Chung Wai-kwong and Another v. The Queen

CACC000043/1973

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 43 OF 1973

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Coram: Briggs, C.J., Blair-Kerr, S.P.J. and Pickering, J.

Date of Judgment: 18th July, 1973.

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JUDGMENT

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Briggs, C.J.:

1. The two appellants, who are brothers, were found guilty of the murder of WONG Miu-chun and LEUNG Ka-siu on January 11th, 1973. In addition, they were found guilty of robbery. The first appellant was then aged 16 ½ and the second appellant was then aged 14 ½, so the court ordered that they be detained in prison during Her Majesty's pleasure. They appeal against their conviction.

2. The first appellant was employed as an apprentice to a working jeweller, one Leung Chuen, who was the husband of WONG Miu-chun. He lived in and the household consisted of LEUNG Chuen, WONG Miu-chun and their son, LEUNG Ka Siu. The second appellant was also a jeweller's apprentice but worked in another firm on the other side of the harbour. On the 9th May, Leung Chuen left the premises at about 9 a.m. leaving his wife and son and the first appellant together. He told the first appellant to take certain jewellery to an address in Hong Kong. A telephone call was received at the shop in Kowloon in which the second appellant worked and he asked his employer to allow him to leave. He left the shop premises but returned between noon and 1 p.m. In between the time he left his place of work and his return he visited an address in Hollywood Road, where the mother of the two appellants was living. There he left a parcel of jewellery.

3. Leung Chuen was told by a police officer that his premises had been robbed and returned at about 11.45. There shortly afterwards, the police arrived. They found that Leung Chuen, who was accompanied by a uniformed police officer, and the first appellant were on the premises, together with the lifeless bodies of WONG Miu-chun and LEUNG Ka-siu. It was obvious that WONG Miu-chun and LEUNG Ka-siu had been murdered.

4. Immediately after the arrival of the police the first appellant was interrogated. At about 1 p.m. he was taken by the police to Police Headquarters. At that time, they regarded him as an eye-witness of the murder. And he told them that it was he who had reported the robbery. At the Police Headquarters, interrogation continued. At about 10 p.m. the mother of the first appellant arrived, where she saw the first appellant and spoke to him. He made no complaint at the time.

5. Mr. Whiteley, a senior police officer, decided to send for the second appellant from Kowloon, as he suspected that the first appellant knew something which he would not divulge as to the possible identification of the perpetrators of the crime.

6. When the second appellant arrived at the Police Headquarters, his mother and uncle were there. He said that he did not wish to see his mother and he was taken upstairs to see his elder brother, the first appellant. He then was brought downstairs and was interrogated in his turn. His answers were evasive, so he was taken back again to see his elder brother, who was still under interrogation. It was then close to midnight. When the two brothers met on this occasion, the second appellant said "What shall we do now?" And his brother replied "We will tell them all". Immediately, the second appellant burst into tears. Mr. Whiteley rightly suspected, at this moment, that they had much more to do with the crime than their answers to the interrogation suggested and they were both cautioned.

7. The cautioned statement of the second appellant was completed by 1 a.m. and the cautioned statement of the first appellant was taken by another police officer at about the same time.

8. The next day, shortly after noon, two further statements were taken from the first appellant after he had been shown a hammer and other articles which were collected from the premises where the murder took place. Further, the second appellant gave another statement when he was shown the same articles by the police at about 1.30 p.m. on the same day. These were all cautioned statements.

9. At 2.30 p.m. on the 10th May the first appellant was charged with the offences for which he was convicted and again he made certain statements. The second appellant, when charged, merely shook his head.

10. From this, it appears that the first appellant was under police interrogation for something like 12 hours, before he made his first cautioned statement. During those 12 hours he made several statements which were admitted into evidence by the court during the trial. As I have said, the first appellant at that time was 16 ½ years old. At no time during the interrogation of the first appellant or when the cautioned statements were made by him was an adult member of his family present. This applied to the second appellant also, except that when the second appellant was charged with the offences, his mother was present. The trial judge held that all the statements made by the two appellants except the first cautioned statement made by the first appellant were admissible in evidence as having been made voluntarily.

11. The grounds of appeal are simple. Counsel complains that the trial judge should not have admitted the statements into evidence. There is no suggestion here of a deliberate police trap but counsel's case is that the learned trial judge paid insufficient attention to the age of the appellants, their background and the length of the interrogation of the first appellant when admitting the statements. During the course of the trial there was a voire dire which dealt with the cautioned statements. Later, the judge ruled on the admissibility of the uncautioned statements, i.e. the statements made during the interrogation.

