Leung Siu-ng v. The Queen

CACC000570/1974

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 570 OF 1974

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Coram: Huggins, McMullin and Pickering, JJ.

Date of Judgment: 18 September 1974.

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JUDGMENT

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Full Court:

1. The appellant appeals against his conviction in the District Court upon a single charge of robbery pursuant to which he was sentenced to four years' imprisonment. We dismissed the appeal upon the 18th of September reserving our reasons for doing so until later.

2. On the 18th of March, 1974 at about 3.40 in the afternoon a man entered Kai's Watch Company at 352 Hennessy Road, Hong Kong and asked to see some watches. There were three shop assistants present at the time, two male and one female. One of the assistants went to fetch some watches from a showcase near the window and returned with them to the counter where the other assistants were standing with the customer. The latter thereupon produced what appeared to be a gun and forced both of the male assistants into a corner and compelled one of them to put a number of watches from two or three display trays into a plastic bag with which he then left the shop and made good his escape. Upon subsequent police investigations the certificate numbers of some eighteen watches which were found to have been stolen were given to the police.

3. After the arrest of the appellant Mr. Hui, one of the assistants, was called to Police Headquarters and shown a number of watches. Checking these against the certificates issued in respect of the eighteen watches found missing after the robbery he was able to identify six Omega watches as watches which had been stolen upon that occasion.

4. At about 11.00 a.m. on the 31st March D.P.C. 3436 of Shamshuipo Police Station was making routine inquiries in relation to stolen property at a pawnshop in No. 6, Bowring Street, Ground Floor, where he discovered the appellant in the act of pawning a Rolex wrist watch. The constable intervened and made inquiries concerning this watch and, upon checking its number with the number on a list of stolen property which he had in his possession, discovered that the Rolex watch number tallied with that of one of the watches which had been stolen from Kai's Watch Company on the 18th of March. The constable cautioned the appellant upon the spot stating that he believed him to be in possession of property stolen in the course of the robbery on the 18th of March, and thereupon the defendant replied: "This watch is one which Wong Wang told me to pawn." This statement was tendered in evidence without objection by the defence in the course of the trial.

5. Thus far the evidence led by the prosecution is not disputed nor is it disputed that, at an identification parade held on the 1st of April, 1974 at Happy Valley Police Station, both of the male shop assistants, Mr. Hui (P.W.1) and Mr. Li (P.W.2), positively identified the appellant as the person who had entered the shop and had taken the watches upon the day of the robbery. It was the appellant's defence at the trial, however, that he was in innocent possession of the Rolex watch in the pawnshop at Bowring Street and that he was pawning it on behalf of a friend, namely a person called Wong Wang, although he admitted that he was improperly making use of an identification card on that occasion which was not his property. The Identity Card which he had produced to the proprietor of the shop on that occasion, and which was seized by P.C.3436 was in fact a card bearing the name Chau Tak Ming. According to the appellant that was the name of a casual acquaintance whom he had met on a previous occasion in the company of Wong Wang and on the day of his arrest when he was asked to pawn the Rolex watch by Wong Wang he demurred on the ground that he had no Identity Card and he said that he was thereupon presented with Chau Tak Ming's Identity Card by Wong Wang. He did not deny that it was improper of him to make this use of that card but maintained that he had no knowledge that the watch was a stolen watch.

6. From this summary outline of the undisputed facts it will be apparent that there was a case of some strength against the appellant. Other evidence was led by the Crown which, if accepted, would undoubtedly have tended to strengthen the prosecution's case considerably. Because of the manner in which the learned District Judge dealt with this disputed body of evidence, however, we are left in some degree of doubt as to whether he accepted it or any part of it and it is this feature of the case alone which has led to our reserving reasons for the decision subsequent to the dismissal of the appeal.

