The Queen v. Tsang Kwok-leung
|
CACC000581/1982 Robbery - sole evidence confessional statement - appellant 16 years 8 months old - the administrative directions in U.K. that young persons must be interviewed in presence of parent or guardian do not apply to H.K. - Judge not wrong in exercising his discretion - However, circumstances in which statement taken from appellant raises doubt as to voluntariness - Judge did not give sufficient reason for admitting statement - Appellate court will take all evidence before the trial court to find out if there was sufficient evidence to support trial judge's finding lurking doubt - conviction quashed.
BETWEEN
Coram: McMullin, V.-P., Li & Silke, JJ.A. Date: 5th January, 1983 __________ JUDGMENT __________ Li, J.A.: 1. The appellant is the 4th accused of 4 persons charged with conspiracy to rob and with robbery. He was acquitted of the offence of conspiracy to rob, but he was convicted of robbery for which he was sentenced to 3 years imprisonment. The robbery charge alleged that he, and his co-accused together with another person unknown, robbed one CHING Tong of $200 on the 5th of October, 1981. 2. From the evidence of the witness, CHING Tong, a taxi driver, it is clear that at approximately 2 a.m. on the 5th of October, 1981 at Clear Water Bay Road near Silver Strand Bay bus stop, 3 persons in a taxi robbed him of approximately $200. His evidence was that earlier in that evening, 3 persons took his taxi somewhere in Kowloon and instructed him to drive to Clear Water Bay Road. He was told to stop at the spot near a bus stop in Silver Strand Bay. And after some exchanges about who should be paying the taxi fare, the front seat passenger sitting beside him, later identified by him as the co-accused grabbed his money box. Prior to that, one of the robbers in the rear seat grabbed his neck. There was no identification of any person apart from the co-accused. 3. Some days later, on the 9th of October, 1981, the 1st. defendant in the court below, another co-accused, was arrested in connection with the offence of conspiracy to rob and other offences. After investigation, statement was made by the 1st defendant, after which he led a party of police on the 10th of October, 1981 to arrest in quick succession the rest of the defendants including the appellant. All the suspects, together with other suspects, were taken back to the Sai Kung Police Station. 4. The only evidence against this appellant was his cautioned statement in which he admitted participation in the robbery of which he was convicted together with the co-accused, the 3rd defendant, in the court below. In the course of the trial, that statement was subject matter of objections on a variety of grounds. It was alleged that he was told to admit by P.W.7, the Detective Police Constable 9534, TSE Ching-shek, who took the statement from him. He said he was assaulted by police officers including Tse and that the statement was dictated to him and after a renewal of threats further beating by the police. He had to sign. 5. A further objection was that there had been a breach of the administrative directions covering such interviews in the United Kingdom because the appellant, at the time of the offence, was only 16 years and 8 months old and that the statement was taken in the absence of either of his parents or his guardian. 6. Lastly, that the statement so taken was never read over to the appellant. The appellant was never told of his right to make amendments if he so wanted. 7. A voir dire was held. The prosecution evidence was that the appellant was arrested approximately at 13.30 hours on the 10th of October, 1981. He was brought back with the other suspects to the Sai Kung Police Station and taken to the C.I.D. room at about 1600 hours. From there, P.W.7 took him to the rest room which was a recess in the further inside corner of the general office of the C.I.D. room. There, the appellant was cautioned and a statement was written by the appellant voluntarily. The constable who took the statement, constable Tse, did not think it was necessary to contact the appellant's parents. Tse denied any assault or any irregularity at all. 8. The defence version is materially different. According to the appellant who gave evidence for the purposes of the voir dire, he was first taken to the rest room for a while. Then he was taken to the room of the officer in-charge where he found the 3rd accused, his co-accused, in that room with another police constable. Inside that room, the 7th prosecution witness, Tse, asked the 3rd accused whether the appellant also took part in that robbery. Whereupon the 3rd accused answered that the 4th accused, the appellant, was not with him and never took part. At that point, the appellant alleged, Tse gave him a blow in the chest area. Then he was taken back to the rest room of the C.I.D. office and he was told to admit. Again, the appellant refused. He was assaulted by constable Tse with two more heavy blows on the chest. Then he was brought back to the C.I.D. general office where the statement was dictated to him. That was the content of that so-called cautioned statement. He was told to sign. Upon the appellant's refusal, he was threatened with further assault. For this reason, he signed that statement. Such statement was never read to the appellant, nor was he told that he had a right to make amendments to that statement. 