Lee Fat v. The Queen
Read the full judgment text of CACC 150/1969 on BabelCite. This Court of Appeal judgment was delivered on 23 May 1969 before Rigby SPJ, Huggins J.
Criminal law – robbery – identity – confessions – admissibility – voluntariness – threats – voir dire – appeal – conviction quashed – Appellant convicted of robbery; identity disputed; prosecution relied on three statements; first statement rejected as involuntary; second statement admitted; third statement admitted without proper procedure – Legal issues: (1) Whether second statement voluntary despite possible prior threat; (2) Whether third statement admissible without proper voir dire – Holding: Second statement inadmissible due to insufficient evidence of removal of threat; third statement inadmissible as judge failed to consider admissibility – Appeal allowed; conviction quashed.
Legal issues: Admissibility of statement made in answer to charge after possible prior threat · Admissibility of gratuitous confession made during explanation of identification parade
Outcome: Appeal allowed; conviction quashed.
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CACC000150/1969 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CRIMINAL APPEAL NO. 150 OF 1969 -----------------
Coram: Rigby, S.P.J. and Huggins, J. Date of Judgment: 23 May 1969 ----------------- JUDGMENT ----------------- Huggins, J: 1. The appellant was charged together with two others, who pleaded guilty, that they being armed with an offensive weapon robbed a shopkeeper of cash and jewellery. The appellant was convicted and appeals against conviction. 2. The only issue in the case was as to the identity of the third robber. No eye-witness was able to recognize the appellant as the criminal but the prosecution relied upon three statements alleged to have been made by him after his arrest. The appeal turns upon the admissibility and effect of these three statements. 3. Evidence was given that immediately upon his arrest at about 11.45 a.m. in a hut near Wing Ning Wai Village the appellant was cautioned and made a statement describing in detail the part in the robbery taken by him and his co-accused. When this evidence was tendered the appellant, who was not professionally represented, objected on the ground that he had been induced to make the statement and told what to say. The learned judge having heard evidence, including evidence from the appellant that the statement was in fact written in Mongkok Police Station, was not satisfied that the police evidence was true. He said:
He seems to have thought it unlikely that a statement would be taken in the hut and to have concluded that if it was taken in the police station a doubt arose whether the statement was voluntary. Whether the learned judge was right in thinking that it was unlikely the police would take a statement at the scene of the arrest may be open to argument but it matters not for the purposes of this appeal. What is important is that the learned judge refused to admit this statement. 4. The second statement tendered was the answer said to have been given when the appellant was formally charged by Inspector Yip ...(illegible) Mongkok Police Station at about 2.28 p.m. the same day. Again, the appellant objected to the admission of this evidence, on the ground that the "Detective Sergeant" (in fact he was a Corporal) had induced him to make the statement and told him what to say. Once more the learned judge heard evidence and the story told by the appellant was that the Corporal dictated the statement in the presence of the Inspector. This story was entirely disbelieved by the learned judge, who then decided to admit the statement in evidence. His ruling was in these words:
5. The first ground of appeal argued was that the learned judge erred in admitting the statement in answer to the charge because his finding that it was a voluntary statement was unreasonable. Counsel submitted that the effect of the ruling on the first statement was not only that a threat sufficient to induce that statement may have been held out but also that such inducement was operative at the most only a little over one hour before the second statement was made: this ...(illegible) follow from the fact that the police themselves said they reached Mongkok Police Station at 1.10 p.m. On the authority of Reg. v. ...(illegible)(1) counsel argued that there was a subsisting threat which of necessity ...(illegible) avalidated the second statement because the effect of the threat ...(illegible) dissipated by the subsequent caution or by other intervening circumstances. The learned judge appears not to have been unaware of the difficulty, for in his Reasons for Verdict he elaborated and emphasized the grounds upon which he had decided whether to admit the two statements and differentiated between the circumstances ...(illegible) was that if the appellant's allegation that the Corporal dictated the second statement was untrue the second statement must have been voluntary and the question we have to decide is whether that was a proper ...(illegible). 6. There is no doubt that if an accused person expressly stater that he does not object to the admission of a confession the judges require only a scintilla of evidence to satisfy them that the confession was voluntary. If, therefore, an objection is taken founded upon a story which is disbelieved is the judge entitled to find upon a like scintilla of evidence that the confession was voluntary? We think the answer must depend upon the facts of the particular case. Where there is nothing more on the record (nothing, that is, other than the rejected story of the accused) which tends to show that the confession was not voluntary the judge would be entitled (though not bound) to act upon the slightest evidence which could satisfy him beyond reasonable doubt that the confession was voluntary. However, where there is other evidence tending to show that the statement was not voluntary we think it is incumbent on the judge to consider it, whether it is expressly relied upon by the defence or not. 7. In the present case the possible existence (to put it no higher) of a threat operative about one hour before the appellant was charged was evidence tending to show that the second statement was not voluntary and we think that in the absence of some reliable evidence indicating the lifting of that possible threat there was insufficient evidence to justify a finding that the second statement was voluntary. The matter is complicated by the fact that the learned judge said:
Counsel for the respondent submits that this passage is ambiguous and should be construed so as to support the learned judge's conclusion. If it were ambiguous we would agree but we think the use of the words "would be" where one might have expected the word "was" is indicative of the judge's having thought the vitiation would result as a matter of law. This view is not dispelled by the passage which follows:
While that passage is not very clear we doubt whether it contains a finding that the threat was removed as a matter of fact and even if it does we think there was insufficient evidence to justify such a finding. The mere repetition of the caution was not enough of itself to remove the threat, for the appellant was still in the police station and the Corporal, even if not actually present in the room, was still in attendance: cf. Cheung Kun-sun v. Reg.(2). 8. This second statement was an important part of the evidence upon which the learned judge founded the conviction and without it we cannot be sure that he would have convicted. Indeed the only remaining evidence implicating the appellant was the third confession, made gratuitously when the nature of an identification parade was being explained to him. Although the Grounds of Appeal allege that too much weight was attached to this third statement what counsel has in fact argued is that the statement was altogether inadmissible because it also was affected by the former threat. Counsel for the respondent has very fairly conceded that the third statement was admitted without the appellant's being asked whether he objected and counsel has referent us to Lam Yuet-ching v. Reg.(3) where the court considered the procedure to be adopted when a confession is tendered in evidence and the accused is not professionally represented. While we sympathize with the judge, who was probably as surprised by this evidence as was the police officer surprised by the statement when it was made, we think this evidence should not have been admitted (and indeed should not have been led) until the question of admissibility had been canvassed. As it was, the learned judge never considered that question at all. The appellant did not give evidence and we are therefore left with the position that this gratuitous confession was alleged to have been made 1 hour and 10 minutes after the statement in answer to the charge, still at the Police Station. 9. In all the circumstances we think it would be unsafe for this conviction to stand. The appeal is allowed and the conviction quashes. 23 MAY 1969 Representation: ...(illegible) for the Appellant Mr. Winter for the Respondent Judgment pronounced by Huggins J. in court. (1) (1959) 43 Cr. App. R. 121 (2) 1962 H.K.L.R. 13 (3) 1968 H.K.L.R. 579 |