Fung Chi-keung and Another v. The Queen
Read the full judgment text of CACC 2/1979 on BabelCite. This Court of Appeal judgment was delivered on 3 May 1979.
1. These Appellants were charged before the District Court, the 1st Appellant with burglary and the 2nd Appellant, his brother, with handling stolen goods, to wit some of the goods alleged to have been stolen in the burglary. The appeals are against conviction and sentence but this judgment is concerned only with the appeals against conviction.
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CACC000002/1979
----------------- Coram: Huggins and Pickering, JJ.A. and McMullin, J. Date of Judgment: 3 May 1979 ----------------- JUDGMENT ----------------- Huggins, J.A.: 1. These Appellants were charged before the District Court, the 1st Appellant with burglary and the 2nd Appellant, his brother, with handling stolen goods, to wit some of the goods alleged to have been stolen in the burglary. The appeals are against conviction and sentence but this judgment is concerned only with the appeals against conviction. 2. The evidence was that the police went to the residence of these Appellants at 7.20 a.m. They arrested both Appellants and cautioned them. They were then taken to the police station, where each made a statement: that of the 1st Appellant was made at 8.25 and that of the 2nd at 8.15. In the statement of the 2nd Appellant mention was made of a pawnshop. The 2nd Appellant later that morning was taken to the pawnshop where the pawnbroker was interviewed. He said that a man had come with an identity card in the name of the 2nd Appellant but had given an address which was not the address of the 2nd Appellant. However, the error was not as great as it might have been, for the address given was "36 Kam Lam Street, 8th floor", whereas the 2nd Appellant said that what he told the pawnbroker was "38D Kam Lam Street, 8th floor". The watch which had been pawned was recovered and that property was identified by the victim of the burglary as his. 3. The case against both Appellants turned upon the statements which they made to the police. Objection was taken to them and in each case a voir dire was held. After hearing the evidence the learned judge gave rulings. As to the 1st Defendant he said:
As regards the 2nd Defendant he said:
The judge proceeded to hear the rest of the evidence. He gave judgment and entered convictions. 4. The first complaint which is made by Mr. Sanguinetti on behalf of both Appellants is that there was cross-examination of the Appellants on of the voir dire as to the truth of the statements which they had made to the police. This case was heard at the end of 1978, only the day before the judgment was delivered by the Judicial Committee of the Privy Council in Wong Kam-ming v Reg., in which case it was clearly laid down that counsel should not cross-examine an accused person as to the truth of a confession which is in issue in a voir dire. In this case the result of the cross-examination was that the 1st Defendant denied the truth of the statement. The 2nd Defendant admitted the truth of the greater part of his statement, but he denied the vital part, which was that he had given an incorrect address to the pawnbroker. In our view where the evidence is that the accused person has denied the truth of the statement the damage which can have been done is slight and we do not think the fact that there has been cross-examination in breach of the principle now established is sufficient by itself to justify our interfering with the convictions. It is, however, a factor which may have to be thrown into the balance if there are other matters of complaint which carry weight. 5. The second point which is taken is that although the Appellants were cautioned upon their arrest at 7.20 a.m., they did not make any reply but that when they got to the police station just under an hour later they both in fact made statements, and the implication is, counsel submits, that they were not willing to make statements, otherwise they would have done so in the first instance, and that there was some inducement held out to them to lead them to make statements later on. We do not think that the fact that the learned judge did not mention this silence in the first instance is a matter of any great weight. 6. Of much more importance is the allegation that there was cross-examination of the Appellants by the police at the time that these statements were given, and we accept that an interrogation which may sap the will of the defendant is an inducement which renders a confession involuntary: that was established by Ibrahim v Rex. 1914 A.C. 599 itself. It is contended in the first place that the statements which are in narrative form - that is to say, the first part of the statement of each Defendant and the final part of the statement of the 2nd Defendant - were clearly the result of questioning. Again, we have had cases in Hong Kong where the court has held that just from reading a narrative statement one could tell at once that it was the result of questioning. In our view the narrative statements in the present case do not fall within that class and we do not accept the contention that these narrative statements must have been the result of questioning. Of course, any narrative may be the result of questioning, but we see here no reason to believe that these statements were. 7. It is then pointed out that, the 1st Defendant having made his statement, the constable recorded these words:
