R. v. Yu Ho Man

CACC000370/1992

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Coram: Hon. Yang, CJ, Macdougall, V-P and Bokhary, JA

Date of hearing: 27 April 1994

Date of Judgment: 27 April 1994

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J U D G M E N T

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Hon. Yang, CJ

1. The applicant was convicted after trial of one count of robbery and one count of possession of real or imitation firearms at the time of committing a robbery. This is his application for leave to appeal against conviction.

2. The particulars of the indictment show that on the 22nd of September 1989, this applicant and his co-accused robbed four persons of various sums of money totalling about HK 52 million at the Ming Sing Electrical Appliances Co., Tai Po, New Territories. They had in their possession at the time of the robbery nine real or imitation firearms.

3. The only evidence which incriminated the applicant came from his two cautioned statements in which he confessed to taking part in the robbery as the driver of a car stolen for the purpose. He entered the electrical company with two culprits. They had between them a gun and two knives. One of them shouted, "Robbery!" as he stood near the doorway to keep watch. After the robbery he received HK$200,000 odd.

4. The defence objected to the admissibility of the two cautioned statements on the ground that he made the statements as a result of assaults, threats and inducements by the police. After the voir dire, in which the applicant gave evidence, the trial judge ruled that the two statements were made voluntarily and admissible in evidence.

5. Two main grounds of appeal are advanced:-

(1) that the judge erred in admitting the statements in that he failed to apply the criminal standard of proof and that no reasonable tribunal would have ruled the statements admissible "because of the various anomalies surrounding the taking of such confessions" ( - passages of evidence in the voir dire are referred to in the Grounds of Appeal and we have considered them);

(2) that the judge erred in that at the conclusion of the case for the prosecution and having heard further and additional evidence and cross-examination from the police officers taking the two statements, the judge failed to accede to the request by the defence to reconsider his ruling - again passages in the transcript of evidence on the general issue are referred to in the Grounds of Appeal, all of which we have read.

6. Counsel for the applicant concedes that this Court is in effect being asked to re-assess the evidence given at the voir dire and reconsider the issue of admissibility of the cautioned statements. Counsel's address to us this morning is largely a repetition of all the matters which were brought to the attention of the trial judge. There is nothing in what counsel says this morning or in the record of proceedings which causes us any concern that the trial judge might have failed to understand or apply the proper standard of proof in deciding whether or not the cautioned statements were admissible. Both Grounds of Appeal fail.

7. Complaint is also made of one passage in the summing up where the judge in directing the jury on the confession statement said this:

"If, on the other hand, you are sure both that the defendant made the confession and that it was true, you may rely upon it even if it was made or may have been made as a result of ill-treatment or inducement or other improper circumstances."

8. It is submitted that this direction may have confused the jury.

While such a direction is strictly correct we consider that it is undesirable for judges to tell juries that they may rely on a confession even if it was made or may have been made as a result of "ill-treatment or inducement or other improper circumstances."

9. We strongly advise judges to omit this formula. Having referred the jury to the defence allegation that the statement was given as a result of violence, threats, promises and inducements or such one or more than one of these that are alleged, it is advisable for the judge to say no more in his direction to the jury than that before they can use the statement against the accused they must conclude that it was made by him in the sense that it was the product of his mind and that it is true.

10. In the present case we are satisfied that the jury were not confused or misled by the judge's direction.

11. For the reasons we have given, the application is dismissed.

Representation:

Mr Kevin Egan (M/S Crawford, Miller & Co.) for Applicant

Mr John Reading for Crown/Respondent