The Queen v. Li Wai Ki

CACC000136/1983

IN THE COURT OF APPEAL

BETWEEN

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Coram: Hon. Leonard, V-P., Li & Yang, JJ.A.

Date: 31st August, 1983.

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JUDGMENT

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Leonard, V-P. :

1. This is an appeal against the conviction of the appellant on five charges of conspiracy and two charges of accepting an advantage contrary to Section 4(2)(a) of the Prevention of Bribery Ordinance (Cap.201). The conspiracies were alleged by the Crown to have been committed, as to 2 of them which were claimed to be separate, if allied, conspiracies, between 1st August 1980 and the 30th September 1980 with MO Kin-wai alias Hak Chai, who was at that time an ex-prisoner of Pik Uk Prison and as to the other 3 of them with named persons who were between dates specified in the charges prisoners at the same prison, the appellant being at all relevant times a Prison's Officer at that prison.

2. It is necessary to consider the history of the investigation into the matters covered by these charges in some detail in view of the additional grounds of appeal urged before us. In November 1980 an investigation into allegations that one or more Prison Officers at Pik Uk were bringing drugs into the prison and selling them to inmates was commenced by Officers of the Independent Commission Against Corruption (I.C.A.C.). Such information as was available to them had only disclosed nick names. They set out to discover their identities. According to an investigating officer of the I.C.A.C., SO Wing-keung some time in May 1981 he saw one such prisoner called Leung Chi. Leung had been released from Pik Uk but re-arrested and detained at Stanley Prison for another offence. In May, June and July 1981 the I. C. A. C. located others whom they suspected of having given money to Prison's Officers so as to get drugs. I.C.A.C. were not interested in charging any prisoners who gave money or who dealt in drugs. Their interest was in finding Prison Officers who took money or who brought in drugs for sale. As SO Wing-keung put it "Our targets were not the prisoners. Target was prison officers. In November 1980 officers were our targets also". It is abundantly clear that when ex-prisoners were arrested and when "cautioned statements" were taken from them they were not arrested so that they might be brought to trial. There was never, at any time, any intention that they should be brought to trial. They were regarded as no more than tools to enable I.C.A.C. to prosecute prison officers.

3. As an indication of the approach of the I.C.A.C. the following passage from the evidence of Mr. SO Wing-keung is instructive:

"Our investigations of ex-prisoners of Pik Uk - before interviews I cautioned them. First I told them purpose of interview then cautioned them. I said purpose was to investigate officers of Pik Uk taking in dangerous drugs for prisoners there. My caution was 'you're not obliged to say anything unless you wish to do so but whatever you say will be taken down in writing and will be produced in evidence.' Interviews took place in different parts of Hong Kong. They were not arrested in May, June and July because some prisoners were still serving sentences in prison. We went to see them there and said we were investigating a case about staff in Pik Uk Prison. They were then cautioned and wrote what they wanted to say. The first five witnesses in this case - when investigated P.W.3 was in prison. We also interviewed others in prison not involved in this. case - they refused to say anything. I interviewed P.W.3 in prison. Both P.W.4 and P.W.5 were invited to I.C.A.C. and they came to our office. P.W.1 and P.W.2 were arrested in October. P.W.4 and P.W.5 were told of purpose of interview at I.C.A.C. and cautioned."

