The Queen v. Chan Tat-wah

CACC000545/1983

Possession of arms and ammunitions - conflicting evidence of police officers - admission and cautioned statement of doubtful voluntary nature - inducement - trial judge found statement altered by officer taking it - verdict unsafe and unsatisfactory - application granted - appeal allowed - conviction quashed and sentences set aside.

IN THE COURT OF APPEAL

BETWEEN

Coram: McMullin, V.-P., Li & Silke, JJ.A.

Date: 31st January, 1984

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JUDGMENT

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Li, J.A. :

1. We have granted the applicant leave to appeal against .conviction, allowed the appeal, quashed the conviction and set aside the sentence. We now give our reasons.

2. The applicant was convicted of two counts on indictment. The 1st count alleged that on the 11th May, 1982 at Room 11, 1st Floor, 75 Kok Cheung Street, Kowloon, he was in possession of, a converted 'SMG' revolver. The 2nd count alleged that he was in possession of 13 rounds of 32 and 6 rounds of .22 ammunition. He applied for. leave to appeal against conviction on both counts.

3. Although the statement of offence referred to Room 11, it is clear from the evidence that the so-called Room 11. was a small flat divided further into rooms. To avoid confusion, I shall refer to the so-called Room 11 as "the flat" and the various rooms, subdivided in that flat, as "rooms".

4. For the purposes of this application it is only necessary to mention a few of them. Flat 11 contained a large communal. sitting room which could be used by various tenants. There was a room 1 which was occupied by an old lady. The applicant's aunt and cousins occupied room 2 which was subdivided into a small room for sitting and eating purposes and a bed cubicle. I shall refer to them as the small sitting room and  the bedroom. There was also a communal kitchen in this flat.

5. On the 11th of May, 1982 at about 5.00 p.m. the applicant called on her aunt Yu Fung Ping. He was ushered into the small sitting room where he had a chat with his aunts He was seen to have carried a plastic bag in his hand when he entered the small sitting room. After the chat, the aunt spent her time between the small sitting room and the communal kitchen, leaving the applicant in the small sitting room.

6. A little later the applicant's cousin, namely the aunt's son returned from school and joined the applicant. The cousin saw a plastic bag resting on the stool all the time. While the aunt was still in the kitchen, the applicant told her that he would take leaves.

7. Shortly afterwards, at about 5.45 p.m., the applicant was intercepted outside flat 11 by a group of police officers who laid an ambush on the 1st floor at the address of 75 Kok Cheung Street. The applicant was brought back into flat. Inspector Oakes used DC14901 as his interpreter when he spoke to the applicant. Having ascertained the applicant's identity, he told the applicant of his suspicion and that he had a warrant to search the flat.

8. DC10392 went into room 2 for a search. On the shelf above the double-bunk in the bedroom inside room 2, constable 10392 found a cardboard box containing a plastic bag. He looked into the plastic bag and he found a revolver which is subject matter of the 1st charge. Together with the revolver there was a playing car box. Inside this playing card box was l3 rounds of .t.2 ammunitions and a match box. when the match box was subsequently opened, not at the time it was found, there were 6 more rounds of .22 ammunitions. These together form the subject matter of the 2nd count.

9. An effort was made by DPC5639 who was in the small sitting room to ascertain to whom the arms and ammunition belonged. There was a short pause. Then the applicant said: "These items are mine.' Nothing to do with my aunt. He was stopped by DPC5639 who immediately wrote out a preamble including a caution in the presence of the applicant. Thereupon the applicant wrote a statement giving details of his movement on that day up to his visit to his aunt and admitting that he has brought the revolver and the ammunition into his aunt's room.

10. The above facts were not seriously disputed. What was strongly challenged was the circumstances under which the arms and ammunitions were found and the nature of the oral admission as well as the circumstances under which that, the cautioned statement, had been obtained.'

