The Queen v. Tang Koon Wah

CACC000254/1988

BETWEEN

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Coram: Hon. Cons, V.-P., Hunter Power, JJ.A.

Date of hearing: 29 March 1989

Date of judgment: 29 March 1989

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J U D G M E N T

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Hunter, J.A.:

1. The applicant, Tang  Koon Wah, was convicted after trial by H H Deputy Judge Chan on 5th May 1988 of A charge of robbery for which he was sentenced on 19th May to a term of imprisonment for 6 years.

2. The charge was. That on 14th January 1988 in the corridor on the 8th floor of Hong Shui House, Shui Pin Wai Estate, Yuen Long, he, together with persons unknown, robbed a Mr Wong Wui Ting of a white bag containing some HK$4,630 and some keys.

3. The victim, Mr Wong, was a restaurant owner. At about 9 30 pm he returned to his home on the 8th floor of Hon Shui House with, the takings. Three young men got into the lift with him. As he got out at the 8th floor, the three young men produced water pipes, hit him on the head, and seized the bag containing the money. The victim raised the alarm. At that time a police vehicle was passing containing four police officers. They saw three young men running out of the property. One of them was carrying a white bag and another a water pipe. The young men scattered and the police officers gave chase.

4. One police officer in particular, the driver of the vehicle, followed the applicant. He slowly gained on him, kept him in sight all the time, and eventually ran him down. Shortly before that happened, he saw the applicant throw away a water pipe which he had been holding in his left hand. After he was stopped and taken into custody by the police officer, he was taken back to this point. The area was searched and a water pipe was found. He was then taken to the Yuen Long Police Station. In the course of that evening two statements were taken from him by the same police officer. Those statements were the subject of a voir dire in the Court below. The notice officer described in the some detail how he had taken both the statements.

5. The first one is really a post recorded statement by the police officer himself in which he recites his account of the evening. It starts at a time of 23.20 and finishes at a time of 00.40. Judging by the content this can fairly be described as a long time. But the police officer explained that he did not write very quickly himself. There was a lot of thinking time as far as he was concerned in recording the statement. He said there was a lot of thinking time as far as the applicant was concerned when he read it over to him. That was his account. The timing was challenged by the applicant in evidence. But at the end of the day, the judge believed the police officer and totally rejected the evidence of the applicant.

6. The second statement was started at 00.55 hours a did pot terminate until 3 am. It was taken by way of question and answer. The questioner adopted an unusual procedure which must have been very slow and cumbersome, formulated the question. He then wrote the question down; read the question out to the applicant; invited the applicant to read the question; and then he and the applicant both signed the question. Then he obtained the answer and the whole process was gone through again with every question and every answer. It is perhaps not surprising that when speaking about this police officer, the trial judge described him as a "decent conscientious young police constable who gave very credible evidence".

7. By contrast the applicant's account of this man's behaviour towards him from the moment of his arrest was one of unremitting violence. He was struck, he said, with the but of a police revolver at the place of the arrest. The policeman then goaded some citizens to attack him. There was constant violence at the police station whilst these statements were being taken. In effect the statements were beaten out of him. When that was put to this police officer be came back with a fairly devastating answer in cross-examination : "This was impossible". He then described the room in which the statement was being taken as the room w hawkers were normally interviewed. It had a glass panel in the door. The door was open. It had a partition wall which did not reach the ceiling, with the public on the other side of the partition wall. One can al see the collapse of the cross-examination as from the giving of that answer. That was the evidence which the judge accented.

8. The only issue raised in the Court below was whether these statements sere voluntary or whether as the applicant had said they were literally beaten out of him. On this judge, It would an near, had no hesitation at all in accenting the police officer and wholly in rejecting the applicant :

"His evidence was so unreliable in the Voir Dire that I entirely rejected it".

9. The point that is taken on appeal before this Court is a brand new point which was never openly considered in the Court below at all. It is said that the judge should have gone on further to consider the exercise of her discretion and having peen satisfied that the statement was not beaten out and it was in fact voluntary whether there was any element of unfairness in the taking of the statement. That was a point which was not, as I said, taken before her at all. There is some authority of this Court and other courts, restrictive of applicant's rights to take points in appellate courts which were not taken in the court below But notwithstanding that, we have considered it.

10. The main burden of the submission here was based upon the judgment of Silke JA in Cheng Ho Shing v The Queen (Cr App No 356 of 1981). In relation to questioning he says at the end of his judgment :

"The asking of questions is permissible provided that the interrogation is not such as would amount to pressure such a nature as to sap the will and provided, that the questions asked do not amount to a cross-examination in the nature of oppression or contain a gross impropriety. Also farther provided that the interrogation was not of undue length nor was persisted to after a clear indication that the subject does not wish to answer further questions or make a statement".

It is particularly upon the latter sentence that Mr Howard relies. At the end of the first statement there appears this :

"I told the applicant that he could make addition or deletion to the above two page cautioned statement at his liberty. However, I remind yon that yon are still under caution".

Then the applicant said "he had got nothing to say" signed

11. This, it is submitted was an unequivocal statement by the applicant that he wished to say nothing else. Therefore it was wrong for the police officer to continue. But it is apparent that answer was given in the context of "Do you want to make any addition or deletion to what is written before?" and the answer was "no".

12. Further questions were then directed at the applicant. It seems to me that if there had been any unwillingness of this applicant to go on answering questions that would at once have been demonstrated, when he was once again told that he need not say anything more, and he was again recautioned.

13. As for the undue length of this interrogation, the timing I have already referred to. I have already also referred to the method. The method was very long winded and very slow. But, as the judge held, this was a very conscientious and possibly inexperienced police officer, who it might might he thought, was falling over backwards to be fair and precise.

14. Then an attack is made upon certain of the questions which were asked, which it is said savour of cross-examination. But it is not suggested that they were in "the nature of oppression or contain any gross impropriety". It may be an area of debate as to whether questions in these circumstances can be described as examination in chief or cross-examination. But I believe that experience over the years statements taken in the form of question and answer are in fact more exact, are fairer and more reliable than statements taken in the old fashioned way in which the police officer simply purported to record the answers without actually recording both the questions arid the answers. For my part I believe that this practice, which has become more common-place in recent years, is in fact fairer in that it gives the reader a much more accurate flavour of the statement itself.

15. Having looked at this whole matter we do not see, any unfairness in this case which, if the Deputy Judge had considered the matter openly, which we accept she did not, would have led her to have exclude these statements in the exercise of her discretion.

16. Nor, should we add, can we see that this could have made any difference to this case. The evidence against this applicant of his involvement, which was given by PW2 in any event and was believed, was overwhelming.

17. In those circumstances the application for leave to appeal fails and must be dismissed.

Representation:

William Howard, DC, A Bell (M/s Kenneth C C Man & Co) for Applicant

E C Harris for Crown/Respondent