Lau Lam and Others v. The Queen

CACC000001/1973

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 1 OF 1973

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Coram: Full Court (Pickering, Trainor & Cons JJ.)

Date of Judgment: 17th August 1973.

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JUDGMENT

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Cons J.:

1. Very early one June morning last year a lady and four gentlemen were standing outside a noodle shop in Shek Tong Street, Kowloon. They were all workers in that shop and had carried on business up to about 3 o'clock that morning. At 4.30 they were relaxing in the street enjoying the taste of fresh morning air. Suddenly they were attacked by a group of men armed with knives and poles. According to their evidence, before they had a chance to defend themselves or take any except the most rudimentary evasive action they were cut down. Each was wounded to some extent, one man being particularly severely injured and he will carry the marks for the rest of his life. By chance two detective constables were on patrol nearby. They saw nothing of the attack itself but together managed to apprehend the first three appellants as they ran from the scene. The first two were seen each to carry a knife. The fourth and fifth appellants were arrested a little later by other constables at a road-block which had been quickly set up. A medical inspection on the afternoon of the same day showed that the body of each appellant carried bruises consistent with having been involved in a fight in which metal or wooden rods had been used and the clothing of each, save for the fifth appellant, was marked with blood of a group other than his own. The bruises were estimated by the doctor to be less than 24 hours old. The appellants were in due course charged before the District Court with wounding the five victims with intent to do them grievous bodily harm and were convicted. They now appeal.

2. Apart from the matters I have mentioned there was in evidence against each appellant the statement he had made after arrest. Objection was raised to the admission of the statement at the trial but the learned judge heard evidence in this respect and came to the conclusion that each had been voluntarily made. The substance of this appeal is that he was wrong so to do.

3. Several grounds of appeal have been advanced in support but we think it necessary to comment only on two. The others to our mind have no merit. Ground five draws our attention to the great length of time that elapsed between the arrest of the fourth and the fifth appellants and the time at which their statements were made. They were arrested at about 5 o'clock in the morning and their statements were not taken until soon after 4 o'clock in the afternoon. Counsel for the Crown's instructions were and indeed the evidence was, that the inspector in charge of the case had waited until the medical examination of these two men had been completed before causing inquiries to be made. Unlike the first three appellants the presence of these two men at the scene could not be established by direct evidence and we are satisfied that the explanation of the delay is adequate and should have raised no suspicion in the mind of the learned judge.

4. The second matter is not so easily disposed of. Each of the defendants was quite severely bruised and when sent to the hospital that evening was detained, some for three days and others for six days. The appellants attributed these injuries to police brutality. The first three appellants spoke of assault immediately upon arrest or on being taken back to the noodle shop where the shop fokis also assaulted them. All five spoke of brutality in the police station as a result of which they wrote these statements in question. The learned judge considered their evidence and rejected it. But in so doing it is suggested that he overlooked one important consideration, namely that the evidence of the five victims was that they themselves inflicted no injuries upon anyone and also that they were the only persons present at the time of the attack. The injuries of the appellants indicate that if they were involved in a fight then it must have been a fight of some substance. If the evidence of the victims is true this would seem to have been unlikely and that evidence thereby tends to confirm the evidence of the appellants blaming the injuries on the police.

5. This point cannot have been completely absent from the mind of the learned trial judge. It was specifically suggested to him by counsel when dealing with the statements made by the second and the third appellants. But we think it possible that he did not fully appreciate its implications. During the course of the trial he only gave short reasons for his decisions upon the various voir dire but in his final reasons for verdict he sets out his reasons at length and from these it is clear that his decisions on the admissibility of the statements were based solely on the demeanour of the witnesses then before him and the failure of the medical evidence to support the allegations of the appellants. It is true that he mentions that he was not presented with the full picture and at one stage assumes that something in the nature of a fight had taken place. But these were findings on the general issue after he had already accepted the evidence contained in the statements. They thus beg the question now put to us. However, after careful consideration we have come to the conclusion that the Judge's decision was correct. There was in fact evidence which would allow for the injuries to have been inflicted other than by the police although this would mean, as we accept, that the victims probably did not tell all that they knew. The victims spoke of a sudden attack by a group of persons but none of them put the number at more than ten. The two constables saw thirty to forty persons running away. An independent witness walking past before this saw the same number and confirmed in court his ability to assess the size of a crowd. He spoke of that crowd "chasing each other and fighting". Added to this are the extremely favourable impressions the learned judge formed of the police witnesses, the extremely unfavourable impression he formed of each defendant and the matter of the medical evidence to which we have already referred. The point now raised by counsel merits attention but we are satisfied that even had the judge given it the full consideration that it deserved he must still have come to the same conclusion with regard to the statements and that therefore they were properly admitted at the trial.

6. Counsel before us conceded that in these circumstances the learned judge was entitled to come to the conclusion that he did upon the general issue and leave to appeal must therefore be refused.

Representation:

Mr. Duffy, c.c. for the Crown.

Mr. Eddis (David K.W.Tsang & Co.) for all Appellants.