Cheng Chiu v. The Queen

CACC000180/1979

Coram: Roberts, C.J., McMullin, J.A. and Cons, J.

Date of Judgment: 24 January 1980

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JUDGMENT

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Introduction

1. CHENG Chiu and LEUNG Kin-cheung were both convicted of the robbery of 1,576 pieces of diamond from CHENG King-yin on the 4th floor of Tak Shing House, Des Voeux Road, Central on the 18th April, 1978.

2. The first accused was sentenced to 6 years' imprisonment and the second accused to 5 years' imprisonment.

3. The first accused sought leave to appeal against both conviction and sentence, but withdrew his application for leave to appeal against sentence during the hearing before us. The second accused did not appeal.

Facts

4. At about 10.45 a.m. on the 18th April, 1978, Mr. K.Y. Cheng, a salesman employed by Kimberley Gems Ltd., left the offices of that company, which are on the 4th floor of Tak Shing House, Des Voeux Road Central, in order to take diamonds to customers.

5. He was carrying 20 small packets of diamonds, worth about $1 million, inside a black leather pouch. This was secreted in the pocket of a specially made vest, which he wore under his shirt.

6. Mr. Cheng left the offices of the company and walked to the lift lobby where he was assaulted by two men, whom he had never seen before and whom he was unable to identify subsequently.

7. According to Mr. Cheng, one of the men threw an arm around his neck from behind. He was dragged towards the door of the toilet and, because of the constriction on his neck, lost consciousness. When he came to, his neck was hurting, his clothes had been disarranged and the pouch containing the diamonds was missing.

8. He returned immediately to his office and rang the Police.

9. At about the time when Mr. Cheng was attacked, Police Constable Leung was on patrol in Theatre Lane, in the vicinity of the entrance to Tak Shing House. He noticed two men running along Theatre Lane about five yards ahead of him.

10. He shouted to them "Don't run. Wait. Why run.", since he was suspicious as to why they should be in such a hurry. When the two men continued to run, he chased after them into Pedder Lane, where he was joined by Police Constable Li, who had heand him shouting.

11. The police officer chased the two men along Pedder Street and into Pedder Building. According to P.C. Leung, the two men remained in his sight, save for a moment as they turned the corner from Theatre Lane into Pedder Street, until they entered Pedder Building, when he lost sight of them.

12. The two police officers followed the men to the first floor, where they found them outside the entrance to the clinic of a Dr. Chiang, at Room 105, Pedder Building. The officers searched them, but found nothing unusual on either of them. At the trial, the officers identified both defendants as the men whom they had chased and caught, as described above.

13. P.C. Li asked them why they were running. The first defendant pointed at the second defendant and said "Nothing special. He said I owed $200 and I have no money to pay him. So he chased after me, trying to beat me up."

14. The second defendant was close enough to hear what was said, but made no reply.

15. At this point Mr. Yuen Chi-wai, who was employed as a clerk in the doctor's clinic in Room 105, emerged from the clinic, pointed to the first defendant and said "He has just been in and threw down a parcel. I don't know what is in the parcel."

16. P.C. Li went into the clinic with Mr. Yuen and, in the presence of the two defendants, retrieved from the waste paper basket in the waiting room of the clinic a pouch which was opened and found to contain diamonds.

17. Mr. K.Y. Cheng subsequently identified the pouch and diamonds as those which were taken from him a few minutes before in Tak Shing House.

18. P.C. Li asked the defendants where they got the packet from. Neither made any reply.

19. When the two defendants were later cautioned and charged with the offence of robbery, the first said -

"I understand the aforesaid but I did not snatch anything from other person."

20. The second said -

"Understand."

21. The only other evidence of substance was that of the Government Chemist, who testified that there had been a cross-transfer of fibres from the clothes of the first defendant to the clothing of the victim (Mr. Cheng) and vice versa.

22. The Government Chemist found on the jacket, trousers, shirt and tie of the victim fibres which were identical with fibres taken from the jacket or trousers of the first defendant. Conversely, he discovered, on the first defendant's jacket, trousers and T-shirt fibres identical to those present on the jacket, trousers or tie of the victim.

23. It is not necessary, for the purposes of this appeal, to recite the forensic evidence which related to the second defendant; it is sufficient to say that it was to the same effect.

Grounds of Appeal

24. Counsel for the appellant argued three main grounds of appeal -

Alternative verdicts

25. At the conclusion of speeches by counsel for the Crown and for the two defendants, the judge discussed with counsel the possibility of directing the jury that it was open to them to return verdicts of theft or of handling stolen property, but decided not to do so. His summing-up was limited to the charge of robbery.

