Ng Ping-fat v. The Queen

CACC000040/1981

Application for leave to appeal against conviction - Allegation of violence, threat inducement, dictation of fabricated confession by police officer - Applicant cross-examined on his previous convictions in absence of jury in course of voire dire. Proper for judge to allow such cross-examination.

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Coram: Li, J.A., Silke & Power, JJ.

Date of Judgment: 9th June, 1981

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JUDGMENT

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Li, J.A.:

1. This is an application for leave to appeal against conviction. The applicant is convicted of robbery. It is alleged that on the 26th of May last year the appellant together with one LAU Chi-wing robbed WU Kei of $153,973.60 plus four cheques to the total value of $38,000. The place and the scene of the offence was at the Kar Koon Restaurant in Castle Peak Road, Kowloon. The evidence at the trial was that at the material time Wu Kei was handed a bag containing this sum of money and cheques by the cashier of the restaurant for the purpose of banking them. As soon as Wu Kei received the bag the two persons dashed out to the entrance of the cashier's office and grabbed the bag from Wu Kei. One of them was holding a long knife. Another was carrying a pistol like object. There was a short struggle. The one with a knife injured one of the fokis called Wong. Having done that the two robbers dashed down the stairs and went through the front door of the restaurant into the street.

2. At that very moment there were two off-duty police officers who were alerted by the hue and cry and saw two fokis of the restaurant chasing after the two robbers. They joined in the chase. In the course of that chase they observed the applicant holding the pistol like object. The other robber was holding a plastic bag. They were joined also by two more uniformed police officers. After a while some civilians in the street realized that there was a robbery too. One of them wielded a bamboo pole to join in chasing the robbers. The robbers parted company. The one holding the pistol who was subsequently identified by the two original chasing police officers as the applicant. One of the reasons why he could be identified was that the applicant turned round and pointed the pistol at the civilian as well as the police officers and told them not to go any nearer. Quite understandably the civilians were deterred from chasing. The police officers, though shocked for a moment, continued to chase. Pausing here, we like to commend the courage of these two officers.

3. The chase continued until the applicant reached and entered a building. The officers placed one of themselves on guard at the entrance and called for further assistance. When assistance arrived, a floor to floor search was conducted. At the 5th floor landing they spotted someone on the lodge outside the window of that landing. They ordered this person to come back into the building. However, their order was ignored. Whether by design or accident this person fell from the 5th floor. He did not suffered more serious injuries than some scratches, abrasions and bruises. The officers dashed down to the ground floor and continued the chase. They saw again the applicant running away from them. After a short chase the applicant was intercepted by two other officers. It was in such circumstances that the applicant was caught and brought back to the police station.

4. Nothing was found on the applicant. A search along the route of the applicant's escape recovered neither the pistol nor any money. However, when intercepted and arrested the applicant admitted to the officers that he had been involved in a robbery. A post entry of his statement was recorded at the police station. Under caution he again admitted his involvement in this robbery.

5. In the circumstances the learned trial judge directed the jury that there was only two lines in issue. One was whether they accepted the police officers' observation and identification. In the course of so doing the learned trial judge did warn the jury that there were discrepancies in the prosecution evidence. He also warned the jury that the victim Mr. Wu Kei and his colleagues could not identify the applicant. He also told the jury that there were some discrepancies as to their observation whether the robber was wearing a jacket or not. Having analysed the evidence he left the matter to the jury whether they believe that the applicant was one of the robbers. The other point he warned the jury about was the applicant's own admission. He told the jury whether they should give any weight to such admissions was a matter for them. He also told the jury quite frankly that no exhibit had been found. The applicant originally objected to the admissibility of the statement alleged to have been made by him. The ground of objection was that he had been maltreated, threatened and induced. He alleged the police had fabricated and dictated the statement for him to write down. All these allegations and evidence in support were made in the absence of the jury at the stage when the question of admissibility of the statement was in issue. It was at that stage the counsel for the prosecution applied to the judge to question the applicant's previous criminal record. This was done in the absence of the jury. There is nothing improper in this step. The judge is not a judge of fact. At that time he was only concerned with the admissibility and the credibility of the applicant. When the character of the prosecution witnesses was attacked in that way it would be proper for the learned trial judge to be informed equally of the applicant's own character at that stage. After a full enquiry the trial judge admitted the cautioned statement. In the course of the trial of the main issue, and at the end of the prosecution case, the applicant declined to give evidence. There was nothing to support the allegations that were made in the course of the voire dire. Be that as it may, the jury, having duly considered the evidence, convicted the applicant of the offence as charged. The grounds of appeal raise no valid reason that causes us to interfere with the verdict. Apart from the complaint of the judge allowing the applicant to be questioned about his past record no attack had been levied at the direction to the jury. As to the various other grounds of appeal, every single aspect of criticism is unjustified because the learned trial judge had put them fairly and squarely to the jury. The jury accepted the evidence of the prosecution and return a verdict of guilty. For these reasons leave to appeal against conviction must be refused.

Representation:

Appellant in person

Mr. Mawson for Crown