Leung Yuen Chak v. The Queen

CACC000355/1968

IN THE SUPPEME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 355 OF 1968

(On Appeal from Causeway Bay Case No.9281/68)

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Coram: Rigby, S.P.J.

Date of Judgment: 31 July 1968

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JUDGMENT

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1. The appellant was charged with the offence of burglary and larceny committed on the night of the 15th April. There was ample evidence to establish beyond doubt that a burglary was in fact committed on that night at the premises so stated in the charge, and that in the course of that burglary property was stolen. The only issue is whether or not it was in fact the appellant who participated in that burglary and larceny.

2. The sole evidence against him, subject to a small piece of evidence to which I will later refer, consisted of an alleged voluntary statement made by him. He was arrested on the 21st of May, which would be some five weeks after the burglary had taken place. He was arrested in the street at about 9.30 p.m. by D.P.C. 5226 on information received. It would seem apparent that such information was presumably received from an informer. He was taken back to the police station and, according to the evidence of D.P.C. 5226, he was interrogated in connection with this offence. At some stage in the course of that interrogation, according to the evidence of the police constable, he found it necessary to caution the appellant. Again, according to the evidence of the police constable, he wrote that caution in his notebook and thereafter the appellant himself wrote down a statement in the police constable's notebook. That statement, if true, was tantamount to a full admission by the appellant that he had committed the offence alleged. That statement was made, according to the notebook, at 21.55 hours on the 21st May, being the date upon which the appellant was arrested. At 22.15 hours that same evening, according to the evidence of D.P.C. 5226 and according to the contents of his notebook produced in evidence, the appellant then, under caution, wrote down a further statement in the constable's notebook admitting the offence of another burglary at the same premises committed on the 14th of January, that is to say, some three months before the offence in respect of which he now appears before this court. Again, that statement, if true, contained a complete admission by the appellant that he entered into those same premises on the 14th January and committed another offence of burglary and larceny.

3. Indeed, in that statement he went on to say that part of the property so stolen by him, consisting of a wrist watch and a radio, had been sold and could not be recovered and that the $500 which he had stolen had been spent. It is apparent from the record of previous convictions now produced before me in this court that that written statement made by the appellant in D.P.C.5226's notebook could not have been true for the very good reason that the appellant was at that time in prison serving a sentence for another offence.

4. The statements allegedly made by the appellant in the notebook of D.P.C. 5226 were vigorously disputed by him at the trial. He alleged that those statements were neither voluntary nor true but that prepared statements made by some third party were placed before him by the D.P.C. and that he was compelled to copy those statements into the D.P.C.'s diary. The learned magistrate, on the conclusion of the voire dire, said that he was satisfied that the statements were free and voluntary, and he admitted them in evidence. It would seem apparent from the record that the magistrate, in accepting those statements, gave no consideration to the alleged free and voluntary statement concerning the events on the 14th January when the appellant was in fact in prison and could not, therefore, have committed the offence which he then allegedly admitted he had committed. Indeed, of course, the magistrate could not have been in possession of those facts because at that stage of the proceedings the record of previous convictions would not have been before him, so that he could not have known that that statement in any event could not possibly be true. If the learned magistrate had known the facts which are now before this court, it is at least open to question as to whether he would, in all the circumstances of this case, have been satisfied that the statements, and particularly the statement relating to the offence committed on the 15th of April, were in fact free and voluntary, and, of equal importance, whether those statements were true.

5. There is one further piece of evidence to which I would refer and that is that subsequent to the alleged recording of these statements in D.P.C.5226's notebook, the appellant was then taken by D.P.C.5226 to premises at 30 O'Brien Road on the 9th floor. Outside the rear window of those premises, according to the evidence of the D.P.C., he saw a plastic bag which, upon being opened, contained a number of articles which undoubtedly were subsequently identified as having been stolen from the complainant's premises on the night of this burglary. With regard to those articles and to that evidence, the appellant states that at that time he was not in fact living at 30 O'Brien Road but that, having just come out of prison, he was living at quarters provided by the Discharged Prisoners Aid Society at 144 Gloucester Road. With regard to that evidence of the D.P.C., the appellant states that he did not know who was living there and he had no knowledge as to the contents of the plastic bag allegedly found outside the window.

6. The circumstances of this case and the evidence given before the court seem to me to be far from satisfactory. It is perhaps not inapposite to refer at this stage to the observations of Cave, J. as he then was, in The Queen v. Thompson⁽¹⁾, in the course of which he stated:

"I would add that for my part I always suspect these confessions, which are supposed to be the offspring of penitence and remorse, and which nevertheless are repudiated by the prisoner at the trial. It is remarkable that it is of very rare occurrence for evidence of a confession to be given when the proof of the prisoner's guilt is otherwise clear and satisfactory; but, when it is not clear and satisfactory, the prisoner is not infrequently alleged to have been seized with the desire born of penitence and remorse to supplement it with a confession; a desire which vanishes as soon as he appears in a court of justice."

That quotation was referred to in the case of LEE Chun-chuen v. The Queen⁽²⁾. In that case the court, in circumstances not entirely dissimilar from this case, allowed an appeal on the ground that a confession admitted in evidence could not conceivably have been true because the appellant was then in prison at the time he alleged in his confession that he had committed the offence with which he was then charged. If this case had rested solely upon the statement of the appellant allegedly recorded in the D.P.C.'s diary, I would have considered the circumstances of it so unsatisfactory that I would have allowed this appeal and quashed the conviction; but having regard to the further evidence of the D.P.C. as to the finding of part of the property, undoubtedly stolen during the course of the burglary, outside the window of a room allegedly occupied by the appellant, I think the proper course would be for me to allow this appeal and order a retrial. It is, of course, always unfortunate in these cases that the accused person never has the advantage or very rarely has the advantage of being legally represented.

7. In this instance the appellant has stated that he was not in fact living at 30 O'Brien Road at that time but was occupying premises allotted to him by the Discharged Prisoners Aid Society. Those are matters to which no doubt consideration can, and will, be given by the magistrate upon his retrial. Equally well, no doubt, he will give consideration to the fact that the appellant has not been represented in the presentation of his case cither before the original magistrate or before this court; nor, indeed, is it likely that he will be represented at the retrial.

8. This appeal is accordingly allowed to the extent that there must be a retrial in this case. It is obviously desirable that the retrial should be before a differently constituted court.

Representation:

Appellant in person.

I.A. Evans, C.C. for Crown/Respt.

(1) (1893) 2 Q.B. 12

(2) (1961) H.K.L.R. 721 at 727