Lee Chun-ming Alias Lee Hua-ba Alias Lee Chung-hop and Others v. The Queen

CACC001026/1974

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 1026 OF 1974

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Coram: Full Court (Briggs, C.J., Huggins & McMullin, JJ.)

Date of Judgment: 15th May, 1975.

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JUDGMENT

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1. The three appellants were convicted of conspiracy. There were two counts in the indictment each charging a different conspiracy. On the first count they were charged together with a man called LAM See-yick with conspiring to abduct one Alan Chuang with intent to procure a ransom for his liberation and upon the second count the first and second appellants, together with the same LAM See-yick, were charged with conspiring to abduct one Julia Ng with intent to procure a ransom for her liberation. Both counts named another person PANG Yat-chong, a person not in custody, as one of the conspirators with the appellants.

2. The case against all the accused on both charges consisted substantially of statements allegedly made by them to the police between the 18th and 25th of November 1973 when, it would appear, the first and second appellants and LAM See-yick were in police custody in connection with a series of other offences not connected with conspiracy laid in the present charges. It was as a result of statements made by the first appellant during interrogation that the third appellant (originally the fourth accused at the trial) was arrested, interrogated and later charged with the conspiracy laid in the first count, which concerned the attempted abduction of Alan Chuang. LAM See-yick (originally the third defendant) was acquitted of the conspiracy relating to the abduction of Julia Ng in the second charge by unanimous verdict of the jury and was acquitted upon the first charge (concerning the abduction of Alan Chuang) upon the direction of the judge pursuant to a submission of no case.

3. Mr. Eddis appeared for all three appellants in this court. Leave was given to counsel to argue two out of the four additional grounds of appeal contained in the memorandum prepared by counsel and dated the 12th of May 1975. The original grounds presented by the appellants themselves were filed within time in late November 1974. The first of these additional grounds concerned the third appellant only. It was argued that the learned trial judge had erred in exercising his discretion in favour of admitting the two statements (Exh. P.39A and Exh. P.42A) on which the case against the third appellant principally rested. The conduct of Senior Inspector Aitken was said to have been unfair in certain respects and some six particulars of this were given. It was said that the third appellant, who was interviewed in his hotel room by the Inspector, following certain revelations made by the first appellant at the police station, was invited by the Inspector to accompany him to the police station to assist in his inquiries into a certain kidnapping and that he had been there forced by the Inspector to make his statement (Exh. 39A) in the Punti dialect which was said to be the least fluent of his three languages; further, that he had been refused permission to see a lawyer although legal assistance had actually been offered to the first and second appellants by the same Inspector. These matters were denied by the Inspector in the course of the evidence taken upon the voir dire and in his brief finding on the issue the learned trial judge stated in general terms that he accepted the evidence of the Inspector. We are satisfied that that included a finding to the effect that there was no substance in either of those complaints. So far as the question of language is concerned, it would appear that the third appellant speaks Mandarin, English and Punti with about equal facility and that during the police investigation he elected to speak at one time in Punti and at another in Mandarin while at the trial he gave his evidence in English.

4. The only other objection to the admission of this statement in evidence to which reference need be made is that Inspector Aitken resorted to what was said to be an unfair trick in representing to the third appellant that the first appellant had already identified the third appellant as a person responsible for the plan to kidnap Alan Chuang. Counsel relied in this regard upon the decision of Court of Criminal Appeal in Alfred Brown v. John Bruce⁽¹⁾ a case in which a confessional statement was said to have been wrongly admitted because it resulted in questions put to the accused when in custody. The court in that case relied upon the decision in Winkel and Others,⁽²⁾ in which Avory J. (who also sat in the Court of Appeal in the case of Alfred Brown v. John Bruce⁽¹⁾) had condemned as a form of "subtle cross-examination" the practice of confronting a person in custody with the statement of another person in which it was alleged that that other person had implicated the accused. We need only say that we do not think that either of those decisions would be considered good law at the present day. Indeed, Winkel's case⁽²⁾ was expressly doubted in R.v. Smith⁽³⁾, a case in which a person detained in a police station on suspicion having been involved in factory breaking and larceny was told by a police officer that some of the stolen property had been found in the house of his co-accused and that some of the prisoner's own clothing had been found in that house also. Objection was taken to a confession made by the prisoner immediately thereafter on the ground that this was a form of cross-examination. In reference to the decision in R. v. Winkel⁽²⁾ and to the contention that evidence obtained in that manner should be excluded, Ashworth, J. said, (page 974) :

