The Queen v. Li Chun-sai and Others

HCCC000015/1976

IN THE SUPREME COURT OF HONG KONG

CRIMINAL JURISDICTION

CASE NO. 15 OF 1976

-----------------

-----------------

Coram: Mr. Commissioner O'Connor in Court.

Date of Judgment: 12th May, 1976

----------------------------------

Ruling on Voir Dire

----------------------------------

1. This is a ruling on the voir dire as to the admissibility of a number of statements allegedly made by the defendants to police officers. The result of my ruling will be to permit the Crown to lead in evidence the alleged statements of the 5th defendant but not those of the other defendants.

2. The statements which were written in the hands of the defendants are objected to on the grounds that they wrote under threats, violence, etc., and what they wrote did not come from their minds but was dictated to them, or else copied by them from documents provided to them. Some of the defendants' evidence as to dictation or copying is open to the comment that their evidence is not in accordance with the instructions to their counsel - see R. v. Hulusi, 58 Criminal Appeal Reports, page 378. I consider it proper to try on the voir dire the issue of whether the statements, if made, were proven to be voluntary. It is clear that where the only matter in issue is whether a statement was made or not that there is no issue raised for decision on a voir dire, but that the issue is purely a matter for the jury. There is ample Commonwealth authority for this: R. v. Mulligan (1955) 111 Canadian Criminal Cases 173, R. v. Babiak and Stephanik (1975) 21 Canadian Criminal Cases 464, R. v. Matheson (1969) South Australian States Reports, page 54, R. v. Fleming (1975) Queensland Weekly Notes (March 29), R. v. Gleeson (1975) Queensland Weekly Notes (April 26), Manjonjo v. R. (1963) Rhodesia and Nyasaland 703, R. v. Schaube Kuffler (1969) Rhodesian Reports page 78 - how that report got to the Legal Department through sanctions I do not know - R. v. Robson and Harris 56 Criminal Appeal Reports, page 450, at page 452 - the judge there was dealing with the admissibility of tape-recordings and he simply mentioned this matter in passing. There is also the case of The State v. Fowler (1972) 16 West Indian Reports at page 452, although I think the printer has perhaps misbound that case. Anyway, the Supreme Court printer has bound it as (1972) 16 West Indian Reports, and that is the case, of all the cases which I have come across, where the matter is most deeply considered. Manjonjo's case points out the importance of the judge ensuring that the objection was only on the ground that statement was not made at all before deciding not to hold a voir dire and that case emphasized that if it appeared that there was an alternative objection on voluntariness that a voir dire should be held. I agree with the decision of Justice Inckhoo in Fowler's case at page 454, H to I, that where the challenge to a statement is simply that though the document bore his signature it was executed by him under such circumstances such as for example a mistake or fraud that he never acquiesced in the contents, then that is solely a matter for the jury's consideration. An allegation that a statement was put into an accused's mouth by someone else or that he wrote it or signed it without acquiescing in its contents is an allegation that it never came in truth from his mind and that in truth it is not his statement. Where such a statement is written by him his contention is that he is a mere scribe, not that it is his statement. Such allegations where they are the only allegations are matters for the jury, though it would be rarely where it was in his handwriting that voluntariness would not also be on issue. There are some difference of opinion in the cases as to whether an accused can raise a double-barrelled allegation, that is, allege that it is not his statement and also allege that it is not voluntary. In Fowler's case it was held that a double-barrelled attack could not be raised, that it was not permissible to do so. A question that leaps to my mind immediately is how can one stop it being raised. One cannot stop an accused saying "I was beaten, but as a result I made no admission, I only wrote as a scribe". In those circumstances it seems to me that to say that he cannot rely on it having to be proved that he made the statement in the full sense and also that it was voluntary is to ignore realities. True they may be difficult allegations to run in harness. However that does not appear to me to absolve the court from properly dealing with such allegations if they are raised. In the case of R. v. Roberts 37 Criminal Appeal Reports, page 86, at page 94, Devlin J. as he then was faced with the problem of the double-barrelled