Choi Kam-shing v. The Queen

CACC000362/1978

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Coram: McMullin, J. in Court

Date of Judgment: 26th May, 1978.

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JUDGMENT

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1. The appellant pleaded not guilty to eight counts of robbery before a magistrate. The trial proceeded and eventually he was acquitted upon five of those counts and convicted upon three.

2. It is common ground that the entire basis of the case against him was an alleged confessional statement made by him to the police at a police station some two hours after his arrest. I would stress that this is one of those cases in which there were no complainant witnesses. The appellant was arrested on the word of a police informer in relation to alleged offences with which we are not now concerned. The subject matter of the three robberies covered by the F, G and H charges in the charge sheet were watches of the kind described in each charge. These watches were recovered with the assistance of the appellant from several pawn shops on the day following his arrest. The confessional statement upon which the convictions rests was challenged in the course of the trial and the usual form of enquiry into its allegedly involuntary character was conducted. One police officer, the officer who arrested the appellant, gave evidence upon that issue and the defendant himself gave evidence upon it and at the conclusion of the trial of that issue the learned magistrate admitted the statement in evidence.

3. Mr. Sanguinetti has presented a number of points upon the appeal all of which in his view conduced to the final conclusion that the convictions are unsafe and unsatisfactory. Firstly, he said that inasmuch as no reliability was placed on the alleged confessional statement in respect of the earlier charges the same view ought to be taken in respect of the charges upon which the appellant was convicted. On its own I think there is no substance in that ground since it is clear that the reason for the acquittals on the earlier charges was that the parts of the statement upon which the prosecution relied could not with sufficient particularity be directed to the particulars laid in each of the earlier charges whereas in the magistrate's view the three chargesupon which he convicted the appellant were charges in respect of which it could be said with certainty that the material supplied by the defendant in his confessional statement proved the particulars laid in those three charges. It will be helpful at this stage to point out the manner in which the taking of this statement fell out. It would appear that the police arrested the appellant and one other man or possibly two other men at about 10.30 on the day in question on information received. They were then interested in some offences of robbery in connection with which they wished to question these persons under the polite fiction that the appellant and his companion were to assist them in their enquiries they were taken to the police station. I may say, at this stage, that it is evident (and I do not think it has been to any extent challenged upon the appeal) that from the outset these persons were under arrest. However P.W. 7, the police officer, who gave evidence on the voir dire stated that he put the substance of this suspicion entertained by the police at that time to the defendant who denied the allegations contioned in it which related to robberies of two named persons. He was then asked some general questions concerning his background. He had been cautioned after the initial preamble had been put to him. Following these general questions, P.W. 7 would appear to have decided that, in any event, it was desirable that he should embark upon a more general enquiry relating to offences committed in the same general area. He thereupon reminded the appellant once more of the caution and the appellant, according to the police story, gave in, and made certain admissions to offences of robbery which were not those in which the police had been interested at the start. Having got this information from the appellant a few more general questions concerning a named accomplice were put to the appellant and he was then asked whether he could take the police to recover the watches which he had referred to in the statement made subsequent to this more general enquiry by the police officer, P.W. 7. He said that he could do so and he was left in the cells for a period which has not been determined upon the evidence but was taken out of the cells the following morning, presumably after day light, and taken upon a tour of pawn shops where the watches were recovered. He was then returned, after a visit to his home where an identity card was obtained, to the cells in the police station. Later, some 18 hours after he has originally been put into the cells, he was once more cautioned. This time the caution concerned the very watches which had by then been recovered. It would appear evident from the manner in which this matter has been recorded that what was done then was that the watches which had been recovered were indicated by P.W. 7 and obviously some general inquiry as to the appellant's attitude towards them was solicited. It is thereafter that he made what has been referred to as the second statement, the statement directly implicating himself in the specific robberies charged in the last three charges. All of this is said to have been breach of Rule 3 of the Original Judges Rules which are still to be regarded as applying to police procedure in Hong Kong.

4. The next objection on the appeal is that the appellant was not cross-examined on his evidence on the voir dire which contained a number of circumstantial allegations to show that the said statement was not free and voluntary and that the ruling as to admissibility was made before such allegations were fully tested. That is true. There was, at the conclusion of the defendant's own evidence in the voir dire, an adjournment to procure the attendance of one of the named persons who had been arrested, a Mr. LAW Kim-wing. But prior to that adjournment a note appears on the record that cross-examination of the defendant was reserved. It is common ground that because of the adjournment which was a rather lengthy one the purpose of which was to procure the attendance of that person at the resumed hearing, the question of cross-examination appears to have been wholly overlooked and the accused was not in fact cross-examined upon his evidence. Mr. Lunn's case on this matter is that these circumstances do not conform to those which appear in cases in which a failure to cross-examine a witness is tantamount to accepting the testimony of that witness. It is his point that since the case for the involuntary character of the statement had been put to P.W. 7 in express terms and consisted of explicit allegations all of which were denied by him seriatim that nothing more needed to be done from the prosecution side to establish that it was in fact challenging the case put forward by the defendant when he came to give his evidence in turn. That is perfectly true and it is a point of some force. But Mr. Sanguinetti points out that there was at least one point raising new matter which was put forward by the defendant in the course of giving evidence upon the voir dire and that this was a point which was not challenged in cross-examination. In giving his evidence the appellant at a late stage therein alleged that both the statements, that is in effect all the statements which were taken from him including the second or vital statement relating to the present charges, had been taken from him after the visits to the pawn shop. That was a matter therefore which although it had been canvassed in his evidence was never controverted by way of cross-examination. If that were the truth it would, of course, call the whole chronology of events as recorded by P.W. 7 into question.

