Wong Wai-yin and Others v. The Queen

CACC000552/1974

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 552 OF 1974

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Coram: Huggins, McMullin and Pickering, JJ

Date of Judgment: 17th December 1974.

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JUDGMENT

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Huggins, J.:

1. The seven Appellants were jointly indicted upon an indictment which contained two counts. The first count, against all except the fourth Appellant charged them with murder and the second count, against all of them, was of affray. The first third fourth, sixth and seventh Appellants appeal against their convictions (the first Appellant having been given leave to apply out of time) and the first, second, fifth and seventh appeal against their sentences on the charge of affray.

2. The first third and fourth raise an issue - and the only issue in their cases - that the learned judge admitted in evidence confessional statements made by them which, they say, were not voluntary. We have heard arguments by two counsel on their behalf, Mr. Wong on behalf of the first and the fourth and Mr. Sedgwick on behalf of the third. The substance of the complaint in respect of the third Appellant - and Mr. Wong argues along much the same lines - is that the statement itself is indicative of an involuntary statement. Our attention is drawn to the fact that it was made within a period of only three-quarters of an hour. It was written in Chinese and is two and a half pages in length and it is suggested that it is unlikely that such a statement could have been made in such a time. This, we think, is a matter which was very much for the jury to decide. Sometimes a statement can be taken in a short time if the writer is fluent, and sometimes it takes an inordinate length of time where somebody is not fluent. We have looked at all these statements and we see nothing in them which leads us to doubt the voluntariness of the statements from the inherent qualities of the statements.

3. Then it is said that all the detectives who were charged with the responsibility for taking statements from these Appellants were in fact "instructed to take statements". All the Appellants were at that time under arrest. They had not in fact been charged and it seems doubtful whether there was evidence which would have justified a charge at that stage. It appears that what happened was the police had their suspicions and had arrested them on suspicion. The learned judge commented on the fact that there had been a breach of the Judges' Rules and we understand that to mean that the Appellants had been questioned by the police, and asked to make statements, without their having first been cautioned. This was wrong. Nevertheless the learned judge was satisfied that the Appellants were not in any way induced to make a statement by force or threats. The Accused themselves alleged that they were actually treated with violence and that, of course, was considered by the judge. When a police officer says that he was "instructed to take a statement" it may well be that he means that he was instructed to ask the witness whether he is prepared to make a statement and we are not necessarily to interpret those words as meaning that a statement is to be obtained at all costs. In our view there is nothing to suggest that the police might have used any form of violence other than that alleged by the Appellants, which allegations were manifestly rejected by the judge. Attention is drawn to marks on the body of the third Appellant, which it is said are consistent with his story. That is true but those marks are not entirely inconsistent with the evidence of the prosecution. Those injuries may have been obtained in a number of ways: they could have been obtained in the affray which was the subject of the charge: they could have been self-inflicted. It is not for us at this stage to decide now the Accused came by these injuries. The matter was before the judge and it was for him to decide. He, no doubt, had regard to the fact that, whereas there were allegations of an assault on the chest and there were marks on the chest, there was also an allegation of an assault on the back and there were no marks of any kind on the back, although the same weapon is said to have been used, namely a stone.

4. There is then also the complaint that the third Appellant was confronted by the second Appellant and by the allegations which had been made against the third Appellant by the second Appellant. This, again, may not have been in strict accord with the proper practice. It is perfectly permissible where an accused person has given a statement implicating another for a copy of that statement to be served on a second accused and for him to be asked whether he wishes to say anything about it, but this was a matter which was before the judge and we are quite unable to say that the judge was not entitled on all the evidence to come to the conclusion that these were voluntary statements and to admit them in evidence.

5. For these reasons the applications of these three Appellants (the first, the third and the fourth) must be dismissed.

6. The sixth Appellant raises first an interesting point upon the indictment. He was charged before the magistrate with affray and with murder. The learned judge rejected the charge of murder and committed him on the charge of affray only. The Attorney General saw fit to file an indictment into which was re-introduced the charge of murder and it is contended that this was wrong and that, although the Criminal Procedure Ordinance allows additional or substituted charges to be laid upon a committal, that does not include a charge which has actively been considered by the magistrate and upon which he has ruled that there is no sufficient evidence to justify a committal.

