The Queen v. Chan Ying Choi and Others

CACC000469/1989

BETWEEN

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Coram: Hon. Silke, V.-P., Power & Macdougall, JJ.A.

Date of hearing: 6 April 1990

Date of delivery: 6 April 1990

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JUDGMENT

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Macdougall, J.A. delivered the judgment of the court:

1. The four applicants, who were D1, D2, D3 and D5 in the court below were tried before Mr. Justice Wong and a jury on one count of robbery and were convicted. They now seek leave to appeal against their convictions.

2. There was no dispute at the trial that a robbery had occurred at the International Emporium Company Limited in Nathan Road, Kowloon on the 22nd December 1988 in the course of which the proprietor of the Emporium and customers were robbed of cash, jewellery, watches, cameras, radio cassette recorders, cigarette lighters, currency exchange coupons and foreign exchange certificates.

3. One of the robbers had gained entry by posing as a customer and inducing an employee to operate the electrical device which opened the door to the premises. This enabled a group consisting of between three to five robbers, all armed with beef or melon knives, to burst into the emporium. The customers and the employees had their thumbs bound with wire, and the place was ransacked. The manageress was ordered at knife point to open the safe, and after various valuables and cash had been taken, the victims were bound together and the robbers escaped.

4. The evidence against D1 consisted first, of two statements to the police in which he confessed that he had participated in the robbery, secondly, of an identification of him at an identification parade by an employee, Madam Lau, as one of the robbers, and thirdly, of the discovery of a number of articles at his home that answered the description of various items that had been stolen during the course of the robbery. None of the articles could be identified by reference to any particular mark or number, but amongst them was a black travel bag that the manageress testified had been presented to her company as a gift by a Duty Free Shop.

5. The case against D2 consisted first, of a statement he made to the police in which he admitted that he had taken part in the robbery and had been the one responsible for opening the door to admit the other robbers, and secondly, of identifications of him at an identification parade by Madam Lau and the manageress, Miss Hui.

6. The evidence against D3 consisted first, of a statement he made to the police in which he confessed to having been a participant in the robbery and having conveyed the other robbers in a van to and from the scene of the robbery, and secondly, of the discovery at his home of various items including diamonds, other precious stones, a gold chain set with diamonds, a gold ring and a camera, all of which were positively identified by the victims as having been taken in the course of the robbery.

7. The case against D5 was that he had made several statements to the police in which he admitted to having been one of the robbers armed with a knife.

8. Mr. Dixon Tang, who appeared on behalf of D3 in this court, advanced two grounds of appeal which involve a degree of overlap. The first ground was that there was a non-direction in that, when dealing with the individual case of each accused, the judge failed to direct the jury that in assessing the probative value of the statement made by D3 they should take into consideration all the circumstances of the taking of the statements including D3' sallegations that violence had been used. The second ground was that the judge misdirected the jury by telling them:

"If you are not sure for whatever reasons that the confession is true, then you must disregard it. If on the other hand you are sure that the confession is true, you may rely on it even if it was or may have been made as a result of oppression or other improper circumstances".

9. It is the last sentence of that paragraph upon which particular reliance is placed.

10. Before dealing with the case of each accused the judge said this:

"Broadly speaking, the case of the accused is that the confessions were obtained from them by violence, threat of violence or threat to charge them with a more serious offence, or to charge their wives, and also inducements that their wives would not be charged and would be released on bail. Their case is also that the contents of statements were either fabrication or distortion by the officers, and so far as the incriminating parts of concerned, they are absolutely untrue."

11. The judge then directed the jury:

"It is for you to decide whether or not the confessions are true. In so doing, you  should consider all the circumstances in which they were made when you assess the weight to be attached to each statement."

12. It was immediately following this that he gave the direction of which complaint is made.

13. Later, when dealing specifically with D3's defence, he said:

"In relation to the confessions, the third accused told you that he was assaulted by an officer called Ah Gun and Senior Inspector Law. He was told to lie on the floor and the officers stood on him. A wet towel was used to wrap his head making it difficult for him to breathe. It was under the circumstances of severe beating and brutality by the police that he agreed to write and sign the statements at dictation,  and the contents were completely untrue."

14. In our view it was not incumbent on the judge when dealing with the case of each accused to repeat to the jury his earlier general direction that it was for them to decide whether the confessions were true, that in so doing they should consider all the circumstances in which the statements were made and that if they were not sure for whatever reason that a confession was true they must disregard it. We have not the slightest doubt that when he recited to the jury the substance of the allegations made by D3 as to how he had come to make the confessions, they had the judge's general direction very much at the forefront of their minds.

15. In respect of the second ground Mr. Tang frankly conceded that the passage of which complaint is made correctly states the law as expounded in Chan Wai-keung v. R [1967] 2 A.C. 160 and Prasad v. R (1980) 72 Cr. App. R.218. The gist of his submission, however, was that the judge should have then gone on to tell the jury that if they thought that an accused had been forced or induced to make any confession attributed to him they might conclude that that was a very good reason for it not to be true.   In short, his submission was that the relevant passage was a misdirection in that, although it was correct as far as it went, it did not go far enough, and that as a result its effect was to invite the jury to ignore the circumstances of oppression or impropriety.

16. We accept that when a judge tells a jury that, provided they are satisfied that the contents of a confession are true, they may act on it, even though they think that the accused's allegations as to the circumstances under which it was taken by the police are or might be true, he would normally go on to tell them that that would constitute a good reason why they should doubt that the confession was true.

17. However we are of the opinion that in the present case, having regard to the entirety of the judge's direction and his reference to the specific allegations made by D3, the absence of the advice that is usually given did not amount to a misdirection or nondirection, nor did it render the conviction unsafe or unsatisfactory. The jury could have been in no doubt that the use of force, threats or inducements to obtain a confession was a highly relevant factor in deciding whether the confession was true. And, as we have already observed, the judge made it abundantly plain to them that if they were unsure for whatever reason that a confession was true they must disregard it. We do not for one moment accept the contention that the passage complained of has the effect of asking the jury to ignore the allegations made by D3 as to the circumstances under which the confessions were made. These two grounds of appeal must fail.

18. The other applicants were unrepresented at the hearing before this court. D1 contended that madam Lau, who at an identification parade had identified him as being one of the robbers, failed to do so with certainty. However, since she had told the officer in charge of the identification parade that she identified D1 because of his gestures and appearance, and had stated in court that she was confident of her identification, we do not think there is any force in D1's contention. He also complained that his confession was made under duress and that the jury wrongly relied on it in arriving at their conclusion that he was guilty. We have already referred to the general directions initially given by the judge concerning the confessions. Subsequently, when dealing with Dl's case, the judge said this:

"In relation to the confession, the first accused told you that Sergeant Kwok used his thumb to press on the wound on his head continuously for ten to fifteen minutes until he could no longer bear it. The sergeant also promised to allow his wife to be released on bail, that is why he agreed to cooperate and that is why he wrote and signed the statements. He said that the contents were absolutely untrue."

19. We are satisfied that the judge dealt adequately with the matter and that D1 has no cause for complaint.

20. D2 put forward in essence two grounds of appeal. The first was that he had an alibi witness whom he contends should have created a doubt in the mind of the jury as to his guilt. In fact he called two alibi witnesses, his brother and a fellow worker. whether the jury thought that the alibi evidence might reasonably be true was entirely a matter for them. The judge's direction in this regard was perfectly correct. By their verdict the jury plainly rejected the alibi evidence. It is impossible for us to say that they were wrong to do so.

21. The second ground was that the identification parade at which D2 was identified by both Madam Lau and the supervisor Miss Hui as being one of the robbers was unfairly conducted in that all the actors were considerably shorter than D2, who is six feet one or six feet two inches in height. The judge reminded the jury of D2's complaint as to the conduct of the parade. We do not think it can be said that this matter was not fairly before them. Moreover, since the officer in charge of the parade, Miss Hui and Madam Lau, all said that every person in the line up was of a similar build and height, the jury were clearly entitled to reject D2's evidence on this matter. We are not persuaded that there is any merit in either of these grounds.

22. D5 advanced two grounds of appeal, the first of which was that there was no proof that the two Walkman radio cassette recorders found at his home were taken during the course of the robbery. We accept that these recorders could not be identified by reference to their serial numbers and that the evidence was simply that they were of the same brand and model as those stolen at the robbery. However, the judge did not suggest otherwise. In referring to the testimony of Miss Hui and the proprietor of the emporium, Mr. Au, that the Walkmans were of the same brand and model as those taken by the robbers, he went on to point out that these recorders were very common items and were sold in many shops in Hong Kong.

23. D5's second ground was that the statements he made to the police were coerced from him. In this connection we would observe that D5 declined to testify at the trial. There was therefore no evidence from him to substantiate the allegations that had been put to the police in cross examination as to the circumstances of the taking of the statements. That being so, the judge could do no more than summarise the nature of the allegations made against the police. He said this:

"You will recall, members of the jury, when the officer who took the statements from this accused gave evidence, serious allegations pertaining to the taking of the statements were made against the police, and specific allegations were put to this officer by Mrs. Panasar on behalf of the 5th accused. It was put to one officer, DPC LEUNG Po, that sergeant 16995 was present and physically assaulted the 5th accused. It was also put to one officer that the same sergeant also threatened to put the 5th accused and his wife in a police cell without having a statement taken from them for 24 hours. It was also put to DPC LEUNG that the sergeant also induced the accused to admit to the offence by promising to release his wife on bail. It was also put to that officer that the contents of the statements were concocted by the officers and are untrue.  All these allegations were denied by the officer."

In our view there is no merit in either these grounds of appeal.  For the reasons we have given therefore the application of each applicant for leave to appeal against conviction is refused.

Representation:

Mr. A.A. Bruce, Asst. Sol. Gen. (Crown)

Mr. Dixon K.W. Tang (Knight & Ho) for D3

Others in person