The Queen v. Wong Ho Yin and Another

CACC000274/1989

Headnote

Ambiguous finding on voire dire which involved a possible reflection upon credit of a police officer. Failure to refer to and resolve this matter when later accepting evidence of police officer in trial proper rendered verdict unsafe and unsatisfactory.

BETWEEN

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

Coram: Sir Ti Liang Yang C.J., Power & Macdougall, JJ.A.

Date of Hearing: 22 June 1990

Date of Judgment: 22 June 1990

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

JUDGMENT

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

Power, J.A.:

1. The applicants were convicted of conspiracy to rob and possession of an offensive weapon in a public place after trial before Judge Moylan in the District Court. They were sentenced to imprisonment for two years on the first charge and nine months on the second charge and the sentences were ordered to be served concurrently. They now appeal against those convictions.

2. It was the prosecution case that the applicants were travelling in a taxi at about 12.05a.m. on 11th July 1988 when it was stopped by a police road block. The 1st applicant, who was found to be holding a plastic bag containing a knife, two pairs of workmen's gloves, a roll of adhesive tape and a white shirt, was apprehended at the time. The 2nd applicant escaped but was arrested that evening. P.C. 23176 said that when he cautioned the 1st applicant, having arrested him for possession for an offensive weapon, the applicant said:

"The knife is not mine. It was Chan Ka-leung who told me to hold it for him, because just now we were planning to rob, but could not find a target, so we were going to put the things back in Chan Ka-leung's house."

The P.C. went on to say that upon finding the other articles he cautioned the 1st applicant on the charge of going equipped for stealing and the 1st applicant then said:

"Chan Ka-leung gave me the bag with the knife, the T-shirt, the two pairs of workmen's gloves and the adhesive tape. About the T-shirt, it was for us to change clothes after committing a robbery so that we would not be recognized. We were to wear the workmen's gloves when robbing so that no fingerprints would be left behind. The adhesive tape would be used to tie up people after robbing them."

He said that he took the 1st applicant to the police station and post-recorded the statements and also recorded a series of written questions and answers. Objection being taken to the post-recorded statement on the ground that the document had not been made voluntarily a voir dire was held. Five police officers gave evidence in that voir dire as did the 1st applicant and, at the conclusion of it, Judge Moylan ruled:

"I am satisfied that the Crown has established beyond reasonable doubt that the signatures of the 1st accused to the record of what P.W.2 says were said and done at the scene, were signed of his free will and were not the result of any assault. I see no grounds to exclude what otherwise is admissible."

3. The 2nd applicant was alleged at the time of his arrest, at 8.15p.m. on the same evening, to have said:

"I know, sir. I bought the knife and the gloves. I was going to use them in a robbery, but we did not find any targets, so we have hidden things."

4. It was the evidence of DPC23872 that this admission was reduced to writing in a post-recording made at 9a.m. in the Yuen Long Police Station. When the post-recording was produced objection was taken to it by his counsel Mr. Lee upon the following ground:

"I object on the ground that it was not made voluntarily. His signature does not adopt it (in fact he says he made no admission at the scene of arrest) because he signed through (i) inducement and (ii) a threat."

Mr. Lee then went on to detail the allegations of impropriety alleging that the inducement came from a Sgt. Ma and the threat from D.P.C. 23872.

5. The trial judge having heard the voir dire held:

"I am left having considered the evidence on the voir dire not convinced that A2 appended his signature to the notes made by PW7 of his free will and/or without some pressure having brought to bear upon his mind by persons) in authority. I therefore decline to accept in evidence the notes in Exhibit A on voir dire."

6. The ruling did not go on to set out detailed reasons. The trial judge cannot be criticised for this. A judge is not required to give reasons for his decision on a voir dire. The matter in issue had not, as he said, been proved to his satisfaction, i.e. that the notes had not been signed "of his free will and/or without some pressure by person(s) in authority". A finding couched in those broad, alternative terms gives no real indication as to what troubled the trial judge. Indeed, we find the use of the term "and/or" and the use of the word "person(s)" somewhat confusing. Having decided to give reasons for his decision he should have expressed himself in unambiguous terms.

