Lam Wai-ying and Others v. The Queen

CACC000300/1978

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Coram: Briggs, C.J., Huggins and Pickering, JJ.A.

Date of Judgment: 19 February 1979

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JUDGMENT

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Huggins, J.A.:

1. The 2nd Appellant was charged on four counts but was acquitted on all except the first, one of conspiracy. He appeals against conviction by leave of this court. The substantial grounds of appeal are (i) that the learned judge erred in admitting in evidence a statement which this Appellant made to the police and (ii) that the judge failed adequately to direct the jury as to the evidence relating to that statement.

2. By a majority we have come to the conclusion that it would not be right for this court to interfere with the exercise of the judge's discretion in admitting the statement into evidence. No doubt there is power to interfere where the court is satisfied that the decision of the judge was wrong, but grave danger lies in too lightly reversing a finding of fact by a judge who has seen and heard the witnesses. The evidence of D.P.C. Lau Kwok-cheong was that he took the statement from this Appellant at 5.40 p.m. on 20th June 1977. The Appellant said that it was taken from him on the afternoon of 21st/22nd June after D.P.C. Lau had assaulted and threatened him. The Appellant was arrested on the afternoon of 20th June and taken to the police station. The constable testified that after he had taken the statement he informed Inspector Garrick about it, but Inspector Garrick swore that he was not so informed. There was then evidence that at 3.50 p.m. on 21st June D.P.C. Lau and another constable took the Appellant from his cell and returned him three hours later. It was during this period, according to the Appellant, that the statement was taken. The records in the police station showed that the reason for the Appellant's being taken out was "I.P." (which apparently means "Identification Procedure", a procedure which normally includes taking finger prints, taking photographs and taking on antecedents statement.) That notation was made by the officer on duty at the cells from information given to him by the two constables. The proper practice is that the identification procedure should be carried out within twenty-four hours of arrest, but there was evidence that as a result of this case the resources of this police station were stretched to the limit. However, at one point D.P.C. Lau himself said the procedure was put through on the night of the arrest. He said he told the cell constable that he was taking the prisoner out "for taking photographs". The second constable was not called to explain what happened during the three hours and D.P.C. Lau's evidence as to that period was open to the strongest criticism. Indeed, Mr. Jackson-Lipkin has contended that D.P.C. Lau's credibility was finally destroyed by reason of the inconsistency between his evidence and that of Inspector Garrick as to the report that a statement had been taken on 20th June. It was not incumbent on the learned judge to give reasons for admitting the statement and he did not do so. In spite of the unsatisfactory aspects of the constable's evidence the learned judge must have been satisfied he was telling the truth when he said that the statement was taken on 20th June and we think it was open to him so to find. There can be no question but that all the matters which might possibly have raised a doubt in his mind had been very clearly drawn to his attention.

3. The same matters were again very clearly drawn to the attention of the jury by counsel for the defence, but they were not detailed by the judge in his summing-up. Again, a judge is not required to mention in his summing-up all the evidence which has been given, but we are unanimous in thinking that it was not sufficient here for the judge merely to refer generally to "inconsistencies", although they had been reviewed by counsel. The statement was an essential plank in the Crown's case and it was vitally important that the jury should appreciate the factors which might detract from its weight. It is not always easy to maintain a perfect balance in summarising the cases for the prosecution and the defence but some balance there must be and we think it was necessary here to remind the jury of the matters which might lead them to doubt whether the statement was taken on 20th June: if it was not taken until the following day the weight which could properly be attached to it was negligible. The judge did, on the other hand, remind the jury that the Appellant had not until a very late stage made any complaint of ill treatment, thus emphasising the case for the prosecution.

4. Although we are able to assume that the judge fully considered the evidence favourable to the Appellant when ruling upon the admissibility of the statement, we do not think it is safe to assume that the jury fully considered them, and consequently the verdict cannot stand.

5. The appeal of the 2nd Appellant against conviction is allowed, the conviction quashed and the sentence set aside.

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6. The court then heard argument upon the appeals of the 4th Appellant against conviction and upon his application for leave to appeal against sentence. The appeal against conviction was dismissed.

Briggs, C.J.:

7. It was obviously overlooked by all in the court below that by virtue of s. 90 of the Interpretation and General Clauses Ordinance the maximum sentence of imprisonment which could lawfully be passed for the common law misdemeanour of conspiracy was seven years' imprisonment. This was not a case which called for the maximum sentence. We allow the appeal against sentence to the extent of substituting for the sentence of eight years' imprisonment on Count 1 a term of six years' imprisonment. We see no reason to interfere with the sentences passed on the other two counts.

19th February 1979.