11. The prosecution version was that as soon as the applicant was intercepted in the corridor, he was brought back into. the fiat. Whereupon, Inspector flakes, using Detective Constable 14901 as interpreter, informed the applicant that he had received information about the arms and ammunitions and that he had a search warrant. Thereafter, DPC14901 was running about' as interpreter for Inspector Nichols and for Inspector Cakes when they interviewed various persons. DPC5639 was guarding the applicant. DPC10392 went into room 2 to conduct a search. DPC5639 admitted? that he did ask the applicant where the gun was and whether the applicant lived there. The applicant, his aunt and cousin were then brought into the small sitting room, witnessing the search of his aunt's bedroom.

12. When the arm and ammunition were found, DPC5639 asked generally to whom the arm and ammunition belonged. There was a short pause. Then the applicant said: "These items are. mine. Nothing to do with my aunt." DPC5639 then stopped the applicant and cautioned him. Then they sat down together in the small sitting room, DPC5639 wrote out a preamble in his note book which contained the caution. These things were done in the presence of the aunt and the cousin. Having read the preamble and the caution to the applicant, the 'applicant said he had something to say and he would write it himself. Then the applicant wrote the statement, giving details of his movements of the day and admitting that the arm and ammuni-tion belonged to him.

13. In the course of the trial, the admissibility of the oral admission as well as the cautioned statement were hotly contested on the ground that both were obtained by threat and inducement.

14. The defence version was that as soon as his identity was ascertained in the corridor, the applicant was immediately handcuffed, brought back into the flat and asked to squat down in the .large sitting room. He was asked where the gun was because the police had already received information. The applicant denied. Then one of the officers said as follows:

"All right, if you do not tell us where the gun is, and if we find it, there would be something good for you to see."

Later, DPC14901 said:

"I am going to give a last chance. If you tell us the truth, I will stop them from further beating you. If you do not tell us the truth, then all the occupants here would b e taken back to the station."

After that, two officers took the applicant into room l, the one that was occupied by an old lady who was absent. Inside this this room 1, DPC14901 held the applicant by the neck and DPC10392 wanted the applicant to tell where the gun was. Again, the applicant denied any knowledge. ,Applicant was taken to the large sitting room. again, told to squat down and was later taken into the aunt's bedroom where he saw the gun laid out in the lower bunk in the bedroom. He was asked whose gun it was. There the DPC told him as follows:

"I am going ,to tell you something frankly. I am going to tell you the seriousness of this case and see whether you appreciate it or not. We don't mind whose gun is this. The gun was found in your aunt's bedroom. Your aunt, your cousin and you have to be taken back to the station. And maybe all the occupants here would be taken back to the station for enquiries. The three of you would be locked up behind bars pending trial and that would take at least a year, and the three of you appear. before a judge. The judge all think that your aunt is too old to have the gun to rob - to commit robbery, and your cousin would be too young to do that, and you would be the only one to be convicted. You would be the only one convicted by the judge. You would be found guilty. You had better think over this."

To this the aunt added as follows:

"Wah Chai, if it is your. gun you had better admit otherwise it would be tragic to have me arrested. I am old and sick."

The applicant said he thought over what he heard and he found that which was said by DPC10392 to be reasonable. At the same time he felt sorry for his aunt. Being so unduly influenced and threatened, he made an oral admission that the arm and ammunition belonged to him. Then he was asked to sit down in the small sitting room where DPC5639 wrote out the preamble. After that the DPC put a series of question to him trying to ascertain his movements on that day. 'Using the answers he gave, the DPC dictated the cautioned statement to him. He said, insofar as the contents of the statement were concerned, it was true that he had tea with his friend and then after tea they parted company. He also took his girl friend somewhere in Kowloon to purchase some gold ornaments. After that, he took his girl friend to work by taxi. Then he went to visit his aunt. However, he strongly denied the rest of the contents of the cautioned. statement so far as they related to the visit he made to his friend or handling in any way or mariner the revolver and the ammunition. He, said that the plastic bag he brought into his aunt's home only contained a pair of shoes belonging to his girl friend. While he was in the flat., or room 2, he had at no time entered his aunt's bedroom. A voir dire was held when evidence of the prosecution and the applicant's was heard. The evidence could only be described as utterly chaotic. It could be of little assistance either for the prosecution or for the defence.