7. Of the disputed evidence undoubtedly the most important item consists of a written statement allegedly made by the appellant subsequent to his arrest and while he was in police custody at Wanchai Police Station. Although this statement is not a confession to the charge it does contain an admission that the appellant was aware that the watch which he was asked to pawn had been stolen from a shop in the Excelsior shopping centre (i.e. the centre in which is situated Kai's Watch Company). This statement was challenged on the grounds that it had been extracted from the appellant by force and the learned trial judge dealt with that issue in a manner which falls neither within the normal procedure upon voir dire proceedings nor yet in accordance with what has sometimes been called the "alternative procedure" whereby the evidence of the prosecution as to admissibility is not separated from that on the general issue but a ruling on admissibility is given before the prisoner is called on to make his defence on the general issue. What appears to have happened is that, following upon the objection by counsel to the admissibility of the statement, all the remaining evidence in the case, both for the prosecution and for the defence, was taken. This was done with the consent of both counsel. The learned judge then gave his ruling on the statement. The ruling was given orally and the note recording its effect is, to say the least of it, obscure. The learned judge appears to have admitted part of what the appellant said to D.P.C. 6383 but although that part was not clearly identified at the hearing of the appeal we think it safe to assume that what was excluded was the damaging admission. The accused was not formally called on to make his defence and immediately after the ruling counsel addressed upon the evidence generally.

8. Since statements to the police so often in this territory constitute the major part of the evidence against the prisoner there is much to be said for maintaining in their regard the usual method of inquiry upon voir dire, time wasting and frustrating though it may be. In Reg. v. Ho Yiu-fai and Ors. ⁽¹⁾ while holding that it is not mandatory to hold a voir dire in the District Court upon the admissibility of statements the court went on to say (p.422):

"There are three main requirements which must be clearly kept in view by a judge when sitting without a jury especially when an accused person is unrepresented which it is as well to state, -

The procedure followed in this case was clearly a breach of the third of those requirements.

9. What was done in the present case may show that the concurrent existence of these two separate procedures has caused some confusion in recent practice in the lower courts. The "alternative procedure" is not an alternative method of conducting a separate inquiry by way of voir dire: it is an alternative manner of conducting a trial in which the question of the admissibility of a certain type of evidence is raised. In the present case, as in Ho Yiu-fai's case ⁽¹⁾, the court of trial was evidently under the impression that a voir dire was being held. Counsel on both sides appear to have shared this view for, immediately after the ruling upon admissibility, the judge's note records the following:-

In effect, therefore, it was conceded that the accused had been called on to make his defence before he knew whether his statement had been admitted in evidence.

10. Earlier, at the point when objection was made to the admission of the appellant's statement, there is nothing in the note to show that a separate inquiry into that issue had been initiated yet the note of evidence given by the police witness (D.P.C. 6383) is headed: "Cross-examination P.W.9 (on voir dire and general issue)." and a similar note appears in relation to the evidence of the appellant himself. In truth there was no inquiry by way of voir dire in this case any more than there was in Reg. v. Ho Yiu-fai ⁽¹⁾. The procedure which for long has been denoted by that name requires that the special issue be abstracted from all the other issues of fact and law which are subsumed under the general issue and that it be dealt with by way of a separate trial in the course of which the wider trial is arrested and inquiry into all the other questions at issue is suspended until the special issue has been resolved. It is, no doubt, the inconvenience of the voir dire and a certain artificiality in the distinctions which have to be made concerning the evidence given on the special and general issues which have, especially since Ho Yiu-fai's case, led to the increasing employment of the alternative procedure in trials without a jury in this territory. Nor is there wanting persuasive authority from other jurisdictions to favour the opinion of those who would like the voir dire abolished altogether in such cases. (See, in this connection a useful commentary in a recent issue of the newsletter of the Magistrates' Association ⁽²⁾).

11. I suggested in Poon v. Reg.⁽³⁾ that the alternative procedure may give rise to confusion and it appears to me that the present case is a fair illustration of the kind of thing I had in mind. The fact that the presiding judge and counsel on both sides were under the impression that a voir dire was being held, whereas it patently was not, is the least part of that confusion and might perhaps be discounted as an immaterial quibble over terminology, were it not that the notion of the simultaneous trial of both issues led both counsel and the court into overlooking the cardinal principle that the prisoner should not be called upon to make his defence until the body of the evidence standing against him has been defined. It must be borne in mind that, when no voir dire is entered upon, there is a necessary distinction to be drawn between the position of the Crown and that of the defence after the admissibility issue has been raised: the Crown produces all the relevant evidence on both issues and its witnesses are rightly cross-examined thereon. When that has been done the prisoner must be given an opportunity of dealing with the admissibility issue by way of testimony on oath. If he chooses to do so his testimony-in-chief and in cross-examination must be restricted to that issue. In the present case the prisoner's testimony was directed to all the evidence on both issues before a ruling was given. Since this was done with the consent of the lawyers (and perhaps at their instance) it might be difficult to argue that the accused was prejudiced. But there could well be cases in which such a procedure would be gravely prejudicial to the defence. The rule laid down in Ho Yiu-fai's case ⁽¹⁾ is a proper and salutary rule and it ought to be adhered to in every case when the voir dire procedure has been dispensed with. It is noteworthy that in that case, which the appellate court regarded as one in which a voir dire had not been held, the several accused gave evidence limited to the question of admissibility at the conclusion of the prosecution case and only after their statements were ruled out were they called upon to make their defence. The procedure followed at the trial in that case was, therefore, not in breach of the principles proposed by the appellate court and the appeal failed. But in a fitting case the failure to observe any one or more of the three basic requirements might well prove fatal to the conviction on appeal.