This witness stated that Leung Chi (P.W.3), Tung Chai (P.W.4) and Cheung Yiu (P.W.5) had been asked if they had asked prison officers to take drugs into the Prison for them and had in cautioned statements mentioned the names of officers (without such names having been suggested to them). The plan followed by Mr. So and those working in his group was to approach such ex-prisoners as might be amendable, get information from them incriminating prison officers and put up the papers to the Attorney General's Chambers so as to secure immunity from prosecution for the ex-prisoners if they gave "full and frank" evidence at the prosecution of the prison's officers who might be arrested as a result. The case of Leung Chi illustrates the abuses to which such a plan may give rise. According to Mr. So, Leung Chi was initially interviewed in prison. He was released from prison on 16th September 1981. He was arrested at the prison gates on his release. His evidence was that the I.C.A. C. officers who arrested him told him that the reason he was being arrested was that he had given money and "chits" to a prison officer citing Section 4 of the Prevention of Bribery Ordinance as authority for the arrest. He was cautioned and said nothing, was brought to I. C. A. C. Headquarters and released on bail of $20,000 in his own recognizance. He was required to return after one month. His bail was renewed for one month at a time for several months. He reported every month until March 1982 and then only according to him was a cautioned statement taken from him. He was then told that they (I.C.A.C.) would take the cautioned statement "and pass it to the Legal Department to decide and if they decided not to prosecute me I would be a witness for I.C.A.C." Quite clearly I.C.A.C. did not wish to prosecute him. A cautioned statement taken under such circumstances could never be proved if he was prosecuted. The cautioned statement was merely a device used by I.C.A.C. to ensure that he would give evidence in accordance with its terms in the event of immunity being granted.

4. We regard such a device as abhorrent. The treatment of Leung Chi was quite inexcusable. It was a cynical perversion of power; for the powers of arrest granted to I.C.A.C. are granted so that they may be exercised with a view to the prosecution of those arrested and not that so that evidence may be obtained or preserved for use against others. Again such a course of conduct can be self defeating. Men of the characters of the first five witnesses in this case will tend to give information which they think their interrogators want.

5. Leung Chi was not the only witness treated without respect for his human dignity. CHAN Chun-tung ("Tung Chai") was treated in a very similar way. His evidence was that he was first approached by I. C. A. C. immediately after his release as soon as he stepped out from the prison he was arrested. His evidence on this reads:

Although he uses the trite phrase "invited me ... to assist them in investigation" it is clear from Mr. So's evidence that he was arrested. He gave a statement because he was told he would not be prosecuted. Lai Hok-ming ("Cheung Yiu") was somewhat similarly treated although he was not arrested. He claimed that he was told by the I.C.A.C. that if he did not give a statement his brother would be prosecuted in connection with the passing of money on his behalf to the appellant and that I.C.A.C. officers told him that their target was civil servants and according to his statement they could charge him for various offences "But weren't going to and asked me to be a prosecution witness". MO Kin-wai ("Hak Chai") and LAM Kwai ("Ah Kwai") were approached rather differently and not until the appellant had been arrested and had himself made a statement. According to Mr. So, Hak Chai was arrested although he himself claimed he was invited. After he had made a statement he was released on bail and re-called again and again to I.C.A.C. officers and finally told that if he did not give evidence he would be prosecuted. He said "I was sure it would be a disadvantage to me."

6. LAM Yu-kwai was first interviewed while still a prisoner at Pik Uk. When he was released he worked for a year as a hawker before being arrested for an offence under the Bribery Ordinance and questioned. It was his evidence that the  I.C.A.C.officers mentioned the appellant's name before he did. He too was released on bail having made a statement and he, like all the others, was granted immunity. This then was the background of the investigation and of the prosecution.

7. When the appellant was arrested among his papers were found lists of telephone numbers, among the list was a telephone number opposite to the nick name Hak Chai being Kowloon 790610 which Hak Chai claimed was the telephone number at which the appellant contacted him in circumstances we will deal with later.

8. When considering the evidence of these five witnesses the trial judge dealt firstly with each separately and set out the circumstances in which they gave statements to I.C.A.C. Of Hak Chai he says:

"In the course of being cross-examined he admitted having a criminal record going back to 1971 and which included convictions for robbery, drug offences, and theft. He said he had been first contacted by ICAC at the end of 1981 and agreed he had had difficulty in remembering events of 18 months earlier. At ICAC he gave a statement over a period of 3 hours although he was detained for much longer. Altogether he was interviewed about 6 times. It was at his third or fourth interview that he was told that it had been decided that he would give evidence and that if he didn't he'd be prosecuted. P.W.1 said he knew the meaning of 'immunity'. He was shown a statement made by him to ICAC dated 13/1/82 and said it was not the one made by him on his first visit to ICAC. His evidence was confused and conflicting about the dates and number of statements made by him. He did not agree that he had a lot to gain from giving evidence."

