R. v. Yuen Kwok Wing and Another

CACC000406/1992

IN THE COURT OF APPEAL

1992, No. 406
(Criminal)

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Coram: Silke, Ag. C.J., Penlington & Nazareth, JJ.A.

Date of hearing: 4 May 1993

Date of delivery of judgment: 4 June 1993

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J U D G M E N T

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Penlington, J.A.:

1. This is the judgment of the Court.

2. These are applications for leave to appeal against conviction. In addition Yuen Kwok Wing seeks leave to appeal against his sentence of nine years' imprisonment, out of time. The applicants, Yuen Kwok Wing (D1) and Chu Kwok Hung (D2) were convicted by Mr. Jennings as a Deputy Judge of the High Court and a jury on the 1st October 1992 on a count of robbery which, it was not disputed, occurred on the 31st March 1991 at the Yu Hing Jewellery Company Limited, No. 18, Connaught Road West, Hong Kong. Both applicants were acquitted on a second count of possession of a firearm or imitation firearm at the time the robbery was committed.

3. The evidence against each of the applicants consisted of a confession statement which they were alleged to have made to police officers in the early hours of the 1st April 1991, a short time after the offence was committed. D1 was found to be in possession of a gold ornament but the evidence linking that with those stolen in the robbery was not satisfactory and the jury were told to ignore that evidence. D2 was in possession of a much more substantial quantity of gold ornaments and it was not disputed these were obtained in the robbery. There was no identification evidence against either applicant.

4. Mr. Andrew Macrae, who did not appear in the court below for D1, has argued that the verdict was unsafe and unsatisfactory because of alleged misdirections or incomplete directions by the trial judge in relation to the way that the jury should have considered the applicants' cautioned statements. These statements had been disputed on the grounds that they were not made by the applicants themselves but had been simply prepared by police officers and the applicants had then been forced to sign them by the use of threats and actual violence. The statements had not been read over to them and they did not know their contents. In respect of D1, it was also alleged that he had been wrongly induced into signing the statement.

5. The trial judge had held a voir dire at which the police officers concerned gave evidence, as did the applicants. At the conclusion of that proceeding he held that the statements were voluntary and they were admitted in evidence.

6. At the trial itself the police officers and the applicants again gave evidence on the general issue. It was again the applicant's case that the statements were written by the police officers and did not in any way originate from the applicants who had been forced or induced into signing them. The trial judge directed the jury in relation to both the cautioned statements as follows:

" With regard to the cautioned statements, it is your job to decide two issues. First, you must decide whether that particular defendant made the confession contained in the statement. Second, but only if you are sure that he did make it, you consider whether or not what he said was true. In deciding that, you should take into account all the circumstances in which you find it was or may have been made."

If for whatever reason you are not sure the confession was made by the defendant, or not sure that it was true, you must disregard it. If, on the other hand, you are sure both that the defendant made the confession and that it was true, you may rely upon it, even if it was made or may have been made as a result of ill-treatment or other improper circumstances." (Emphasis supplied.)

Mr. Macrae has argued that this direction was insufficient in that the jury was not told in direct terms that they should consider the evidence of oppressive treatment as being highly relevant to the reliability, and in consequence, the truth of the statements. In his written grounds he submits that the direction encouraged the jury to consider oppression as relevant to truth but, in the emphasised passage, irrelevant if they found that it was true. This could only serve to confuse the jury. As the Crown's case against D1 stood or fell entirely on his cautioned statement, the verdict was thus unsafe and unsatisfactory.

7. For D2 Mr. Lawrence Lok, who also appeared for him in the lower court, adopted the arguments of Mr. Macrae on the directions given as to the cautioned statements. He adds that the way the jury were told they should regard the evidence of recent possession of stolen property by D2 was in error. He further argues that the judge misdirected the jury in that he told them that "if you are sure that the defendant has lied to you in the explanation he has given (relating to the possession of the stolen goods), you will be entitled to infer that he was a party to the robbery". It is submitted that this was a wrong direction in that it suggested to the jury that if they found that D2 had lied this could be corroborative of the other evidence and this was not a proper direction in accordance with the well-known principles set out in Broadhurst v. R. [1964] AC 441.