15. Having heard the evidence the learned trial judge ruled that both the oral admission as well as the cautioned statement were voluntary and admissible as evidence. The trial proceeded on the general issue.

16. The evidence called by the prosecution did not materially differ from the evidence that was called in the voir dire so fair as the detective constables were concerned.

17. Perhaps it should be added at this stage that the police ballistic officer testified that the revolver was serviceable and that the bullets were real bullets.

18. None of the constables admitted that the applicant was handcuffed when he was brought back into the flat. Nor was any revolver drawn. This is at variance with the evidence of another prosecution witness the applicant's cousin.

19. The aunt said that at one stage the applicant was indeed brought into room 1 by police officers, but none of the police constables admitted that. Both the aunt and the cousin said that they heard questions being asked by DPC5639 in the small sitting room, but they could not , remember what was being asked. DPC5639 said that no questions were asked. What he did was merely to write out the preamble, read it to the applicant and then the applicant wrote the statement himself.

20. Detective Inspector Nichols said that before the gun was found, he saw both DPC5639 and DPC14091 were in the small sitting room with the applicant. However, DPC5639 in his evidence said that at all times he was the only one in the small sitting room guarding the applicant. DPC 14091 said that he never went into the small sitting room because he was going about acting as interpreter for Inspector Oakes or Inspector Nichols.

21. These were contradictions and minor discrepancies. However, one thing stood out a mile. When one looked at the contents of the preamble as well as the contents of the cautioned. statement, one could. observe that there appeared once in the preamble figure "13" and twice in the body of the statement allegedly written by the applicant. According to the applicant, the constable first wrote down 13 rounds of ammunition in the preamble, then the statement was dictated to him by Constable DPC5639 in compliance with the preamble. The figure "13" was used throughout the statement. It was later found that, in fact, there were 19 rounds of ammunition. When he was brought back to the police station, DPC5639, in the applicant's presence, amended the ''13" in the preamble into ''19" and similarly amended the two figures "13'' in the statement as "19".

22. DPC5639 denied that he amended any figures in the police station. He said that after he had written the preamble, he realized that the figure "13', was a mistake because he ascertained from his colleagues that there should be l9 rounds of ammunition. As to the amendment of the two figures "13"  into "19", in the body of the statement, this was done by the applicant himself. The DPC made no alteration to those two figures.

23. According to the evidence of DPC10932, when he found the ammunition, he found 13 rounds plus a small match box inside the playing card box. He opened the playing card box very carefully so that all he could see was 13 rounds of ammunition. He did not inspect the contents of the little match box inside. It was after the fingerprint expert arrived and dusted the articles for finger-prints that an additional 6 rounds of 22 bullets were found inside.

24. Counsel for the defence in the court below observed that both the aunt and the cousin were prosecution witnesses. The aunt saw the applicant bring in a plastic bag to her room. But, when the applicant left, she saw the applicant take away the same plastic bag. This was subsequently found to have contained nothing but a pair of lady's shoes in a shoe box.

25. The cousin's evidence was that when he was home, he saw the plastic bag resting on the stool at all times in the small sitting room, and that at no time did he see the applicant move the plastic bag while the applicant was inside the flat.

26. In his summing-up to the jury, the learned trial judge made it quite clear that no one saw the applicant put the gun in the bedroom. However, he referred to the statutory presumption contained in the Firearms and Ammunition Ordinance and made the following comments:

"So, if you find that he had possession of the plastic bag, then, in law, he is presumed to know that there was a gun and ammunition inside it until tie shows to the contrary. It is for hits to show that he was unaware of the existence of the gun and ammunition. For him to rebut that presumption of knowledge he must tilt the balance in his favour by showing that it's more likely than not that he was unaware of the existence of the revolver and ammunition. He doesn't. have to prove; beyond reasonable doubt that he was unaware of those items. It is sufficient if he shows it is more probable that. he was unaware that inside that plastic bag there was the revolver and ammunition.

