HKSAR v. Ling Chi Yip

[English Translation-英譯本]

CACC 404/97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL No. 404 OF 1997

BETWEEN :

Coram : Hon. Chan, CJHC, Liu & Leong JJ.A.

Date of Hearing : 22 January 1998

Date of Judgment : 4 March 1998

JUDGMENT

Leong, J.A. (giving the judgment of the court):

1. The applicant, LING Chi-yip was convicted of one count of robbery and sentenced to 4 years’ imprisonment in the District Court. He now applies for leave to appeal against conviction.

2. It is stated in the Particulars of Offence that on 31 December 1996, the applicant robbed WONG King of his property including one wallet and cash HK$850-in On Po Village ( 安埔村  ),Sheung Shui.

3. The prosecution case was as follows: WONG King was a taxi driver.  On the night in question, he drove a taxi with the registration number GK761 .  He picked up 3 men in the vicinity of Argyle Street and took them to Sheung Shui. On the way, one of the men  told him to drive into a road with an unknown name and stop. Then, a man grabbed round his neck with his arm and told him to take out his money. After he had taken out HK$500-, another man took away his wallet and money from behind.  Then, the three men fled into the village.  WONG King could only tell that one of the three men wore a woollen cap while another one put on a baseball cap.

4. WONG King then made a report to the police. The police arrived and took him to patrol the vicinity in police car with a view to intercepting the culprits.  At that juncture, another police patrol car, acting on the information received, intercepted a taxi with the applicant and the two other Defendants on board.  While the police was questioning the three men separately, WONG King arrived in the police car. Wong King pointed out right away that the 1^st Defendant was one of the culprits. The police found a baseball cap on his person upon search.

5. PW4, PC49235, made enquiries of the applicant about the robbery case.The applicant denied having taken part in the robbery but was, nonetheless, put under arrest and taken to Sheung Shui Police Station.  In the police station, PW4 post-recorded in his note-book the account of the arrest and what the applicant had told him.  However, the prosecution did not produce the   post-recorded evidence to the Court.  This was because the applicant gave  evidence that he had not taken part in the robbery when he objected to the production of the record of interview.  Moreover, the prosecution could only, under the law, produce the confession statement of a defendant. For these reasons, the post- record was not produced and it did not cause him any disadvantage.

6. Shortly afterwards, PW6, DPC8684, interviewed the applicant in the police station.  The record of interview shows that the applicant confessed to robbery at the time of the interview.  He said to the detective that, “for this robbery, I took a part, but it is not my idea.  It is ‘Tiger’ who suggested doing robbery.”

7. The applicant objected to the production of the record of interview by the prosecution.  He alleged that he had been assaulted by the police and that PW6 had induced him to confess to robbery.  However, PW4 and PW6 gave evidence to deny assaulting the applicant or inducing him to make a confession.

8. The applicant only gave evidence on the admissibility of the record of interview.  He did not give evidence on the general issue of the case.  The applicant alleged that at the time of the arrest by police officers, his head was banged against the wall thereby causing injuries to both sides of his forehead.  Subsequently, a detective hit him on his leg, in his tummy and lower parts.  He could not, however, identify who hit him.  He complained to the Duty Officer about the assault and was then taken to hospital for medical examination.  He said that his wound was still bleeding at that time and he had to wipe it with his sleeve.

9. The applicant also said that DPC 8684 had told him that he would be allowed bail if he was co-operative. As he wanted to be granted bail, he signed the record of interview even though what was written there was simply what DPC 8684 had told him to write.

10. Further, the applicant summoned Doctor WONG ( 黃醫生 ) of Fanling Hospital to testify.  Dr.WONG confirmed that the applicant arrived  in the hospital for medical examination at 7:37 p.m. that day, i.e., some ten odd hours after the robbery. She examined him and found that there were some blood stains (but no bleeding) over the minor abrasions on both sides of the applicant’s forehead.  She said that she had no record of whether his clothing was blood-stained.

11. On this special issue, the Trial Judge was not satisfied with the testimony of the applicant as the Judge took the view that the applicant’s allegations of assaults resulting in the injuries and of confession to robbery under inducement were unsubstantiated.  The Trial Judge found that PW4 and PW6 were truthful and reliable witnesses.  The Judge held, on their testimonies, that the applicant’s confession to robbery was made voluntarily and for this reason, the applicant’s record of interview was admissible as evidence.  The Trial Judge said in his reasons for verdict that he was unable to identify the cause of the applicant’s injuries but was of the view that as the applicant suffered only minor injuries, so he did not believe that the injuries were caused by assault.

