R. v. Lee Chuen on

CACC000319/1992

IN THE COURT OF APPEAL

1992, No. 319
(Criminal)

Headnote

Criminal trial in District Court - Cautioned Statement - whether prosecution has proved voluntariness - Judge not entitled to rely on passage in the statement tending to show that statement was made voluntarily when that was the very issue before the Judge - conviction upheld because even disregarding cautioned statement there was ample evidence to convict.

IN THE COURT OF APPEAL

1992, No. 319
(Criminal)

____________

____________

Coram: Hon. Sir Derek Cons, V.-P., Kempster & Litton, JJ.A.

Date of hearing: 14 january 1993

Date of handing down reasons for judgment: 20 January 1993

___________________

REASONS FOR JUDGMENT

___________________

Litton, J.A. :

1. On 14 January 1993 we dismissed this application for leave to appeal against conviction and said that we would give our reasons later. We do so now. They are the reasons of the court.

2. The applicant was convicted on 31 July 1992 by His Honour Judge Yeung in the District Court on two charges of living on the earnings of prostitution, contrary to Section 137(1) of the Crimes Ordinance, Cap. 200.

3. Charge 1 related to a young female LIU Yi-man who, at the time of the offence (August and September 1991) was about 15 years 9 months of age.

4. Charge 2 related to another young female CHOI Lai-moon who, at the time in question (between July and October 1991) was about fourteen and a half years old.

5. At the same time, the applicant was acquitted on three other charges (charges 4, 5 and 6) of unlawful sexual intercourse with a girl under 16 years, contrary to Section 124(1) of the Crimes Ordinance, relating to the same two young females.

6. Although these two young persons have different surnames, they were in fact sisters and, as respectively PW1 and PW2, were the principal witnesses against the applicant at the trial.

Testimony of PW1 and PW2

7. PW1's evidence was to the effect that, in the period in question, she had received a total of about 20 customers; these were arranged by the applicant; for each customer she received $400 from the applicant.

8. PW2's evidence was to the effect that during the period in question she had received a total of 10 - odd customers arranged by the applicant. She too was paid $400 for each customer by the applicant.

9. Each of the two principal witnesses had made previous inconsistent statements to the police. PW1's police statement implicated someone other than the applicant. In PW2's statement she denied she was a prostitute, but in evidence she admitted that she first started working as a prostitute in April 1990 when she was barely 14 years old.

10. In dealing with their testimony, the judge took the following matters into account :

(i) That it was dangerous to accept their testimony without corroboration;

(ii) that they had made previous inconsistent statements;

(iii) that a motive for giving false evidence against the applicant had been put forward on behalf of the applicant.

11. The judge nevertheless accepted their testimony and was satisfied that the applicant had arranged customers and hotel rooms for them, and paid them $400 each for every customer received.

12. In making the application for leave to appeal on behalf of the applicant, Mr. Sceats referred to the fact that PW1 and PW2 must have made allegations of having had sexual intercourse with the applicant in their police statements which led to his being charged with the offences of unlawful sexual intercourse with a girl under 16 years; but when they testified in court each of the girls resiled from such allegation. Mr. Sceats complained that the judge had failed to weigh that relevant consideration in the scales in considering their testimony.

13. The fact that a judge does not refer specifically to a matter in his Reasons for Verdict does not necessarily mean that he gave it no consideration. There is no obligation on the part of a District Judge to set out in his Reasons for Verdict each and every piece of evidence. Obviously, where a matter relevant to the judge's finding is omitted, this court will examine with particular care the basis for the finding. Here, the matter was referred to by counsel for the applicant in his final address; the Reasons for Verdict were given ex tempore shortly thereafter. At the same time, the judge acquitted the applicant on charges 4, 5 and 6 - on the basis that the testimony of the two girls given in court did not implicate the applicant in those offences. Hence, the fact that they had resiled from their previous statements must have been present in the judge's mind when he reached his verdict.

14. Counsel also criticised the judge when, in dealing with the previous inconsistent statements, the judge said :

"That of course does not necessarily mean that they were lying to the court in their allegations against the defendant".