Now, getting down to brass tracts - because that's what we are all here for the defendant hasn't told you that he thought it contained something else. His defence is: 'I know nothing about the plastic bag, the gun and the ammunition. I never even went inside her bedroom.' So, he has given no. explanation saying that he thought something else was inside that bag. His story is: 'I have nothing to do with it.'

So, as it will now be apparent to you, I hope, the real issue in this case is whether he was in possession of the plastic bag at all. In other words, the vital issue in this case is: has the Crown proved beyond reasonable doubt that he put the plastic bag inside his aunt's room. Once you are satisfied with that fact, then, you will ask yourselves whether he has tipped the scales in his favour by showing that he more probably was ignorant of the existence of the arm and ammunition. If you find that he hasn't done that, then, you will conclude that he knew what was inside the plastic bag and you will convict him."

27. He went on to analyse the aunt's evidence. Unfortunately, the jury was never directed to the evidence of the aunt saying that she saw the applicant carry the same plastic bag out of her flat when he left. If this bit of evidence was true, then the plastic bag which was found in the cardboard box upon the shelf. was not the same plastic bag that was taken in by the applicant. In that event, no presumption would arise at all and the applicant should never be called upon to give an explanation to rebut that presumption. Nor was the cousin's evidence about the plastic bag. remaining at all times on the stool drawn to the attention of the jury. This was made a ground in support of the application to appeal.

28. The judge very properly directed the jury that the case of the Crown relied on the oral admission as well as the cautioned statement. Counsel for the applicant contended that, even at the conclusion of the voir dire, there were sufficient discrepancies and unreliabilities in the prosecution evidence to enable the judge to come to the conclusion that the oral admission was induced by threat and that the statement was improperly dictated to the applicant.

29. Counsel further contended that even after the cautioned statement had been admitted it was abundantly clear that the applicant was induced to make the oral admission which was inevitably bound up with the cautioned statement which was dictated to the applicant. The learned trial judge, she complained, ought to have withdrawn such evidence from the jury and acquitted the applicant.

30. She further contended that it was abundantly clear to the learned trial judge that DPC5639 was not a reliable witness. He was prepared to lie about the alteration of the figures from 13 to 19. Unfortunately, the learned trial judge treated that as irrelevant. Her complaint was that the judge misunderstood the significance of this bit of evidence. It reflected upon the credibility of DPC5639 upon whose evidence the Crown heavily relied in support of the conviction. This DPC had been given chance after chance-.to admit :that he had altered the figures and he persistently denied that he himself ever altered the figures in the statement alleged to have been made by the applicant. DPC5639's unreliability was abundantly clear to the judge so much so that after the applicant was sentenced the judge said as follows:

"Now, one further matter, and that concerns the evidence of D.P.C. 5639. This court is not going to send the papers to the Attorney General for him to consider prosecution because it considers that the alteration is not a material alteration for the purpose of Perjury. Nevertheless, this court is firmly of the view that this matter should be investigated by the police for disciplinary charges against that police officer, and this defendant would be available to give evidence on that. matter if so desired."

31. DPC5639 were not reliable on this matter. There must be a reasonable doubt as to the general credibility of his evidence. vie have gone through. the transcript as well as the argument of both Counsel. for the applicant and Counsel for the Croon carefully. There was no doubt that when the jury convicted, they did so entirely on the oral admission as well as the cautioned statement. In our opinion, it is not so much whether the cautioned statement was dictated or not. The question which linked the cautioned statement to the oral admission was whether the applicant was induced into making an oral admission and subsequently acceded to making a statement. None of the police officers could remember any detail of conversation inside the flat though they flatly denied that anyone mentioned taking all persons back to the police station "if a gun were found". However, at least two of the prosecution witnesses, namely the aunt and the cousin, said that they had heard such reference.

