saying that he would not answer further questions until he had seen Lau Kwong and Lau Kwong arriving at the police station, no further interrogation took place, and the appellant, at his own request, was given a cup of tea and cigarettes.

12. It is common ground that during the interrogation of the appellant by five police officers between approximately noon and 1 p.m., and approximately 2 p.m. and 3 p.m., as well as during Detective Sergeant Wong Man's interrogation, which lasted from about 3 to 3.30 p.m., no caution was administered to the appellant.

13. After Lau Kwong arrived at the police station he spoke to the appellant in Detective Inspector Cheung's office. Detective Sergeant Wong Man said in evidence that he himself was standing some distance away from Lau Kwong and the appellant, who were sitting at a table with their noses a short distance apart - a position which he described as "like chickens fighting". The Sergeant did not hear much of the conversation between the two men. That conversation was, however, described in its essentials by Lau Kwong, who said that the appellant told him that he had committed a robbery at Kam Wah Street and asked Lau Kwong what he should do whilst at the same time requesting Lau Kwong to take care of his, the appellant's, wife. It did not appear that either the date of the alleged offence or the word 'murder' was mentioned between the two, and according to the Sergeant, he had merely told Lau Kwong that the appellant had been arrested in connection with a robbery; no further details of the robbery were given to Lau Kwong, but the Sergeant said that he was referring to the robbery of the 30th of December and gave no information to Lau Kwong about the alleged robbery and murder at Kam Wah Street.

14. According to the Sergeant, the conversation between Lau Kwong and the appellant lasted about twenty-five minutes, and according to both Lau Kwong and the Sergeant the appellant wept towards the end of this period and was told by Lau Kwong "whatever you know tell the police" where upon the appellant turned to the Sergeant and said: "Sergeant, I wish to say something to you. I want to tell you about the death of the woman in Kam Wah Street." Upon this the Sergeant stopped the appellant, and having told him that he should tell anything he wanted to say to Detective Inspector Cheung, turned the appellant over to the Detective Inspector and left the room with Lau Kwong.

15. Detective Inspector Cheung gave evidence that he told the appellant, after revealing his identity to him, that he was making inquiries into the murder of Tam Sze at Kam Wah Street, Kam Wai House, 9th floor, Block E, on the 14th of December 1967, and that he cautioned the appellant in the standard form. Following this...