The Queen v. Chan Tung Hoi

CACC000087/1985

IN THE COURT OF APPEAL

BETWEEN

__________

Coram: Roberts, C.J., McMullin, V.-P. & Silke, J.A.

Date of Hearing: 17th October, 1985

Date of Judgment: 17th October, 1985

___________

JUDGMENT

___________

Silke, J.A.:

1. The Applicant was convicted of the offence of robbery and sentenced to 5 years' imprisonment. He originally sought leave to appeal against both his conviction and his sentence. He has abandoned the application in relation to sentence and we are therefore concerned only with the application concerning his conviction.

2. A robbery had taken place on the 28th of April 1982 at Flat 9 on the 8th floor of Chow's Building at Shui Wo Street, Tsuen Wan. At 7:50 a.m. this flat was broken into, the three occupants were tied up and articles were taken.

3. The Applicant was arrested on the 6th of October 1984. He was brought to Tsuen Wan Police Station where a caution of a general nature in connection with a robbery case was administered and a file reference was mentioned.  He said: "I have nothing to say. ”.

4. It appears that he remained in Tsuen Wan Police Station until the following day when he was collected by personnel from the Shatin Police Station, brought to his house which was searched without result and taken to Shatin.

5. At 4 o'clock in the afternoon of the 7th of October, he was again cautioned, more detailed particulars in relation to the robbery on the 28th of April 1982 were recorded and he then wrote on the document, in his own writing: "I understand, I have something to say, I took part in the robbery. ". After that the constable who recorded the statement, Constable 11930, wrote in his own handwriting a detailed confession to the robbery which was said to have emanated from the Applicant. At 4:55 on the same day, the constable administered a further caution to, and then asked a total of 38 questions of, the Applicant.

6. It is the portion of the statement recorded in question and answer form which gives rise to Mr. Plowman's first two grounds of appeal. He makes the point, first, that that portion which I shall refer to as the "second part" was an interrogation and that it went far beyond that which is a fair and proper method of questioning; and second, that, the Trial Judge in his assessment of the voluntary nature and of the weight of this statement, took into consideration certain answers which were contained in that second part.

7. Mr. Plowman submits that that second part, because of its nature, should not have been admitted by the Trial Judge so that the questions and answers upon which he placed reliance in his general consideration of weight would have not been before him. It is not possible, Counsel submits, to say what reliance the Trial Judge would have placed on the first portion alone had he disregarded those answers, and that therefore, the conviction is unsafe and unsatisfactory.

8. I accept that the questions asked were somewhat lengthy and were possibly an over-zealous performance of his duty by the constable. But none of them led to any admission of guilt which did not already exist in the first part of that statement. This Court has often said that questions of themselves are not improper, provided they are not oppressive. While certain of the questions to which our attention has been directed do appear to be leading questions approximating to a cross-examination, we do not see that they can, in the overall circumstances of the statement be fairly described as oppressive. It would have been a difficult exercise for the Trial Judge in considering the voluntary nature of the statement and its weight - and those were the only issues before him - to say that those questions and answers further implicated the Applicant in the robbery over and above that which he had already said, to find them oppressive and to sever them from the main part. We reject the first and second grounds of appeal.

9. On the third ground, which is an allegation that the Trial Judge did not properly consider the burden and the standard of proof, Mr. Plowman has directed our attention to certain passages in the Reasons for Verdict. In particular that passage at page 6 which reads:

"I have to balance the denial made by the defendant at the trial with the admission he is alleged to have made in his second statement. ".

10. The Trial Judge went on to define clearly the main issue by saying:

"It is a question now of what weight I should attach to the second cautioned statement. ".

11. We were referred to two further passages in the Reasons for Verdict which, Mr. Plowman says, gives colour to his submission that the burden of proof was not properly before the mind of the Trial Judge.

12. He had, in ruling the statement as voluntary, made reference to the burden of proof being beyond a reasonable doubt and being upon the Crown. It is true that in his Reasons for Verdict he did not repeat that admonition to himself at any point. This Court has said before that it is unnecessary for a professional Judge to repeat, on numerous occasions in the course of a Reasons for Verdict, the fact that he has the principles as to the burden and standard of proof in mind.

13. We have been referred to a number of authorities which are encapsulated in KHOU Kwok-wai⁽¹⁾ and which were considered by Leonard, J. (as he then was). The Judge said, at p.4:

"         Crown counsel did not seek to controvert any of these principles and also accepted that taken in isolation the passages of the judgment and Statement of Findings relied on by Mr. Ching as being objectionable did not represent a correct application of the law as to the burden of proof but suggested that taken as a whole and in the light of the passage which has attracted my pedantism I could rest assured that the learned magistrate had properly directed himself as to burden of proof. Crown counsel pointed in particular to the two-fold use of the phrase 'beyond any doubt' in the Statement of Findings.

I fear I cannot accept this argument. It is the judgment that deals with the issue as to payment and that resolves this issue by choice and preference. ". [Emphasis supplied]

14. If it were clear that a Trial Judge was employing a similar method of evaluation of the guilt of an accused, then there would be much point in saying that he was employing an improper method by taking the balance of preference as opposed to the beyond a reasonable doubt principle.

15. Here the Trial Judge, having admitted the statement, had before him first a statement produced by the prosecution admitting guilt, and second a denial in open Court by the Applicant of that guilt. In denying his guilt, the Applicant had also given evidence that the cautioned statement was untrue because it had been obtained by threats, oppression and fabrication.

16. The Trial Judge's Reasons for Verdict show that he considered whether or not the evidence of the Applicant gave rise in his mind to a doubt as the truth of the cautioned statement. He considered in detail all the allegations and assessed the witnesses saying that the prosecution witnesses "impressed me". He examined with care the evidence of the Defendant and did not believe it.

17. Exception, as I have said, was taken to certain of the phraseology he used in coming to his conclusions - such as the references to "balance", that the "Defendant asks me to believe" and the further reference to "assessing" the evidence of the two sides - but if, and we think he was, he was considering whether or not the Defendant had raised any doubt, he was entitled to come to the conclusion that no doubt had been raised.

18. It would follow that the prosecution had proved the case to the requisite degree. In the light of that, though phrases used by the Trial Judge could have been better chosen we are satisfied that he did not misdirect himself on the burden of proof and the application for leave to appeal against conviction is refused.

(1) Crim. App.91 of 1977

Representation:

Gary Plowman, Esq. (Messrs. Anthony Kwan & Co.) for Applicant.

M. J. Hartman, Esq. for the Crown.