32. Another contradiction was that the cousin definitely saw the applicant being handcuffed and the,-police officers had drawn their guns which is again a reasonable assumption. But none of. .the police officers admitted that they drew any gun or that the applicant was handcuffed.

33. Further evidence was permitted to be adduced that the police were acting upon information and that it was the applicant for whom the police were looking. This highly prejudicial evidence was not only before the court but Counsel for the prosecution relied upon it in her closing address to the jury.

34. It is wrong that evidence should be led to indicate that the police went to a particular place as the result of information that they had received. It is very wrong that evidence should be led to the effect that the person on trial is the person referred to in that information. Such information is clearly hearsay of the most damaging kind.

35. It was submitted to us that once the gun was found then, before any questions were asked, a sort of general caution should have been administered to all present.. A -question was asked here: To whom did the gun belong? According to DPC5639 there was a slight pause before the applicant admitted to the gun being his. There was no caution administered before this oral admission. We do not think upon this sequence there was the necessity for a caution.

36. However, there was evidence that in the presence of DPC5639, the aunt had made an approach to ,the applicant suggesting if the gun were his, then the applicant should admit to it. DPC5639 agreed that it was only (after the aunt had made her suggestion that .,the applicant made his admission. That being so we think that, the constable being aware of that which the aunt had said, he should have administered a caution before the applicant made any reply to the original question.

37. We do not think we can rule out the possibility of an inducement by the police or by the aunt in their presence.

38. As we have said, the oral admission is bound up with the cautioned statement. In all the circumstances the evidence as to the admission and its subsequent recording should not have been before the jury.

39. One last matter. After the jury, retired they came back to the judge to ask for. further direction.. The 2nd question they asked was as follows:

"There is a large degree of concern by one juror over the length of time which has passed since the arrest took place. It is felt that this possibly resulted in insufficient facts evidence being made available to the court on which to fairly evaluate guilt or innocence - as evidenced by the many 'I cannot remember' responses. This is considered a plausible response to many of the important questions asked of Crown witnesses. Should this concern, while considered legitimate, be assigned relevance in our decision?"

In answer to this the judge said:

"It is true that in this case the defendant was arrested on the 11th of May 1982 and it is now eleven months since he has been brought to trial. There has of course been a long delay, but it is not infrequent, unfortunately, for. there to be a long delay between. a person's apprehension and his trial. So, the reason why that has happened is really of no concern.

Now, you have pointed out that a number of witnesses (Crown witnesses and possibly the defendant) have said 'I cannot remember'. Well, that may be a genuine answer or it may be a way of avoiding an answer. So, you will have to decide whether that answer is genuine or not. If you find that it is a genuine answer, well  then, you can't yourselves speculate as to what might have happened. The answer is this: that there is no evidence on that point.

You can only decide the case on the evidence which has been placed before you. You must not speculate, nor must. you assume what the answer might otherwise have been had that person got a good memory, nor might you speculate what that person would have said if they had not feigned not knowing. You are in effect assessing the credibility of the witness."

40. In the event the jury returned a verdict of guilty by 5 to 2. It has been submitted that, having said all this to the jury, the judge should have added at least a comment that if, because of the lack of memory by prosecution witnesses or whatever, the jury did not consider there to be sufficient evidence to prove beyond doubt that the applicant was guilty then the prosecution had failed to prove its case and the applicant was entitled to an acquittal.

41. While of itself this last point would not be sufficient to vitiate the conviction, having regard to all the other matters to which we have referred we think the verdict to have been unsafe and unsatisfactory.

Representation:

Miss Corrine Remedios (D.L.A.) for appellant

Miss Ida Cheung (Crown) for respondent