Ng Chun-kwan v. The Queen
Read the full judgment text of CACC 242/1974 on BabelCite. This Court of Appeal judgment was delivered on 17 June 1974.
1. This was an application for leave to appeal against a conviction for robbery.
Cited by 2 cases
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CACC000242/1974 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 242 OF 1974 -----------------
----------------- Coram: Full Court (Briggs, C.J. Huggins & McMullin JJ.) Date of Judgment: 17 June 1974 ----------------- JUDGMENT ----------------- 1. This was an application for leave to appeal against a conviction for robbery. 2. Miss Chua appeared on behalf of the appellant and at the conclusion of the arguments of counsel on his behalf we informed Mr. Macdougall who appeared on behalf of the Crown that we did not wish to hear him and dismissed the application reserving reasons for doing so until later. 3. This appellant was charged with three other youths who were accused of the same offence. They were jointly tried and the appellant (who was the second defendant at the trial) and the first defendant who has not appealed were found guilty; their companions D.3 and D.4 being acquitted by the magistrate. 4. It was the case for the Crown that the complainant, YUEN Wai P.W.1, was leaving his place of work in Lee Chung Street at about 5.30 on the 21st of July when he was assaulted by some six persons, one of whom seized him round the neck. An umbrella and a radio which he was carrying at the time were taken from him, and the youths then asked him to follow them towards a certain hill in the vicinity. He did so but after a few paces he took to his heels and ran towards the place where he lived and on the way, by good fortune, he found some police officers in a police car. He reported what had happened and went with them back to the area where the assault had taken place and, according to him, he saw the same gang of youths still loitering there and he pointed them out to the police. They were then chased by four police officers and all four of the original defendants were arrested, it would appear, upon the first floor of a certain building in the vicinity. They were then taken downstairs out into the street where the complainant was waiting and he identified them as being among his assailants. No identification parade was therefore held. However, at the hearing the complainant was able to identify only the first defendant as one of the robbers. 5. The case against the present appellant rested almost entirely upon a confessional statement allegedly made by him immediately after arrest to P.C. 10112. At all events it is clear that it was this piece of evidence which was decisive in the magistrate's mind in convicting the appellant. He concluded the brief note of his reasons for conviction with the sentence :
It should be added that the confessional statement was challenged in the course of trial by Mr. Gunston who appeared on behalf of the appellant and after the usual trial of the issue as to admissibility it was admitted in evidence. 6. Of the five grounds of appeal urged by counsel on behalf of the appellant, four were directed to the manner in which the issue as to admissibility of the alleged confession was dealt with. The burden of all these grounds was that the learned magistrate had improperly admitted the statement in view of certain features in the evidence which, it was alleged, should have drawn him to the conclusion that the Crown had failed to prove the voluntary character of that statement beyond reasonable doubt. None of these grounds calls for special mention. It may be said that Miss Chua made the very most of somewhat unpromising material. There were certain miner anomalies of a kind sufficiently familior in the circumstances attendant upon the taking of such statements and which might, indeed, point to the conclusion that the police officer who gave evidence on the matter was not entirely candid as to what occurred immediately after the arrest. There was however nothing in any of these matters which could have drawn us to the conclusion that the magistrate wrongly exercised his discretion in admitting the statement as voluntary. 7. The only point which we feel does call for some consideration was that raised by the fifth ground of appeal which is in the following terms :
This objection arises from a discrepancy between what the appellant alleged on the voir dire and what he said later upon the general issue concerning the improper behaviour of the police which, according to him, had induced him to make the vital confession. The matter is accurately summarised in the third finding of the learned magistrate which is in the following terms :