"This court is not prepared to take that course in the light of the more recent authorities .... The matter still remains one of discretion and, as counsel for the appellant very fairly admitted, once one reaches the conclusion that it is a matter of discretion, that is the end of this appeal."

Neither do we think that the inspector misrepresented the contents of the first appellant's statement. There was nothing in the nature of a false representation such as might support the exercise of the discretion to exclude on the rather nebulous and recently much debated ground of "unfairness to the accused".

5. Then it was said that the verdicts of the jury upon the first and third appellants should be regarded as unsafe and unsatisfactory inasmuch as the convictions depended wholly upon the statements made by them to the police and, in counsel's contention, those statements did not amount to admissions of taking part in a conspiracy to kidnap. We have considered those statements in detail. Out of 23 statements made by all persons originally accused there are five statements made by the first appellant, three relating to the Chuang incident and two relating to the Madam Ng incident. In the case of the third appellant there are two relevant statements Exh. P42A and Exh. P39A which relate to the only charge in which he was concerned (the Chuang incident). Of all these statements it need only be said that, although each of the appellants was clearly concerned to minimise his own part in the affair, and indeed to minimise the seriousness of the affair itself, read as a whole they afford ample justification for the conclusions to which the jury came concerning these appellants. It would be difficult to read them as disclosing anything other than plans to kidnap and hold the victims to ransom.

6. We disallowed the first of the additional grounds of appeal which related to the cases of the first and second appellants and was the only ground relating to the second appellant. It becomes necessary to refer to it however because Mr. Eddis in advancing it sought to rely upon a decision of the Full Court in 1973 in support of the proposition that where objection is taken to the admissibility of a statement on the basis that it has been improperly induced it is incumbent upon the Crown to call, at the trial of that issue, every witness who was present at the time of the alleged inducement. In POON Chi-ming & Another⁽⁴⁾ the appeal of one of the appellants was allowed on the ground that the detective sergeant in whose sole custody the appellant had been during part of the time when he was detained by the police had not been called to rebut the allegation, made during the hearing of the issue as to the admissibility of the statements, that he had threatened the appellant and urged him to confess. We cannot find anything in that decision which would support the proposition now put forward but at the request of counsel, who told us that that case had been relied on in a recent trial in these courts when a confessional statement was excluded, we think it necessary to make the point here. The decision in POON Chi-ming's case⁽⁴⁾ is in line with earlier decisions of this court in which it has been held that it is incumbent upon the prosecution to cover all material periods of detention of a prisoner when an issue arises as to the voluntary character of any confession made by him while in custody. There is no case of which we are aware in which it has been laid down that all witnesses who can speak to any given period of detention must be called. Any such decision would necessarily be in conflict with the well established principle that it remains within the prosecutor's discretion whether or not to call any witness, even a witness named on the back of the indictment (See R. v. Oliva 49 Crim. App. R. 298). We wish to make it clear that the case of POON Chi-ming & Another⁽⁴⁾ is not to be regarded as authority to the effect that in the special case of voir dire procedure this discretion does not exist.

7. For these reasons the applications for leave to appeal of all three appellants against conviction were dismissed at the conclusion of the hearing. The fourth appellant had also appealed against his sentence of 2 ½ years but having heard counsel in that behalf we likewise dismissed the appeal against sentence.

Representation:

(1) 23 Crim. App. R. 56.

(2) 76 J.P. 191.

(3) (1961) 3 All E.R. 972.

(4) (1973) H.K.L.R. 414.