Lo Wing-cheong v. The Queen

CACC000378/1979

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Coram: Roberts, C.J., Trainor and Cons, JJ.

Date of Judgment: 10 October 1979

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JUDGMENT

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Roberts, C.J.:

1. Lo Wing-cheong appealed against his conviction, before Judge Hopkinson, in the Victoria District Court, on one charge of robbery contrary to section 10 of the Theft Ordinance.

Facts

2. The following facts were admitted on behalf of the accused by counsel who represented him at the trial:

Arrest of the Accused.

3. As noted above, the robbery occurred on the 6th March, 1978. The robbers were not caught at the time. Nine months later the accused and five other men were arrested in Lai Chi Kok Road at about 1250 on Saturday, the 16th December. All six were taken to Mong Kok Police Station, arriving there at about 1320.

4. Detective Constable Wong Wai-pong (D.C. 10015), the first prosecution witness who was stationed at Mong Kok Police Station testified that he took a cautioned statement from the accused, starting at 1430 and finishing at 1445, on the same afternoon.

5. At about 1800 the same day, D.C. Wong took the accused to the latter's home to search it. No evidence was found there to connect the accused with the robbery.

6. The following day, an identification parade was held, at which Chou Tin-tak (the victim of the robbery) and his wife were unable to identify the accused, who took part in the parade.

7. Therefore, the only evidence available against the accused was his own cautioned statement and it was on this basis that he was convicted.

Holding of a voir dire.

8. During the course of his evidence, D.C. Wong produced his note-book, in which the accused had written a confession after caution. The admission in evidence of the statement in his note-book was objected to by Mr. Petrus Chan, the accused's counsel at the trial.

9. Mr. Chan, when making his objection, specified the following particulars of the grounds for opposing the admission of this evidence:

Only one witness, D.C. Wong, gave evidence for the Crown on the voir dire.

10. D.C. Wong said that he did not assault the accused, or threaten him, or make any promises or inducements to him. He denied that the accused was given a bowl of rice before the statement was made or that he said that he was being kind to the accused and that the accused should be cooperative; nor did anyone else say that.

11. Before the voir dire began, D.C. Wong had testified that the accused had been cautioned, that he had made a record to this effect in his note-book, that he had asked the accused if he understood, that the accused said that he did and signed the note-book accordingly.

12. D.C. Wong added that the accused then said that he wanted to write down something in the police note-book, that he did so, and that after he had completed it, he (D.C. Wong) asked the accused to sign his statement, which he did. D.C. Wong let him read it through and invited him to add or alter anything he wished but the accused said that it was unnecessary.

13. The accused's evidence, which he gave on the voir dire, was to the effect that after his arrest at 1250 he was put in a cell in Mong Kok Police Station, where he remained until 1800. He was then taken into a room and asked to take his meal, which was a box of cooked rice.

14. While he was having his meal, D.C. Wong handed him his note-book, which the accused refused to sign. D.C. Wong then said (according to the accused):

Shortly afterwards, the accused said, he wrote in the note-book a few sentences that the D.C. dictated to him. Then he signed and the police said they would not bring any charge against him for possession of an offensive weapon. He asked to look at the note-book but the D.C. would not allow him to read it.

Ruling on admissibility

15. The judge, in his ruling on the admissibility in evidence of the confession, took into account D.C. Wong's admission that he had not recorded in his note-book (a) that the accused wanted to write something or (b) that he himself invited the accused afterwards to alter the statement or add to it.

16. The D.C.'s explanation as to (a) was that he never used to do this, and with regard to (b) was that the Divisional Detective Inspector had told him that it was unnecessary. The judge came to the conclusion that these omissions were not important, since the accused wrote out the statement himself.

17. The judge accepted the evidence of D.C. Wong and found that the accused wanted to write in his note-book and that he wrote the entry in it. He also found that it was made at 1430 to 1445 and not at the time of the evening meal at 1800.

18. The judge ruled that the statement was not obtained by fear of prejudice or hope of advantage and stated that he was satisfied beyond reasonable doubt that the statement was voluntarily made and not as a result of anything said by D.C. Wong. Accordingly, the statement was admitted in evidence.

