The Queen v. Lam Wai Kwong and Another

CACC000378/1985

BETWEEN

Coram: Hon. Li, V.-P., Kempster, J.A. & Power, J.

Date of Hearing: 7th March 1986

Date of Judgment: 7th March 1986

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JUDGMENT

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Kempster, J.A.:

1. On 20th August of last year at Victoria District Court HA Kwok-wah was convicted by Judge Chism of participating in a robbery. Evidence was called to show that on the night of 6th of April a number of men had entered a dormitory at Cheung Bor House, Choi Wan Estate, Kowloon, and taken from sleeping or comatose restaurant workers substantial sums of money and, among other things, a gold chain. The evidence against HA Kwok-wah depended upon the confession which was sought to be put in evidence. The material part was in his own handwriting and he had signed it. An issue immediately arose as to whether or not it was admissible as his voluntary statement and the judge held "a trial within a trial"

2. During that 'trial within a trial" it was asserted by HA Kwok-wah, who seeks to appeal to us against his conviction, that he was required to copy out a statement which had already been written out for him, as a guide, by one of the policemen who were asking him questions; that he had been reluctant to sign it and that he had only done so because he was subjected to assault.

3. Having heard the applicant's evidence and that of the police officers present at the relevant time Judge Chism concluded:

"Crown have satisfied me that the statement was made voluntarily and it will be admitted."

4. It is, I think, common ground between counsel for the applicant and counsel for the Crown that, when ruling on the admissibility of an alleged confession, a District Judge is not required, any more than a High Court Judge, to give the reasons for his determination and this ruling cannot be criticised because it was laconic in its terms. However, on perusing the record it has been ascertained that the evidence adduced, on the "voire dire" was subsequently adopted as evidence in the general issue.

5. In CHAN Chi-loi v. The Queen (1) a division of this Court indicated that in such circumstances the trial judge should make it clear in his Reasons for Verdict that he has taken the evidence given on the voire dire into account. That authority goes no further and insofar as it is urged upon us that Judge Chism did not make it plain that in reaching his verdict he had taken into account the evidence adduced on the voire dire such contenticn cannot, in our view, be sustained. The judge said:

"Both accused made statements under caution which the Crown satisfied me were voluntary after a separate voir dire for each accused. At the end of the trial when I came to consider the weight to be attached to the statements and having considered them carefully I was satisfied that they were true."

6. The point most strongly urged upon this Court was, that it was incumbent upon the judge, in his Reasons for verdict, to enlarge upon his earlier ruling. It is said that just as, in relation to the general issue where there has been conflicting evidence and the testimony adduced by the prosecution was subject to discrepancies or contradictions the judge should make it known that the evidence adduced at "the trial within a trial" had demonstrated such features and that he has taken them into account. Mr. Sweetnam, who had said all that could be said on behalf of the applicant, has pointed out that, for example, the police officers called to demonstrate that the confession was voluntary had apparently failed to account for at least 45 minutes of the time during which the applicant was ostensibly making or reading his statement. As to this the point was made by counsel who appeared for the applicant below immediately before the judge gave his ruling as was the point that on numerous occasions the police went in and out of the room where the statement was written. We cannot for a moment believe that Judge Chism in fact failed to take this apparent lacuna in the time schedule into account. He may well, we think, have considered that the separate assessments of time made by one of the police officers were no more than approximate guesses.

7. The point is also made that one police officer stated that no one had approached him and the applicant while the statement was being taken whereas the sergeant said "I keep telling him what to do and what steps to take." This does not seem to us necessarily to raise a conflict of evidence; particularly as yet another officer denied that the sergeant had kept approaching the applicant at the material time. Again we are satisfied that the judge took this evidence into account and concluded that a distinction was to be drawn between an approach and giving generalised directions.

8. Finally, counsel has drawn our attention to the complete and literate terms of the confession. This feature is in one sense surprising but, in another, as counsel himself has conceded, is consistent with concern to make a clean breast of an offence and thereby to achieve a sense of relief.

9. All in all we see no reason to feel that the conviction here was in any way unsafe or unsatisfactory. We are left with no lurking doubt and are not inclined to impose on District Judges giving Reasons for Verdict on the general issue the further burden of so reopening their findings in the "trial within a trial" as at that stage to furnish their reasons.

10. In the circumstances the application for leave to appeal against conviction fails and will be dismissed.

(1)    Crim. App. No. 691 of 1981

Representation:

Mr. N. Sweetnam (J. Pickavant & Co.) for applicant

Mr. B.M. Ryan for Crown Prosecutor