26. Of course, if an alternative count is included in the indictment, it is incumbent upon the judge to direct the jury fully on both counts, unless he withdraws one of them because the evidence is such that it cannot be supported.

27. However, where an accused is not charged with an alternative count, there is no duty on the judge to direct the jury as to all alternative counts, unless in his view, the evidence would be such as to justify a finding of guilt on one or other of them.

28. In this instance, the evidence of the prosecution witnesses pointed overwhelmingly to robbery. There was no evidence upon which a reasonable jury could have reached either of the alternative verdicts to robbery which are possible under the Theft Ordinance. It must surely, on the evidence, have been robbery or nothing. Therefore we see no substance in this objection.

Admission of exculpatory statements

29. The two defendants were arrested by the police at about 10.50 a.m. on the morning of the 18th April, 1978. At about 1415 hours on the same day, the defendant was interviewed by D.C. 6746 CHAN Tak-ming and a statement was taken from him.

30. Part of the way through the statement, D.C. Chan cautioned the first defendant and charged him with robbery. He then asked the first defendant a number of questions and recorded these and his answers thereto. The effect of these answers, the record of which was signed as correct by the first defendant, was that the first defendant denied the robbery but admitted facts which amounted to theft.

31. After the conclusion of the prosecution case, counsel for the first defendant sought leave to call D.C. CHAN to produce the statement given by the first defendant.

32. The judge called for the statement, read it, came to the conclusion that it was a self-serving statement and ruled that it was not admissible.

33. Counsel for the appellant argued that the judge was wrong in rejecting the statement and submitted that, had it been in evidence, it might well have influenced the jury. The answer to this contention is that it should not have done, because, on the authority of the English cases which we shall shortly consider, the judge would have been obliged to direct the jury that they must ignore the contents of that statement as evidence of the truth thereof and that it could be no more than evidence of the fact that the defendant made it and of his reaction when charged.

34. In any event, the explanation given by the first defendant of how he came into possession of the pouch of diamonds was so wholly improbable that no jury would have swallowed it, even if they had been permitted to regard it as evidence of the truth of its contents.

35. Thus, even if the statement had been admitted in evidence, it could have had no significant effect on the jury or on the result of the trial.

36. Nevertheless, we consider it desirable to review the principles applicable to the admission in evidence of exculpatory statements in evidence, since neither the authorities, nor their practical effect, seem to be as clear as is desirable.

Admissibility of self-serving statements

37. The statement, which the first defendant made to the police, contains admissions of acts which amounted to the theft of the pouch of diamonds, but a denial of robbery, the offence with which he was charged. Thus, it can properly be described as exculpatory, or self-serving. The general principles which govern the admissibility of a previous consistent statement made by a witness are as follows -

Recent authorities on self-serving statements by an accused.

38. We were referred to some early cases, among them R. v. Crowhurst⁽²⁾ and R. v. Abraham⁽³⁾ both of which appear to suggest, without any qualification, that a previous self-serving statement of an accused person is admissible in evidence.

39. These cases were tried at a time when it was not open to an accused person to give evidence at all; consequently the courts did what they could to ensure that such matters as might militate in favour of the accused were put before the jury, even if the method of doing so were to do some violence to the rules of evidence.

40. However that may be, the law governing self-serving statements has been the subject of careful scrutiny by three recent English cases: R. v. Storey⁽⁴⁾, R. v. Donaldson⁽⁵⁾ and R. v. Pearce⁽⁶⁾.

41. In R. v. Storey, the prosecution led evidence that, when a quantity of cannabis was found in the appellant's flat, she gave an explanation which, if it were true, was consistent with innocence and indeed would have meant that she would not, in law, have been in possession of the cannabis. The judge had overruled a submission of no case and the appellant had not given evidence.

42. At page 337, Widgery, L.J., giving the judgment of the court said as follows -

"We think it right to recognize that a statement made by the accused to the police, although it always forms evidence in the case against him is not in itself evidence of the truth of the facts stated. A statement made voluntarily by an accused person to the police is evidence in the trial because of its vital relevance as showing the reaction of the accused when first taxed with the incriminating facts. If, of course, the accused admits the offence, then as a matter of shorthand one says that the admission is proof of guilt, and, indeed, in the end it is. But if the accused makes a statement which does not amount to an admission, the statement is not strictly evidence of the truth of what was said, but is evidence of the reaction of the accused which forms part of the general picture to be considered by the jury at the trial."