Continuation of trial

19. When the trial continued, the accused gave evidence, denying all knowledge of the robbery and repeating his story that the cautioned statement had been extracted from him as a result of inducements offered by D.C. Wong.

20. The judge disbelieved the accused and convicted him, imposing a sentence of five years' imprisonment.

Closing the Gap

21. Counsel for the appellant had one main ground of appeal. He also argued three subsidiary grounds, which we do not propose to deal with, since we regard them as having no merit.

22. The main ground raises again the question of what evidence the Crown must adduce as to the period between the arrest of an accused and the taking of a cautioned statement from him, in order to establish that the statement was voluntary and thus admissible in evidence.

23. Counsel for the appellant drew attention to the evidence of D.C. Wong that the appellant was arrested at 1250 and taken back to the police station, arriving there at 1320. According to D.C. Wong, a cautioned statement was taken from the appellant at 1430. There was no evidence as to where the appellant was, nor as to what happened to him, between 1320 and 1430.

24. We agree with counsel for the appellant that the law requires, where a cautioned statement is to be tendered in evidence, that its voluntary nature shall be proved by the Crown beyond reasonable doubt.

25. However, he went on to assert that the Crown must adduce evidence which will show that, throughout the entire period from the moment of arrest to the moment at which the cautioned statement was taken, no improper pressure, no inducements and no threats were applied or made to the accused person. If the Crown leaves any gap, it has failed to establish the voluntary nature of the statement and it must be rejected.

Appellant's submission

26. In support of his argument, Mr. Sanguinetti referred to several Hong Kong cases, though he was unable to cite any English or other Commonwealth authority to the same effect.

27. The first was a ruling of McMullin, J. who commented as follows, after a voir dire as to the admissibility of a confession in an unreported case at first instance, No. 1 of July 1971 -

"          The point being made by the Chief Justice (Sir Ivo Rigby) was primarily this: that on the procedure adopted in that case the Court had been put fully into possession of all the circumstances under which the statement came to be taken, so that there were left no embarrassing gaps not covered by evidence in showing what the police had been doing between the time of arrest and the taking of the statement. That is the importance, to my mind, of his observations and it is a very important point indeed."

28. The second was LI Ming-kwan v. The Queen 1973 H.K.L.R. 275 (to be referred to as "Li"). At page 285 Huggins, J., delivering the judgment of the Full Court, commented as follows -

"However, once it is accepted that the voluntariness of a confessional statement has to be proved beyond all reasonable doubt, then the prosecution's task may become well nigh impossible in the absence of particulars from the defence. Where the accused person has been, or may have been, in contact with the police or other persons in authority over an extended period before the statement is taken, it will be necessary for them to account at least in a general way, for every moment of that period, otherwise the defence will be able to say that it has not been proved that it is not reasonably possible that some pressure was brought to bear upon the accused which was still operative when he made the statement. In the present case not only was no allegation made, at the time the objection was taken, that there was any impropriety during the time the appellant was in the custody of Mr. Ollerenshaw, but even at this stage no such allegation has been made. The contention is therefore without the slightest vestige of merit, but it is nevertheless one which the appellant is entitled to raise."

29. It was argued that this passage was intended to impose an obligation on the Crown to cover the entire period between arrest and caution, whether or not any objection has been taken to the voluntary nature of a statement.

30. The third was POON Chu-ming and Another v. The Queen 1973 H.K.L.R. 414 at p. 427 (to be referred to as "Poon") in which McMullin, J. a member of the court in Li referred to the passage from Li quoted above in the following terms:

"Although he was dealing specifically with the question as to what particulars must be given in such circumstances, it seems clear that the learned judge was doing so in relation to a principle that all periods of custody ought to be covered by affirmative evidence from the side of the prosecution. Applying that principle it must be said that the Crown in the present case wholly failed to discharge the onus laid upon it of proving affirmatively that no improper pressure had been used against the first appellant. It is most important in these cases that such evidence if available should be tendered automatically by the Crown or its absence explained irrespective of whether or not it is anticipated that the prisoner will give evidence on the special issue."