Of Ah Kwai he says:

"To defence counsel he said he was first seen by ICAC on the day of his discharge and again a year later when he gave a statement. There was a further interview about three weeks later and he was then told that he would not be prosecuted and would be given an immunity if he gave evidence about bribery at Pik Uk. He was shown his statement to ICAC dated 13/1/82, and then agreed he must have mixed up the dates when he had said earlier that he made the statement in October 1981. He agreed he had lied initially to ICAC when he told them he didn't know about prison officers smuggling drugs into Pik Uk."

He sums up the treatment of Leung Chi as follows:

"he was first interviewed by ICAC on the day of his discharge from Stanley in September 1981. He later gave a cautioned statement to ICAC on the basis that he would not be prosecuted. He was confused about the date on which he gave the statement. He first said it was May 1981, then May 1982, but finally seemed to settle on March 1982."

He deals with Tung Chai in these words:

"Under cross-examination P.W.4 agreed that he had a criminal record going back to 1973 including convictions for drug offences, and was still an addict. He said, to defence counsel, that he had been offered immunity by ICAC before making a statement, then he gave a full statement. Next he said that that was not the position and said perhaps he had mixed up the sequence. In re-examination he said he couldn't recall which came first, his cautioned statement or the promise of immunity."

and with Cheung Yiu:

"P.W.5 agreed he had convictions for, amongst others, possession of an offensive weapon, affray and robbery. He said he was no longer a drug addict. He said he was first contacted by ICAC in about March or April 1982 and gave a cautioned statement. To further questions he replied that he had given the statement because his brother had already been to ICAC and told them that P.W.5 had asked him to give money to others. He added that ICAC had told him that if he didn't give a cautioned statement they could prosecute his brother. He was asked if the situation was that he wasn't willing to give a cautioned statement until ICAC said they could prosecute his brother, and his answer was 'you could put it like that'. He later said that he was satisfied with the ICAC's assurance that it would not prosecute his brother if P.W.5 gave a cautioned statement. He agreed that when he was giving the statement he had difficulty recollecting events which had happened 2 years before. He denied that ICAC had jogged his memory."

Dealing with them as a group he says:

"It was indeed correct that those witnesses must be regarded as accomplices and I warned myself in the strongest terms of the danger of acting on the uncorroborated evidence of an accomplice and that the evidence of one accomplice could not corroborate that of another. Also it was true that these witnesses were recalling events which had happened as far back as July, August and September 1980. Their evidence was at times confused and contradictory and each had difficulty recalling dates, in particular the times when immunity from prosecution was offered to him.   Also to be taken into consideration was the fact that P.W.1 to P.W.5 all had long criminal records involving substantial periods in prison, and, very importantly, the fact that each had been given immunity from prosecution on condition that he gave full and true evidence in Court. I considered whether the giving of the immunities had resulted in the witnesses' giving false evidence against D1 to protect themselves. I found that the immunities had been given in the manner described by the ICAC officers, i.e. after each had made cautioned statements, and after legal advice, and not as an inducement to give evidence against D1. Nor in my opinion did those immunities result in P.W.1 to P.W.5 falsely incriminating D1. I found after careful consideration and heeding all necessary warnings that the evidence of these five witnesses was true in all essential respects relating to the present charges."

9. We have dealt with these matters in some detail because of the argument advanced on behalf of the appellant that these five witnesses were unworthy of belief.  Before passing to a review of that argument it would be as well to set out in some detail their evidence.