12. There is a further consideration which prompts caution in using the "alternative procedure". The first of the requirements referred to in the passage cited from Ho Yiu-fai's case relates to the necessity for making it clear to the accused, when no voir dire is held, that he will be allowed to cross-examine the prosecution witnesses on all matters relevant to the general issue and is not limited to the admissibility issue only. This is clearly very important where the accused is unrepresented for if, in such a case, the judge or magistrate does not inquire upon voir dire and the evidence relating to the alleged confession occupies, as often happens, a disproportionately large part of the trial, the accused may be left with the impression that all he has to deal with by way of cross-examination is the confession. Even when he is represented the same result may come about through oversight. This is less likely to happen where there is a separate trial of the issue so that what is, in effect, a side issue is immediately and definitely disposed of.

13. The voir dire method also has the not inconsiderable merit that the strength or weakness of the Crown's case is made manifest both to the prisoner and to the Crown at a reasonably early stage in the proceedings and the accused and his advisers are given a better and more timely perspective of the prospects of the defence. While therefore it may sometimes be desirable to defer ruling on admissibility until the end of the prosecution case it is well to keep in mind that the question of admissibility is normally ruled upon at once in all cases.

14. But in any case it is important that the magistrate who has chosen to use the "alternative procedure" should make no reference to a voir dire or a separate issue but, upon the objection being made, should note simply that a ruling will be given at the conclusion of the prosecution case. Thereafter he should be careful to ensure not only that his ruling is given before the accused is called to enter upon his defence (if he is so called) but that the accused is informed, before the ruling is given, that he is at that stage entitled to give evidence - but only on the issue of admissibility. After the ruling has been given, and if a prima facie case is then found on the issue of guilt. it should be made clear to the prisoner, especially if he is unrepresented, that he is entitled to give evidence once more and to deal with all the evidence led against him not limiting himself to the disputed statement but touching again on that also if he thinks fit.

15. The procedural novelty in the present case which is, for the reasons given, undesirable upon general principles remains to bedevil the prosecution case in a particular way when we turn to consider the manner in which the learned District Judge recorded his reasons for conviction. A considered judgment was not delivered and what appears upon the record may or may not be a precis of an oral judgment delivered immediately after the speeches of counsel. At all events what the note reveals is in the following form:

16. Crown counsel, who was no happier with this summary than was the Court, suggests that what it means is that the learned judge while he was content to convict upon the identification evidence only and not to propound at all upon the truth or falsehood of the accused's allegation against the police in relation to the manner in which the statement was extracted from him, nevertheless believed the remainder of the police evidence. However, another possible interpretation of those findings - and in particular of the first and second of the findings - might well be that the judge had decided that, whenever evidence had been given by any of the police witnesses touching any matter dealt with by the appellant, he would accept the appellant's version in preference to that given by the police. There was an important body of police evidence tending to show the guilt of the accused quite apart from the disputed statement. Perhaps the two most important items of that evidence were, firstly, the testimony of D.P.C. 6383 who said that when he went with the police party and the accused back to the accused's residence the accused made to him an oral confession to the effect that he had invented the story concerning Wong Wang and that in fact it was he, the accused, who had robbed the shop in the Excelsior Arcade on the 18th of March; secondly, the fact that, on the police story, the accused led them to various pawnshops where watches were recevered which had been concerned in that robbery, whereas the accused said that he had done no such thing but that they had taken him to pawnshops which were contacted by prior phone calls by one of the police officers. There was also the testimony of D.P.C. 6383 concerning the finding of a Constantin ladies' wrist watch, one of the stolen watches, in a drawer in a dressing-table in a room occupied by the appellant's elder sister at those premises, evidence which was denied both by the appellant and by the elder sister who was called in his defence. Was all this evidence accepted by the learned District Judge or was it rejected? We have no way of knowing, but prima facie it would appear that since he had rejected the police story as to how the statement was taken and since he did not refer to the testimony which I have just now recounted he must be held to have rejected that testimony as well. Indeed that doubt might carry us further, for the appellant complained of the manner in which the identification parade itself was held and sought to persuade us that it had been "rigged" by the police who, according to him, must have shown to the identifying witnesses certain photographs of the appellant which had been taken by the police from his premises at the time when they conducted their search therein. If the learned judge's doubts as to the veracity of the police witnesses extended as far as that, it might be argued that his finding on the basis of identification was itself unsafe. Having considered the record of the evidence in some detail, however, we were satisfied that any doubts entertained by the judge concerning the evidence of the police witnesses did not go, and ought not to have gone, so far. Had a voir dire been held and had the ruling on admissibility been delivered at the appropriate point thereafter it is very unlikely that the ultimate findings - inadequate as they are - would have included the second finding, which is not only inadequate but misleading since it gives rise to the suggestion that the evidence of the police witnesses was being called in question generally and not just in relation to the taking of the statement. Conversely, notwithstanding that the ruling upon admissibility was not made until, in effect, after the defence case this might have occasioned little difficulty had the findings of the court in relation to the conviction been recorded more amply and explicitly than they were.

