The Queen v. A1. Wong Tak-ming and Another

CACC000261/1982

Voir Dire proceedings - prosecuting counsel may ask general questions pertaining voluntariness of statement - but better practice not to ask questions directed to particular acts supplied by the defence so that prosecution witness may be forewarned - how far prosecution counsel may go is within trial judge's discretion when defence counsel raises an objection.

BETWEEN

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Coram: Hon. McMillin, V.-P., Li & Silke, JJ.A.

Date: 8 December 1982

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JUDGMENT

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Li, J.A :

1. These are applications for leave to appeal against conviction.  The 1st applicant was the 2nd defendant in the court below and the 2nd applicant the 3rd. They were convicted of having robbed the Miramar Goldsmith Shop in Jordon Road on the 30th of September, 1980. They applied for leave to appeal against conviction which was refused by the single judge and they now renew their applications.

2. There are two complaints in the grounds of appeal. The 1st applicant alleges that the trial judge erred in admitting the cautioned statement he made to the police.

3. The 2nd applicant alleges that the judge was wrong in admitting his cautioned statement and that one officer, namely DC 4148, WONG Ping-cheung, who was present at the time his statement was taken had not been called in the course of the voir dire.

4. Additional grounds have been filed. The gist of the additional grounds is that, in the course of the voir dire, counsel for the Crown was allowed to ask questions concerning the details of the allegations made by the accused in the voir dire proceedings.

5. The learned trial judge conducted separate voir dire in respect of the two applicants. Very serious allegations were made against two groups of police officers. If such allegations were substantiated, they show gross atrocity on the part of the police.

6. Having heard the evidence given by the police officers concerned and having heard the evidence given by the accused in the course of the trial within the trial, the learned trial judge gave one ruling concerning both statements respectively made by both applicants i.e. he accepted the prosecution evidence and rejected the accused allegations.

7. The trial on the admissibility of the statements took a number of days. The trial judge gave his ruling after careful consideration. He was the one who saw the witnesses, their demeanour, and received their evidence at first hand. No particulars have been given showing why he was wrong in admitting the statements. We feel we cannot in the circumstances interfere with his decision.

8. The 2nd applicant also complains that a certain police officer was not called. It will be observed that due to circumstances beyond control at the time, there were two separate trials on voir dire conducted in respect of the statements made by the applicants. In fact, the voir dire on the 2nd applicant's statement was taken out of turn being taken first. Had there been one voir dire, such a point as that a certain witness was not called in the voir dire relating to the 2nd applicant could never have been raised. However, the trial judge first heard the full evidence of the witnesses for the Crown and the 2nd applicant. He deferred his ruling until he heard the voir dire relating to the 1st applicant in which Detective Constable 4148 was called. Had defence counsel for the 3rd defendant availed himself of the opportunity to cross-examine this particular officer, he could have done so.

9. The trial judge did not give any ruling until he had heard evidence relating to both voir dire proceedings. Having regard to this matter, we are of the opinion that there is no merit in the point that the officer, DC 4148, was not called in the course of the voir dire concerning the 2nd applicant.

10. In this connection, it is perhaps pertinent to observe that throughout the voir dire relating to the 2nd applicant, the only point made by his counsel was that when the 3rd defendant was brought into room 321 of the Kowloon Police Headquarters, he saw DC 4148. There was no allegation that DC 4148 took part in assaulting the 2nd applicant. It was not even alleged that he was present when the assault took place.

11. We come now to the additional ground of appeal. It is contended that on the one hand, prosecuting counsel may ask witnesses as to whether there had been any assault, force, threat or inducement. But he should stop there. It is argued strongly and persuasively by Mr. Sedgwick that whatever particulars of atrocities or grounds of objection disclosed was disclosed in confidence between counsel. These should not be let out to the prosecution witnesses lest such witnesses would have been forewarned and can forstall cross-examination. This is unfair in the sense that the wind would be taken out of the sails of the defendants. Secondly, it is objectionable in that the questions are leading. Thirdly, the Crown has nothing to rebut until the suggestion or allegation had been made.

12. We feel that if counsel for the prosecution may ask questions relating to whether there had been force, inducement or threat such questions are equally leading - albeit not as leading as putting specific acts of violence to the witness. A witness would have been forewarned in any case once allegation of violence has been made against him. These questions are certainly leading questions. If it is leading, it is up to counsel for the defence to object on the point.

13. The Crown has the burden to prove beyond reasonable doubt that a statement is taken voluntarily. It is wrong for prosecuting counsel to ask whether the statement was voluntary. That usurps the function of the judge. However, he is permitted to ask whether any force, inducement or threat had been applied. It cannot be said he is unfair if he ask questions generally concerning grounds of objections. However, we are of the opinion that the better practice may be for prosecuting counsel to confine himself in asking general questions as to matters of force, threat or inducement. It may be, in certain circumstances, prosecuting counsel should go a little further but that depends on the discretion of the trial judge. It is difficult to lay down a hard and fast rule. There may be occasions when by asking such questions of prosecution witnesses, they are forewarned and therefore they are enabled to devise a reply when cross-examined by the defence counsel.

14. In the present case, having gone through the transcripts and having read the evidence as a whole, we have come to the conclusion that, despite these questions being asked, the defence suffered no disadvantage in the court below. Defence counsel in the court below did not object to such question, at all.

15. We are of the opinion that this additional ground of appeal must also fail. In the circumstance leave to appeal against conviction is refused and conviction is confirmed.

Representation:

Lawrence Pang & Co. for appellant l

A.W. Sedgwick & Thomas Kwan (D.L.A.) for appellant 2

J.P. McMamara (Crown) for respondent