In the case of the 2nd Defendant the constable said:
Clearly, this was an unfortunate form of words. These words are taken from translations from the notebooks of the officers concerned. We must accept those translations as they stand. Nevertheless, we do not attach to these words the importance which we are asked by counsel to attach to them, and we do not think that they demonstrate that what had gone before was the result of questioning. 8. But were there improper interrogations? According to the constables' notes the 1st Defendant was asked one question after his narrative was complete. The 2nd Defendant was, however, subjected to a substantial cross-examination upon matters which rendered the questioning very far from being clarification of the narrative. In particular, he was asked this question:
Those are the ipsissima verba of the translation and I merely interpose to remark that it shows the quality of this translation. The answer was:
I have said that the constables' notes show what was the degree of questioning which took place. It is said that the notes are not a full and accurate record. We think we must prima facie take this as being a correct record. That is what the judge found. No reason has been advanced why we should think that the record of the 1st Defendant's statement was otherwise than a complete and accurate record. As regards the 2nd Defendant, the ground of appeal No. 2(c) is "that the statement of the 2nd Defendant was taken over the total period of four hours and forty-five minutes, alternatively, a total of three hours and thirty minutes". We confess that we are unable to understand how these times were calculated. The times of beginning and ending the statements were: as to the 1st Defendant, he started the first statement at 8.25 and the time of finishing appears neither in the notebook itself nor in the notes of evidence: as to the 2nd Defendant - this is the one we are concerned with - it was 8.15 when he started, at 9 o'clock he finished the narrative, he then asked for a cup of tea and there was an interval of five minutes; at 9.05 the "cross-examination" commenced and that finished at 10.40; there was then an interval while the parties went to the pawnshop; at 11.55 the second statement was started and that finished at 1.35. We have calculated the times, therefore, as follows: the first statement took 45 minutes: the cross-examination took 1 hour and 35 minutes, the second statement took 1 hour and 50 minutes. It will be seen that the length of the second statement was certainly no longer and, in fact, probably shorter than the first statement, but it took more than twice as long. There is, therefore, some substance for suggesting that there might have been some kind of interrogation going on in the course of that statement. The second statement made reference to the getting by the 1st Defendant of this watch unlawfully. Something of that kind had been said in answer to one of the questions on the "cross-examination" and we think that there is certainly a possibility that the second statement may have been the result of what had been said in answer to that question, in other words that the second statement may well have been tainted by this cross-examination which we are satisfied ought never to have taken place. 9. The final point which has been taken is one which concerns only the 2nd Defendant and that is that the only other evidence of his guilty knowledge was the giving of a false address. I have already indicated the nature of the falsity alleged. What I did not mention was that the witness, the pawnbroker, admitted that he was hard of hearing. He was questioned carefully as to what address had been given, and I mention just two questions and answers:
Of course, there is always a possibility of misunderstanding, just as there is almost always a possibility of mistake. The learned judge was satisfied that there was no misunderstanding. Nevertheless, we think that perhaps he did not attach quite sufficient weight to the possibility that there was a misunderstanding here and we think this should also be thrown into the balance in the 2nd Appellant's favour. 10. The result is that we have come to the conclusion that the conviction of the 2nd Appellant was unsafe and unsatisfactory and that his appeal against conviction ought to be allowed. We are not persuaded that the conviction of the 1st Appellant was unsafe or unsatisfactory and his application for leave to appeal is dismissed. We will now hear counsel on the matter of sentence as regards the 1st Appellant. 3rd May, 1979. |