10. Prior to July 1980 Hak Chai, a drug addict, was a prisoner at Pik Uk and knew the appellant while in prison. After his release the appellant telephoned him at Kowloon 790610 and asked him to buy drugs for him (the appellant). On two occasions he supplied the appellant with drugs as the result of two separate requests receiving $200 for each transaction. (These transactions formed the basis for charges 1 and 9). Hak Chai was first approached by I.C.A.C. officers after the appellant had made a cautioned statement.

11. Ah Kwai was a prisoner from March to October 1980. Like Hak Chai and the others he had a dreadful record. His evidence was that while in prison he was approached by the appellant who suggested that the appellant would arrange that drugs could be supplied to prisoners if they would arrange for a relative to pay him $500. Ah Kwai passed this information on to another prisoner also nicknamed Hak Chai (whom I will call Hak Chai 2 since he was not the same person as the ex-prisoner who claimed to have sold drugs to the appellant). Hak Chai 2 later handed a piece of paper with a name and address on it to Ah Kwai.  Ah Kwai gave it to the appellant so that the appellant could collect $500 from the person named on it. The appellant took it and later told Ah Kwai that he had passed drugs to Hak Chai 2. A week or so later Ah Kwai again acted as a go-between for Hak Chai 2 and the appellant and as a result the appellant passed a packet of dangerous drugs to Ah Kwai for delivery to Hak Chai 2.

12. Leung Chi was a prisoner in Pik Uk from 25th March 1980 until 23rd September 1980 when he was transferred to another prison. (There appears to be some confusion as to whether this was to Stanley or Lai Chi Kok but nothing appears to turn on this.) While in the Dietary Punishment Unit at the Pik Uk he arranged with the appellant to get a "chit" from Tung Chai so as to enable the appellant to collect money from Tung Chai's relative. He made the same sort of arrangement for Cheung Yiu who gave him a chit addressed to Cheung Yiu's brother. That brother was able to raise only $400 which he presumably gave to appellant. Tung Chai in due course got the amount of drugs for which he had contracted but because Cheung Yiu's brother only paid $400 Cheung Yiu received a lesser quantity. However both gave Leung Chi a "smoke".

13. Stet Chi was a prisoner at Pik Uk from 25th March 1980 until 23rd September 1980. Tung Chi wanted, he claimed, cigarettes not drugs. While he was delivering food to Leung Chi in the Dietary Punishment Unit he asked him about the possibility of getting cigarettes but Leung Chi said he could get him drugs instead if he got the necessary "chit". Tung Chi spoke to his father when he was visited (It was shown from prison records that the father visited him on 7th September 1980.) and lied to him as to why he wanted money and asked his father to pay the money to one who would produce a chit. He made out the chit and passed it to Leung Chi who passed him drugs later.

14. Cheung Yiu was a prisoner at Pik Uk from 15th March 1980 until 25th March 1981. He was visited by his brother on 7th September 1980 also. He told his brother he wanted $500 to pay gambling debts. This was a lie. He wanted the money for heroin. After seeing his brother he spoke with Leung Chi when he was also in the Dietary Punishment Unit for fighting. As a result he had a conversation with the appellant in which the appellant agreed to supply heroin in return for money he was to receive from the brother. He passed the necessary "chit" drawn on the brother to Leung Chi but in return he received a lesser quantity of drugs than that for which he had contracted since the brother had been able to raise only $400.

15. It will be seen that the evidence of Leung Chi, Tung Chai and Cheung Yiu dovetailed to some extent. That transactions between them were effected at the Dietary Punishment Unit raised some difficulty unless the observance of the Prison rules as to behaviour there was lax but all three said they had no difficulty in effecting the various transfers involved. There were the inevitable discrepancies between their accounts. Again if the practice of bringing drugs into the prison was widespread as I.C.A.C. plainly thought it is strange that when spot urine checks were made, as they were, they were invariably negative.  It would, however, be unwise to under-estimate the ingenuity of prisoners. Again it is to be noted that neither the father of Tung Chai nor the brother of Cheung Yiu was called upon to give evidence although as we have seen the brother of Cheung Yiu was known to the I.C.A.C.