43. This passage in Widgery, L.J's judgment could be interpreted to mean -

44. The principles laid down in Donaldson⁽⁵⁾ have been summarised as follows, in the 40th edition Archbold, para. 1392 -

45. Unfortunately, we do not yet have available a copy of the full report of R. v. Pearce⁽⁶⁾ and must rely upon a summary of it contained in the Criminal Law Review for October 1979 at page 658.

46. The relevant parts of this summary read as follows -

"Held, allowing the appeal, that the concession was rightly made. Applying Storey (1968) 52 Cr. App. R. 334 and Donaldson (1977) 64 Cr. App. R. 59, the appropriate principles were: (1) a statement containing an admission was always admissible as a declaration against interest and was evidence of the admitted facts, which was the exception to the rule that a statement by an accused was never evidence of the facts in the statement. (2) (a) A statement which was not an admission was admissible to show the attitude of the accused at the time when he made it, and was not to be limited to the first encounter with the police. 'When first taxed' in Storey (1968) 52 Cr. App. R. 334 was not to be read as circumscribing admissibility. The longer that elapsed after the first police encounter the less the weight to be attached to the denial. The judge was able to direct the jury about the value of such statements. (b) A statement not in itself an admission was admissible if it was made in the same context as an admission, whether in the course of an interview or as a voluntary statement. Admitting only statements against interest while excluding part of the same interview or series of interviews would be unfair. The prosecution's duty was to present the case fairly to the jury; excluding answers favourable to the accused while admitting unfavourable answers would be misleading. (c) The prosecution might wish to draw attention to inconsistent denials. A denial did not become an admission because of inconsistency with another denial. (3) The trial judge would plainly exclude a statement as inadmissible when an accused, on rare occasions, produced a carefully prepared written statement to the police made with a view to it being made part of the prosecution's evidence. The practice was to admit statements by the accused even when their evidential value was small. The judge was wrong to rule as he did."

Probative value of self-serving statements.

47. What causes us anxiety in these three cases is the suggestion that a statement which is adduced by the prosecution and contains a denial by the defendant, is evidence not of the truth of the denial but only that the defendant made it and of his reaction or attitude. We are concerned by the difficulty of explaining to a jury that evidence should be taken into account for some purposes but not for others. This may be unavoidable in some situations (e.g. where the evidence of one accused is not evidence against another accused though it may be against the giver of it) but these should be limited as far as possible.

48. It is surely asking too much of a jury to direct them that a statement made by an accused person to a police officer, to the effect that he was not guilty of the crime, is not evidence of innocence, but merely of the fact that he made the statement and of his reaction when taxed with the offence by the police.

49. Nor, we think, will a jury make much of a direction that an admission in a statement made voluntarily by an accused to the police is part of the case against the accused, but that a denial contained in such a statement is not evidence of its truth, but only of the reaction of the accused.

50. If an accused person says "I am innocent", and this denial is put before the jury, surely what the jury will do is to give it such weight as they think fit (even if it is unlikely to be much) in deciding whether the defendant was guilty or not. If a denial is admissible to show how the accused reacted, this must be because his reaction is some indication, and it's a matter for the jury to say how much of an indication, that he was innocent.

51. For these reasons, we take the view that, if we have correctly analysed the English law as being - that a self-serving statement admitted at the instance of the Crown is evidence not of the truth of its contents but only of the defendant's attitude at the time - that law ought not to be followed in Hong Kong. Once evidence of a denial has been admitted, it should be there for all purposes. It should be for the jury to attach to it such weight as they think fit, as part of the general evidence which is put before them.

52. We are not suggesting that there is any obligation upon the Crown to adduce in evidence statements of a self-serving nature. However, Pearce⁽⁶⁾ states that it would be unfair to tender only that part of a statement which is against the accused's interest, while not offering another part of the same interview, or others in a series of interviews, which are self-serving. With this we agree, though we cannot say that, as a matter of law, there is any obligation on the Crown to adduce the rest of that interview, or any other interview, if these amount to a denial.

53. Indeed, such a course, strictly, offends against the rules governing the admissibility of self-serving statements. Nevertheless, it has long been the practice of the Crown to tender such statements in Hong Kong and we commend it as being fair to the accused.

Tendering of self-serving statement by defence.

54. We have been dealing only with the law governing the admission of a self-serving statement which the Crown seeks to tender in evidence. The normal rules against the admissibility of a self-serving statement remain where the defence seeks to introduce it.

