The Queen v. Lau Chi Ming

CACC000320/1989

BETWEEN

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Coram: Yang, C.J., Silke, V.-P. & Macdougall, J.A.

Date of Hearing: 1 March 1990

Date of Judgment: 1 March 1990

Date of Handing Down Reasons: 21 March 1990

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JUDGMENT OF THE COURT

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Silke, V. -P.:

1. Four defendants, Chan Sze Lin (D1), Lau Chi Ming (D2), Chan Kin Fu (D3) and Lee Chi Sum (D4), appeared for trial before Her Honour Chua on a charge sheet containing a single charge of handling stolen goods. The particulars alleged that they, on 22nd October 1988, at the Dragon Inn Car Park, Castle Peak Road, Tuen Mun, dishonestly handled certain stolen goods, namely 102 sets of "National" video cassette recorders model NV-G33MC to the value of $306,000 Hong Kong dollars, the property of Lap Shun Electric Company, knowing or believing the same to be stolen goods.

2. At the commencement of the trial, D1 and D3 pleaded guilty. Subsequent to trial, D4 was acquitted and D2, Lau Chi Ming, - the applicant - was convicted. He was sentenced to a period of 2 years' imprisonment.

3. The applicant now seeks leave to appeal against that conviction. Originally, he had also sought leave, if necessary, to appeal against sentence but that application was abandoned, with leave, at the commencement of this hearing.

4. It was accepted at trial that the goods referred to in the particulars of charge had been the subject of an armed robbery on 16th October and that they were the property of Lap Shun Electric Company. They were goods intended to be smuggled out of Hong Kong. They were part of a larger consignment.

5. On the afternoon of 22nd October Mr. Tsang Kai, a wholesale dealer in electrical goods, received the first delivery of 120 video recorders. These he had purchased for $120,000. It was the case for the Crown that these recorders were part of the goods stolen in the course of the robbery and were delivered by, amongst others, the applicant, he knowing at the time that they were stolen goods.

6. When Mr. Tsang received these recorders he, having heard of the robbery, became suspicious. He contacted Lap Shun and obtained a description of the stolen goods. Lap Shun in turn contacted the police. An employee of Lap Shun went to Mr. Tsang's firm, the Development Trading Company, and identified the goods as those of Lap Shun.

7. At about 7:00 p.m. on the same day the applicant, amongst others, arrived with a second consignment of recorders. The employee of Lap Shun was present and she identified those goods as again being part of the property stolen in the robbery. The deliverers remained in the premises until the police came. A total of $32,000 was repaid to Mr. Tsang by D1 and D3. He was told that the rest of his $120,000 had been paid to the person who supplied the goods.

8. At about 3:00 a.m. those arrested, including the applicant, arrived Castle Peak Police Station and gave statements to the police. In respect of the applicant's statement a voir dire was held and the trial judge admitted it as voluntary.

9. In respect of D4 the Crown's case was based upon, and properly, the doctrine of recent possession, his statement made under caution not being admitted. D4 gave evidence at trial on the general issue. The applicant did not.

10. Mr. Mullick, who appeared for the applicant in this Court, has advanced five grounds of appeal some of which can stand on their own and some of which are in effect particulars of his fifth ground, the rolled up ground, that the conviction of the applicant was unsafe and unsatisfactory.

11. Grounds l, 2 and 2A relate to the conduct of the judge at trial and to these we shall return later.

12. Ground 3 questions the ruling by the judge to admit the cautioned statement made by applicant. The basic contention is that the Crown failed to prove that the statement was voluntary in that first it was obtained from the applicant by threats and oppression and, second, that the recording sergeant had sufficient evidence to administer a caution to the applicant before it was taken and should have done so. Further it was submitted that the trial judge failed to evaluate medical evidence admitted by consent which, had she properly done so, would have supported the applicant's allegation of an assault by the police upon his person. Of the statement itself it is sufficient to say that it was inculpatory.

13. The medical evidence, which was admitted under the provisions of section 65(c) of the Criminal Procedure Ordinance, related to a doctor's examination on 25th October of the applicant. It was certified that the applicant had "suffered the following injuries; mild tenderness over chest and back (upper)". This medical evidence was considered by the trial judge in the context of the allegations overall made in the course of the voir dire and by the applicant in evidence, namely that at Castle Peak Police Station he had been punched several times and his back was struck several times with the use of a telephone directory as a buffer. He had had a glass of water thrown on him and the air conditioner was turned up, this prior to any assault; the majority of the matters appearing in the statement were dictated to him and he wrote and signed under threats.

14. The trial judge disbelieved the evidence given by the applicant. She made reference to the absence of any medical evidence to show contusion, scratching or swelling. In our judgment she properly evaluated this and was entitled on the evidence to come to the conclusion she did that there was no assault.