The point being made on behalf of the appellant is that the magistrate had improperly resorted to evidence taken upon the special issue of admissibility in forming his conclusion of guilt when dealing with the general issue at the conclusion of the evidence at large. It was argued that this was improper in two respects. Firstly, counsel said it was in breach of an established principle in the law of evidence to the general effect that no matter touched upon by an accused person in the course of giving evidence upon a voir dire can be resorted to for any purpose by judge or jury when coming to a final determination as to the guilt or innocence of the accused; secondly, it was improper in that the appellant was never given an opportunity of explaining the alleged discrepancy since it was never drawn to his attention either by counsel or by the court and his comment thereon was not solicited. 8. For the first of these propositions Miss Chua relied upon the decision of the Full Court in LI Kim-hung v. The Queen(1) and also upon the decision in Chitambala & Others v. Reg.(2) a decision of the Federal Supreme Court of Rhodesia which was referred to and followed by the Full Court in the former case. It will be evident from what follows that the advantage to be taken by the appellant from the general principles discussed in those two cases can be at its best somewhat oblique and analogical. At its highest, it may be said that the learned magistrate in the present case was doing no more than expressing satisfaction that his decision as to admissibility was correct in the first instance. The contradiction to which he refers was not in the evidence before him at the time when he made that decision. It might have been that, upon the subsequent testimony of the appellant on the general issue, something said by him on his own initiative or elicited from him by cross-examination, or even something in the remainder of the prosecution's case, might have called into question the propriety of having admitted the statement in evidence. The magistrate might then have found himself in the position of the magistrate in LI Kam-ming & Another v. The Queen(3) and might, therefore, have been under the necessity, having admitted the statement in the first place, of placing no reliance upon it whatsoever, as the Full Court suggested the magistrate in that case should have done. So far from that being so, however, the subsequent testimony of the appellant in the present case had the effect of fortifying the magistrate's original impression that the accused had lied about the manner in which the statement was taken. And that, as it seems to us, is all that he was saying. It may be that he also had regard to that lie in weighing the value of the accused's evidence generally but that he was entitled to do. 9. The efficacy of the voir dire procedure has often enough been called in question where a magistrate is performing the functions of judge and jury. It would be a pity to deprive it of the symmetry of function which preserves at least the logic of its purpose irrespective of whether a jury is involved or not. It is well established that, in a jury trial, the truth of a confession is a relevant consideration for the judge in deciding whether it was voluntary [R. v. Hammond (1941) 28 Cr. App. R. 84 and Declercq v. R. (1968) 70 D.L.R. 530]; and the question whether it was voluntary is a relevant consideration for the jury in deciding whether it is true. In a jury trial, that is to say, both judge and jury may have regard to both those factors though for different and complementary purposes. The magistrate, sitting alone, may certainly apply the first of these principles and there seems to be no good reason why he should be deprived of the right to employ the second and in doing so to have regard to any contradictions arising from any additional matter adduced by the accused himself on the issue of voluntariness just as a jury may do when cross-examination or rebutting evidence has made it apparent that such contradictions exist. 10. It may be said therefore that a magistrate in dealing with the issue of guilt may resort for two purposes to all the evidence available before him on the question of the voluntariness of a statement admitted in evidence: (a) to come to a just estimate of the truth of the statement; (b) to help him to form an opinion on the quality of the accused as a witness. 11. Had the magistrate in this case been relying upon some part of the evidence given by the appellant in the voir dire, e.g. some admission bearing on the general issue over and above the contents of the statement itself, as evidence corroberating the truth of what was contained in the statement the matter might have stood differently. It was certainly, as counsel pointed sut, the opinion of Hogan C.J. in Reg. v. LI Kim-hung(1) that this would be impermissible. Thus at page 87 he says :
