Chu Kwok-kuen v. The Queen

CACC000241/1980

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 241 OF 1980

(On appeal from the Magistracy NK 18564/79)

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Coram: LIU, J. in Court

Date of Judgment: 24 April 1980

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JUDGMENT

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1. The appellant was charged with a staircase robbery on the morning of the 27th August 1979. The victim, one Miss Lee, was called to describe that incident at about 7.30 a.m. A report was made to the police. Some 4 days after the robbery, on the 31st August, at the Kowloon Police Headquarters Miss Lee was shown a number of photographs of which she picked out one. I will return to her evidence at a later stage. Subsequently, the appellant was located by the police, and an identification parade was held on the 12th November. The appellant was said to have been positively identified by Miss Lee. Hence he was charged. The appellant was convicted by the learned magistrate. On appeal to this Court, no less than 3 grounds were pursued on his behalf. I will deal with these grounds of appeal in the same order as they were put.

2. Before the learned magistrate, an objection was taken to the prosecution's attempt to cross-examine the appellant on his previous statement to the police. In the course of his evidence, the appellant made reference to a morning restaurant visit immediately upon leaving home on the day of the robbery. It was sought by the prosecution to cross-examine the appellant on a statement previously made to the police to the effect that on the same day he had left for work in Choi Hung Estate early in the morning. Both versions would bar the possibility of the appellant's presence at the scene of the crime. The learned magistrate overruled the objection and permitted cross-examination. That episode founded the first ground of appeal. It was urged that the learned trial magistrate erred in allowing the appellant to be so cross-examined after the close of the prosecution's case.

3. The law on our equivalent of the Denman's Act for cross-examination as to credit raises a point of interest. To begin with, we have R. v Cheng Chung Yat⁽¹⁾ which affirmed the procedure for introducing a previous inconsistent statement by way of rebuttal in cross-examination as to credit. On a somewhat different aspect, there is SHUM Man-keung v R.⁽²⁾ which was approved in a Criminal Appeal before the learned Chief Justice in TSANG Po-man v R.⁽³⁾. These latter two cases were centred on the principles whereby an accused person may be cross-examined on his previous inconsistent statement which is probative of his guilt. Mr. Justice Cons, as he then was, in the SHUM Mam-keung case made the following observations:

"That statement had, I understand, been reduced to writing, but was not proved as such. It was first introduced briefly in the cross-examination of the appellant when he gave evidence on the voir dire held in respect of another statement that he had made. Later it was dealt with in more detail when he was cross-examined during the trial proper. On this second occasion the solicitor representing the appellant objected. I do not think the objection can have been very clearly worded for it led the magistrate to think it was a matter for section 14 of the Evidence Ordinance. That was an error. Section 14 is concerned with discrediting witnesses generally by reference to previous contradictory statements. It is not concerned with statements made by a defendant which are probative of the main issue."

The learned Chief Justice in the case of TSANG Po-man set out verbatim the passages I have just referred to, and he proceeded to hold:

4. More directly on the provisions of section 14 of Evidence Ordinance is the judgment of the Court of Appeal in England in a recent case, R. v Smith (Stanley)⁽⁴⁾. The facts are not on all fours with those in the present appeal. There, the accused gave certain statements to psychiatrists. It was intended that the psychiatrists could be of assistance in a defence of insanity or diminished responsibility. The defence raised no such issue at the trial, but automatism was relied upon. In the course of his evidence, the prosecution sought to produce his statements given to the psychiatrists, which were inconsistent with the accused's viva voce evidence, with a view to establishing that the automatism at issue was an afterthought. The statements were said to be inconsistent with automatism and trendering the account given by the accused physically impossible. Thus, they contained matters probative of guilt, and voluntariness was unanimously accepted as a pre-requisite.