16. For all these shortcomings, however, there is no doubt that if their evidence was credible it was sufficient to enable a Court to decide on the guilt of the appellant.

17. Counsel for the appellant constructed an attractive argument to suggest that the evidence was not credible and indeed that it was so unworthy of belief that it could not be corroborated. He did not go so far as Counsel had unsuccessfully done in Turner & Others ⁽¹⁾ as to submit that the accomplices should not have been allowed to give evidence at all. His quotation from that case was somewhat selective. He placed emphasis on the following passage:

"It is in the interests of the public that criminals should be brought to justice; and the more serious the crimes the greater is the need for justice to be done. Employing Queen's evidence to accomplish this end is distasteful and has been distasteful for at least 300 years to judges, lawyers and members of the public. Hale C.J., writing about 1650, used strong language of condemnation of the plea of approvement which was the precursor of the modern practice of granting immunity from prosecution, or further prosecution, to accomplices willing to give evidence for the Crown. See Hale, Pleas of the Crown, Vol.2, p.226. His comments should be remembered by the Director of Public Prosecutions. 'The truth is,' he wrote, 'that more mischief hath come to good men, by these kinds of approvements by false accusations, of desperate villians than benefit to the public by the discovery and convicting of real offenders."'

While this passage and in particular its recommendation that Hales C.J.'s comments should be remembered by the Director of Public Prosecutions commends itself to us it must be read in its context.

18. In that judgment Lawton L.J. after discussing Rudd's⁽²⁾ case to show that it was "manifest that in the eighteenth century the courts did not consider an accomplice to be incompetent to give evidence because an inducement held out to him to do so was operating on his mind when he was in the witness box, discussed the case of Pipe ⁽³⁾ in which a witness to be tried later was called and the conviction was upset went on to say:

"    In our judgment Pipe⁽³⁾ (supra) is limited to the circumstances set out in Archbold. Its ratio decidendi is confined to a case in which an accomplice, who has been charged, but not tried, is required to give evidence of his own offence in order to secure the conviction of another accused. Pipe ⁽³⁾ (supra) on its facts was clearly a right decision. The same result could have been achieved by adjudging that the trial judge should have exercised his discretion to exclude Swan's evidence on the ground that there was an obvious and powerful inducement for him to ingratiate himself with the prosecution and the Court and that the existence of this inducement made it desirable in the interests of justice to exclude it. See Noor Mohamed v. The King ⁽⁴⁾ per Lord du Parcq at p.192 and followed in Harris v. Director of Public Prosecutions ⁽⁵⁾ per Viscount Simon at p.707 and P.57. To have reached the decision on this basis would, we think, have been more in line with the earlier authorities. Lord Parker C.J. in Pipe⁽³⁾ (supra) seems, however, to have viewed the admission of Swan's evidence in the circumstances of that case as more than a wrong exercise of discretion. He described what happened as being 'wholly irregular'. It does not follow, in our judgment, that in all cases calling a witness who can benefit from giving evidence is 'wholly irregular.' To hold so would be absurd. Examples are provided by the prosecution witness who hopes to get a reward which has been offered 'for information leading to a conviction,' or even an order for compensation or whose claim for damages may be helped by a conviction.