The appellant's untruthfulness (as the learned magistrate deemed it) upon the voir dire had by then become an issue peripheral to the matter then in hand viz. : the truth of the statement itself. If the magistrate had been enlisting what he regarded as the appellant's proven untruthfulness in order to resolve that issue one might have expected that it would have inclined him rather to doubt the reliability of the statement than otherwise. The reason usually given for admitting a confessional statement as evidence against an accused person is that a statement made against a party's own interest is likely to be true. In itself, therefore, the unreliability of the appellant as a witness could scarcely be regarded as a factor probative of the truth of what he had said in the statement. It must be borne in mind that just as a confession may be true though not voluntary so it may be voluntary though not true. Therefore the possibility that an unsworn statement contains the truth is not enhanced by the fact that the maker of it has lied upon oath, even though the lie concerns the manner in which the statement was obtained. That lie, if, in itself, it is probative of anything tends to show not that the accused is aware that the statement is true but only that he realizes that it is damaging, and perhaps fatal, to his case. It would not in itself be ad admission: it would amount, rather, to evidence of his unreliability as a witness on both the special and general issues. 12. It is not possible to say from the report in Reg. v. LI Kim-hung(1) what evidence, given upon the voir dire, was resorted to by the magistrate in reaching his final conclusion as to the guilt of the accused but it would certainly seem to have concerned something other than the contents of the statements admitted in evidence against him. This is apparent from the fact that the learned Chief Justice in that case, having dealt with the principal issue before him in the terms set out above, went on to deal with the very point which has been raised here viz.: whether it is proper to use answers to questions given by an accused person upon the voir dire in order to show that he has contradicted himself and is therefore an unreliable witness and not to be believed on the general issue. Thus on page 87 he says as follows :
It seems therefore that that case is not an authority directly in point in relation to the present facts since the magistrate was patently not relying on anything said in the voir dire as substantive proof of guilt and the point principally at issue here was expressly left open by the court in that case. 13. In Chitambala's case(2) it is even clearer that what was reproved by the Federal Court of Rhodesia was the attempt to introduce evidence of answers made by the accused upon the voir dire as substantive proof of his guilt upon the general issue as distinct from proof of his untruthfulness. The accused had been asked, in relation to a disputed confession, and in the course of the voir dire, whether the substance of the statement was true and he replied that it was. The Federal Court, following the decision in R. v. Hammond(4) held that that was a proper question to ask but went on to reject the contention that the Crown had been entitled to use this answer (a) to strengthen the case against the accused who had made the statement and (b) to constitute evidence against his co-accused. It is clear that the reason given for that decision, which was that the course advocated by the Crown would have the effect of depriving the accused of his right to remain silent, is relevant only to trials without jury; where there is a jury prejudicial matter elicited from the accused in the voir dire could only be drawn to the attention of the jury by cross-examination as to credit on the general issue. Also, the court in Chitambala's case(2) had no occasion to direct its attention to the question whether the Crown may, for the purpose of shaking the credibility of an accused person upon the general issue, confront him with statements previously made by him upon the voir dire. 14. To sum up, the essence of the matter is that what the accused says on the voir dire may not be used as substantive evidence against him or his co-accused. Thus if on the voir dire the accused admits the truth of his extrajudicial statement a witness may not be called to acquaint the jury of that admission as part of the prosecution case. If the trial is by judge alone similarly the judge must not treat the admission as part of the prosecution case. (That is what appears to have been done in Chitambala v. Reg.(2)) In this respect evidence on the voir dire is distinguishable from an extrajudicial confession and the basis for the distinction lies in the accused's right to remain silent upon the trial of the general issue even though he has elected to give evidence on the voir dire. The only way in which evidence of an admission made by the accused on the voir dire may be adduced in evidence is by way of rebuttal if he gives evidence on the general issue and if that evidence is inconsistent with what he has said on the voir dire. Such rebutting evidence may weaken the case for the defence but it cannot strengthen the case for the prosecution and it is upon the strength of the case for the prosecution that the guilt or innocence of the accused must in the end be decided. While emphasising that, we cannot see any warrant for the contention of counsel that everything which transpires in the course of a voir dire is to be regarded as having acquired as indefeasible immunity from all further resort for any prupose whatsoever. 