The Queen v. Khan Noor Said Singh Baldev

CACC000548/1987

BETWEEN

Coram: Hon. Cons, V.-P., Kempter & Power, JJ.A.

Date of Hearing: 21st April 1988

Date of Judgment: 21st April 1988

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J U D G M E N T

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Power, J.A.:

1. The applicants Noor Said KHAN and Baldev SINGH faced a single count of burglary in the District Court to which they pleaded not guilty. The prosecution case was that the applicants together with one Javid KIANI, who pleaded guilty and who gave evidence for the Crown at the trial, were discovered at about 4.35 a.m. on the 14th of May 1987 in the premises of Star Electronics Co., the locks to the iron gate of which had been broken indicating that a forced entry had been made thereto; that two screwdrivers, a paper cutter and a paint scraper were found in the premsies and that Javid KIANI was found to be wearing cotton gloves and carrying HK$4,250 and $100 in F.E.C. currency which the owner of the shop later confirmed corresponded in amount with cash missing from the shop. Under caution Noor Said KHAN admitted that he and Javid went on the 14th to burgle the shop and that Javid brought along a screwdriver to prise the main door and some gloves to ensure that no fingerprints, were left. Baldev SINGH under caution admitted using a screwdriver to pry open some cartons in the Star Electronic shop and admitted seeing the other two do likewise.

2. The applicants both objected to the admission of their statements on the ground that they were involuntary. However, each was admitted after voire dire proceedings in which neither of the applicants gave evidence. Further neither applicant gave evidence on the issue but the 2nd applicant, who was the 3rd defendant at the trial, called one alibi witness.

3. The trial judge accepted the evidence of prosecution witnesses and convicted both applicants. He sentenced the 1st applicant to imprisonment for two years and the 2nd applicant to imprisonment for twenty one months. The 1st applicant who is unrepresented appeals against both conviction and sentence and the 2nd applicant, who is represented by Mr. Hingorani, appeals only against conviction. The grounds relied upon by the 1st applicant in his appeal against conviction are that the statement made to the police was not a genuine representation of his case, that he didn't have the opportunity to ask for an interpreter for the purpose of translation and that he was intimidated by the police, He is really here contesting the truthfulness and admissibility of the cautioned statement. These were matters for the trial judge. They were considered by him and upon the evidence before' him, he was satisfied that the statement was voluntarily made. There was evidence before the trial judge sufficient to support the conclusions of fact to which he came. Nothing has been said to us to occasion us any doubt as to correctness of the trial judge's approach to the evidence or as to the conclusions he came to thereon. This applicant is refused leave to appeal against conviction.

4. The 2nd applicant represented by Mr. Hingorani raised only two matters in his appeal.

5. The first was a challenge to the judge's ruling in which he admitted the cautioned statement, Mr. Hingorani submitted that the trial judge wrongly admitted the statement as there were matters before him which should have occasioned him doubt as to its voluntariness. The two matters upon which he based this submission were the short time occupied by the taking of the statement and the unfairness allegedly occasioned by the failure of the police officer to ask the applicant in what language he would like to give his statement. Mr. Hingorani points out firstly that the signature of the applicant was a recognition not of the written words, which he could not read because they were in Chinese characters, but an acknowledgement only of what was said to have been stated to him by the police officer.

6. The statement of the 1st applicant covered three pages of Chinese characters and took, according to the notations made on the face of it, 11/2 hours to make. It dealt with six matters. Mr. Hingorani contrasts this with the fact that the statement taken from his client occupied 59 minutes, according to the notation on the face of it, and covered five pages of Chinese characters. Mr. Hingorani submits that on any reasonable assessment of the matter this was clearly not a sufficient time for the taking of such a statement. He suggests that such a statement, given that it was five pages in length, would have taken about 21/2 hours and that this indicates that some of the statement was written prior to the time of 7.40 p.m. when it was said by the police officer to have begun. He submits that this must have been apparent on the face of the evidence to the trial judge and, upon any proper assessment thereof, should have raised such a doubt as to whether or not the evidence of the police officer was correct as to require the trial judge to refuse to admit the statement.

7. Mr. Hingorani acknowleges that he is in some difficulty when urging this ground by reason of the fact that the applicant gave no evidence. There is a further and perhaps a greater obstacle and that is that the trial judge who saw the witnesses and heard them cross-examined was satisfied to accept them as witnesses of truth. Even so Mr. Hingorani urges that the evidence relating to the time said to have been occupied by the taking of the statement is so improbable that this court should find the conviction unsafe and unsatisfactory.

8. Secondly Mr. Hingorani raises the matter of the language in which the statement was taken. A statement from the 2nd defendant, the accomplice who gave evidence, had been taken in English on the previous day by the same officer who took the statement in Cantonese from Mr. Hingorani's client. St does, however, seem that this was a witness statement and not a cautioned statement. Mr. Hingorani asks why did that officer not seek to clarify from the 2nd applicant whether or not he wished to give and have his statement recorded in English which it is suggested he would have been able to read over rather than in Chinese characters which he was unable to read. This possibility was, on the evidence, never explored by the officer with the 2nd applicant and Mr. Hingorani submits that this failure constituted an unfairness to the applicant such that the trial judge could not be satisfied that the Crown had satisfied the onus of proving that the statement was free and voluntary.

9. The difficulty Mr. Hingorani faces, although he has made everything he possibly could of the above matters, is that they were never real issues in the trial. There was no evidence from either of the applicants to suggest that the police officers acted in any way improperly when taking the statements. There was nothing, other than suggestions put in cross-examination and denied, which in any way indicated that the time of 59 mintues was not the time actually occupied by the taking of the statement or that there was any unfairness in the use of Cantonese when taking the statement. These were both very much matters of fact for the trial judge. He had them clearly raised before him and must have had them in mind when arriving at his decision to admit the statements. There is nothing that occasions us any doubt that the statement was properly admitted.

10. The only other ground which Mr. Hingorani wishes to urge is that, while the warning given by the trial judge as to corroboration was a correct one, two of the matters to which the trial judge referred as being capable of corroborating the evidence of the accomplice should not have been left to the jury. The first of these is the cautioned statement. Clearly if it should not have been admitted the jury should not have been told that it was capable of constituting corroboration. This matter is, however, disposed of by our decision that it was properly admitted. The second objection of Mr. Hingorani is to the trial judge's direction that there was corroboration "in the screwdrivers which are before the court in evidence". He submits that this direction was so vague as to be unsatisfactory. It is true that the reference was not as specific as it might have been but the screwdrivers had been exhibited and they had been referred to in the statements of the accused. We find ourselves unpersuaded, given that Mr. Hingorani can take this matter no further than to suggest that the words used by the trial judge were vague, that there is sufficient in this suggestion to render the conviction unsafe and unsatisfactory.

11. The application for leave to appeal against conviction by the 2nd applicant is also refused.

12. The only other matter is the application of the 1st applicant to appeal against sentence. In this regard he said that a friend of his, who, it seems, was the accomplice, was sentenced to imprisonment for nine months for a similar offence and that he is suffering from asthma and tuberculosis and has been in hospital during the past several months.

13. Given his record and the fact that he was the ringleader none of these matters occasion us any doubt as to the correctness of the sentence of two years imposed for what was a serious offence of burglary. His application for leave to appeal against sentence is also refused.

Representation:

Mr. I.G. Cross' (Crown Prosecutor) for the Respondent

Mr. J. Hingorani (Kenneth C.C. Man & Co.) for the 2nd Applicant 1st Applicant in person