12. I will first deal with the appeal of the first appellant. As I have said, the voire dire dealt with his cautioned statement and the statements in answer to the charges only. The uncautioned statements, at this stage, were relied upon by counsel as evidence of showing the pressure by the police on the first appellant, the suggestion being that, therefore, the cautioned statement was inadmissible because it had been taken under oppressive conditions. There was a cautioned statement which was given by the first appellant to the police shortly after midnight on the 9th May which, as I have already said, was rejected by the trial judge. However, the first appellant gave a second cautioned statement at about 12.30 in the morning of the 10th May, having been shown certain articles found at the scene of the crime. This statement was admitted. The first appellant has never, at any time, himself objected to the admissibility of any of his statements. He did not give evidence in the voire dire and the trial judge had to rely upon the evidence of the officers who took his statements or who were present at the taking of the statements to assess his demeanour. This also applies, of course, to the statement made in answer to the charges. Counsel referred to several cases the most important of which was R. v. Prager⁽¹⁾. That was a case when a suspect was interrogated by the police from 9.15 a.m. until 12.30 p.m. and again from 5.40 p.m. until 7.40 p.m. without a caution being given. He was then cautioned and made an oral admission. Later, at 9.50 p.m. he made a written statement after a further caution. The case concerned an offence under the Official Secrets Act and the Judges Rules 1964. These Rules are not in force in Hong Kong but the principle laid down in the headnote of the case is sound law. It reads as follows:-

"..... the admissibility of an alleged confession did not depend upon whether or not there had been compliance with the Judges' Rules, but depended on whether it was shown that the confession had been made voluntarily; that in deciding whether there was oppression sufficient to sap the free will which had to exist before a confession was voluntary, many elements had to be considered including the circumstances surrounding the interrogations by the police officers and their nature and duration;"

13. The court there held that even on the assumption that there had been a breach of the Judges' Rules the trial judge had rightly exercised his discretion. That the Judges' Rules are not rules of law was established in Hong Kong in the case of LI Wai-leung v. R.⁽²⁾ What the Crown has to establish in each case in which they seek to put in a confessional statement is that it was a voluntary statement as that expression has been defined from time to time. If the police followed the Judges' Rules correctly their conduct cannot be faulted. But that is not to say that a breach of the Rules automatically means that a statement made thereafter is inadmissible.

14. In this case, the judge's ruling on the admissibility of the statements of the appellants takes up four pages of the transcript. He deals with all counsel's submissions and very carefully assessed the evidence which was before him. It is true that no adult member of the first appellant's family was present but the trial judge was of the opinion that the first appellant was a young man who knew what he was doing and was of a type who was able to stand on his own feet and he held the cautioned statements and the statement in answer to the charges to be admissible. In my view the trial judge rightly exercised his discretion in admitting these statements into evidence. Later in the trial, the question of the admissibility of the uncautioned statements was raised and again the judge dealt with this most carefully. Those statements contained a version of the facts of the case given to the police by the first appellant which was not relied upon at the trial and the purpose of admitting them in evidence was obviously to show that the first appellant had changed his story and had lied to the police. The contents of the statements were not relied upon as part of the case for the Crown. Counsel for the appellants complained that the prejudicial value of these statements outweighed their probative value. But in my view they were relevant to the issues before the court and were clearly admissible.

15. The second appellant complains that the trial judge failed to consider whether there should have been an adult member of his family present when the cautioned statements were made. But this matter was specifically dealt with by the judge in his ruling as to the admissibility of the statements.

16. What I have said about the first appellant in respect to his cautioned statements applies, to a considerable extent, with respect to the second appellant. The second appellant was only 14 ½ and counsel has urged that it was wrong of the police not to have had his mother or some other adult member of his family present when his cautioned statements were made. The first of these was made at 0015 hours on the 10th May, some 2 ½ hours after the second appellant had arrived at the C.I.D. Headquarters, Hong Kong. There was no question of this appellant being interrogated for as long a time as the first appellant. The second statement was made at 1 o'clock on the 10th May, again after he had been shown certain articles by the police. Both these statements were admitted. The trial judge, again did not have the advantage of seeing the second appellant in the witness box, for he failed to give evidence in the voire dire proceedings and, again, it is fair to say that he himself never complained that the statements were taken in an oppressive manner or were other than voluntarily given. Though the first appellant made a short statement in his defence in the dock, the second appellant remained silent. In my view the trial judge rightly exercised his discretion in admitting these statements into evidence also.

17. The applications for leave to appeal have been treated as being the appeal itself. The appeals of both appellants are dismissed.

Representation:

Donnelly assigned for appellant.

Corrigan, S.C.C. for respondent.

(1) (1972) 1 W.L.R. 260.

(2) (1969) H.K.L.R. 642.