5. At page 608j, in delivering judgment of the Court of Appeal Geoffrey Lane, L.J. had this to say:

"Counsel for the applicant, who urged the application before us with his usual clarity and with commendable skill, puts the argument in this way: first, he submits that before a witness can be cross-examined as to a previous inconsistent statement made by him under S4 of Mr Denman's Act, it must be shown that that statement is admissible. Put in another way, it must be shown the statement is not inadmissible for reasons other than that it is hearsay. I do not think anyone would quarrel with that initial proposition."

The learned Lord Justice concluded at page 612 f to h:

"The next two points which counsel for the applicant makes are these: he says, first the statements made to the psychiatrists were in breach of the judges' rules. Secondly, he says it was not sufficiently demonstrated that the statements were made voluntarily by the applicant to the doctors. Now, the difficulty there is this, that this particular point was not taken at the trial below. If it had been, the judge in the absence of the jury would have had to determine whether the judges' rules had been broken and whether it had been shown by the Crown the statements had been made voluntarily by the applicant. Doing the best we can, we have tried to gauge what would have happened if such an enquiry had been made. It seems to us quite clear that any decision on that matter would have gone against the applicant. First, there is, so far as we can see, no evidence at all that the statements were other than voluntary. Secondly, so far as the judges' rules are concerned, we very much doubt whether there was any breach of them but it does seem to us this is plainly a case where the statements would nevertheless have been admitted despite any such breach."

6. It has been decided in our courts that the question of voluntariness of a "statement being in no way an admission or confession" need not be first established in cross-examination as to credit under S.14 of the Evidence Ordinance. See CHAN Tai-nang v. R.⁽⁵⁾ and R. v. CHENG Chung-yat⁽⁶⁾. It would seem that for cross-examination on credibility, a distinction may be drawn between statements probative of the main issue and statements which are not. The same approach as in Smith case may be found in a self-serving statement, being also evidence probative of the main issue, in respect of which paragraph 1393(4) of Archbold 40th ed. puts "voluntariness" in the forefront: "If however the defendant gives evidence inconsistent with his statement he can be cross-examined on it, if it was voluntary, and if he does not admit saying it, if can be proved against him under Lord Denman's Act."

7. Thus, even on the basis that voluntariness and breaches of the judges' rules had first to be resolved in the case of the appellant, it can be observed from Smith case that the Court may be driven by circumstances to the conclusion that a statement, subject-matter of cross-examination as to credit under section 14 of the Evidence Ordinance, could not have been otherwise but voluntary. Further, it would be open to the Court in an appropriate situation to give also retrospective consideration to the effect of any breach of the judges' rules.

8. Mr. Whitehead, counsel for the appellant, earnestly implored the Court to scrutinize the evidence relating to the circumstances in which cross-examination of the appellant on his previous statement was granted. Counsel levelled critisms against the observations of the learned magistrate that there were discrepancies between the appellant's viva voce evidence and what the appellant allegedly told the police on a previous occasion. The Court was led through the evidence by counsel with meticulous care, and it would seem that the appellant did deny being the author of parts of the contents of his statement.

9. His answers to questions on his alleged previous revelation to the police were, in part, unclear. There was no attempt by the prosecution to have the statement produced. There seems to be no warrant for finding any prevarication merely from the appellant's denials of and ambiguous evidence on parts of the contents so put in cross-examination. From the overall evidence, the learned magistrate might be said to be inaccurate in his reference to discrepancies.

10. Turning back to the TSANG Po-man case, the learned Chief Justice commented:

"It may very well be that the magistrate might have reached the same conclusion, even if he had not taken into account the inconsistent answers. There is certainly evidence on the record which would have entitled him to do so. But I cannot feel sure that he would have done."

Even if cross-examination of the appellant on his previous statement had or might have some probative value on the question of guilt and even if "voluntariness" and any breach of the judges' rules must first be determined, whatever passing remarks the learned magistrate made on the effect on such cross-examination, he relied on none of it and catergorically stated in his Statement of Findings at page 24 of the record of appeal:

"... even if I had not allowed this cross-examination I believe I would still have convicted as charged."