8. It was further argued on behalf of D2 that there was uncontradicted medical evidence that he had suffered from polio at an early age and that his left leg was wasted, being one inch shorter than the other. This meant that he walked with a pronounced limp which would have been obvious to any observer. This has particular point when the evidence given by the wife of the proprietor of the jewellery company (PW1) is considered. She said that the man who took the gold ornaments jumped over the showcase without any difficulty and "ran off swiftly". Based on D2's own statement, on which the Crown relied, he was one of the persons who had taken the gold ornaments from the showcase, having first jumped over it. She had not noticed him having any difficulty in doing so. She did not give evidence that any of the robbers had a noticeable limp.

9. It was further argued for D2 that his conviction on the robbery charge was inconsistent with his acquittal on the charge of possession of a firearm since in his confession statement he said that he knew that firearms were to be carried before he went to commit the robbery. The trial judge had correctly directed the jury that if they found the defendant had knowledge that a gun was to be carried in pursuance of the common purpose of carrying out the robbery that was sufficient to prove count 2. The acquittal on count 2 demonstrated that the jury could not have attached any weight to the cautioned statement made by D2. Without it there was insufficient evidence against D2.

10. Before us Mr. Macrae developed his argument and submitted that it was for the trial judge to rule on the admissibility of a confession statement and in doing so he simply had to decided whether or not it was voluntary in the technical sense of that word. While it was not the task of the jury to decide whether or not the statement was voluntary in that sense it was very much for them to decide what weight they should put upon it. If they found that it had been obtained, or might have been obtained, by improper means then they should be told that it was for them to decide in the light of that finding what weight they could attach to the statement, if any weight at all. When the Crown's case depended entirely on the statement, they would have to be able to place very substantial weight on it to be satisfied beyond reasonable doubt of D1's guilt. That was most unlikely if they found there was some basis for the allegations made by D1.

11. Mr. Macrae has referred us to Chan Wei Keung v. R. [1967] 51 Crim.App.R. 257 in support of the proposition that admissibility is a matter for the judge but weight is for the jury who should be fully directed as to the manner in which they should approach that decision. In Chan Wei Keung at 260 Lord Hodson referred to Minter v. Priest [1930] AC 558 and cited with approval the dicta of Lord Aiken that:

"the question is one of admissibility of evidence and on all such questions it is for the judge to decide after hearing, if necessary, evidence on both sides bearing on any contested question or fact relevant to the question. Thus the question whether a confession is voluntary or a deposition admissible as a dying deposition are questions to be determined by the judge and not the jury".

Lord Hodson goes on:

"The truth of the confession is not directly relevant at the voir dire although it will be a crucial question for the jury if the judge admits it."

Mr. Macrae went on to refer to Murray [1950] 34 Crim.App.R.

206 as adopting that proposition. Minter v. Priest is now also supported by the Privy Council in R. v. Lam Chi Ming and Others [1991] 2 HKLR 191. There the question of the basis for excluding an involuntary confession was finally decided not to be on the basis of unreliability but that it was repugnant to the principle that a man cannot be compelled to incriminate himself and the overall importance that must attach to the proper behaviour of police officers towards those in custody. Even if the statement was clearly true it should nevertheless not be admitted if the manner in which it had been obtained offended against the basic principles of the proper administration of justice.

12. However when the jury comes to consider what weight they should put upon a statement admitted by the judge, the question of reliability is very much in issue. If the jury is of the view that the statement had been obtained by oppression or inducement so that it is possibly not true then they should not put much weight upon it and certainly not sufficient weight to convict solely upon the evidence of the statement, as is the case here.

13. That also finds support in Prasad v. R. [1981] 72 Crim.App.R. 218 upon which Mr. Macrae relies for the proposition that the jury should have been told in plain words that in deciding whether or not the confession was reliable, and therefore true, they should consider the evidence of improper conduct, both as to oppression and inducement, as being highly relevant to that issue. At 221 Lord Diplock said:

" Their Lordships have considered the passage in McCARTHY ((1980) 70 Cr.App.R. 270) that was relied upon. It consists of the few words italicised hereunder in a single sentence of the judgment (at p. 272): 'If he [sc. the judge] allows the evidence to be given, then it is for the jury to consider whether or not there is an inducement and whether or not it was voluntary, and it is for the jury, after a proper direction, to assess its probative value." Looked at in their context the words italicised may be equivocal, but the authorities cited for the proposition are CHAN WEI KEUNG v. R. (supra) itself and BURGESS (1968) 52 Cr.App.R. 258; [1968] 2 Q.B. 112, a decision of the Court of Appeal of England in which CHAN WEI KEUNG v. R. (supra) was followed and applied. In their Lordships' view all that the words italicised should be understood to mean is that the jury should take into consideration all the circumstances in which a confession was made, including allegations of force, if it thinks they may be true, in assessing the probative value of a confession."

