Lung Yat-shing v. The Queen

CACC001072/1981

BETWEEN

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Coram: McMullin, V.-P., Li, J.A. & Bewley, J.

Date: 26 May 1982

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JUDGMENT

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McMullin, V.-P. :

1. The appellant in this case appeals against convictions for robbery and assault with intent to rob. For reasons which Crown Counsel gave us at the opening of the hearing of the appeal the Crown did not seek to support the conviction in respect of the 4th count which was the count of assault.

2. The case arose out of a robbery in which a number of persons had valuables removed from them at No. 220, Ferry Street, Shun Lee Building on the night between the 8th and 9th of August 1981. It would appear that some four men were involved, one of them was masked. One person was arrested in the premises after the robbery when the police were alerted and went there to investigate. The following day another person was arrested and some nine days later the present appellant was arrested. These three were then charged before the district court with four offences three of robbery and one of assault with intent to rob.

3. The case against each of them rested principally upon statements made by them to the police after arrest. Of some 50 pages of typescript which composed the record of the proceedings in the court below something like 48 or 49 pages are devoted principally to the separate trial of the issue of the voluntari-ness of these statements in respect of each accused.

4. The judge having considered the evidence of the police officer who took the statements of the 1st and 2nd defendants, was not satisfied that that officer had told him the truth and he exercised his discretion to exclude those statements. That resulted in the acquittal of the 1st and 2nd defendants who had been charged together with this appellant upon all four counts. The statement of the present appellant was also made the subject of voir dire proceedings. A different police officer had taken his statement and the judge was satisfied that the statement was voluntary and he admitted it in evidence.

5. The case against the appellant on all four counts consisted of that statement together with agreed evidence contained in statements made by the victims on the 1st and 4th counts. They were not called at the trial but the facts contained in their statements were agreed.

6. YEUNG Chau-yin was the victim on the 4th count - the assault count - and his statement disclosed that in the course of himself and several other persons within the building being relieved of their valuables, he received a punch in the chest from one of the men.

7. The victim on the 3rd charge, LEE Kwok-hung, described how he had returned shortly after mid-night on the 9th of August when he saw a masked man who grabbed him by the neck and he was told that it was a robbery and dragged to the caretaker's room, tied up and searched. The charged property was removed from him. That, in brief, was the evidence to support the Crown's case that robbery and assault had occurred and that Yeung and Lee were the victims. There is no suggestion in that statement, of course, that either Lee or Yeung had identified any person as his assailant or as one of the robbers.

8. The completion of the case against the present appellant consisted in a very brief statement allegedly made by him voluntarily on the 17th of August to D.C. 13198 at Yaumati Police Station.

9. The facts of all four cases were recited by that constable and were recorded by him in the usual way as a preamble in the process of interrogation and he informed the court that the appellant had then written that he understood, when it was read to him, and signed that preamble. The witness said that thereafter this appellant said that he had something to say but could not write properly and asked the officer to write for him. The officer then recorded the following very brief statement:

"At the time of robbery, I was one of those at scene, but I merely watched at the doorway and was responsible for keeping watch. I did not go into the house or take action in robbing (them)."

and that was signed.

10. Taken together those two pieces of evidence, if accepted as genuine, are sufficient to found the conviction upon the count with which we are presently concerned. I should note at this stage that although this appellant was originally convicted upon all four charges - that was on the 4th of November 1981 - the District Judge on further reflection reviewed the case on the 18th of November and he set aside the conviction on the 1st and 2nd charges. He noted that no evidence had been given by the victims on the 1st and 2nd charges and that there were no agreed facts identifying the victims and the robbery on those counts, He took the view that the brief statement which has been set out above did not amount to an admission to those offences and he, therefore, set aside those convictions. He sustained the convictions on the 3rd and 4th counts. The 4th count does not concern us. The Crown took the view that the one punch referred to in the statement of one of the complainants was insufficient to found the conviction against this particular appellant because, although the robbery, as is the case with any robbery, involved some degree of assault, even if it only be technical and nominal, this particular assault appears to have been something apart from the actual taking of the valuables. Since the Crown case against this appellant rested upon his statement which identified him merely as lookout it could not simply be assumed that he had assented to any act of the others which might have been peripheral to and not essential to the robbery itself. Plainly this is a proper concession,

11. As regards the present conviction which was sustained by the judge - the sole remaining conviction - Miss Sze asks us to regard very narrowly the confessional statement. She makes four points. First of all she says that it is a strange thing that this appellant, who was arrested outside the North Kowloon Magistracy on the 17th and then accompanied by that officer to several police stations in the usual way where a note was made in the occurrence book of his arrest and eventually taken to Yaumati Police Station so that it was some two hours before the actual recording of the caution and taking of the statement, had in that time, according to the police officer, only said what he first said when arrested, i.e. "Are you mistaken?" or words to that effect.

