The Queen v. Chan Wai Chung

CACC000137/1990

BETWEEN

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Coram: Hon. Yang, C.J., Hon. Silke, V.-P. & Hon. Fuad, V.-P.

Date of Hearing: 12 September 1990

Date of Judgment: 3 October 1990

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JUDGMENT

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Hon. Yang, C.J.:

1. This is Chan Wai Chung's application for leave to appeal against his conviction by Judge Gall after trial in the District Court on two counts of Robbery for which he was sentenced to be detained in a training centre.

2. The only evidence against Chan was a number of statements made under caution. After holding a voir dire in which Chan gave evidence, the judge admitted the statements as having been made voluntarily. At the trial of the general issue, counsel agreed that evidence given for the prosecution on the voir dire was to be adopted as evidence on the general issue. There was no such agreement in respect of Chan's evidence, and no use was in fact made of his evidence by either side after the voir dire.

3. Six grounds of appeal have been advanced at the hearing, viz., (1) that the judge erred in requiring particulars of the objections to the admissibility of the cautioned statements and in permitting cross-examination of the accused upon such particulars, the course thus adopted by the trial judge being an encroachment on the accused's right to silence; (2) that the judge erred in permitting cross-examination of the accused during the voir dire on a statement made by him to the Complaints Against the Police Office; (3) that the judge failed to evaluate conflicting evidence, particularly the evidence as to injuries alleged to have been suffered by the accused as a result of police assault which gave rise to the cautioned statements;(4) that the judge erred in relying upon the accused's evidence in the voir dire for the purpose of the general issue, i.e., in assisting him in assessing the weight to be given to Chan's cautioned statements; (5) that there was insufficient evidence to relate Chan's cautioned statements to the second of the robberies charge (Charge 7); (6) that there were material irregularities in the course of the trial, and the convictions are unsafe and unsatisfactory.

4. In the event the second ground of the appeal was not pursued, and it was accepted that Chan's success on the last ground is dependent upon the other four grounds.

5. Having heard counsel acting for Chan, we called upon counsel for the Crown to address us on grounds (1), (3) and (4) only. In our judgment Chan's cautioned statements could relate only to the two robberies charged. The identification of the two incidents is clear and there is nothing in the further argument that not all the properties referred to in the charges are identified in the cautioned statements without having recourse to other evidence. The fifth ground of appeal therefore fails.

6. Coming to the first ground, we are of the view that the situation now under consideration cannot be equated with an infringement of the maxim nemo tenetur seipsum accusare, mistranslated as the right to silence. In this Court in R. v. Lau Chi Ming Criminal Appeal No.320/1989 (unreported) it was said that it would have been preferable for the accused to have been required to state his grounds when the voir dire commenced. It has been many years since this territory established a practice whereby reasonable particulars are required to be given to the Court by an accused who objects to his cautioned statements being admitted into evidence: vide R. v. Li Ming Kwan [1973] HKLR 275, per Huggins, J. at 285; Tsui Sheung v. R. [1968] HKLR 164, per Rigby, Actg. C. J. at 173. The details are a matter for counsel. Here they were numerous but a whole series of incidents alleging improper conduct by a number of police officers was involved.

7. As to the third ground, the judge, in coming to his decision on admissibility, evaluated the evidence in general terms which was all he needed to do in a simple and straightforward case such as this. It is true he did not refer to the medical evidence. There was a discrepancy between Chan's evidence in the voir dire of injuries he had received, the medical report tendered by consent and the police witnesses who denied any assaults which could result in such injuries. For the purpose of the general issue, the trial judge had before him only the medical report and the evidence of the police witnesses. He made it clear in his Reasons for Verdict that he had considered all the evidence which must be taken as including the credibility of the witnesses who gave it. It would have been preferable if the trial judge had been seen to deal specifically with the medical evidence either in his Ruling in the voir dire or, preferably, when he came to place weight on the statements.

8. On the fourth ground of appeal: the trial judge in his Reasons stated that he had considered all the evidence of each voir dire as evidence to assist him in assessing the weight to be placed on each of the accused's statements. This he was not entitled to do unless by agreement of which there was none in respect of this applicant. We can however sympathize with the judge in falling into a trap which, if he had been alerted to it, he certainly would have avoided. Where the prosecution and the defence agree that only some of the evidence at the voir dire is to be made available for the trial on the general issue without drawing clearly to the court's attention that such agreement is not to be applied to other evidence in the voir dire, it is easy for the judge not to be alive to the need to concern himself only with such evidence in the voir dire as is agreed between the parties should be used on the general issue. We do not suggest here that the "trap" was deliberately laid.

9. In the circumstances of this case however, having regard to the absence of any evidence from the defence and to the clear words used in the cautioned statement, in our judgment, whilst there was an irregularity it was not material, and certainly not one which would lead us to say there might have been a miscarriage of justice. This ground too, fails.

10. The application is accordingly dismissed.

Representation:

Mr. Gordon Hampton (Hampton, Winter & Glynn) for Applicant

Mr. I.G. Cross, Q.C. & Mr. Joseph Wong for Crown/Respondent