The Queen v. Kwok Ngai Wai

CACC000226/1990

BETWEEN

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Coram: Silke, V.-P., Fuad, V.-P. and Kempster, JA

Date of Hearing: 13 September 1990

Reasons for judgment handed down: 25 September 1990

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REASONS FOR JUDGMENT

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Fuad, V.-P. :

1. On 13th September 1990 we granted the applicant, Kwok Ngor Wai, leave to appeal against his conviction by Judge Yam in the District Court of the offence of robbery. We treated the hearing of the application for leave as the hearing of the appeal. We allowed the appeal, quashed the conviction and set aside the Detention Centre Order. We now give our reasons.

2. The applicant appeared before Judge Yam jointly charged with another man of robbing a woman of her handbag in the early hours of the morning of 5th September 1989. His co-accused pleaded guilty but he denied the charge and his trial proceeded.

3. When the prosecution sought to adduce in evidence three inculpatory statements the applicant allegedly made to a police officer (D.P.C. 22705) the admissibility of each was challenged and a voir dire was held. The applicant's case was that he had not said what was recorded; the contents of the statements were written by D.P.C. 22705 and his signatures on each of them were obtained as a result of threats, assaults and inducements. On 17th April 1990 the judge ruled that the statements were made voluntarily and they were duly admitted in evidence.

4. The applicant elected not to give evidence on the general issue and was convicted on 18th April 1990. He was remanded in custody, pending reports, until 2nd May 1990.

5. No complaint is made about the way in which the judge dealt with the case but Mr Plowman, who did not appear below, submits that the applicant's conviction is unsafe and unsatisfactory for reasons which will shortly appear.

6. In view of the grounds upon which the application was based we admitted fresh evidence in the exercise of the discretion given to the Court by section 83V of the Criminal Procedure Ordinance and the facts revealed by the affidavits before us are as follows. On 19th April 1990 four men appeared before Judge Yam on various charges (T.W.D.C. 151 of 1989). One of the accused was charged with possessing an offensive weapon and robbery. The main evidence against him was the statements he allegedly made under caution to D.P.C. 22705 (the police officer concerned in the application before us). In each of the statements occurred the same passage in identical 25 Chinese characters, to the effect that he understood the caution; he had something to say but found it difficult to write because had had received little ducation; he wanted the D.P.C. to write down what he wished: to say for him. On 23rd April 1990, while D.P.C. 22705 was giving evidence in the voir dire which was held on account of objections raised to the admissibility of the statements, Judge Yam intervened and asked the D.P.C. whether he had given evidence during a voir dire in another case heard the week before. When the D.P.C. acknowledged that this was so the judge called for the file in the case out of which the present application arises. There was then an adjournment to the next day. Counsel who was prosecuting on a fiat (not the one who appeared for the prosecution against the applicant) noticed that the four statements under caution admitted in evidence after the voir dire in the case with which we are concerned all contained the same passage recorded in the identical 25 Chinese characters employed in T.W.D.C. 151 of 1989. In his affidavit he states that having considered the matter, and despite the fact that the cautioned statements of the applicant were taken later in time, he felt unable in T.W.D.C. 151 of 1989 to put forward D.P.C. 22705 as a credible witness. During the adjournment, he had consulted a senior professional officer in the Crown Prosecutor's office and with his agreement, had offered no further evidence against the accused in that case, whereupon the accused had been acquitted.

7. The following is the judge's note of what occurred on 21st may 1990 when this applicant was brought before him for sentence:

"Court :

Informed Mr. Li for D3 that in T.W.C.C. No. 151 of 1989 tried on 19.4. 1990 before this Court, the same police officer D.P.C. 22705 sought to produce two cautioned statements which contained two identical sentences of twenty-five Chinese characters in the handwriting of a Defendant Wong Fuk-yau. In that case D.P.C. 22705 said the Defendant wrote that sentence entirely by himself without prompting from the D.P.C. at all.

Court made the file in the case (T.W.C.C. 148/89) available to the defence in particular Exhs. 8, 9, 10, 11 and 12 hereof. Thereupon the Crown in T.W.C.C. 151/89 offered no evidence against the Defendant as the cautioned statements were the only evidence against the Defendant.

(Copies of Exhs. PP-4, 4A and PP-5, 5A were given to the defence).

Mr Li :

Detention Centre recommended by the Correctional services Department.

Court :

3rd Defendant, I think you have committed this offence out of foolishness. I am going to take a lenient view of the matter and only sentence you to Detention Centre. I hope you would make good use of this chance given to you."

8. From his intervention when D.P.C. 22705 was giving evidence in T.W.D.C. 151 of 1989 and the tenor of his notes in the instant case made on 2nd May, it is readily apparent that the learned judge was greatly concerned about the passages in the relevant cautioned statements in the two cases where the identical 25 Chinese characters had been recorded. We felt that it was impossible to say that the judge would have admitted the cautioned statements in evidence against the applicant if he had known about the contents of the statements in T.W.D.C. 151 of 1989. It is only necessary to add that the judge's careful Reasons for verdict made is clear to us that he would not have convicted the applicant without the admissions contained in the challenged statements. It was for these reasons that we allowed the appeal on the ground that the conviction was unsafe and unsatisfactory.

9. We would here comment that what happened in T.W.D.C. 151 of 1989, (and we know not whether prosecuting counsel fully took into account the implications of the course he adopted at the hearing) made it very difficult for the Crown to maintain that D.P.C. 22705 should be regarded as a credible witness for the purposes of this appeal. The circumstances in each case were identical.

10. Before taking leave of this case, we would add that had the applicant not served the major part of the detention period under the order to which he was subject, we would have invited submissions upon whether or not the interests of justice demanded a re-trial.

Representation:

Mr Gary Plowman (Director of Legal Aid) for the Applicant

Mr D.G. Saw (Crown Prosecutor) for the Crown