12. Next she says that we should be suspicious of the fact that although the statement itself is very brief, the record made by the police officer notes that he began to recite the preamble at 2 o'clock on the 17th and that it was not signed with the words "I understand" by the appellant until 40 minutes later.

13. She says, thirdly, that we should be slow to accept this as a true confession in view of the fact that the appellant who had been arrested 9 days after the event and might well have had the opinion that the police could have no evidence against him would in the circumstances be unlikely to confess.

14. The fourth point that counsel makes is that the judge who admitted the confessional statement did not admit it in its entirety. That statement consisted of two parts. The first was the part which I have already recited but thereafter certain questions were put, after further caution by the police officer, to the appellant. This concerned the identity of the premises, the identities of the other persons and the date and time at which everything had occurred. Answers were given by the appellant to these questions but the judge came to the conclusion that the evidence of the police constable was unsatisfactory in respect of this part of the statement. The constable had admitted that he had written down one answer in words which were not precisely the words used to him by the appellant and that the constable had also said that the answers given by the appellant to him were somewhat vague. That observation of the judge was contained in his final ruling in which he found the appellant guilty. No extended ruling was given at the time of admitting the statement and at that later stage he was considering the weight of the statement.

15. Counsel asks us to say that taking all these points together we should entertain the lurking doubt which has been made available to court since the case of Cooper⁽¹⁾. This requires the court to consider the feel of the case and even although it might be that no particular point can be made to indicate an impropriety on the part of the prosecution authorities or of an imperfection in the judge's manner of dealing with the case but, nevertheless, the court, if it entertains such lurking doubt, will be entitled to set aside the conviction.

16. We have considered these four points. So far as the first is concerned, it is of course true that police officers do tend not to admit to neutral conversation passing between them and persons in their custody on the basis that that is not a matter of concern in the case. In an ideal world, a police officer would record every casual remark that a prisoner makes and every form of conversation that takes place but that does not occur. We cannot see in itself anything sinister in the fact that two hours elapsed without anything more being recorded than the initial remark made by the appellant.

17. As regards the time taken in the recording of the preamble, it has been brought to our attention that this officer was not the one who was concerned initially with the case. He was simply told to go and arrest this appellant. The appellant was arrested outside the North Kowloon Magistracy where he had been on some other business and the Detective Constable was not at that stage aware of the circumstances of the case in respect of which he had been told to arrest the appellant.

18. When he came back to the police station and before he actually proceeded to question or to record the preamble, he had to get the file relating to the case which was given to him by a superior officer.

19. That file bears within it certain print-out material which, we understand, is the format which such information nowadays appears upon police files. It is somewhat dense printed matter running to three sheets of paper. Miss Sze suggested that she herself would find very little difficulty in perusing this matter and arriving at sufficient information to be able to record what appears in the preamble to the statement. We believe however, having inspected this file, that there is substance in the suggestion that a considerable period of time, even in the case of an experienced officer (and we cannot say how experienced this officer was), would be occupied by sorting out the precise facts which should be put in the preamble by way of identifying sufficiently to the accused the nature of the charges being alleged against him. There is also the fact that these particulars had to be recorded by the officer. This record runs to some 20 to 25 lines. Thereafter it had to be read to the appellant. In all the circumstances we cannot say that the 40 minutes, while it might be a fairly ample time for that process, is in itself such as to arouse suspicion.

20. Counsel draws our attention to the case of Pattinson⁽²⁾. The case that she concedes is very different on its facts. In that case, as in the present case, the vital evidence against a particular accused person consisted of a confessional statement. The statement, however, had been obtained in very unusual circum-stances, The appellant, who was accused of robbery, was in the custody of two police officers and while in that custody he was permitted to go and shave. While he was doing that, he was under surveillance by the officers and, according to their evidence, he made a somewhat disconnected and rambling series of remarks concerning the case in respect of which he had been taken into custody. The burden of those remarks was of a confessional nature. The officers did not record anything then but some hour and a half later each of them purported to have recorded the substance of what they had heard. That went into very considerable detail and the court, considering it, thought that the degree of detail was suspicious in itself. The court referred to the fact that each member of the court, experienced in the taking of notes of evidence, would have found it very difficult under those circumstances to report in such detail and in such accuracy remarks of the kind which the police officers said had been made to them by the accused.

21. That was the principal evidence in that case as regards that particular appellant. But it is, perhaps, worth noting also that in Pattinson⁽²⁾ there were also other matters which concerned the court including a misdirection by the trial judge as to the burden of proof. The Court said that it would have felt bound to quash the conviction, subject to the possibility of applying the proviso, on that ground alone.