55. This means that a self-serving statement can only be tendered in evidence by a defendant in the following limited circumstances -

56. It is thus not open to a defendant to adduce evidence of a number of denials made by him, whether to the police or to persons not in authority. To permit this would be to invite the presence in the witness box of large numbers of witnesses, prepared to testify that an accused person denied his guilt of the offence charged.

Facts of present case

57. Applying the above rules to the facts of the present case, we have come to the conclusion that it would have been open to the Crown, had they wished to do so, to adduce the defendant's signed statement in evidence. They cannot be criticized for not having done so. If they had, its probative value would have been negligible, since on the basis of Donaldson⁽⁵⁾ it would not have been a matter which the jury would have been entitled to take into account in deciding whether or not the accused was guilty of the offence charged.

58. Because it was, so far as the offence with which the accused was charged is concerned, a self-serving statement, the defendant was not entitled to have it adduced in evidence and the judge was correct to reject it.

Section 65C of the Criminal Procedure Ordinance

59. Counsel for the appellant argued that any written statement by an accused person would be admissible in evidence at his trial by virtue of the provisions of section 65C of the Criminal Procedure Ordinance, whether such a written statement was made to the police or not.

60. Section 65C reads as follows -

61. This section does not enable either party to criminal proceedings to adduce in evidence matter which is not otherwise admissible. So, before the section can be used, it is necessary for the party wishing to take advantage of it to show that oral evidence to the same effect as the admission proposed to be made under the section could be given. The section is intended merely to facilitate proof, not to affect the law governing the admissibility of evidence.

62. However, counsel for the appellant submitted that the section is in wide enough terms to enable an accused person, who makes a statement to the police, to "admit" the contents of that statement and so secure its admission in evidence, as part of the matter which the jury must consider. Consequently, he argued, the exculpatory statement of the accused should have been admitted by the judge under section 65C.

63. The argument must fail in this case since, in any event, no attempt was made to use section 65C at the trial. The appellant wished a police officer to produce the statement; he did not try to tender it under section 65C.

64. Even if the appellant had sought to introduce the statement, by way of admission, by formally invoking the provisions of section 65C, the judge would have been right to reject it, since it was a self-serving statement of which oral evidence could not have been given and thus was not admissible under section 65C anyway.

65. However, there are cases in which a statement is "mixed", in the sense that it is partly inculpatory and partly exculpatory. Since oral evidence of such a statement could be given, it was argued that it would be technically admissible under section 65C, if the formalities of that section were complied with. It was also suggested that a defendant could tender in evidence a statement of his defence and so avoid the necessity for giving evidence himself.

66. The section provides that an admission made under it shall be evidence against the party making the admission. This might be thought, of itself, to provide a sufficient discouragement to its use by defendants. However, the reality is that, if a statement is before a jury, they are likely to give at least some weight to it for all purposes. It would, in our view, be an abuse of the section to permit it to be used as counsel for the appellant urged.

67. Section 65(1) provides that facts admitted for the purpose of the proceedings "may be admitted". This confers a discretion upon the trial judge as to whether or not he permits facts to be admitted under section 65C.

68. The usual practice is for a judge, in the exercise of this discretion, to permit proof by formal admission under the section only if both parties to the proceedings agree. This seems to be a sensible practice, since there are dangers in permitting either party to force the other to accept written evidence, not subject to cross-examination, if it is unwilling to do so, even though the section does not, in terms, restrict the reception of admissions to those agreed by the parties.

69. If a judge follows this practice, it would effectively prevent the section being used in the way suggested, since it is unlikely that the Crown, save in exceptional circumstances, would be prepared to agree to the admission of facts set out in a statement of this nature by an accused.

70. Even if the Crown were disposed to agree, we would like to think that a trial judge would normally exercise his discretion against the admission of any evidence sought to be so adduced by the defence. Its introduction in this manner would enable the defence to circumvent the normal rules of evidence and procedure and to place before the jury a statement of the defence case, without this being open to testing by cross-examination. And the abolition of the right to make an unsworn statement from the dock would have been rendered nugatory, if section 65C could be used in the manner contended for. We therefore say that it should not be.

71. We refuse leave to appeal against conviction.

(1) (1942) 28 Cr. App.R. 102.

(2) (1844) 1 Car. & Kane 370

(3) (1848) 3 Cox 430.

(4) (1968) 52 Cr. App.R. 334.

(5) (1976) 64 Cr. App.R. 59.

(6) (1979) C.L.R. 658.