7. Mr. Sedgwick has made a valiant attempt to argue before us that the practice in England, which is well established by decided cases, is contrary to logic and contrary to law. We were at one stage somewhat attracted by the argument which he put up but, with respect, we do not think that it is of substance. The cases of Morry (1945) 31 Cr. App. R. 19 and Reg. v. Dawson 1960 1 W.L.R. 163 in our view correctly state the law. The statutory provisions in Hong Kong, although not verbatim those of the English legislation, are substantially the same. Section 24A(2) says:

"Where a person charged with an indictable offence has been committed for trial, the indictment against him may include, either in substitution for or in addition to counts charging the offence for which he was committed, any counts founded on facts or evidence disclosed in any depositions ......"

and counsel for the Crown has emphasised the words "any counts". We think that there is no justification for limiting those words to include only counts which have not been the subject matter of adjudication by the magistrate. We think that counsel is correct when he says that this really is a matter of procedure and that where a single charge has been rejected by the magistrate the only way in which the Attorney General can proceed upon that charge is either by a fresh committal or by obtaining a voluntary bill. Where there is a plurality of charges and a committal on any one of them, but a rejection of another, then that other may be re-introduced in the indictment and the burden is then thrown on to the defence of moving to quash the indictment. It is merely a matter of convenience. No possible injustice can result because, as in the case of the one charge, it would have been possible for a further committal or a voluntary bill to be obtained.

8. For that reason we think that in the event there is no substance in this ground of appeal.

9. Perhaps the most important part of the submission is that there was no case to answer against the sixth Appellant. The evidence consisted in large part of the statements which he made and those statements, in our view, were strong evidence against him, but there was other evidence in the case of this particular Appellant. There was found in his possession a jacket which at one stage he admitted to be his. Later he said that he was not wearing it on the day of the affray and that it was lent to him. On this jacket there were found two things, a blood stain and fibres from a jacket which had been worn by the Deceased. Along with that evidence there was evidence that on the shirt of this Appellant there was a blood stain of the same blood group as the Deceased, and also on the shirt there were fibres from the clothing of the Deceased. It was relevant that this Appellant was a police officer who, immediately after the alleged offences, was absent for two days from his duty without explanation and that when he was arrested he gave a false name. The statements to which we have referred at one point actually refer to his having "caught up with" the Deceased in the course of the affray, which is indicative of his having been actively engaged in the attack upon him. It was for the jury to decide whether or not this man was involved in the affray, whether he was involved in the attack upon the Deceased and, if he was so involved in the attack on the Deceased, whether he had the requisite intent. We think that there was sufficient evidence - perhaps not strong evidence - to justify his being put upon his defence.

10. The final point taken on behalf of the sixth Appellant is conceded by Mr. Sedgwick to be of no great weight. With respect we think it is entirely without substance. There was in the course of the summing-up a passage in which the learned judge referred to the sixth Appellant's having been a prominent figure in one group, and thereafter he referred to a fight between two gangs. It has not been necessary for us to go into the facts of this case in detail. What happened was that there was a discussion in a tea house in which the Deceased and the sixth Appellant were discussing the payment of compensation by the Deceased for some wrong alleged to have been done by him in the past. After this discussion in the tea house there was a fight outside the tea house. What is suggested is that by the reference to the sixth Appellant's being a prominent figure in the group in the tea house the jury might have been led to believe that he was also a prominent figure in one of the gangs fighting outside. In our view the passage which is complained of was quite innocuous. It was referring to his being a prominent figure in the group in the tea house and the fact that the judge went on to refer subsequently to two groups outside the tea house was not in any way, in our view, a misdirection.

11. For these reasons we think that the application for leave to appeal against conviction of all these Appellants must be dismissed.

12. There remains the appeal of the seventh Appellant, who has appeared in person in respect of his appeal against conviction. We have heard what he has had to say and we have studied the record and it is sufficient for us to say that we are satisfied there was evidence, in the form of the statements which he made, which would justify the jury in returning the verdicts that they did. His application for leave to appeal against conviction is dismissed.

13. We turn then to the matter of sentence. The first and the seventh Appellants were sentenced to four years' imprisonment. It is urged that this was wrong and must manifestly have taken into account the fact that there was a murder committed in the course of the affray. That may be so. We are not prepared to say that it was wrong to regard the fact that a murder was committed. Obviously this was a serious affray and as such it has to be punished more severely than one which is less serious. Nevertheless we think that a sentence of four years' imprisonment was unduly heavy and the sentences of those two Appellants, the first and the seventh, will be reduced from four years to three years.

14. The second Appellant has subsequently been convicted of manslaughter upon another trial and has been sentenced to ten years' imprisonment. He has indicated to us that he does not wish to proceed with the present appeal and that he will content himself with challenging the sentence of ten years' imprisonment in the subsequent case.

15. The case of the fifth Appellant has caused us more anxiety. He was sentenced to two and a half years' imprisonment. On the face of it, for an offence of this kind, that may well not appear a heavy sentence. He is, however, aged only 16 and he has a clear record. There is in the file a report from the probation officer who suggested that the court might even be willing to consider probation in this case. The learned judge, no doubt for good reason, thought that probation was not the answer and that some more stringent disapproval should be indicated by the sentence passed. However, he did not obtain any reports of the Appellant's suitability for other forms of punishment, and we think that this application ought to be adjourned while we obtain reports from the Commissioner of Prisons as to the Appellant's suitability for the training centre or the detention centre.

16. The appeal of the second Appellant of course stands dismissed.

17th December 1974.

Representation: