R. v. Leung Chi Wing

CACC000541/1994

IN THE COURT OF APPEAL

1994, No. 541

(Criminal)

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Coram: Hon Litton, V-P, Mortimer and Ching, JJ.A.

Date of hearing: 4 August 1995

Date of judgment: 4 August 1995

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J U D G M E N T

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Litton, V-P, giving the judgment of the Court:

Introduction

1. Leung Chi-wing, the first accused at trial, was charged together with Lau Sui-on with two charges of theft. Lau absconded before trial so the applicant faced trial alone. The trial took place in the District Court before His Honour Judge Jackson who convicted him. He now seeks leave to appeal against his conviction.

2. The first theft occurred on 1 March 1993 when a container with valuable contents was stolen from the Sealand Container Terminal at Kwai Chung. The second theft occurred the next day when a second container with valuable contents was stolen. What happened was this.

3. On 1 March 1993 a tractor bearing registration No. EW 4223 entered the container terminal with forged delivery orders. The applicant was the driver. With the use of the forged documents he obtained possession of the container. The next day the applicant returned to the terminal with the empty container-lorry and with the use of other forged documents he obtained possession of the second container. Hence the two charges on which he was convicted.

4. When first interviewed by the police on 3 March he admitted the primary facts but denied wrong-doing. He was under suspicion because the police had found the tractor outside his place of business with the seal of the second container broken. He was interviewed again in the afternoon of 3 March and some of the things he said were contradictory to his earlier statement. He gave as reason for the earlier lies the fact that he feared retaliation from those concerned in the theft. The applicant was released on his own cognizance to the police.

5. On 19 April 1993 at the invitation of the police he attended an identification parade when he was asked if he could identify some one called Ko Lo Chai. He failed to make any identification.

6. On 29 April he was interviewed again concerning the theft of the two containers in March. Again he denied criminal liability.

7. The present application for leave to appeal against his convictions focuses on an interview on 1 June 1993 which began at 10.10am. The interviewing officer was DPC 9008. The applicant was then being interviewed in connection not with the March thefts but with the theft of another container which had occurred on the night of 3 April 1993 but also from the Sealand Container Terminal. The interview started at 10.10am and he was cautioned that he was not obliged to say anything. The applicant said he was willing to answer the questions put to him and asked the police officer DPC 9008 to write for him.

8. The reason why he was being interviewed at that time was given by DPC 9008 in evidence in these terms:

"On that day at about 6am, we had an operation to invite all the suspects who were involved in the theft cases which took place on 1 March, 2 March in the Sea Land Terminal and also another theft case which took place on 2 April 1993. Those suspects were invited back to the police station."

Grounds of appeal

9. In essence the applicant's complaint in this court is this: He thought he was there in the interview room as a witness and did not realise that he was also being interviewed as a suspect in relation to the March thefts. Mr Jeremy Cheung, counsel for the applicant, relies upon the events immediately prior to the interview which he says led the applicant to believe that if he gave full co-operation to the police he would not be charged but would be a Crown witness; thus, in effect, the applicant was induced by hope of advantage to make the statement.

10. What happened before the interview with DPC 9008 was this. The applicant was in the canteen and there he saw the person Ko Lo Chai, the same person whom he had failed to identify at the April identification parade. He told the sergeant this and pointed out Ko Lo Chai as the person who had gone to his place of business and removed goods from the containers stolen from the Sealand Terminal in March. This event occurred about half an hour before the interview with DPC 9008 began.

11. The record of that interview is Exhibit P4 and at one stage the applicant said this:

"Ah SIR, earlier on when I arrived at the canteen of the police station with the police officers, I saw a 'Ko Lo Chai'. He and Tai B were the chief plotters of the last case of theft of container. Since you have arrested Ko Lo Chai, I want to cooperate with the police and turn to be a prosecution witness. Can I?"

12. The Tai B there referred to is in fact Lau Sui-on, the second defendant at the trial, who absconded before the trial began.

13. DPC 9008 then interrupted and said this to the applicant:

"I have to make clear to you that I have no authority to undertake to turn you into a prosecution witness. I also will not undertake to do it. This has to be decided by the Prosecution Department. However, if you want to make a statement, I will take it down in writing. After that, (it), together with your suggestion notice will be transferred to the department concerned. However, I remind you. Your suggestion may be turned down. If you are prosecuted, anything you said will be given in evidence. Do you understand? If understand, sign for confirmation."

14. It was after this that the applicant made his confession which led to his conviction.

The Judge's finding

15. As is apparent from what has been said before, the appeal focuses on the applicant's state of mind which of course is a question of fact for the trial judge to determine. As regards this the trial judge found as follows:

"The defendant may well have seen an advantage to his position by making such admissions or giving such information as he did give during the course of the interview recorded in Exh P4, but I did not, and indeed I do not, accept that the police expressly or by their conduct impliedly led the defendant into any such hope or expectation. Indeed, on the contrary, the police warned the defendant that any question of his giving evidence for the Crown and his being given an immunity from prosecution in consequence lay not with them but with the Legal Department and that if, with that knowledge, he still wished to make a statement or give an account of matters then that was up to him; he did not have to do so."

Conclusion

16. These are clear and unequivocal findings of fact by the trial judge. There are no grounds put before us which could justify us interfering with the judge's findings, or with the conviction. The application therefore must be dismissed.

Representation:

Mr W. Walsh (Crown Prosecutor) for Crown/Respondent

Mr Jeremy Cheung (M/S K.C. Man & Co.) for Defendant/Applicant