22. So far as the point being made before us is concerned, Pattinson⁽²⁾ is not a very helpful authority. The statement made by the appellant in this case was directly recorded, according to the officer, from what the appellant himself said. It was a very brief statement and there would be no question of the officer having misheard what was said to him. The judge had considered the main objection which was that the appellant had been abused and threatened. He had considered that objection and he had rejected it. Although he did not do so by way of an extended ruling, we note the fact that this particular judge must have treated all the statements which it was sought to introduce with particular care since he had excluded the statements attributed to the 1st and 2nd defendants and had done so on the basis that he did not accept the evidence of the officer who had taken them. That leaves us in the position that we must accept that he had extended equal care to the consideration of the statement of this appellant and we cannot see that we would be entitled to go behind his discretion on the matters advanced so far.

23. The third point is the unlikeliness of the appellant's making a confession when, as counsel puts it, he must have known that there was no evidence in police possession against him. We have considered that point but we do not think it has weight. It would not be true to say in any case in which a person is arrested under such circumstances as attended the arrest of this appellant that he would be certain that there was no evidence against him. The fact that he had been arrested outside the court and taken to several police stations might well lead him to believe that the police had some special information.

24. The fourth of counsel's points relates to the excluding of part of the statement. That was done by the judge as I have noted when he was delivering his judgment at the conclusion of the case and the question to be considered was a question of weight. He had already dealt with the possibility of improper conduct and dismissed the allegation. It was, we would think, a case of being exceptionally careful in respect of the statement as a whole including the part which resulted in answers to questions. The reasons he gave for not giving any weight to that part of the statement, although it had been admitted in evidence, might not seem in themselves very weighty but were sufficient to cause him to disregard them. We cannot think that in the very fact that he had done that we should find additional matter for suspicion. Rather it fortifies the impression that the judge was dealing with this statement as a whole with peculiar care and guarding himself against the possibility that it might be the fruit of some impropriety, and therefore not true, since he was well aware that it was effectively the only evidence against the appellant. We do not consider that these objections are of sufficient weight to excite in regard to this appellant the lurking doubt upon which Miss Sze relies.

25. Before parting front the case, I should, perhaps, refer - to one further feature in the case of Pattinson⁽²⁾ upon which counsel has relied. Pattinson⁽²⁾ was decided in the Court of Appeal, Criminal Division, in December 1973. The Court set aside the convictions of two appellants on the basis of the lurking doubt. In the course of delivering the judgment of the Court, Lord Justice Lawton harked back to a judgment of Mr. Justice Cave in the old case of Thompson⁽³⁾ and he recited a celebrated passage which formerly in these courts used to be heavily relied upon by defence counsel. That is the passage in which that learned judge had said that he always suspected confessions, which were supposed to be the offspring of penitence and remorse, and which nevertheless were repudiated by the prisoner at the trial. For my own part I confess that I was surprised to see that observation refreshed by so late an endorsement in the Court of Appeal. Naturally the Court of Appeal and its judgments deserved every respect in these courts but I would be slow to conclude that this recital of the observations of Mr. Justice Cave in Thompson⁽³⁾ is to be regarded now as giving, as it were, a fresh wind to the older concept that a confessional statement should not be considered voluntary unless it was the fruit of remorse. It is true that Lord Justice Lawton does not put the matter quite that way but it might be thought, and indeed it may be that it was thought in the present case by counsel, that what he said gave fresh currency to that idea. In case Pattinson⁽²⁾ should be relied upon for that purpose in any subsequent occasion in these courts, I think it is proper to refer to the case which I brought to the attention of counsel in the course of the hearing of the appeal. It is R. v. Rennie, a report of which appears in The Times for November the 7th 1981. The Lord Chief Justice, giving the judgment of the Court (the circumstances of the case do not concern us) had occasion to refer to the status of confessional statements made by accused persons and he said as follows:

"Very few confessions were inspired solely by remorse. Often the motives of an accused person were mixed and included a hope that an early admission might lead to an earlier release or a lighter sentence. If it were the law that the mere presence of such a motive, even if prompted by something said or done by a person in authority, led inexorably to the exclusion of a confession, nearly every confession would be rendered inadmissible.

That was not the law. In some cases the hope might be self-generated. If so, it was irrelevant even if it provided the dominant motive for making the confession. In such a case the confession would not have been obtained by anything said or done by a person in authority.

More commonly the presence of such a hope would, in part at least, owe its origin to something said or done by such a person. There could be few prisoners who were being firmly but fairly questioned in a police station to whom it did not occur that they might be able to bring both their interrogation and their detention to an earlier end by confession."

26. That I think is the only part of the judgment which is necessary to recite in the present connection. We are of the opinion that this is the preferable view of what should now be the approach to confessional statements.

27. For the reasons I have given however, we have come to the conclusion that the conviction was based upon sound evidence and the appeal must, therefore, be dismissed.

(1)    (1969) 1 Q.B. 266

(2)    (1974) 58 C.A.R. 417

(3)    (1893) 2 Q.B. 12

Representation:

Miss SZE Kin (Roger S.K. Wong & Co.) for the Appellant

I.S. Lloyd for Respondent/Crown