attack. He decided that on a voir dire he would decide the issue of voluntariness and on the question of whether it was the accused's statement he would let that go to the jury if he thought that there was some fit evidence that it was the defendant's statement. He did not appear to find the double-barrelled attack could not be raised, or any difficulty in resolving it once it was raised. Roberts's case was not referred to in the West Indian cases and that no doubt is due to the fact that it is rather surprisingly neither headnoted nor digested on this particular point. However, as it will appear, it did not escape the eyes of the Full Court in Hong Kong. In Rhodesia the matter was considered in Manjonjo's case where the court was also apparently not aware of Roberts's case. Nonetheless, the Rhodesian court concluded that the double-barrelled attack was possible - see in particular page 706 D to E and page 707 D to I. It must be remarked that report appears to have gone on the view that an accused's evidence must be either accepted or rejected in toto. In R. v. Matneson (1969) South Australian State Reports page 53 the accused alleged that threats and inducements were made but he added that they had no effect on him and that he did not in fact make a statement. So he alleged threats and inducements but that they had no effect and he did not make any statement. Chief Justice Bray on the facts of the case was not prepared to accept one part of the story and reject the other part, and that being so he held that it was a matter purely for the jury. However it appears to me that if he had been prepared to give any credence to the allegations of threats and inducements and reject the allegation that no statement was made he would have dealt with the matter of voluntariness. That this is so is perhaps indicated by his remarks that if anything had emerged from the cross-examination of the detectives to render the alleged confessions inadmissible on the case of the prosecution itself, his duty would have been clear. By that I take it he meant his duty to rule on voluntariness. The remarks of Chief Justice Bray as to his duty if the Prosecution evidence discloses an alternative ground of objection was not dissimilar to what Cummings, Justice of Appeal, said in Fowler's case at page 471 E. In Hong Kong the matter of the double-barrelled attack has been considered by the Full Court in R. v. WU Kang (1959) Hong Kong Law Reports page 19. That was a case tried by District Judge without a jury. The Full Court referred to Roberts's case and held that an accused could raise the double-barrelled attack. It held obiter that in respect of a jury trial the judge would have to decide whether if the statement were made, it was voluntary and if he decided it was then the jury would have to decide whether the accused made it. In R. v. WONG Kam-cheung (1967) Hong Kong Law Reports page 610 - at page 614, the Full Court pointed out that the issue of voluntariness is concerned with circumstances immediately prior to the making or leading up to the making of the statement and that that can be decided without necessarily determining whether it was followed by a statement. Of course that does not mean that the contents of the statement could not be relevant on a voir dire as to admissibility as the contents of the statement itself may assist in deciding as to voluntariness. In the Queensland case of Fleming the court decided, according to the note - the only note that I have is in the Australian Legal Monthly Digest - that a judge has no power on a voir dire to decide whether a confession allegedly fabricated, was fabricated in fact. But when a defendant denies the making of admissions, the alleged admissions may be excluded if on the case for the prosecution itself it appears they are inadmissible because involuntary, unfairly got or unduly prejudicial having regard to the probative value. That appears to put matter accurately and concisely. I am not referring of course to any implications as to the onus or burden or proof that might arise there from.

.................

3. I am not going to go into details as the reasons for admitting 5th defendant's statement as matter will come again before the jury when the 5th defendant may give evidence, and I don't consider that he is entitled to give such evidence before the jury with the advantage of having heard a critical analysis of the evidence from me. That would enable him to mend his fences in effect after a trial run before me.

...............

4. The Commissioner then went on to deal with the facts.

Representation:

Mr. E. Soh for the Crown.

Mr. Kevin Shuen (Ngan & Wong) assigned for 1st, 2nd, 3rd & 4th accused.

Miss J.J. McGrowther (Director of Legal Aid) for 5th accused.