Later on, the judge also said he did not accept the suggestion that "such matters [the previous inconsistent statements] must render them unreliable witnesses". Counsel's submission on behalf of the applicant is that this was a wrong approach for the judge to take, and was tantamount to putting the onus of proof on the applicant. We do not accept this submission. From a consideration of the Reasons for Verdict as a whole, it is apparent that the judge had applied the correct standard of proof.

Cautioned Statement

15. In the court below, the prosecution relied upon a statement made by the applicant under caution in the early hours of 23 October 1991 at the Mongkok Police Station. The statement was made between 1.40 a.m. and 3.55 a.m. The interviewer was D/PC 22911 Chung King-lee. D/PC Chung gave evidence to the effect that earlier that night the police had gone to a restaurant, accompanied by PW1, when the applicant was pointed out to the police by PW1. The applicant was then sitting with four females and a man. The applicant was arrested and brought back to the Mongkok Police Station at about 8 p.m. At about 10.50 p.m. the applicant was visited by a solicitor's clerk and a barrister. What then happened emerged in the cross-examination of D/PC Chung as follows :

"Q. You were present during the whole time they were together?

A. Yes.

Q. He was explained of his right?

A. Yes.

Q. He took his decision that he didn't want to give a cautioned statement and if he wanted to give a cautioned statement, he wanted to do it in the presence of his lawyer?

A. Yes.

Q. The Defendant his barrister and his clerk all signed a document to that effect?

A. Yes."

16. The document was admitted in evidence as Ex.D1.

17. The barrister and the clerk left Mongkok Police Station at about 11.30 p.m. About two hours later the applicant was taken out of his cell to an interview room. What then transpired was a matter in dispute. The prosecution case was that D/PC Chung proceeded to interview the applicant alone in that room. After some introductory matters and the usual caution, the applicant having expressed the wish that D/PC Chung should write for him, the applicant was then asked whether he wished to have his legal representative to be present. The statement then records the applicant's answer as follows :

"I don't need (my) legal representative to be present. (signed) Lee Chuen-on."

18. The applicant then gave a statement in considerable detail implicating himself in the crimes with which he was charged.

19. The effect of the police evidence was that the applicant made his statement under caution freely and voluntarily and signed every answer recorded in the statement by D/PC Chung of his own free will.

20. The applicant's case was that the statement was given by him under circumstances of actual violence and threat of further violence. He denied that he was alone in the interview room with D/PC Chung. According to him, there were 8 people inside. His hair was grabbed, and he was hit on his back and chest and threatened with further violence.

21. In considering the admissibility of the statement, the judge had regard to what transpired when the barrister visited the applicant in his police cell earlier that night. The judge rejected the argument, as he was entitled to do, that because the applicant had earlier indicated to his lawyer that he was unwilling to give a cautioned statement, any subsequent statement must be "tainted with involuntariness". The judge then went on to say :

"Each case must be looked at and determined on the evidence. The defendant in the course of the interview had been asked clearly if he wanted his lawyer to be present to which suggestion he declined".

22. Mr. Sceats, on the applicant's behalf, submits that this approach is wrong. In considering whether the cautioned statement should be admitted into evidence, the judge, he submits, was not entitled to rely upon the passage in the statement as set out above - which could only be of evidential value when the question of voluntariness and admissibility had been determined. We think that there is considerable force in this submission.

23. It is not possible for us in this court to say that if the judge had not fallen into the error in this regard, he would nevertheless have admitted the cautioned statement into evidence. It seems to us that the judge's error of approach taints the entire question of admissibility of the cautioned statement.

24. However, even without the cautio led statement, it seems to us inevitable that the applicant would have been convicted. The judge, in his Reasons for Verdict, after considering the testimony of PW1 and PW2, and before he went on to deal with the cautioned statement, said :

"The court would have convicted the defendant on the first and second charge on PW1's and PW2's evidence alone".

25. In our judgment the judge was entitled to come to that view upon the evidence before him.

26. It was for the reasons as set out above that the applicant's application for leave to appeal against his conviction on charges 1 and 2 was dismissed.

Representation:

Bary Sceats (M/S William Au & Co.) for Applicant

R.G. Turnbull (Crown Prosecutor) for Respondent