12. The 1^st Defendant gave evidence in defence that on the night in question, he boarded the taxi of the victim together with the 2^nd Defendant and the Applicant.  The applicant was seated right behind the driver and at the material time, it was the applicant who grabbed hold of the victim’s neck from behind with his hand and claimed that it was a “ robbery ”.  In other words, the 1^st Defendant was saying that the applicant was the principal offender.

13. On the applicant’s confession and the 1^st Defendant’s evidence against him, the Trial Judge found the applicant guilty.

14. The applicant put forward a number of grounds of appeal. They boil down to two points.  The first point concerns the abrasions sustained by the applicant.  It is the submission of Mr.CHAN, Counsel representing the applicant that by reasons of the prosecution’s failure in giving a satisfactory explanation about the applicant’s injury and the fact that the Trial Judge was unable to ascertain the cause of his injury, the possibility of  assaults by police officers cannot, therefore, be ruled out altogether.  Admitting the applicant’s record of interview as evidence was, in the circumstances , unsafe.  It shifted the burden of proof onto the applicant.

15. On the issue of admissibility of the confession statement, it is the duty of the prosecution to prove that the applicant confessed voluntarily, that is to say, not under violence, threats, inducement or oppression.  If the applicant alleged that he had been subjected to assault and inducement, the prosecution must prove that the applicant did not make his confession in circumstances as such. 

16. The Trial Judge was satisfied that the prosecution witnesses did not make the applicant confess by assault or inducement.  As to the applicant’s allegations , he found it incredible despite Dr.WONG’s testimony that the applicant had suffered some minor abrasions.  It is a finding of fact.  In a case where the Trial Judge did not believe or suspect that the applicant was assaulted by the prosecution witnesses, he did not have to decide on the cause of the applicant’s injury, particularly when making such a decision in the absence of any evidence is a mere speculation.  Therefore, even if the Trial Judge was unable to identify the cause of the applicant’s injury, it would not have affected his verdict.

17. Mr. CHAN said that the Trial Judge ought not to have admitted the confession statement merely because what the applicant had suffered was only minor injuries.  He said that one of the purposes of the assaults was to frighten the applicant and so the extent of injury should not be a major consideration.  The Trial Judge admitted the applicant’s confession statement as evidence because he believed that the confession was made voluntarily.  He rejected the applicant’s allegations of assaults.  He also rejected the suggestion that the applicant’s injuries were caused by the assaults.  Therefore, the ground put forward by Counsel cannot be established.

18. A more arguable ground of appeal is the newly added point 4(a): The applicant complains of the Judge’s refusal to let his Counsel cross-examine the 1^st Defendant on his previous criminal records.  Mr. CHAN points out that the applicant and the 1^st Defendant were charged in the same proceedings and the 1^st Defendant gave evidence in his own defence that it was the applicant who took action in the robbery on the night in question.  It was evidence against the applicant and it was adverse to the applicant.  Pursuant to Section 54 (1) (iii) of the Criminal Procedure Ordinance, the applicant was entitled to cross-examine the 1^st Defendant on his previous criminal records.  Mr.CHAN points out that it was a wrong decision.

19. Mr. CHAN cites R. v. Varley [1982] CA 512 as an example.  It was held in that case that if the Defendant gave evidence against his co-accused, i.e., the defendant testified to support the prosecution case or to weaken the defence of his co-accused, the co-accused could then cross-examine the defendant on his previous criminal record and that the Trial Judge had no discretion to refuse the co-accused’s application to cross-examine the defendant in this regard. Counsel also cites R. v. NG Hang-yee [1987] HKLR 1093.  That case generally accepted the rule laid down in R.v. Varley but there was no conclusion as to whether the judge had discretion.  However, even if the judge had such a discretion, the Court of Appeal concluded that the Trial Judge should, in the special circumstances of that case, allow the applicant to cross-examine the 1st defendant on his criminal record.

