Leung Chung v. The Queen

CACC000398/1976

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Coram: Pickering, acting C. J. Trainor and Cons, JJ.

Date of Judgment: 30 July 1976.

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JUDGMENT

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1. The appellant is one of two or perhaps three men who successfully robbed a trading company in the Central District. That company is the agent for certain well-known brands of watch. The premises were locked at the time of the robbery. However, the two men gained entrance by pretending that they had watches for repair. Once inside they threatened the staff with knives and tied them up with wire apparently brought especially for that purpose. They made good their escape with 979 watches and some straps and bracelets, altogether worth between $400,000 and $500,000.

2. The appellant was arrested on information about seven weeks later. He made a confession and led the police to a particular roof top in Kowloon. There, hidden beneath a water tank, the police found some of the stolen property, i.e. 185 watches and 17 straps.

3. The conviction turns entirely upon the validity of the confession. The recovery of the watches does not take matters any further. It stems from the confession and depends equally upon the same witnesses. On the other hand, if it could be shown that the watches had never been hidden in this particular place, that would seriously undermine the value of the confession and support the defence raised at the trial that the appellant had been deliberately implicated by the police because they were unable to locate the real culprit.

4. There were three confession statements. The first consisted of what the appellant had said immediately upon his arrest. This was reduced to writing and signed later at the police station. The appellant was then immediately questioned as to the whereabouts of his accomplices and of the stolen property. These questions and answers were said to form the second confession. The third was not made until two days later when the appellant was formally charged by a single police inspector.

5. The appellant was represented at his trial. Objection was taken to the admissibility of the confessions and the learned trial judge held a voir dire. The appellant challenged not only the voluntary nature of the confessions but also the dates on which they were said to have been made. According to his evidence he was seriously beaten by several constables, including those who gave evidence, almost immediately after his arrest; but the confessions were not made until two days later when he was taught what to write in each under the implied threat of further beating. He further alleged that the watches had not been recovered as claimed by the police. He said they had been found in the Wai Ling Apartment House; he had enticed the real culprit to this apartment house so that the police might make an arrest but it seemed that the real culprit had become suspicious and fled, leaving the watches behind.

6. The trial judge found the statements voluntary and admissible. He did not give his reasons at the time but they are included in the Reasons that he gave later when delivering his verdict. He rejected the appellant's version for three reasons:

7. The judge added when dealing with the case as a whole that he did not think it likely that the accomplice would have left behind so valuable a haul of watches even though he knew the police were on his trail. He also took into account the demeanour of the appellant in the witness box.

8. The appellant is not represented in this appeal. He makes several points in criticism of the learned trial judge. Firstly, he says he was aware of the personal paging number of the detective who was principally concerned in this case. This would support his suggestion that in addition to the threats of further beating to obtain his compliance the detective had promised assistance to him on his release from prison; the paging number was given to him so that he could in due course make contact with the detective. We agree this is some evidence in favour of the appellant but, like the trial judge, we do not think it conclusive. There may be other explanations of his knowledge.

9. Secondly, the appellant refers to the date on which the charge sheet was said to have been prepared, a matter which we have already mentioned.

10. He then suggests that the absence of injury or bruise does not show that there had in fact been no beating; the medical examination was not made until quite a while afterwards and was then not in response to a direct complaint but merely as a result of his request for medicine to ease his pain. We cannot see that the way in which the examination was initiated has any bearing. An allegation of assault was made, even though it was perhaps in response to questions from the medical staff. Once that was done the staff would naturally have examined the appellant with that in mind. As to the interval of time, the medical reports indicate that the appellant was examined in the hospital or sick bay of the Victoria Reception Centre six days after the incident and then seen four days later by the doctor. The pathologist gave evidence that bruises of all kinds take an average of fourteen days to disappear in the mean time changing from one colour to the other. We think the judge is justified in drawing the conclusion that he did.

11. Next the appellant complains that the detectives did not of their own accord mention the visits to the Wai Ling or Hoover Apartment Houses; he suggests that the visits were unnecessary and therefore somehow prove the dishonesty of the police officers. We have some difficulty in understanding this argument. Whether one accepts the police or the appellant's version of the events of that night the visits were made in the hope of finding the accomplice. It is a valid comment that the two detectives chose to take with them a large consignment of watches which could easily and perhaps would better have been placed first in the custody of the police station. That comment was made by the appellant's solicitor at the trial. We agree that the visits were first revealed on cross-examination of the detectives but it was the cross-examination conducted on the voir dire. The visits to those particular apartment houses were not part of the Crown's case relating to the voluntary nature of the statements. We see nothing sinister in its failing to adduce evidence thereon at that stage.

12. Then the appellant suggests that the police story must be untrue because the roof top would have been a most foolish place for any thief to have hidden his booty; the learned judge would have seen this for himself if he had acceded to the appellant's many requests that he should go. This is not a fair comment. The judge was only asked once and that was after he had delivered his verdict. The appellant has told us that the roof top was practically deserted and has remained virtually unvisited for ten years. We have seen sketches which indicate the cavity beneath the water tank where the watches were hidden. We cannot agree that it would have been an unthinkable hiding place.

13. Finally the appellant suggests that the police officers were unable to put accurate times upon events of the day following his arrest; that the constable's notebook indicated that they left the station immediately after the appellant's statement had been signed whereas in evidence they said that they had all first taken a meal; and that the figure of $25 suggested by the constable as the price of the meal was an impossibly high price for four persons. We are unable to find in the record any inaccuracy or inconsistency with relation to the events of that particular day; the constable's notebook clearly indicates an intention to have a meal; and without knowing where the meal was taken we cannot say that $25 is an impossibly high figure for its cost. There is nothing in these particular points.

14. In essence this case is one where the trial judge was faced with two contradictory sets of evidence. One set led inescapably to the guilt of the appellant. The other to his innocence. The judge had the advantage of seeing the men who gave that conflicting evidence. He did not believe the appellant. He did believe the police officers. Nothing that has been said to us leads us to think that he was wrong. The appeal against conviction is therefore refused.

Representation:

Appellant in person.

P. Stoppa, Crown Counsel, for Crown.