R. v. Wong Chi Keung

CACC000045/1994

IN THE COURT OF APPEAL

1994, No. 45
(Criminal)

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Coram : Hon. Power, V.-P., Macdougall, V.-P. and
        Penlington, J.A.

Date of hearing : 23 February 1995

Date of judgment : 23 February 1995

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J U D G M E N T

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Penlington, J.A. (giving the judgment of the Court):

1. This is an application for leave to appeal against conviction on a single charge of robbery.

2. The indictment originally included both the applicant and another man (D.1) but as the Crown's case substantially depended on cautioned statements being accepted as evidence and, the judge having rejected the Crown's evidence regarding the statements of D.1, he was acquitted. The indictment was then amended so that the applicant became the sole defendant. The only question was whether the applicant had taken part in it.

3. The Crown depended on the applicant's cautioned statement, which he had written himself. It is a clear confession to have taken part in the robbery.

4. The judge gave a ruling on the statements made by both accused and it is the essential ground of appeal argued on his behalf today by Mr. Jerome Mathews that, having rejected the statements made by D.1, the trial judge should have indicated why it was that, nevertheless he accepted the prosecution evidence so far as the applicant's statement was concerned. Reliance is placed on the decision of this court in R. v. Wong Ho Yin [1990] 2 HKLR 693.

5. The judge in considering the admissibility of D.1's statement said that :

"As far as the 1st defendant is concerned, I reject the suggestion that he had been threatened or assaulted. On the other hand, having gone through the evidence of the various officers carefully, I have a distinct impression that even though the police may not have any concrete evidence against the 1st defendant at the material time, they were in fact highly suspicious of him. The suggestion that the 1st defendant was only being invited to go back to the police station as a witness is perhaps understandable but not convincing."

He goes on:

"Having considered the entire background and, in particular, the circumstances I have just mentioned, I am not of the view that it is fair to admit the cautioned statements, exhibit PP4(1) and (2), they are therefore rejected."

6. It is therefore clear that, having specifically said that he was satisfied that D.1 had not been threatened or assaulted, the judge was nevertheless of the view that, in the exercise of what he considered to be his residual discretion, he should reject the statement.

7. So far as the statement of the applicant was concerned, the judge said:

"As for the 2nd defendant I have no doubt that these cautioned statements, P6(1), (2) and (3), had in fact been given by him freely and voluntarily and that they should be placed before the jury for their consideration. I therefore rule them admissible."

8. Mr. Mathews does not argue that it is necessary for a trial judge to give detailed reasons as to why he accepts or rejects a confession statement. He does say, however, that here he should have indicated why he did so. In particular, if he did not accept the evidence of a constable DPC 17609 in relation to D.1's statement, he should have said why he accepted it as regards the applicant's confession. DPC 17609 was an important Crown witness as regards both D.1 and the applicant.

9. We do not consider that that ground has been made out. The judge is entitled to come to the conclusion that, so far as one accused is concerned, the police evidence is not satisfactory, for the reasons he gives but accepts that evidence so far as another accused is concerned. It may well be that if the grounds of objection by the applicant has been the same as that of D.1, that is, that the police officers, having decided to charge him before he made his statement, had not administered a caution, it was unfair to admit his statements, the ground would be made out. But here that it was not the case. So far as the applicant was concerned, the allegation was that he was assaulted. The judge specifically rejected that allegation as regards D.1. The evidence here is very different to that in R. v. Wong Ho Yin where the judge had rejected the evidence of a police constable in relation to a written confession but accepted it as regards a prior oral statement. The allegations in respect of each statement were the same.

10. Mr. Mathews has also said that the judge's ruling should be looked at in the light of substantial discrepancies, which he set out helpfully in his skeleton of argument, between the various police officers who gave evidence. These officers were not only the officers who actually recorded the statement but were also the officers who were acting as escorts and guards. That was however evidence essentially for the trial judge to evaluate and consider. We have no doubt that he did so properly. Inevitably there are discrepancies between the evidence given by police officers, particularly where they are relating to events which occurred at a much earlier date. We do not consider that the discrepancies and inconsistencies here are such as to cause us to be of the view that the judge's decision should be interfered with.

11. For those reasons, we are satisfied that the conviction is not unsafe or unsatisfactory and the application for leave to appeal against conviction is refused.

Representation:

Mr. Jerome Mathews instructed by M/s. Tang, Wong & Cheung for the applicant

Miss V. Hartstein, S.C.C., for the Crown