15. Perhaps the real substance of Miss Chua's contention in the present case is to be found in her second proposition. It is certainly true that nobody appears to have drawn this particular contradiction to the accused's attention at the time he was giving evidence upon the general issue. If it were clear that the magistrate had convicted upon the truth of the statement and that he had found the statement to be true solely because of this contradiction that might have been an objection of substance. But, as has been said above, notwithstanding reference to the voir dire proceeding, it is plain that he relied upon the statement as being the truth for the usual reason that, being voluntary, as he found it was, it was self-validating by reason of its confessional nature. In the final paragraph of his findings he makes it plain that in so far as he looked for corroborative evidence to confirm the truth of the statement he found it not in any untruth that the accused may have told but in the other evidence concerning the attack upon the complainant and the arrest of the appellant by the police. In addition, the accused's untruthfulness was a factor he was entitled to consider in estimating the weight to be given to the accused's evidence generally. 16. In view of what has been said about the decision in LI Kim-hung(1), the case principally relied upon by counsel in support of her contentions, it is unnecessary to consider the question of stare decisis since her arguments in that regard depended upon her being able to show that what the magistrate had done in this case fell foul of the principles stated by Hogan C.J. in that case. Had we been of the opinion that that authority was directly in point, and had we been minded to differ from any statement of principle appearing therein, it would have been necessary to consider to what extent, if any, we found ourselves necessarily bound by any such statement. It is perhaps only necessary to say that the authority upon which Miss Chua relied as showing that this court is bound by its own previous decisions, CHAN Kai-lap v. The Queen(5), ought not to be relied upon as an authority to that effect. Although it is true that the then Senior Puisne Judge, Sir Ivo Rigby, had occasion to consider the question to what extent the courts in Hong Kong are bound by decisions of the Superior Courts in England and to what extent obiter emanating from those courts, other than the Privy Council and the House of Lords, are to be considered authoritative in these courts, the status of earlier decisions of the Full Court itself does not appear to have been canvassed in the argument and no reference was made to an earlier decision of this court (In the matter of SUN Ah-wan etc. 1910 H.K.L.R. 72) which is express authority to the contrary. In the CHAN Kai-lap case(5) the court was concerned with the interpretation of the word "use" which appeared in certain provisions of the then Road Traffic Regulations, the point at issue being whether habitual user must be proved before it could be hold that a vehicle had been used for hire or reward within the meaning of a certain exception clause in the insurance policy. The court found that the matter was concluded by a previous decision of the Full Court in the case of Attorney General v. LUN Chan(6) and the learned Senior Puisne Judge at page 467 said :
We do not think that this passage, which is the passage specifically relied upon by counsel in this connection, ought to be interpreted as meaning more than that the court saw no good reason for departing from the prior decision. The note of the court's findings in the headnote to CHAN Kai-lap's case(5) preserves, in our view, a proper caution in relation to what the court did hold in this regard for it states no more than that :
the editors evidently taking the view, rightly as we deem it, that the judgment did not purport to state any general principle as to stare decisis and that the comity observed on that occasion was conditioned by the similarity of the facts in the two cases and the acceptable nature of the reasoning in the earlier case. It may be too early to say that the Full Court's decision in 1910 disposes of the matter and certainly it is true that a former judge of this court on two separate occasions declined to express an opinion either way, that decision notwithstanding: [Blair-Kerr J. in CHENG Pui-wah & Others (1964) H.K.L.R. at page 36; and CHAN Wing-on (No. 2) v. D.P.W. (1965) H.K.L.R. at page 203]. On the other hand one member of the present court has, again on two separate occasions, expressed the view, by way of obiter, that the court was not bound by its own previous decision [Huggins J. in Reg. v. TSE Wan-yuen & Another (1969) H.K.L.R. at page 295; and again in Reg. v. CHAU Tung-hoi (1966) H.K.L.R. at page 377]. It may become necessary in some future case when this topic is central to the issue to be decided to attempt an authoritative formulation of the principles which should apply. For the moment however it may be best to leave the matter upon the note which was struck by Huggins J. in the later of the two decisions referred to above where at page 295 he said as follows :
Representation: (1) (1969) H.K.L.R. 84. (2) (1961) R. & N.L.R. 166. (3) (1967) H.K.L.R. 513. (4) (1941) 3 All E.R. 318. (5) (1969) H.K.L.R. 463. (6) (1964) H.K.L.R. 265. |
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