20. Mr. Arthur LUK appearing for the Government / Respondent submits that the Trial Judge ought to have the discretion as he had to maintain a balance between the interests of the applicant and that of the 2^nd (sic) Defendant. Counsel points out that section 54 (1) (f) (iii) is intended to protect the witness but this applicant in this case had, without first having permission, questioned the 1^st Defendant on his previous record thereby disclosing his bad character. It might have been the applicant’s defence strategy but it was a gross procedural irregularity. For the sake of fairness, and in order to prevent abuse of the right of cross-examination and to safeguard the interest of the 1^st Defendant, the Trial Judge was entitled to refuse the application.  Counsel further submits that even if this Court is to hold that the Trial Judge was wrong, it can still invoke the proviso under section 83 of the Criminal Procedure Ordinance since there was ironclad evidence against the applicant and no miscarriage of justice has occurred as the result of the conviction. The application for leave to appeal should be dismissed. 

21. The 1^st Defendant gave evidence that the applicant was the principal offender and this is evidence against the applicant.  The applicant could rely on R.v.NG Hang-yee to argue that he had the right to cross-examine the 1^st Defendant on his previous records in the same way as in R.v.Varley.   As to whether the Trial Judge had the discretion to refuse his application, the precedents before us have not provided any clear guidance. No matter he had or he had not, the outcome of the cross-examination would not have affected the verdict of the Trial Judge.

22. The defence relied on by the applicant in cross-examining the prosecution witnesses was: he did not take part in the robbery although he was on board the taxi at the material time and he was forced to make a confession statement that he did.  On the other hand, the 1^st Defendant alleged that the applicant took part in the robbery. Therefore, the truthfulness of the 1^st Defendant was of critical importance in deciding whether the applicant had committed the offence. The previous records of the 1^st Defendant would have a great bearing on whether the Judge would accept his version.  The purpose of cross-examining the 1^st Defendant on his previous records was to undermine his credibility.  At the trial, Counsel representing the applicant had already asked the 1^st Defendant about his criminal records of assault and of assaulting a police officer and he had admitted the commission of the two offences and the convictions.  There were criminal records as such. The Trial Judge had already realized that the 1^st Defendant was not a man without blemish and without a criminal record. The purpose to undermine was already served.  Further criminal record of the 1^st Defendant, if any, would, perhaps, have further undermined the credibility of his testimony, but it depended on the nature of the record.  The appeal file only mentions two criminal records of the 1^st Defendant.  Neither Mr. CHAN nor Mr. LUK has any objection to our inspecting the criminal records of the 1^st Defendant.  The record shows, apart from the two offences already disclosed, one count of possession of infringing copies of compact discs of musical works for commercial purposes. It was a minor offence involving only a matter of commercial goodwill.  Any impact this record might have would have been overshadowed by the gravity of the 1^st Defendant’s other two offences of assault and assaulting a police officer. Even if the Trial Judge had not refused the application and had permitted the applicant to continue with his cross-examination about the previous criminal record of the 1^st Defendant, what would have been discovered was merely a further criminal record of minor and dissimilar nature.  Since the Trial Judge already had knowledge of the 1^st Defendant’s two previous criminal records, a further record of a minor offence would not be of much help to the applicant and would not have affected the verdict in any way. After assessing the credibility of the 1^st Defendant, the Judge as a professional tribunal was able to decide on the truthfulness of the 1^st Defendant.

23. In his verdict, when analysing the testimony of the 1^st Defendant, the Trial Judge says, “ I do not accept the 1^st Defendant’s evidence where it conflicts with the prosecution witnesses.”  Obviously, the Judge was satisfied with the 1^st Defendant’s evidence that the applicant had taken part in the robbery. When coming to the evidence against the applicant, the Judge also made reference to the testimony of the 1^st Defendant.  It is clear that he was satisfied with what the 1^st Defendant had told him.

24. On the whole, there was strong evidence to prove that the applicant did commit the offence of robbery. The verdict is a finding of fact made by the Trial Judge who had had due regard to all the evidence , including of course the previous criminal records of the 1^st Defendant.  Further cross-examination would not have taken the matter any further.  This Court does not propose to interfere with the verdict.  The application for leave to appeal against conviction is dismissed

Representation:-

Mr. CHAN Siu-ming (assigned by the Director of Legal Aid) for the Applicant

Mr. Arthur LUK, Senior Assistant Director of Public Prosecutions and

Mr. David LEUNG, Senior Government Counsel of the Department of Justice for HKSAR/Respondent

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. P Y Lo, Barrister