Chu Wai Tak and Others v. The Queen

CACC000443/1973

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 443 OF 1973

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Coram: Huggins, McMullin & Leonard, JJ.

Date of Judgment: 2nd February, 1974.

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JUDGMENT

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Huggins, J.:

1. The Applicants are three of six men who were jointly indicted on charges arising from offences alleged to have been committed at No.69 Peking Road, 10th floor, Kowloon, premises in which several partners ran two separate businesses. The Applicants were the second, third and fourth Defendants and I shall refer to them as such. The case for the prosecution was that there was a burglary at the premises on the night of 30th April/1st May 1972 and that there was a robbery there on 17th August 1972. There was a further count against three of the Defendants (the first, second and third Defendants) of assault with intent to rob, but all were acquitted, the only relevance of that count to the present application being that each of those three Defendants had made an extra-judicial statement admitting guilt. The first, second and fourth Defendants were found Guilty of burglary, while the third Defendant was found Not Guilty of burglary but Guilty of handling stolen goods. The first and third Defendants pleaded Guilty to robbery, the third Defendant was found Guilty at the trial and the fifth Defendant was acquitted. The sixth Defendant was convicted of handling stolen goods on a count laid against him alone. The second and fourth Defendants now seek leave to appeal against conviction and the third Defendant to appeal against sentence.

2. For the purpose of the appeals against convictions it is unnecessary to recount the circumstances of the alleged offences for the grounds of appeal relate to the admission of confession statements and to identification. In the first place it is contended that the learned judge wrongly admitted in evidence statements made by the second Defendant and by the fourth Defendant. Each of these Defendants alleged that his statements were made as a result of ill treatment by the police and a trial within a trial was held. In his Ruling the learned judge first gave himself an impeccable direction on the burden of proof, but it is submitted that thereafter he misapplied the principle which he had just correctly stated. Having commented favourably upon the evidence of the police witnesses, the learned judge continued:

"So far as the evidence given by the accused is concerned, if that was believed, it would mean that there was some colossal conspiracy on the part of all the police officers in this case, each and every one, to pervert the course of justice. This I cannot believe. I was not particularly impressed by the way the accused gave evidence and there were many discrepancies in their evidence. Therefore I am quite sure - satisfied beyond reasonable doubt that these statements were all free and voluntary and they are admitted accordingly."

On this two points are taken by counsel for the Applicants. He says first that this passage shows that the learned judge failed to give individual consideration to the case of each Accused and, secondly, that even if the evidence for the defence was believed in toto it did not justify an inference of a conspiracy on the part of each and every police officer. We do not think that the first of these contentions is sound. It must be borne in mind that the learned judge never suggested that a finding of conspiracy was necessary to his decision on the question of admissibility. Had he done so it might rightly have been argued that the evidence relating to each Accused was not considered separately. However, in saying that he was not impressed by the way "the Accused" gave evidence the learned judge clearly meant that he did not believe any one of the Accused. His suggestion of a conspiracy was based upon the supposition that all the Accused were telling the truth: we see no reason to conclude that he thought he had to believe all or none of them. In effect he was saying that, whereas he did not regard it as inherently unlikely that pressure might have been brought to bear by some of the officers on some of the Accused, he did think it unlikely that pressure would be brought independently upon each of the Accused unless the police officers had agreed amongst themselves to use such improper means to obtain statements. Whether or not that was a correct view, we cannot conclude that the learned judge was led by it to find that all the Accused were not to be believed. It is true that he referred to the possibility of a conspiracy before expressing his opinion on the credibility of the Accused and not afterwards, but it does not necessarily follow that his opinion of the credibility of each of them was not separately considered and that he deprived himself of the opportunity to form different opinions of their credibility, based upon the evidence relating to each.

3. As to the second point raised in relation to the possible conspiracy it must, again, be borne in mind that a finding of a conspiracy would not in every case necessarily result in a decision that statements were inadmissible. While no doubt it weighed with the learned judge in his assessment of the police evidence, the implicit finding in the present case that there was no conspiracy was therefore not essential to the ruling on the admissibility of the statements, although counsel has argued on the basis that the absence of a conspiracy was something which had to be proved beyond all reasonable doubt. The judge's reasoning must have been that whereas there are usually black sheep to be found in any police force they are likely to be in a minority and it would be beyond belief that six defendants in the same case should have the misfortunes to fall into the hands of different black sheep who were all acting, quite independently, in the same improper manner, even though in some instances there were two police officers involved and one of them was also involved with another defendant. The strength of that argument would increase as the number of defendants increased, but it would always depend to some extent upon the individual judge's experience of the particular police force. Counsel submits that it is not at all unlikely that six different groups of officers would independently act improperly against six different accused. Of course, if there were 100 defendants and 100 different police officers there might be a conspiracy involving only 99 of the officers and the one remaining officer might be acting independently of the conspiracy. It would be a possibility, but one so remote as not to warrant protracted consideration. It is enough that we cannot say that the learned judge was not entitled to the view he took here of the possibility of accidental coincidence and that the observation of which complaint is made did not invalidate his conclusion.

