Cheng Ho-shing v. The Queen

CACC000356/1981

Headnote: questions after arrest.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL No. 356 OF 1981

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Coram: Li, Silke JJ.A. and Bewley J.

Date of Judgment: 11th November, 1981.

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JUDGMENT

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Silke J.A.:

1. The Applicant, who was convicted on the 8th April of the offence of handling stolen goods, now renews his application for leave to appeal against conviction to this Court, his original application having been refused by the Single Judge on the 13th July 1981.

2. Mr. Bernacchi, with him Mr. Patrick Woo, referred us to the nine grounds of appeal filed. The first six by the Applicant and the last three settled by Counsel. He did not however argue them separately but relied on two main submissions arising out of them:-

3. Briefly the facts were that on the 29th October 1980 a burglary occurred at the premises of the Kam Fung Company, Aberdeen Old Main Street. A substantial number of binoculars, cigarette-lighters, ball-point pens, plastic boxes and cloth boxes were stolen.

4. On the 11th or 12th November two boys went to the Kam Fung Company, inquiring as to the value of pens they had in their possession and trying to sell them. The shopowner thought these pens to be part of the stolen properties. A report was made to the Police and when the boys returned together with a third boy that evening the Police were present. The third boy was one Man Sai Ming, who was the 4th prosecution witness, and he had a quantity of pens in a travelling bag which he also wished to sell. He was arrested but not subsequently placed on trial.

5. In the course of his evidence at the trial he said that the Applicant gave him the pens in a bag on the afternoon of the 12th November. It would appear that he gave similar information at the time of his arrest to the Police for, on following day in the afternoon, the Applicant was arrested. After his arrest, he took the Police to a place where two other men were arrested.

6. The Applicant was not the only one to be tried for the two men to whom I just referred were tried jointly for the burglary of the Kam Fung Company, they were also on trial for a robbery with which we are not directly concerned; one Law Chun Kuen was jointly charged with the Applicant and one Fan Koon Sing was charged separately with handling of stolen goods relating to the Kam Fung Company burglary. The trial of them all took place at the same time.

7. The Applicant having given the information requested of him to a Detective Sergeant and having gone to the place of arrest of the two burglars then made the contested statement at Aberdeen Police Station.

8. At the trial the solicitor representing him raised four specific grounds of objection. These were -

A voir dire ensued, the Applicant gave evidence in the course of it and the trial judge made the following ruling upon it:-

"Having considered all the evidence adduced by the parties on the two Voir Dires, I find that the prosecution have proved beyond reasonable doubt that both D2 and D4 had made the said statements freely and voluntarily. I therefore see no reason for me to exercise my discretion to reject those statements and rule that they are admissible in evidence."

Unfortunately that is all he did say either then or later as to the admission of the statements. He gave no reasons for so finding. This is not a practice we would encourage. We appreciate that reasons may be contained in the statutory reasons for verdict and not be given at the time of the ruling.

9. It is of course correct as was stated by Lord Lane, C.J. in Regina v. Rennie⁽¹⁾:

"The person best able to get the flavour and the fact of the circumstances in which the confession was made was the trial judge, and his findings of fact and reasoning were entitled to respect."

As I have said we do not have the reasoning here. Because of this lack it is open to Mr. Bernacchi to submit to us that we are entitled to consider all the evidence which was before the trial judge, not only of the actual taking of the statement itself but of the general circumstances surrounding the arrest of the Applicant, his age and the quality of that statement in coming to a decision as to whether or not the trial judge properly admitted it. To place ourselves, as it were, in the seat of the trial judge without his very useful "sight and hearing" of the witnesses giving their evidence.

10. However we agree with Mr. Mawson for the Crown, that it is not open to Counsel now to address us on further grounds of objection to admissibility not canvassed in the Court below nor emerging from the evidence given there. If it were, it would be impossible for the Crown ever to know with finality the objections which it has to meet and, if possible, counter.

11. I would interpolate here that in Seeraj Adjodha v. The State⁽²⁾ the Privy Council simply held that -

"Where a defendant alleges that the signature on the confession statement had been obtained by force then the voluntary nature of the statement is in issue."

12. It is true that no objections of such a nature were raised in the trial court but this was because both counsel and the Court thought themselves bound by a view of the law expressed in local cases which the Privy Council said were wrongly decided. It does not support the point Mr. Bernacchi appears to be making that if anything in the course of the trial which is not canvassed by Counsel strikes him the trial judge should conduct his own investigation, and here we in fact should do so now.

