The Queen v. Chan Kam Fai

CACC000512/1989

BETWEEN

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Coram: Yang, C.J., Fuad, V.-P. & Power, J.A.

Date of Hearing: 20 June 1990

Date of Judgment: 20 June 1990

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JUDGMENT

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Fuad, V.-P. (giving the judgment of the Court) :

1. The applicant, Chan Kam Fai, was convicted on 8th September 1989 in the High Court (Deputy Judge Leonard and a jury) of robbery and sentenced to 8 years' imprisonment on 25th September. He now seeks leave to appeal against his conviction.

2. The evidence led by the prosecution before the jury was that on 9th January 1989 five persons were robbed at the Luen Hing Hong Travel and Trading Company in Des Voeux Road West of cash, watches and jewellery. The robbery came about in this way. Three men came into the premises a little after mid-day pretending they wanted to send some money to Thailand using the facilities offered by the firm. Suddenly one of the men opened a bag he was carrying and three large knives were produced and a robbery was declared. All the staff were told to go into the office where their valuables were taken from them and they were tied up in various ways. Some threats were issued. One of the knives which had been produced was a kukri knife.

3. The police were called by a member of the staff who had gone upstairs to have his lunch just before the robbery took place. He became suspicious when he rang the office to tell the others that lunch was ready but received no reply. The three men managed to evade the police but left behind the two knives and the kukri with the bag in which they had been brought to the office. They dropped these weapons on their escape route from the building.

4. One of the items stolen from one of the male victims, Mr. Chan Hing Lam, was a gold and silver Rolex watch. On 16th January the police received information about the Rolex watch and so they went to a pawn shop in Wanchai and found the watch there. It had been pawned on 12th January by the applicant. It was later identified by Mr. Chan as his.

5. On 17th January the police arrested the applicant at the Li Tung Estate on Ap Lei Chau island. After caution he said he would speak at the police station. He was then taken to a wooden hut in Ho Kung Street, also on the island. The padlock on the door of the hut was opened by a key taken from the applicant. Under the bed of the hut was found a sheath for a kukri knife and the kukri left at the scene fitted the sheath exactly. Forensic evidence showed that the handle of the kukri and the wooden part of the sheath were made from the same kind of wood.

6. At the police station, the applicant first said that he wanted to say nothing. Later the same morning he told the police in a statement made after further caution that he had pawned the Rolex watch on 12th January having been paid $500 by a friend named An Shing to do so. An Shing had waited outside the pawn shop while he attended to the formalities. He had thought the watch belonged to An Shing. He told the police that some of the shoes found in the padlocked wooden hut were his but that he knew nothing about the sheath for the kukri.

7. The police later discovered that the Rolex watch stolen from Mr. Chan had been pawned on an earlier occasion: this time at a pawn shop in Aberdeen on 10th January but again by the applicant. It had been redeemed on 12th January. When the applicant was asked about the first pawning under caution, he said (and wrote down himself):

"I have something to say, I'll write myself, I did commit this robbery. I pawned the watch after the robbery. I don't want to say about anything else."

8. The applicant elected not to give evidence before the jury but called evidence to establish that he was not identified at various identification parades which were held for the benefit of some of the victims.

9. The only ground of appeal relates to those parts of the summing up which explain the approach the jury should adopt to the applicant's confession which had been admitted in evidence after challenge following a voir dire. Early in his summing up the judge told the jury that it was for them to decide whether or not the confession which had been produced in evidence was true and in deciding that they had to consider all the circumstances in which the statement came to be made so that they might properly assess what weight they were prepared to give to it.

10. The judge continued:

"If for whatever reason you are not sure that the confession is true then obviously you will disregard it but if you are sure that the confession is true then you may rely on it even if it may have been obtained in circumstances which you might regard as improper."

11. The judge went on to point out, quite correctly in our opinion, that there was no evidence whatsoever of any impropriety in the taking of that statement. The applicant had not given evidence and the police officer concerned had adhered to his stand in cross-examination that no oppressive or improper conduct had been involved.

12. The judge recalled the jury after they had first retired to deal with a matter raised by Counsel who was then appearing for the applicant. During his further summing up to the jury he reminded them of the way they should treat the confession in words almost identical to those he had used before.

13. The complaint made by Mr. Westbrook (who did not appear in the Court below) on behalf of the applicant is that the judge, having told the jury that they could rely on the confession if they were satisfied it was true even if it may have been made as a result of oppression or other improper measures, ought to have balanced what he had said by going on to say that if they found the confession might have been obtained by means of oppression or other impropriety then this might very well affect their view as to its truth and reliability.

14. We do not think that any authority goes so far. The judge made it perfectly clear that it was for the jury to decide what weight they should attach to the confession and that in doing so they had to consider all the circumstances in which it was made. He reminded the jury now the police officer who took the statement answered questions in cross-examination. He went on to stress that the jury were to disregard the confession if they were unsure for any reason that the confession was true. In its second version, the particular part complained of is where the judge said: "On the other hand, if you are sure it is true, then you may rely on it even if it was or may have been made as a result of oppression or other improper circumstances." This was a  erfectly proper direction in our view because of what went before. The passage complained of (in either version) emphasises that the jury must be sure that the confession is true before they can rely upon it. We say this was a proper direction because the jury are not concerned with questions of admissibility.

15. There is no merit in this application and it must be refused.

Representation:

Mr. Simon westbrook (M/s S.C. Chan & Co.) for the Applicant

Mr. C. Coghlan (Crown Prosecutor) for the Crown