If the inducement is very powerful, the judge may decide to exercise his discretion; but when doing so he must take into consideration all factors, including those affecting the public. It is in the interests of the public that criminals should be brought to justice; and the more serious the crime the greater is the need for justice to be done. Employing Queen's evidence to accomplish this end is distasteful and has been distasteful for at least 300 years to judges, lawyers and members of the public. Hale C.J., writing about 1650, used strong language of condemnation of the plea of approvement which was the precursor of the modern practice of granting immunity from prosecution, or further prosecution, to accomplices willing to give evidence for the Crown. See Hale, Pleas of the Crown, Vol.2, p.226. His comments should be remembered by the Director of Public Prosecutions.'The truth is,' he wrote, 'that more mischief hath come to good men, by these kinds of approvements by false accusations, of desperate villians than benefit to the public by the discovery and convicting of real offenders.' The practice has been condemned on ethical grounds. See Professor Sir Leon Radzinowics, History of the English Criminal Law (1956), Vo1.2, p. 53. It is, however, no part of our function to add to the weight of ethical condemnation or to dissipate it. We are concerned to decide what the law is and whether the judge should, as a matter of discretion, have excluded Smalls' evidence, and whether, having admitted it, he gave the jury an adequate warning about acting on it.

When Smalls decided to give the police information about his partners in crime, the prospect of getting himself immunity from further prosecution was a most powerful inducement. It is necessary, however, to consider Smalls' position when he gave evidence. All the charges which had been preferred against him had already been terminated in his favour. By means of the absurd conspiracy charge, the prosecution had tried to give him immunity from prosecution for any offences he had disclosed in his statements. If, after verdicts of 'not guilty' had been entered in his favour, he had refused to give evidence, and the prosecution had tried by relying on the differences between a charge of conspiracy to rob and one of robbing to prosecute him for any substantive offences which he had disclosed, his statements would have been inadmissible because they had been obtained from him by inducements. His statements could not, of course, have been used in any prosecution brought against his swife. When Smalls went into the witness box both before the magistrates and at this trial, there was no real likelihood of his being prosecuted if he refused to give evidence. The only risk he ran was that the police might have withdrawn the protection which he had had and have refused to conduct him in secrecy to where he wanted to go. These facts distinguished this case from Pipe ⁽³⁾ (supra) and would have justified the judge in refusing to exercise his discretion to exclude Smalls' evidence had he been asked to do so which he was not."

19. We set out this entire passage not only because of its erudite exposition of the law in this field but also to make clear the parallel's between that case and ours and also the differences. When the 5 ex-prisoners decided to give the I.C.A.C. information they did so not so much because of the inducement of getting themselves immunity although it would be idle to suggest that they did not hope for that. They did so rather because of the manner in which the I.C.A.C. approached them which we have already condemned. Counsel suggests that this makes their evidence all the more suspect. That may well be so but whether in this case it was so was a matter for the judge. That he was aware of and took into account the manner of approach is quite apparent from his mention of it in the case of each of them which I have already quoted. When they gave evidence they had secured immunity, revocable, it is true if they did not give "full and frank evidence" which phrase each may well have construed as meaning "evidence in accordance with your statements". They did not run the same risk as Smalls ran in Turner's ⁽¹⁾ case - withdrawal of protection. In fact they did not run the risk of prosecution either; for their statements having been obtained by such inducements as "you are not our target" could not have been used against them on their trial if the immunity was withdrawn. As all judges in Hong Kong well knew from bitter experience none is so ready to challenge the admissibility of a cautioned statement as the criminal with previous convictions. These facts distinguish our case also from pipe ⁽³⁾ and "would have justified the judge in refusing to exercise his discretion to exclude (their) evidence had he been asked to do so which he was not."

20. Once the evidence was in it was for the judge to evaluate it. Various other factors are suggested as rendering their evidence incapable of belief. That they had lengthy records including convictions involving dangerous drugs was a factor fully appreciated by the judge; that they may have had personal motives against the appellant was not even suggested to them in cross-examination. Their evidence. was not inconsistent with the evidence of Principal Officer Singh as to the procedures within the Dietary Punishment Unit. It was no more than an indication that those procedures might be unenforced or evaded. The judge appreciated the lack of corroboration of the evidence of Leung Chi and Tung Chai. There was corroboration of the evidence of Hak Chai in the finding of his telephone number in the list of telephone numbers kept by the appellant and in the appellant's admissions which preceded the arrest of Hak Chai by the I.C.A.C.