13. The main objection of Mr. Bernacchi is incapsulated in the first of the additional grounds settled by the Counsel, that is:

"The learned judge gave no or no sufficient consideration or at all to a complete disregard of the 'Judges' Rules' by the police in obtaining the cautioned statement of the Appellant then aged 19 years, at a time when he was already under arrest, and thereby erred in the exercise of his discretion by admitting the same in evidence."

He instances this "disregard" as being the asking of questions of the Applicant in the course of the taking of the statement. He propounds the proposition that only in the most exceptional circumstances would the answers made to questions asked at that time be admissible. They are in breach of the Judges' Rules.

14. It needs to be restated in the light of Mr. Bernacchi's submission that Judges' Rules are rules for the guidance of the Police and the breaches of them do not, per se, make the statement made where such breaches occurred in the taking of it non-voluntary. Lord Sumner in Ibrahim v. R.⁽³⁾ - approved, and strongly, in Rennie⁽¹⁾ - set the test:

"No statement by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority."

Now it is necessary to add "or by oppression". Breaches of the Judges' Rules may give rise to doubts as to the voluntary nature of the confession statement and a breach is a matter to be considered by a trial judge and that is their value. Even if he is satisfied that the confession is voluntary, he may exclude it in the exercise of his discretion.

15. Mr. Bernacchi prays in aid of his general proposition the course adopted by the Constable in the taking of the statement. The Applicant was cautioned in respect of an offence of burglary and we accept that this was done three hours or so after his arrest and that he is aged 19. The caution having been administered to the Applicant and he, having been told that Constable 10801 had some questions to ask him agreed to answer those questions. Six quite innocuous questions were asked as to his background. He was then asked this:

"Where did you go and what did you do on the night of 29th October, 1980?"

To which the Applicant gave an innocuous answer. We do not accept that this question was in any way improper or that was in the nature of cross-examination as submitted by Mr. Bernacchi.

16. The next question was:

"Do you know that there was a burglary at the Kam Fung Stationery shop at No. 58A, Aberdeen Old Main Street, ground floor on the night of 29th October, 1980?"

To this the Applicant gave a long narrative answer. It is Mr. Bernacchi's submission that this was a form of trap question, a prompting, and that which followed was therefore not volunteered. He posed the question: Everyone knew that there has been a burglary so why asked the question at all unless the Constable had an ulterior motive in so asking?

17. Mr. Mawson countered that this question was neither accusatorial nor inquisitorial. It was perhaps rather more direct than it needed to be in the light of the caution relating to a burglary but it did not ask "What did you know of the burglary?" to which a valid objection might have been taken as to form. We do not feel that it was unfair or oppressive.

18. Mr. Bernacchi further submitted, as regards the long narrative answer, that it is apparent on the face of it that improper questions were asked. We do not take that view. There may very well have been such questions as "And then what happened?" or "After that what occurred?" which were not recorded. But these, if they were asked at all, were mere assisting questions; that is to assist the flow of the narrative. Nothing more is apparent.

19. He further submitted that, when the narrative came close to inculpating the Applicant in the offence of handling, a further caution relating to that offence should have been given. May be it should as a counsel of perfection but it must be remembered that the Constable was investigating a burglary which involved the goods to which the Applicant was making reference. It is true that as soon as one final question, to which I shall return, was asked such caution was administered. The fact that it was not done earlier is certainly a matter for comment but the original caution must have been in the mind of the Applicant and the failure to give another one at that point does not, in our view, nullify the voluntary nature of the statement.

20. The one final question was this:

"Do you know how did LAU Chi obtain the cigarette lighters, ball point pens and calculators which he told you to sell them?" (I quote directly.)

And the answer was:

"I believe that he and WONG Kam-wah stole them from the Kam Fung Stationery shop."

21. Mr. Bernacchi strongly attacks this question as improper and as being deliberately asked to bridge the gap beyween that which had been said earlier in the statement and the guilty knowledge of the Applicant. We agree that it would have been better if it never been asked at all. We do not see why it was in fact asked. The Applicant had already made reference to overhearing a conversation between Wong Kam Wah and Lau Chi in which they considered the disposal of the goods stolen from Kam Fung. But having said that we do not think on the whole of the evidence given that it affected the voluntary nature of the statement.