5. Next it is said that the prosecution case on the voir dire contains what have been referred to as gaps. The first sense in which that is said is that only one witness, P.W. 7, was called to testify as to what had been done with the appellant after his arrest and right up to the time of the conclusion of the second statement although he had been by then incarcerated for more than 24 hours. This, it is said, in spite of the fact that the arresting party consisted of at least three police officers and a police informant and despite the fact that one of the allegations by the defendant upon voir dire was that several officers actually assaulted him at some stage during the interrogatory proceedings at the police station. In reply to this Mr. Lunn says that the defendant's own statement would seem to indicate that the brutalities of which he complained had been committed against him and his companion shortly after they got to the police station and that P.W. 7 had controverted that story. In this connection one must note once again that it was part of the defence case, upon the voir dire, that the statements were taken from the appellant after the visits to the pawn shop and that this obvious conflict in the evidence was never tested upon cross-examination. Some evidence must have been available, and ought to have been given, to support P.W. 7's statement that the appellant's first statement and subsequent incarceration occurred prior to the tour of the pawn shops. The second way in which it is said that there are gaps in the prosecution case, in this matter, is that although it was clear that the defendant in giving his evidence was alleging specified and detailed acts of brutality committed by several police officers, none of the arresting officers was called or made available and tendered in cross-examination to supplement and support the story of P.W. 7. As to this Mr. Lunn replies that the magistrate had the advantage of seeing both the witnesses who gave evidence, that is to say the appellant himself and P.W. 7, and he evidently had preferred the evidence of the prosecution witness. Mr. Lunn would ask me to say that it must be that he had come to that conclusion on the question of the contrasted demeanour of the two witnesses. There might be more force in that particular observation if some especial comment as to demeanour had been made in the course of the reasons but no such comment does appear and it cannot I think be concluded simply from the silence that demeanour was the matter of crucial importance in deciding which of the stories to believe.

6. A further objection was made in that the learned magistrate, although he appears to have dealt with the case thoroughly and patiently and had afforded, on two occasions, adjournments for the production of witnesses requested by the appellant, had nevertheless been at fault in receiving explanations of the non-production of those witnesses given by a police woman inspector speaking out of what was evidently hearsay knowledge and not upon oath. In itself I do not think there is substance in this ground of appeal. I think it would always be desirable, especially whether the evidence in a criminal case is tenuous and where there is a complaint about police brutality and where witnesses are sought to be called for the defence, that explanation for their non-appearance should be given upon oath and subject to the test at cross-examination. I am far from saying however that such a course in necessary in every case. It is quite open to a magistrate (who is in effect conducting a species of voir dire in the matter) to receive statements which he regards as reliable from persons whom he is prepared to consider responsible officers of the court for the purpose of informing the court of steps taken to procure such witnesses. Nevertheless this is a subsidiary feature in this case which must be added to the other matters to which I have already referred. The explanation for the non-attendance of LAW Kim-wing on the voir dire is not very satisfactory and, in effect, there is none at all for the non-appearance of NG Wan-wah on the defence in the general issue. It comes in the end to this that a conviction which Mr. Lunn, with exemplary fairness, concedes to be of a character which must be most narrowly regarded by reason of its being based upon alleged confessional statements made in the absence of any complainant, in the course of something in the nature of a "book clearing" exercise, and made by a person who had been in custody upon a very doubtful pretext. It was thus a case in which any possible source of impropriety on the part of the police in their conduct towards the prisoner should have been covered fully by available evidence. Furthermore, the suggestion that the appellant had not been arrested and was not in custody was a palpable falsehood. To this must be added the clear departure from the prescription embodied in Rule 3 of the Judges Rules by continued interrogation of a man who was no longer legitimately in custody even as a suspect in relation to the matter which had occasioned his arrest. It must be remembered that from the outset it was the defendant's allegation that although he admitted to having pawned the watches he had done so for other people. While he might therefore have been guilty of receiving stolen goods, the charges against him alleged specific robberies. Each of those charges rested, and rested solely, upon his own statement. Had all these factors been given due weight by the learned magistrate I very much doubt that the statement which convicted the appellant would have been admitted in evidence. At all events I am left with considerably more than a "lurking doubt" in the matter and for the reasons given I am not satisfied that the convictions were safe or satisfactory. They will be quashed and the sentences set aside.

Representation:

A.J.J. Sanguinetti (D.L.A.) assigned for the appellant.

Lunn, C.C. for respondent.