21. An attack was mounted on the admissions of the appellant as having been obtained by inducements. The attack went like this. Mr. So had been a party to the making of inducements to the five prisoners. The inducements were to the effect that they were not targets. The I.C.A.C. told them that they were after "bigger fish". While the appellant had not given evidence that a similar inducement had been made to him, and while the making of a similar inducement had been denied by Mr. So another prison officer who was never charged gave evidence on the issue as to whether the statements of the appellant and a co-accused who was acquitted should be admitted. That witness, also a prison officer, gave evidence that two different I.C.A.C. officers had questioned him and in questioning him had held out inducements to him. When this evidence was tendered it was not the subject of immediate objection by Crown Counsel. Instead he sought and got an adjournment to consider whether he should call the two officers this defence witness named as having held out inducements to him in rebuttal. On the following day he submitted that the evidence was irrelevant. He said "(I) ask Court to rule now that that evidence is not relevant and if Court does then I will not call evidence in rebuttal." We deprecate the reference to calling evidence in rebuttal in this manner. Whether or not evidence in rebuttal might be called was irrelevant to the question whether or not the evidence tendered the previous day should or should not be ruled irrelevant. In the event the judge held that the evidence was irrelevant except in respect of the co-accused's demeanour. We do not believe for a second that in so doing be was influenced in the slightest by Crown Counsel's improper remark nor did Counsel for the appellant so suggest. It was suggested that the behaviour of the other two officers was relevant because it showed something in the nature of systematic behaviour on the part of all I.C.A.C. officers engaged in this investigation. To our mind this is going too far. It is true that there was evidence that Mr. So did show system in the questioning of the 5 ex-prisoners and did hold out inducements to them. It is also correct that Mr. So and the 2 officers who questioned this witness were part of a team. But evidence that one or more members of a team fouls is not relevant to the question whether another has done so and does not establish a system. The judge was fully entitled to accept the uncontradicted evidence of Mr. So that no inducement had been made to the appellant to induce him to make the statement which he did make.

22. It is suggested that the judge when excluding a statement made by the appellant's co-accused and admitting that of the appellant acted inconsistently. It is correct that in refusing to admit the statement of the co-accused the judge does not point to any wrongful behaviour on the part of those questioning him. He does however refer to two earlier interviews at which the co-accused had denied complicity and had been upset and distressed. He had been described as "hang-dog" in appearance. The judge said "There was doubt in my mind as to whether D2's admission had been made voluntarily. His will may have been sapped." When using this expression the judge may well have had in mind Cheng Ho-shing v. The Queen ⁽⁶⁾ in which Silke J.A. summarising Lo Sun Wa v. The Queen ⁽⁷⁾ commented that the Court had taken the view that the effect of Corr (1968) N.I.L.R. 193 was that answers to questions put to a person in custody are not admissible if the questions are asked in circumstances which amount to pressure of such a nature as to sap the will and make the subject talk. A number of other factors were mentioned which it was suggested would prevent any reasonable certainty that the appellant's admissions were voluntary. We do not think it necessary to go into these in detail. Suffice it to say that we do not consider that these, taken severally or in conjunction with one another lead to the conclusion that the judge was necessarily wrong in concluding that the prosecution had negatived any suggestion that the admissions were obtained by improper means.

23. For these reasons we dismiss this appeal.

(1)    61 Cr. App. R67.

(2)    (1775) 1 Cowp. 331

(3)    (1967). 51 Cr. App. R17

(4)    [1949] A.C. 182

(5)   [1952] A.C. 694 and 36 Cr. App.R.39

(6)    Criminal Appeal 356/81

(7)     Criminal Appeal 538/1977.

Representation:

Mr. Martin Thomas, Q.C. & Sujanani (Laurence Pang & Co.) for Appellant.

Miss Crebbin, Crown Counsel for Crown.