22. Of course as well as laying stress on that which he says is the improper nature of the question asked Mr. Bernacchi would have it that no questions can or should be asked at all once a person is under arrest - his main proposition. He prays in aid The Queen v. Thompson⁽⁴⁾ but that clearly refers to a direct inducement to make a statement by a person in authority: Rex. v. Knight and Thayre⁽⁵⁾ this refers to undue pressure being exercised by the questioner: A. & Another v. H.M. Treasury & Another⁽⁶⁾ but that refers to a statutory questionnaire to which answers were required being served on a person after he had been charged with an offence under the Exchange Control Act 1947, and which the trial judge held to apply only during an investigation under that Act and which therefore should not be required to be answered after charging.

23. On the main proposition the only case which in any way assists him appears to be Brown v. Bruce⁽⁷⁾ which approved Winkel⁽⁸⁾. Avory J. was the trial judge in Winkel⁽⁸⁾ and a member of the Court of Appeal 19 years later. The headnote reads:

"The police have no right to suggest by questions to a person detained in custody that they have evidence of his guilt: answers to such a suggestion are not admissible in evidence."

Avory J. in Winkel⁽⁸⁾ had condemned the practice of putting allegations to a person in custody as a form of cross-examination. We do not think this to be the situation here. In any event, the law as it is today - and we bear in mind the strictures levied in Hui Lam Wing⁽⁹⁾ by Leonard J.A. in delivering the judgment of the Court upon a question immediately after caution: "With whom did you go to rob in Tsui Yuen Villa?" - as I say the law is in our respectful opinion set out in the judgment of another division of this Court in Lo Sun Wa v. The Queen⁽¹⁰⁾.

24. There the Court asked the question -

"Whether the mere asking of questions of a man in custody is by itself sufficient to make his answers inadmissible, even if the evidence establishes that they were not obtained by threats or inducements."

25. The judgment of the Court, rendered by the Chief Justice, went on to consider Ibrahim v. Rex⁽³⁾ and Regina v. Corr⁽¹¹⁾. The Court took the view that the effect of Corr⁽¹¹⁾ was that answers to questions put to a person in custody are not admissible if the questions are asked in circumstances which amount to pressure of such a nature as to sap the will and make the subject talk. The Chief Justice then said:

"There is no doubt that the long interrogation of D1 amounted to a serious breach of the Judges' Rules. A few years ago, such an infringement would of itself have been sufficient to render the record of the interview inadmissible."

This was the strict view exemplified in Cheung Kun Sun⁽¹²⁾ in 1962.

26. The judgment continued:

"However, this approach has been modified during the past decade. The principle is now firmly established that infringements of the Judges' Rules are only one element, albeit an important one, to be considered in deciding the central questions, which is whether or not the Crown has established the voluntary nature of the admission."

27. It answers its own question, in effect, in the negative.

28. Here we do not think there to have been any "serious breach" of the Judges' Rules. The asking of questions is permissible provided that the interrogation is not such as would amount to pressure of such a nature as to sap the will and provided that the question asked do not amount to a cross-examination in the nature of oppression or contain a gross impropriety. And further provided that the interrogation was not of undue length nor was persisted in after a clear indication that the subject does not wish to answer further questions or make a statement. None of these exists here and we think the admission of the statement to be proper.

29. That really disposes of the application for there was sufficient in the statement to found the conviction. We think however that we should add that, without the statement in evidence, we feel that the Crown would have been in some difficulty, even praying in aid that passage in Archbold 40th Edition at paragraph 1586 as to recent possession as evidence of guilty knowledge in handling cases, in proving its case. In the event the application for leave to appeal is refused.

Representation:

B. Bernacchi Esq., Q.C. and P. Woo Esq. instructed by Cheung & Chau for Appellant.

Mawson Esq., Crown Counsel for Respondent.

(1) The Times 7th Nov. 1981

(2) (1981) 3 W.L.R. 1

(3) (1914) A.C. 599, 609

(4) (1843) 2 Q.B. 12

(5) (1901-07) Vol. 20 Cox's Criminal Cases 711

(6) (1979) 1 W.L.R. 1056

(7) (1931) 23 C.A.R. 56

(8) (1912) Vol. 76 J.P. 191

(9) C.A. 1212 of 1979

(10) C.A. 538/1979

(11) (1968) N.I.L.R. 193

(12) (1962) H.K.L.R. 13