15. The other matters advanced by Mr. Mullick are to an extent bound up one with the other. The background is this. Between 3:00 a.m. and the time of the taking of the statement at 7:25 a.m. on 23rd October the applicant and his co-defendants were in the police station. Various questions of an investigative nature were asked of them and clearly for all practical purposes they were in custody. The applicant's statement starts with a recitation of his personal particulars and makes reference to his knowing Chan Sze Lin (D1). It then goes on, in a paragraph numbered 3, to say that about noon on 19th October he had had tea together with D1 whose nickname was "Ah Hung". D1 told him that he had a friend who had "chiu" a quantity of things and had asked him to find a buyer. The applicant went on, in a paragraph numbered 4, that at about 11:00 p.m. on 21st October D1 had rung the house of the applicant telling him that a buyer had been found and asked him to help to convey the goods to that buyer on the next day. There was reference to a payment of $25,000 to be made to D1 of which he would share $10,000 with the applicant. He then went on to describe the events on 22nd October and the driving of a vehicle DM1984 to a place, Ho Ha Hin, where he took tea. When he returned from his tea he found DM1984 had been loaded with video recorders. He then drove it away. At that point a caution was administered to him. The applicant indicated he understood it and went on himself to write a full description of the arrangements for and the delivery of the goods to Mr. Tsang. He was then formally placed under arrest and informed that there was suspicion that he was connected with the armed robbery of the video recorders. This the applicant denied. He was then asked a series of questions, the answers to which were written down by Detective Sergeant 14447, the statement taker. That officer stated in evidence that "chiu" was a slang expression of which he had not previously heard

16. It is the contention of Mr. Mullick that first of all the very long period between arrest, the commencement of the taking of and the conclusion of the applicant's statement - it concluded at 1:05 p.m. on 23rd October - was of itself oppressive. He adds that the admitted suspicions of the sergeant, taken together with the contents of paragraphs 3 and 4 of the statement to which we have referred, should have brought the sergeant to caution and charge at an earlier stage than in fact was done. By failing to do so he lulled, as also did the officer in charge, the applicant into a false sense of security. He submits that the applicant was under the impression that he was making a witness statement, an impression boosted by the statement itself being recorded on paper which is headed "Royal Hong Kong Police Force: Statement/Report". That the trial judge took a different view of the statement by D4 made under somewhat similar circumstances is prayed in aid by Mr. Mullick in support of his general contention.

17. The judge was clearly aware of the principle, which she set out in full in the lengthy Reasons she gave for admitting the statement of the applicant, that when a police officer who is making enquiries of any person about an offence has enough evidence to prefer a charge against that person for that offence he should, without delay, cause that person to be charged or informed that he may be prosecuted. She accepted the evidence of the sergeant that he was suspicious but that he was mainly concerned, when the statment started, with the robbery. She was aware that when a police officer has the beginnings of evidence, that is reasonable grounds for suspecting that a person has committed an offence, then a caution is required. She was aware that the defence contention was that the point in the statement of the applicant when reference was made to the goods being "Chiu" was when the caution should have been administered.

18. She clearly took the view, for she went on to say that the issue before her was whether the statements were volunatary or not, that the failure to caution was not a matter which affected that issue. It has been said on frequent occasions that the Judges Rules are rules of guidance not of law and that a breach, white it may be indicative of impropriety, is seldom, of itself, sufficient to render a statement involuntary.

19. We view the approach of the trial judge here to have been correct.

20. On the other matters submitted in support of this ground, that the evidence of the Detective Sergeant was unreliable and that the whole of the circumstances surrounding the statement were such as to give rise to reasonable doubt as to its voluntary nature, we find no point. The judge was the judge of fact. She found the Sergeant, having carefully considered a lengthy cross-examination of him by counsel then appearing for the applicant, to be a witness of truth. We do not consider on all of the evidence there to have been any unfairness amounting to a deception which might have permitted the judge to exercise a discretion to exclude.

21. On the other ground leaving aside the first and, as Mr. Mullick acknowledges, principal ground we, with respect, find nothing in the contention that the trial judge should have warned herself of the danger of convicting the applicant on uncorroborated evidence given by D4. His evidence covered basically the driving of the van, the fact that the applicant drove it and the delivery of the goods, and none of that was contested.

22. This brings us to the first three grounds which have caused us some concern. The first alleged an error by the trial judge in that she communicated with the Deputy Crown Prosecutor on two occasions in the course of the trial; the second: an error in that she refused the joint application of counsel then appearing on fiat for the Crown, Mr. Wong, and Mr. Tang, counsel for the applicant, to discharge herself from continuing with the trial; the third: that by virtue of the number of questions asked and interjections made by trial judge she may have conveyed the impression that neither counsel for the Crown nor counsel for the applicant was sufficiently capable of fulfilling their respective functions at the trial. It is suggested that these matters, individually or combined, amounted to material irregularities of sufficient gravity to vitiate the convictions. It is not alleged that the trial judge was biased either in the real or presumptive sense.

23. That there were interjections and that there were questions, asked both of counsel and of the witnesses, by the trial judge is clear from the record. Our attention has been drawn to many of them, running from pages 55 to 214 of the transcript. These took place in the main during the voir dire proceedings and were overwhelmingly directed at counsel for the prosecution. It has not been suggested that the trial judge in any way hindered the applicant in the presentation of his case or his counsel in the course of his cross-examination. A great many were attempts to clarify matters referred to by witnesses. But that having been said, they indicate the general level of irritation rising in the judge.

