Lee Chun-yee v. The Queen

CACC000164/1979

Criminal law - confession - insufficient evidence that the statement was voluntary - conviction quashed. Quaere whether defendants separately charged in the District Court may be tried together.

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Coram: Roberts, C.J., Huggins, J.A. and Trainor, J.

Date of Judgment: 31 July 1979

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JUDGMENT

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Huggins, J.A.:

1. This Appellant was charged in the District Court with robbery. He was charged in Kowloon District Criminal Case No. 426 of 1978 and he was the only person charged in that case. Four other men had been charged in Criminal Case No. 332 of 1978 and the 2nd Accused in that case was alleged to have committed the same offence as this Appellant. However, the two cases came before the District Court on separate days and at no time was this Appellant joined in the charge with the 2nd Accused. It is not necessary for us to decide whether this rendered the proceedings a nullity: we merely remark that it is for consideration - perhaps in a later case if it has not been satisfactorily disposed of before by other means - whether it is possible for two charges to be tried simultaneously. The rule in the High Court is that two indictments cannot be tried simultaneously. The rule under the District Court Ordinance is that a charge sheet is to be treated to all intents and purposes as an indictment, mutatis mutandis, and that being so it may well be that two charge sheets ought never to be before the court at the same time. However, the grounds of appeal lodged in this case, and the grounds upon which we are compelled to the conclusion that this appeal must be allowed, include a ground that the conviction of this Appellant was unsafe for various reasons, though only two of them have in fact been argued, for the Crown concedes that the conviction is unsafe.

2. The first of the grounds argued was that the learned judge was wrong to admit the confession of the Appellant because there was insufficient evidence to justify the conclusion that the confession was voluntary. The evidence for the prosecution was that there were three separate statements, two made on 5th October and the third on the 6th, whereas the Appellant said that all the statements were recorded on the 6th. This was an issue of fact which was never resolved by the learned judge. But what is important is that one of the police witnesses gave evidence that he and another police officer spoke to this Appellant, and the note of the evidence is as follows:

The first criticism, of course, one can make is that that "question" was in fact either two or three questions all rolled up into one and that the judge ought to have intervened to ensure that the question was broken up into its separate parts. What is ambiguous is whether, as I say, there were two questions or three. However, when one looks at the evidence of the Accused himself, one sees what he was alleging, and it is quite clear that he was alleging that there was an admission in the officer's evidence that the Appellant had been told he would be in trouble. In other words, the question should probably read as follows: first,

"Put on 6th, there were five in the room?"

and secondly,

"You and Fei Kau said to the 5th accused that if he did not confess he would be in great trouble?"

and then there is the answer "Yes", which is a confession of a threat. This is at least ambiguous. Possibly the evidence has been wrongly recorded - or wrongly transcribed, it may be - but there was this apparent admission, which has not been dealt with by the learned judge.

3. Perhaps more important still was the second of the objections which has been taken. It is put in this way, that one of the two officers present when the statements were taken was not called. It is in general desirable where an allegation is made against a specific officer that he should be called and given an opportunity to speak to it, but, in the present case, the real crux of the matter is that the witness who did give evidence spoke only to his own conduct. He said that he did not assault the Appellant or threaten him, but he was not asked whether his companion did so, and there was no evidence at all that the Appellant was not threatened or assaulted by Fei Kau, the other police officer, as alleged by the Appellant.

4. For these reasons we are satisfied that the conviction cannot stand and the application for leave to appeal is allowed. Treating this as the hearing of the appeal, we quash the conviction and set aside the sentence.

31st July 1979.