7. As it stands it is not clear whether the trial judge was not satisfied with the evidence of Sgt. Ma or with the evidence of D.P.C. 23872, or with the evidence of both of them. The finding, because of its imprecision, inevitably left a question mark over the evidence of DPC 23872.

8. The trial judge in his Reasons for Verdict appears, however, to have accepted the evidence of the D.P.C. that the 2nd applicant trade the oral admissions alleged. he was, of course, entitled so to do, i.e. to reject the written admission on the ground that it has not been proved that the acknowledging signature was voluntarily appended but to accept that an earlier identical oral admission had been made. Indeed, where a defendant gives no evidence on the general issue, such a ruling is all the more understandable as the evidence of the making of the oral admission stands unchallenged.

9. We turn now to the Grounds of Appeal of the 1st applicant. The 1st applicant was represented at the trial and before this court by Mr. Jerome Matthews who argued the first ground as follows:

Further, in the light of the aforegoing the alleged oral admissions of the 1st Applicant at P.35 and P.36 of the transcript are an unsafe basis upon which to found the said convictions."

We are satisfied that the trial judge was fully apprised of both these matters, in fact Mr. Matthews has said that he drew them to his attention. They are essentially matters of fact which were for the resolution of the trial judge. They clearly did not occasion him any doubt that the 1st applicant had signed of his own free will. There is nothing that would warrant our interfering with his decision in this regard.

10. Mr. Matthews did not press his second ground and we turn therefore to his third ground which was:

11. The evidence referred to came from DPC23872 who in answer to questions put to him by counsel for the 1st Applicant. Mr. Matthews agreed that the 2nd applicant had told him that the 1st Applicant had no knowledge of any intended robbery or of any articles found by the police. This was clearly hearsay evidence which was not admissible to prove the truth of its contents exculpating the first applicant. Such questions might, perhaps, have been put to the witness to test his credit, but this was clearly not the purpose for which the questions were asked. The evidence was elicited, or. Matthews agrees, to prove the 1st applicant was not involved in and had no knowledge of the instruments being carried or of the planned robbery. As it was hearsay it was not admissible for that purpose.

12. The trial judge did not, however, approach the evidence in this way. He held in his Reasons for Verdict:

"..... and in any event I am unable to give any weight to what the 2nd Accused said initially or what he said subsequently. It is neither evidence for nor against the 1st Accused for the truth of what was said initially by 2nd Accused is completely called into the question by his subsequent statement.''

He appears to have rejected the evidence because he found the 2nd accused to be unworthy of credit in that regard. While this was not the proper reason for rejecting it nothing can be made of the judge's failure, albeit for the wrong reason, to give weight to the evidence which was inadmissible and which he could not properly have acted upon.

13. The application for leave to appeal by the 1st applicant is for the grounds set out above refused.

14. We turn now to the Grounds of Appeal of the 2nd applicant who was represented today by Mr. Christopher Grounds. We indicated initially that we wished to hear argument on Grounds 2(a) and (b). These grounds read as follows:

The post-recorded statement signed by the 2nd applicant was objected to on the ground that the signature was obtained by inducement and threat. The post-recorded statement set out the admission that was said to have been made at the scene of the arrest in the following terms:

"I know, sir. I bought the knife and the gloves. I was going to use them in a robbery, but we did not find any targets, so we have hidden things."

The defence contended that Sgt. Ma, for whom the 2nd applicant had on occasion acted as an informer, had told the 2nd applicant that the signing of a statement was a formality after which he would be released and that DPC23872 had told the 2nd applicant before he signed that if he was not cooperative he might be charged with a large number of taxi robberies. In giving evidence on the voir dire the Sergeant denied making the alleged inducement and the D.P.C. denied making the alleged threat. The 2nd applicant gave evidence in which he said that both the inducement and the threat had been made.

