Hui King Kwok v. The Queen

CACC001015/1982

Trial judge's findings of fact - when disturbed by appellate court - trial judge's reasons for accepting certain evidence open to criticism - whether appellate court may properly upset findings based on such evidence.

BETWEEN

Coram: Yang J.A., Rhind and Barnes JJ.

Date: 19th May, 1983.

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JUDGMENT

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Yang J. A. :

1. The 1st appellant together with the 2nd appellant and two other co-accuseds were charged with a conspiracy to traffic in dangerous drugs. The sole evidence against the 1st appellant consisted of a written statement supported by some records of interviews. The Grounds of Appeal consist of a number of headings, but they all turn on one issue only, viz., the question as to whether the Judge was right in accepting the confession statement written by the 1st appellant and certain statements made during interviews as being sufficient to convict the appellant. We are in no doubt that these statements, if properly accepted, clearly revealed the offence charged. The question that we have to ask ourselves in this Court is whether the trial Judge properly accepted those statements in evidence. Evidence of the taking of those statements was given by two police officers, P.W.1 and P.W.2 who were I.C.A.C. officers. The Judge accepted the credibility of P.W.1 as being an honest officer. We have no reason to depart from this view.

2. The trial Judge however had his doubt as to the credibility of P.W.2. The 1st appellant's objection to the admissibility of his statements was that he had been induced or threatened into making them. The allegation he made particularly, against P.W.2, was that P.W.2 told him that the I.C.A.C. were not making an inquiry into drug offences, but simply about police corruption, and that he would not be prosecuted for making any statement which might incriminate himself in drug offences. There was also an alleged threat that if he did not co-operate with P.W.2 then he and perhaps even his wife would be detained.

3. The interview between him and P.W.2, witnessed by P.W.1 who was nearby, was conducted in Cantonese. P.W.1 is an officer who does not understand Cantonese, but in his evidence he said that because he was close by, if any threat or inducement had been uttered, this would have disrupted the flow of conversation between P.W.2 and the appellant, and he would have detected it.

4. P.W.2 in his evidence also denied any inducement or threat. The Judge accepted the evidence of P.W.1, and whilst he had doubts as to the credibility of P.W.2, nevertheless he accepted that part of P.W.2's evidence as confirmed by P.W.1. On this basis he came to the conclusion that there was nothing improper in the taking of the statements from the 1st appellant. He accepted the statements and convicted him on the basis of those statements.

5. It is a well-known fact that this Court is always extremely slow in disturbing a finding of fact by a trial Judge. The reasons for this reluctance are well known and I do not Propose to repeat them here. However, in this case the reasons given by the Judge for accepting the evidence of P.W.1 and P.W.2 require close examination. It therefore may be useful to refer to a few passages in which the Judge dealt with that aspect of the case.

6. The Judge at page 13 of his Reasons for Verdict commented that P.W.1 gave his evidence well and that he was unshaken in cross-examination. It will be borne in mind that during those interviews P.W.2 was acting as an interpreter for P.W.1. The Judge went on to say in his judgment, and I quote :

"Of course, he was entirely dependent on P.W.2's interpretation, and he (i.e. P.W.1) did not know what P.W.2 was actually saying to the accused. But he denied that any officer  working with him might exceed his instructions, and he says one could tell from the tone of the other officer's voice if this was happening, (i.e. if any threats or inducements were uttered) and that it would be incredible if he was actually asking for a confession. I accept this."

7. In assessing P.W.2's credibility he has this to say :

"P.W.2 was very different. He was casual and seemed ready to say the first thing that entered his head, without stopping to think whether it was really correct."

8. Then on page 15 :

"While he (i.e. P.W.2) was acting as P.W.1's interpreter, I accept that he could not have altered the flow of the conversation or asked other questions, without P.W.1 realising what was happening. Moreover, during the written e statement, when he was recording what the accused was saying P.W.1 was present throughout. So if any questioning or prompting had gone on, P.W.1 must have noticed it. As it is, P.W.1 says that nothing of the sort happened, and that P.W.2 said odd words, but not sentences."

9. Again on page 17 under the heading entitled "The Written Statement" the Judge went on to say this :

"Seeing that P.W.2's account is confirmed by P.W.1, I did in fact accept P.W.2's evidence that there was no questioning or prompting, and  I was satisfied beyond reasonable doubt that the contents of Exhibit P1 (i.e. the 1st appellant's written confession statement) were not obtained by questions or other inducements or threats."

10. After a careful reading of these passages, we have come to the view that the last quoted comments are not directed at P.W.2's credibility in respect of the taking of the written statement only, but are of general application.

11. The position therefore seems to be this : P.W.1 was accepted as an honest witness whose evidence the Judge accepted entirely. P.W.2 is regarded largely as a discreditable witness and his evidence is only accepted in so far as it has been confirmed by the evidence of P.W.1. If P.W.1's evidence is analyzed, one would see that here we have an expatriate officer, who does not have a knowledge of the Cantonese language, saying that if an interview conducted in the Cantonese language is interrupted by threat or inducement, he would be able to detect that, and that his opinion was strengthened by his belief that no officer working with him would exceed his instructions. With the greatest respect to the Judge, the evidence which the Judge seeks to rely on is but opinion evidence given by a person who is not an expert. We have come to the view that the Judge's acceptance of P.W.1's evidence in the way he did is open to question. If the propriety of the acceptance of such evidence is in doubt, then the whole basis of the prosecution's case, in so far as the 1st appellant is concerned, is also in doubt.

12. This however does not entirely dispose of the matter. Ground 10 of the Grounds of Appeal complains that the learned trial Judge failed properly to take into account that at the time of taking the statements, the appellant was a drug addict suffering from withdrawn symptoms. However, the Judge who was made aware of the appellant's drug addiction came to the view, and we think rightly, that on the appellant's own admission, the length of time that he was questioned did not break his resistance, so that it could not be said that the prolonged and repeated asking of questions sapped his will and made him talk.

13. Ground 10 of the appeal therefore fails.

14. For the reasons we have given the 1st appellant's appeal against conviction is allowed. The conviction is quashed and the sentence set aside.

Representation:

Mr. Mayne, Q.C. and Mr. Eddie Soh (David K.W. Tsang & Co.) for 1st Appellant. 2nd Appellant in person.

Mr. Little for Crown/Respondent.