17. This Court has on more than one occasion indicated what it expects in the way of reasons for verdict. In FONG Yuk-lin ⁽⁴⁾ it was said that the reasons will be found sufficient where they are stated briefly, bluntly but clearly and where the findings are supported by the facts. In Low v. R. ⁽⁵⁾ it was pointed out by Blair-Kerr, J. that there is no duty cast upon a District Judge to state the whole of the law applicable to the case or to review the whole of the evidence. In Lo Chung v. R. ⁽⁶⁾ it was said that the reasons for verdict, required to be recorded under Section 30 of the District Court Ordinance, should leave no doubt as to the findings of fact and inferences drawn therefrom. Other expressions to the same general effect have appeared in later cases.

18. Enough has been said about the trial of the present case to make it clear that, in the context of the issues raised, and of the procedure adopted, the findings recorded by the learned judge were insufficient to show clearly how much of the prosecution case was being accepted and how much rejected and for what reasons.

19. With all that said, however, we have no doubt that he came to the right conclusion. Counsel for the appellant in the court below admitted that the identification parade was fair and made no question as to the propriety of the identification. Not only were the identifying witnesses never pressed in cross-examination, on the lines suggested by the appellant, but the only witness who referred to photographs did so in examination-in-chief when he was referring, apparently, to a photograph shown to him by the police on the 18th of March, almost two weeks before the police visited the appellant's premises and carried out a search thereat and removed certain photographs therefrom. The note of the evidence moreover at this point seems to show that the photographs shown to the witness were from police records of suspected persons and he was, in any event, unable to recognize any person whose picture was shown to him on that occasion. There seems to be no good reason therefore to doubt the veracity of the witnesses who purported to identify him upon the parade. When that evidence is taken together with the fact that the appellant was found pawning one of the stolen watches and using, for that purpose, an identity card which did not belong to him and that another of the stolen watches was found in his premises when the police visited it later the same day and furthermore that he has never seriously attempted to account for his whereabouts on the date of the robbery, any doubt as to his guilt becomes unreasonable.

20. The appellant was not represented upon the appeal. He at first told the Court that he had made an application orally for legal aid which had not been pursued by the relevant authorities and was apparently asking that he should be legally-aided. After consultation the members of the Court were disposed to grant him an adjournment for this purpose but upon being addressed again upon the matter the accused said that he did not want to delay any further and preferred to present his case himself. In his address he stressed principally the fact that the evidence of the identifying witnesses was not to be relied upon and he advanced several reasons relating thereto which it is unnecessary to discuss save to say that they appeared to us to be without substance. It was for these reasons that we dismissed the appeal.

Representation:

(1) (1970) H.K.L.R. 415

(2) (1970) H.K.L.R. 415

(3) "Obiter Dicta" Vol.l No. 7

(4) (1973) H.K.L.R. 414

(5) (1970) H.K.L.R. 415

(6) (1963) H.K.L.R. 282 at 285.

(7) (1961) H.K.L.R. 13 at 82.

(8) (1964) H.K.L.R. 359 at 363.