14. In R. v. Ovenell [1968] 1 QB 17 a deputy chairman had directed the jury that if they were not satisfied that a statement had been made voluntarily they should give it no weight at all and disregard it. This apparently was on the authority of R. v. Bass [1953] 1 QB 680. The Court of Appeal in Ovenell said that such a direction was not correct and referred to Chan Wei Keung as having said that voluntariness was only a test of admissibility and that where the judge had decided to admit the statement as voluntary the only question for the jury to consider with reference to the confession was its probative value or effect. The Court of Appeal held that the deputy chairman's direction was wrong, albeit it was an error in the accused's favour.

15. This point has been considered in some detail in the courts in Hong Kong in particular in R. v. Kwok Chi Wo, Crim.App.No. 294 of 1989 where this Court considered a very similar direction to the one given in the present case. There the judge had directed the jury as follows:

"It is your function to decide whether or not the confession is true. In so doing you should consider all the circumstances in which it was made when assessing the weight to be attached to it. If you are unsure for whatever reason, that the confession is true, then you must disregard it. If, on the other hand, you are sure that the confession is true, then you may rely on it, even if it was, or may have been made as a result of oppression or other improper circumstances."

The Court of Appeal in dismissing the appeal said in relation to that direction, per Macdougall J.A.:

"We accept that where a judge directs a jury in the terms in which the judge directed the jury in the present case, he should normally go on to tell them that if they thought the accused had been forced to make a confession they might think that was a good reason why it was not true. However, since the very basis of the defence was that the confessions were not true because they had been extracted by violence and threats, and consisted of inventions by the police and by the applicant himself, we find it inconceivable that the jury could have been in the slightest doubt that the question of whether the applicant had been threatened and beaten was highly material to the issue of the truth or falsity of the statements."

However, in that case the judge had also made it clear that the allegations of threat and violence were central to the defence case and had said to the jury that the crux of the accused's case was that the statement had been extracted from him by threats and violence by police officers.

16. In the earlier decision R. v. Chan Ying Choi and Others, Crim.App.No. 469 of 1989, the judge had directed the jury as regards the way they should consider confession statements in the following terms:

"If you are not sure for whatever reasons that the confession is true, then you must disregard it. If on the other hand you are sure that the confession is true, you may rely on it even if it was or may have been made as a result of oppression or other improper circumstances."

He then went on to say:

"Broadly speaking, the case of the accused is that the confessions were obtained from them by violence, threat of violence or threat to charge them with a more serious offence, or to charge their wives, and also inducements that their wives would not be charged and would be released on bail. Their case is also that the contents of statements were either fabricated or distorted by the officers, and so far as the incriminating parts are concerned, they are absolutely untrue. It is for you to decide whether or not the confessions are true. In so doing, you should consider all the circumstances in which they were made when you assess the weight to be attached to each statement."

He later went on to remind the jury of the evidence given by the appellant relating to the manner in which he had been beaten by the police in order to extract the confession.

17. This Court said:

"In our view it was not incumbent on the judge when dealing with the case of each accused to repeat to the jury his earlier general direction that it was for them to decide whether the confessions were true, that in so doing they should consider all the circumstances in which the statements were made and that if they were not sure for whatever reason that a confession was true they must disregard it. We have not the slightest doubt that when he recited to the jury the substance of the allegations made by D3 as to how he had come to make the confessions, they had the judge's general direction very much at the forefront of their minds."

The judgment concluded as follows:

"In the present case, having regard to the entirety of the judge's direction and his reference to the specific allegations made by D3, the absence of the advice as is usually given did not amount to a misdirection or non-direction, nor did it render the conviction unsafe or unsatisfactory. The jury could have been in no doubt that the use of force, threats or inducements to obtain the confession was a highly relevant factor in deciding whether the confession was true. And, as we have already observed, the judge made it abundantly plain to them that if they were unsure for whatever reason that a confession was true they must disregard it."

18. So far as D1 was concerned, having gone through the prosecution evidence relating to the taking of the statements, the judge set out in considerable detail the evidence given by D1. He had been assaulted on several occasions by being punched and kicked. He had also been told that if he admitted the offence he would be charged only as a driver and look-out and would only get three or four years' imprisonment. The statement was then written out by the police officers but was not read to him nor was he given an opportunity to read it himself. He also referred to the medical evidence given by a doctor from the Lai Chi Kok Reception Centre who was called to give evidence on behalf of D1, which gave some support to the allegations of violence.

19. He told them that the entire case against D1 stood or fell on the alleged confession and if they decided they could not rely on that confession D1 must be found not guilty. The judge's direction as to the manner in which they should consider the statements by looking at all the circumstances in which they found they were made in deciding if they were true is almost exactly as was approved by Lord Diplock in Prasad apart from a specific direction that they should include in those circumstances the allegations of force, if they thought they may be true. Without doubt it would have been preferable to have gone on and given the extra direction that if violence or inducements had been used that is a matter to be very carefully considered in assessing the reliability of the statements. However, as was said in Kwok Chi Wo, it is inconceivable that the jury should have been in any doubt whatever that the evidence they had heard both from the police officers and from the applicants was vital as bearing on the question of whether or not they could rely on these statements as having been made by the applicants and that they were true. If they were in any doubt as to whether or not the statements had been made by the applicants themselves or might possibly have been made, as they said, by the police officers then they could not be satisfied that they were true. Similarly, if the signatures obtained had been put there by the use of violence that must have caused them to have a doubt as to whether these statements were true. We find Kwok Chi Wo to be of highly persuasive value here and we do not consider this ground of appeal to have been made out.

20. We however suggest that the form of direction complained of here should be avoided by judges in the future. It can lead, as it did here, to the line of argument, properly advanced by Mr. Macrae and adopted by Mr. Lok.

21. For D2 Mr. Lok argues that the judge's direction as to recent possession was not correct and relies on R. v. Aves [1950] 34 Crim.App.R. 159. This is a short judgment which said that where the only evidence is that an accused person is in possession of property recently stolen a jury may infer guilty knowledge (a) if he offers no explanation to account for his possession or (b) if the jury are satisfied that the explanation he does offer is untrue. If however the explanation offered is one which leaves the jury in doubt as to whether he knew the property was stolen they should be told that the case has not been proved and therefore the verdict should be not guilty. Lord Goddard L.C.J. also said, however, that if there was some evidence that the prisoner was in possession of property recently stolen and there was other evidence which tended to show guilty knowledge then the jury should be directed that in considering recent possession in the terms already indicated, they should be told to go on to deal with that evidence which may or may not be consistent with the explanation, if any, which he has given.

22. The jury was directed here on the question of recent possession as follows:

" Where a person is found in possession of stolen property soon after it is stolen, and he fails to give a credible account of the manner in which he obtained them, it is open to the jury to infer that he was a party to the theft of them. Robbery is a form of theft.

The defendant has given you an innocent explanation of how he obtained the gold ornaments. If you believe that explanation or you decide that it may be true, then you must find him not guilty of the two charges against him. If you are sure that the defendant has lied to you in the explanation he has given, you will be entitled to infer that he was a party to the robbery, provided you are satisfied that given the nature of the property involved the defendant's possession of it can properly be described as 'recent'."

23. Mr. Lok relies also on the Hong Kong decision in R. v. Ng Mou Wo, Crim.App.No. 279 of 1984. There the dicta of Lord Goddard L.C.J. in Aves was considered. Silke J.A. (as he then was) held that the full direction in Aves should have been given and that the jury should have been informed that if the explanations offered by the defendants were such as to leave them in doubt as to whether the defendants knew or believed that the good were stolen then they could not use the recent possession as assistance in coming to their verdict.

24. The particular passage complained about is when the judge said to the jury that D2 had given an innocent explanation of how he obtained the gold ornaments and if they believed that explanation or "you decide that it may be true" then they must find him not guilty of the charges against him. This, Mr. Lok says, is not the same as is laid down in Aves in that the jury should be told that if they had a doubt as to whether the explanation is true the presumption does not operate against the accused and, in the absence of other evidence, he is entitled to be acquitted. In our view, the words used by the trial judge that if they thought that the explanation offered by D2 for his possession of the ornaments might have been true was the same as saying to them that, if they were in doubt as to whether the explanation was true, then they must acquit D2. The jury must have understood the direction that was given to them in that way and it was in accordance with, though not in the same terms as, the suggested direction in Aves.

25. We would suggest that judges should for the future follow the guidance given in Ng Mou Wo.

26. It is also argued for D2 that the direction given by the trial judge in relation to the possession of the ornaments failed to take into consideration that which was said in Broadhurst in that the trial judge had said that if the jury were sure that the defendant had lied to them in the explanation he gave for the possession of the ornaments they would be entitled to infer that he was a party to the robbery. In such direction he did not go on to give what has become known as the "Broadhurst Direction" on lies.

27. We do not consider that a Broadhurst direction was required here. The Crown quite clearly was not relying in any way on D2 having told lies to the police nor that the jury should take into account such lies in themselves as indicating guilt in reaching their verdict. The judge was simply saying to the jury that if they were satisfied that the explanation given by D2 for his possession of the gold ornaments was untrue then such possession was evidence against him which they could take into account.

28. It is further argued on behalf of D2 that in the light of the evidence given by an orthopaedic specialist, Dr. Li, which was unchallenged, as to D1's physical condition and by D2 himself, coupled with the evidence of PW1 who described the manner in which the persons who carried out the robbery acted, the conviction was unsafe and unsatisfactory. It is submitted that the judge erred in not fully explaining to the jury the significance of the evidence as to D2's deformed leg.

29. The trial judge set out in detail the evidence given by D2 and Dr. Li as to his leg. D2 said that until he was eleven or twelve, he had to wear special shoes and a brace. He said that even now if he walks quickly he looks very awkward, and if he runs he falls over easily. Dr. Li supported that and said that D2 walks with an obvious limp and, while capable of running, it would only be a "galloping fashion" and would be slower than a normal person. He would have difficulty in jumping over an object such as a jewellery counter. The trial judge did not then tell the jury that this was evidence which they should consider as indicating that the person described by the eye-witness as going over the counter in the jewellery shop and then running away swiftly could not have been D2. This was however a matter for the jury to consider. The evidence was traversed in detail by the trial judge. The jury could have been in no doubt as to the effect of that evidence and the manner in which they should consider it. Again it would have been better if there had been a specific direction to them that if they thought that that evidence was such that D2 could not have been one of the robbers then they should acquit him but we are in doubt that they must have realised that was the position. This was a matter for the jury to consider and no doubt they did so.

30. Finally on behalf of D2 it was argued that his conviction on the first charge of robbery was inconsistent with his acquittal on the second charge of possession of a firearm at the time the robbery was committed. It was so inconsistent as to make the conviction for the robbery unsafe and unsatisfactory. Again, however, we do not consider that ground to have been made out. It is quite true that in his confession statement D2 did say that one of his fellow robbers was armed with a gun. The jury was directed that if satisfied that D2 took part in the robbery and he knew that a gun was to be carried and used to threaten victims, they could convict him of the second count even if D2 did not himself have physical possession of the gun. The verdicts seem illogical. But that is not enough to discharge the burden on the applicant. R. v. Durante [1972] 56 Crim.App.R. 708 is authority for the proposition that an appellate court should only interfere with a verdict on the grounds of inconsistency if it is satisfied that no reasonable jury, applying its collective mind properly to the evidence, could have arrived at the verdicts they did. Here the jury, if they accepted the confession statement together with the evidence of recent possession, may have been perfectly satisfied that D2 did take part in the robbery but not satisfied beyond reasonable doubt as to his knowledge of the gun, especially as there was no suggestion that he himself carried the weapon. We do not consider that these verdicts are so inconsistent as to render the conviction unsafe or unsatisfactory.

31. These were matters fit for the consideration of this Court. We would give leave, treat the hearing of the application as the hearing of the appeals and dismiss the appeals.

Representation:

Mr. A. Macrae (Y.C. Leung & Co.) for 1st Applicant

Mr. Lawrence Lok & David Ma (Chung & Kwan) for 2nd Applicant

Mr. D.G. Saw & Charles Chan, counsel for Crown/Respondent