4. Counsel also complained that in his Ruling the learned judge had on the one hand dismissed discrepancies in the evidence of the police witnesses as being in no way sinister while on the other making discrepancies in the evidence of the Accused a reason for not believing that evidence. This is the sort of seeming injustice which can arise when a judge, while condescending to give reasons for his decision, gives only very short reasons. The validity of his conclusion must depend on the nature of the discrepancies and the possible explanations of them. Counsel has not sought to take us through the evidence so that we might the better evaluate the discrepancies on each side and, indeed, this was not made one of the grounds of appeal of which notice was given. We cannot say that the learned judge failed to give due weight to the discrepancies which he found.

5. The other ground for the contention that the convictions were unsafe and unsatisfactory involves the premiss that the jury declined to convict on a confession alone. That premiss is not justified, but even if it were we do not think it would be right to hold that it rendered the convictions unsafe or unsatisfactory. Counsel for the Crown submits that there was in fact no other evidence to support the second Defendant's confession to the robbery. The learned judge in the course of his summing-up suggested that the confession to the robbery mentioned a fact which at the material time the police could not have known and which, therefore, they could not have included in the statement if, as the second Defendant alleged, they fabricated it. Counsel interrupted the judge to point out that the police might have learned the fact previously from the third Defendant and the learned judge seems to have accepted that that was so: certainly the contrary has not been argued in this court. Counsel for the second Defendant has relied upon the fact that there was also other evidence against his client on the robbery count, namely that some adhesive tape bought by the second Defendant was similar to some tape used by the robbers to cover the eyes and mouths of their victims. It is clear from his summing-up that the learned trial judge thought little or no weight could be attached to this evidence for two reasons: first, the shopkeeper from whom the second Defendant made his purchase thought the tape sold by her was wider than the pieces used in the robbery, although it was in evidence that those pieces appeared to have been torn along one edge: secondly, the purchase was made 3 ½ months before the date of the robbery and the second Defendant testified that that tape had been acquired, and used, for packing goods in the course of his business. The tape was, in any event, of a type available in many shops. It is so unlikely that the jury would have regarded the evidence relating to the tape as sufficient supporting evidence to justify their believing a statement which they were not prepared to believe without supporting evidence that it ceases to be significant that the jury acquitted the second Defendant and the other two Defendants against whom the count of assault with intent to rob was laid, despite confessions to that offence. Each statement of each Defendant had to be considered separately in the light of all the relevant evidence and, in particular, in the light of that Defendant's own evidence. If the jury were looking for supporting evidence that evidence did not have to amount to corroboration in the full legal sense and it is not necessary for us to consider whether any other evidence did amount to such corroboration. In relation to the burglary there was other evidence to connect the second Defendant with the crime, namely evidence that he was in possession of a crowbar on which there were two layers of paint similar to the paint on the door of the shop and evidence that a ring in his possession had inserted in it a piece of jade identified as being similar to a piece stolen in the burglary. Likewise there was some supporting evidence against the fourth Defendant on the burglary count, namely evidence that on the following day he paid $5,000 into his savings bank account and that the confession statement itself said $5,000 was his share of the proceeds of the burglary, while the fourth Defendant's own evidence that the $5,000 paid in was part of a sum he had borrowed was weakened by evidence that some of the money borrowed had been paid into the account some three weeks before the burglary and had already been almost all withdrawn.

6. For the reasons given we think that there is no substance in the grounds advanced and the applications for leave to appeal against convictions are dismissed.

7. The third Defendant was sentenced to one year's imprisonment for handling the goods stolen in the burglary and seven years' imprisonment concurrent for the robbery. We have been reminded that he pleaded Guilty to the robbery, along with the first Defendant, but that all three who were convicted on this count received the same sentence. It is relevant, however, that the Applicant was the only one of the robbers who was identified by the persons in the shop. He has urged us to release him so that he may in about six months' time take an examination for which he has been studying to qualify as a radio technician. In our view a substantial sentence of imprisonment was appropriate and unavoidable. It must be mentioned that in the course of the robbery not only were several victims bound and gagged but kerosene was poured over one of them and he was threatened that it would be ignited if he did not produce the key to the safe. Although it was not proved or alleged that the Applicant was the robber who poured the kerosene, there was nothing to show that he sought to dissociate himself from the actions of those directly responsible. He had two previous convictions arising out of a single incident and had been placed on probation for two years, but the learned judge indicated that he treated all the Defendants as being to all intents and purposes first offenders. In all the circumstances we cannot say that the sentences passed on the Applicant were excessive and his application is dismissed.

2nd February, 1974.

Representation:

Copy for Library, S.C.