24. Counsel for the Crown had been frequently told that he was asking unnecessary and irrelevant questions. On the sixth day of the trial the Detective Sergeant was asked a question as to the size of the room where he and the defendants were when the statement was taken.

25. We would interpolate here that it was unfortunate that the objections to the admission of the applicant's statement had not been made known to the Court at an early stage. It would have been much more preferable had Mr. Tang been required to state his grounds when the voir dire commenced. This might well have concentrated the mind of Mr. Wong upon issues material and in turn could have avoided that which the judge considered to be waste of the Court's. time.

26. But be that as it may, the judge indicated her view that the question as the size of the room was irrelevant. Mr. Wong disagreed and was told to stop being silly.

27. It should be said here that it is certainly to the credit of the trial judge that her record is a very detailed one with the exchanges which took place between counsel and the Bench explicitly set out, warts and all. She can be commended for her honesty.

28. Mr. Wong did not assist matters by then demanding that the judge "write down" what he and she were saying. The judge then rose and, returning shortly afterwards, asked him whether he intended to apologise. Mr. Wong replied he did not. Mr. Tang then sought to board that which he perceived to be a train going in his direction stating that he felt, on instructions, that if the applicant were acquitted "it may be a matter of complaint". For ourselves we do not fully understand what he intended by that. It may be he had in mind some form of application by the Attorney General. In any event, the trial judge said she was not in the least concerned about complaints, she was concerned with the rudeness. She did not wish to delay the trial and the matter could be sorted out elsewhere.

29. Exchanges continued and Mr. Tang submitted that "subject to what Mr. Wong had to say, that we would feel better if a new trial was done (sic)". At that point Mr. Wong did not support the application but, immediately prior to another exchange between the judge and counsel as to whether everything that had gone on had been recorded, Mr. Wong did indicate that he supported Mr. Tang's application.

30. When those exchanges had concluded and before yet another adjournment the judge indicated to counsel that she was going to rule on the application for the retrial but

"..... I might have a word with Mr. Anthony Duckett first."

31. On her return, she expressed her annoyance that she had been unable to immediately contact Mr. Duckett because, as she put ot, counsel had "shot off" to call him. There can be no doubt that counsel were fully aware of the trial judge's contacts with Mr. Duckett and their nature. She stated categorically that calls were made with the intent of complaining about counsel's rudeness. She ruled that she would continue with the trial setting out in detail the reasons for her "irritation" with Mr. Wong. Mr. Tang then asked for an adjournment to discuss the matter with his client. There was a further verbal exchange and the luncheon adjournment intervened. When the Court resumed in the afternoon the trial judge repeated her ruling that it was her view that what had transpired was not a proper ground for a trial de novo and the trial went on.

32. We have had the benefit of an affidavit from Mr. Duckett speaking to the judge's phone calls to him and their content which fully supports everthing the trial judge had made known to counsel at the time these calls took place. He also spoke to phone calls to him coming from Mr. Wong and Mr. Tang. At the time of the second phone call he had been made aware of the application for a trial de novo and he told the judge that it would not be proper for him to comment on or discuss the matter further.

33. A judge must have control of the Court. It is right that a judge should attempt to limit irrelevancy and the unnecessary asking of questions; this in the interests of a speedy and fair trial. Unfortunately that which took place here degenerated into an unedifying spectacle which we hope will not occur again. Emotive and intemperate language from any quarter is of no assistance to the administration of justice. It is incumbent upon a judge, however irritated, to maintain the dignity of the Court and to prevent tempers becoming frayed to the extent they were here. With respect, the judge should have restrained her obvious irritation and manifestly she should not, in the middle of the trial, have communicated with Mr. Duckett in the way she did. Complaints as to the conduct of counsel can be brought to the attention of either the Attorney General or the Bar at the conclusion of a trial. If the judge were of the view that conduct of counsel was impeding the administration of justice then she had other solutions open to her.

34. But, having said all that with reluctance and regret, in our judgment what transpired here, while unfortunate and unedifying, did not impinge on the fairness of the trial in that neither the applicant nor his counsel were impeded in their presentation of the case. No one was under any illusion as to what transpired between the Judge and Mr. Duckett. Indeed, counsel themselves communicated with him.

35. While Mr. Mullick has very properly drawn these matters to our attention, in our judgment, irregular and unfortunate as they were, they were not of sufficient materiality to vitiate the conviction nor do they give us cause to consider the conviction to be wrong. Once the confessional statement was in and believed the judge was entitled to place weight upon it and conviction was virtually inevitable.

36. In those circumstances, we dismissed the application for leave to appeal, we stated that we would give our reasons later which we now do.

Representation:

John Mullick, Esq. (David K.W. Tsang & Co.) for Applicant

I.G. Cross, Esq. & W.S. Cheung, Esq. for Crown/Respondent