11. It may be justifiably argued that the subject-matter in the cross-examination of the appellant on his previous statement, the nature of which was or might be closely allied to the issue of alibi and consequently had or might have some bearing on identification, was evidence probative of guilt. Thus, it might not have been proper to allow cross-examination without any enquiry into voluntariness and/or breaches of the judges' rules. Moreover, there seemed to be no real discrepancies in the evidence as recorded without the introduction of the appellant's previous statement. But from the tenor of his given reasons, the learned magistrate chose to attach no significance to such cross-examination, and he would have convicted the appellant as charged had it been disallowed.

12. In conclusion, however illiquid the legal issues on this appeal appear to be, the first ground of appeal falls to be decided on one short point. It is evident that the learned magistrate would have convicted the appellant even without such cross-examination, and that disposes of ground 1.

13. I pass then to consider whether there is any substance in the remaining grounds of appeal. The second ground of appeal as advanced by counsel for the appellant evolved from a passage in the Statement of Findings at page 20 of the record of appeal:

"I was not impressed by the defendant's evidence. He did not call his wife as a witness although, if his story were true, it seemed probable that she could give evidence to corroborate his story to some extent. However I attached little or no importance to this failure, I accepted the identification evidence as reliable and convicted as charged."

14. Counsel for the appellant contended that the learned magistrate in effect shifted the burden of proof onto the defence and, as I understand him to say, improperly commented on the accused's failure to call supporting evidence on the issue of alibi. Counsel rightly emphasized that an issue of alibi, when raised, had to be destroyed by the prosecution. It was urged upon me that the passage quoted had the effect of shifting the burden onto the shoulders of the appellant of establishing his alibi or at least some of the ingredients in support of it. I do not share counsel's criticism. As submitted by counsel for the Crown, the principle of the prosecution having to destroy an alibi is much too fundamental to have been overlooked. There is nothing in the Statement of Findings of the learned magistrate to suggest that he failed to pay due regard to such basic concept. The Court's prerogative to comment on the absence of evidence from any particular sector including that from the accused personally is deep-rooted. Furthermore, the learned magistrate was only too concious of the probability that no material evidence might be adduced through the person of the appellant's wife. I do not find any real substance in ground 2 of the appeal.

15. Lastly, I turn to last ground of appeal which seeks to invite the Court to quash the conviction of the magistrate and set aside his sentence on the ground that on the totality of the evidence, the conviction was unsafe and unsatisfactory. The Court was taken through a substantial part of the evidence on identification. Counsel for the appellant endeavoured to gain vantage ground from every syllable in what is known as the guidelines in Turnbull's case. Mr. Chandler, counsel for the respondent, invited the Court to apply the spirit of the Turnbull principles as guided by common sense. The victim told the Court that she saw the face of the robber clearly and that she saw him for several minutes. She described the incident in sufficient detail. When she was confronted with the photograph by the police officer, she qualified it with her statement that the robber would be 20 to 24. The learned magistrate, a seeing judge, held the victim in high esteem in her capacity as a witness. She remained unshaken under cross-examination. I do not propose to repeat his comments. The victim was adamant that she was 100% sure. Suffice it for me to say that having examined the evidence and despite the tenacity of counsel and the meticulous care he displayed in the prosecution of this appeal, in the end I can find no valid reasons for faulting the verdict of the learned magistrate.

16. All three grounds of appeal have been dealt with and adversely disposed of. It remains for me to say that the appeal must therefore be dismissed.

Representation:

Mr. R. Whitehead instructed by Director of Legal Aid for Appellant.

Mr. Chandler, counsel for the Respondent.

(1) (1970) HKLR 269

(2) Criminal Appeal No. 711 of 1978, judgment of which was delivered on 23rd August, 1978 by Cons, J., as he then was.

(3) Criminal Appeal No. 948 of 1979 judgment of which was delivered on 5th November, 1979 by Roberts, C.J.

(4) (1979) 3 ALL ER 605

(5) 1966 HKLR 685 at p. 695

(6) 1970 HKLR 269 at p. 271