15. At the end of the voir dire the trial judge gave his reasons which have already been set out. He was clearly there making a ruling only with regard to the post-recorded signed statement. The oral statement made at the scene was not, nor could it have been, covered by that ruling. The ruling did not, as I have already remarked, detail what it was that had occasioned the trial judge the doubt which he clearly had. Was it a doubt as to what Sgt. Ma was alleged to have said or as to what D.P.C.23872 was alleged to have said or as to what both had said?

16. In his Reasons, the trial judge made the following observation:

"When PW7 ran up and stopped and arrested the 2nd accused, he told the 2nd accused that 'police' had reason to believe that he was involved in a Yuen Long case of possession of an offensive weapon. After caution the 2nd accused said that he understood what he had been told and why he had been arrested. and then went on and said 'I bought the knife and the gloves. I was going to use them in a robbery but we did not find any target so we had hidden things.' I pause here for a moment to say that I do not understand the meaning of 'hidden things'. It is not been challenged although it has not been formally admitted, that it was the 2nd accused who was with the 1st accused in PW1's taxi when the police stopped it. I have no doubt that the knife and the gloves that the 2nd accused was referring to in his statement under caution were the knife and the gloves found in the bag that the 1st accused handed over to PW2 at the time when the 2nd accused made good his escape from the taxi."

17. The trial judge made no finding, in terms, that he was accepting the evidence of the D.P.C. The tenor of the ruling, however, clearly suggests that he was accepting the evidence of the D.P.C. that an oral admission had been made. While an express finding as to credit would have been desirable in the circumstances of this case, we accept that it is implicit in what the trial judge said that he was accepting the D.P.C.'s evidence. There can be no doubt that in circumstances such as this a judge would be entitled to accept such evidence and to act upon the basis of the oral admission. As was stated in R. v. Sheik Abdul Rahman Bux [1989] 1 H.K.L.R. at p.4 a district court judge is not required carefully to dissect each piece of evidence . The passage is as follows:

"It was argued for the defendants that the judge should have included in his judgment a careful dissection of each piece of evidence on which there could be said to have been some inconsistency or conflict, whether between the evidence of different prosecution witnesses or between different parts of the evidence of the same witness.

This would place a wholly unreasonable burden on a trial judge. In our view it is sufficient if the judge shows that he is aware that these inconsistencies exist and that nevertheless, having taken them into account, he is prepared to believe the various witnesses involved, save to such an extent as he may specify."

18. The trial judge is required only to make it plain what evidence he has accepted and to indicate that he has resolved any inconsistencies when so doing. In the present case, as we have already indicated, the judge's ruling on the voir dire left a question mark over the evidence of the detective police constable. The ruling may have involved a doubt as to the credibility of the D.P.C. when he made the denial that there had been any threat. It may, on the other hand, have been that the trial judge accepted the evidence of the D.P.C. throughout and rejected the post-recorded statement because of a doubt as to the credibility of Sgt. Ma. In order to resolve this matter, which was raised by the ruling of the judge himself, we are satisfied that, if the former was the case, an indication as to why the evidence of the witness about the earlier oral statement was not tainted with the same doubt was called for or, if the latter was the case, an explicit statement that the trial judge was satisfied that the D.P.C. was a witness of credit throughout should have been made. The trial judge's acceptance of the evidence of an oral admission without any finding that the D.P.C. was, as regards that evidence, a witness of credit was, in our view in the circumstances of this case, a fatal flaw rendering the conviction unsafe and unsatisfactory. The applicant is therefore given leave to appeal and the appeal is allowed, the conviction quashed and the sentence set aside.

Representation:

Mr. D.G. Saw (Crown Prosecutor) for the Respondent.

Mr. Jerome Matthews (Messrs. Ng, Lie, Lai & Chan) for 1st Applicant (D1).

Mr. Christopher Grounds (Messrs. James W.L. Li & Co.) for 2nd Applicant (D2).