31. In Poon, the judge was applying the principles of Li to a case in which, again, objection had been taken. Although particulars of the objection, as required by Li, were not given in Poon, nevertheless their precise nature had been made clear by cross-examination on behalf of the defendant during the voir dire.

32. It was submitted, however, that this passage in Poon supports the contention that the Crown must adduce evidence to cover the whole period between arrest and statement, even if the Crown has no reason to suppose that the Voluntary nature of a statement is to be challenged. To take this argument to its logical conclusion, the entirety of such evidence must be adduced at the trial, even if the accused does not dispute that he made the statement voluntarily, unless that statement is admitted by agreement under section 65C of the Criminal Procedure Ordinance.

Effect of Hong Kong cases

33. In the later case of Leung Lai-por v. Reg. (1978 H.K.L.R. 202) (to be referred to as "Leung") - at p. 210, Huggins, J. (delivering the judgment of the Full Court) said -

"We believe that in England evidence of a proper caution would in the absence of objection to the admissibility of a confession, be regarded as a sufficient foundation for the admission of the confession in evidence."

34. The judge adds, later on the same page -

"Upon consideration, we do not think that we are entitled to say that a judge, who has been satisfied by the evidence in a caution that a confession (to the admission of which no objection is taken) was voluntary is necessarily wrong."

35. If Huggins, J. is right in these passages, as we think he is, Li could not have been intended to mean that all periods of custody have to be covered, even if there is no objection. Therefore Li and Poon must be given a more limited interpretation than that advanced by the appellant.

36. In Li, objection was taken to the admission of a statement, on the ground that some unspecified pressure had been put on the accused. No particulars were given at the time of objection; no evidence of the pressure was given; nor did its nature emerge in cross-examination. The Full Court held that the judge would be justified in admitting the statement, if he were satisfied that no pressure was put on the defendant at the time when the statement was taken.

37. If the Full Court had accepted the proposition that, in any event, the Crown must cover the whole period between arrest and statement, it must necessarily have rejected the statement in Li, where the whole period was not covered. But it did not reject it.

38. In our view, therefore, the effect of Li must be that the obligation to cover the whole period only arises where the allegations of pressure relate to some time before the taking of the statement but are not precise as to when the pressure occurred.

39. In Poon, no particulars seem to have been given at the time of objection, but during a voir dire it became clear that it was asserted that a sergeant was alleged to have threatened the defendant, during a two-hour period when the latter was in the custody of the sergeant.

40. This is the context in which Poon must be considered. In our view, it would have been sufficient in that case if evidence had been called by the Crown to cover merely the allegations made against the sergeant in cross-examination since these were the only threats which were said to have been made. In Poon, the Crown adduced no evidence at all to show that no threats were made during the identified period. For this reason, the judge refused to admit the statement.

41. We do not think that he intended to go further than to say that the Crown must meet any allegations that are made. He did not require the Crown to meet objections that were not raised by the defence, by the giving of particulars, or by evidence, or revealed in cross-examination.

Conclusion

42. The position is very similar in this case. The accused gave no evidence at his trial which suggested that any impropriety occurred between his arrival at Mong Kok Police Station and the time when he was cautioned. He alleges that he was offered inducements by D.C. Wong just before he signed the statement (which the accused says was about 1800). Nowhere does he assert that anyone else had spoken to him or ill treated him or put any kind of pressure upon him. So far as his evidence goes, therefore, D.C. Wong, or nobody, behaved improperly.

43. The judge found (and we can see no ground for questioning his finding) that D.C. Wong was a truthful witness, that the statement was voluntary and that it was given at 1430, not at 1800.

44. In accordance with Li, Leung and Poon, as we interpret them, there was no obligation on the Crown to introduce evidence as to what happened between 1320, when the accused arrived at the police station, and his interview with D.C. Wong at about 1430, because the defence did not suggest any impropriety by anyone during that period. There was no burden on the Crown to disprove something which nobody suggested had occurred.

45. Therefore we are of the opinion that the judge did not misdirect himself as to the obligation which lies on the Crown and accordingly leave to appeal against conviction is dismissed.

Representation:

Sangunitte (Ford, Kwan & Co.) for appellant

Stock for crown