9. There was also evidence by Doctor KWAN Tun that he examined the appellant when he, the appellant, was transferred to the Pik Uk Correctional Institution on the 16th of October. Thereupon, the appellant made a complaint that he was assaulted by 3 C.I.D. officers. He said it was a naked examination and he found one faint red mark on the left chest, one faint bruise of 1 cm in diameter on the left chest area and two bruises of ½ cm in diameter also on the left side and front of the chest. In his opinion, Dr. KWUN Tun said, these injuries, apart from the red mark, were consistent with a hard impact. He said that again apart from the red mark which would be only about 2 or 3 days old, the bruise marks could have been sustained within the previous 7 days, albeit they might have been caused prior to the 10th of October, 1981. 10. Pausing at this stage, we observe that there was an inconsistency in the allegation by the appellant himself. His first version was an assault by 3 officers. His counsel, in cross-examination of Tse, alleged that Tse together with another C.I.D. officer, P.W.6, assaulted him. That reduced from three to two officers. In his evidence in chief, he said only P.W.7 assaulted him. Then in cross-examination, he reverted back to two officers. In his cross-examination through his counsel, it was alleged that he was assaulted on front, back of the chest as well as the belly. However, in his evidence, he referred only to the front of his chest. There was no evidence in support of his allegation that he was assaulted by P.W.6 at all. In cross-examination, on the red mark, when it was pointed out that he said he have received a total of 3 blows whereas there had been 4 marks of injury, the appellant conceded that he could have hit himself against some hard object. 11. The grounds of appeal raised by/and for the appellant amount to the assertion that the conviction was unsafe and unsatisfactory for a variety of reasons. The 1st reason advanced in support was that as he was under 17 years, the statement was taken from him not in accordance with the administrative directions as he was intervewd in the absence of his parents or guardian. His 2nd ground was that the judge had his own doubts as to whether another co-accused, the 2nd accused, would have made a voluntary statement inculpating himself if the statement was taken in the presence of his parents. The suggestion was that the judge, having had the same doubt and thereby excluding the cautioned statement of the 2nd accused, should equally have rejected the statement by the appellant. 12. The 3rd ground was that the trial judge found that there was some truth in the appellant's evidence albeit more fiction than truth. 13. The 4th ground was that the judge failed to take into account the medical evidence from Dr. KWAN Tun which would be corroborative of the appellant's evidence. 14. The 5th ground was that the judge failed to take into account of the corroborative evidence from the 3rd accused as to the assault of the appellant by P.C.9534 i.e. P.W.7. 15. The 6th ground was that the relative length of the police interview suggests that the cautioned statement was not free and voluntary or taken in the circumstances as alleged by the prosecution. 16. The last ground in support was that the contents of the portion of the cautioned statement which was in the appellant's handwritting suggested the same would not be written without prompting as alleged by the prosecution. 17. In addition to these grounds already filed, counsel for the appellant asked for leave which was granted to argue a further ground in that he alleged the learned trial judge erred in law by stating at page 14 of the transcript that "the fathers (including the father of the appellant) had made no attempt to satisfy me how they happened to remember, again to say the least, that the appellant was at home at the time of the robbery." It is contended that the judge was placing the burden of proving an alibi on the appellant. 18. We would like to dispose of one or two of the grounds of appeal which would not require detail consideration. As far as the 1st ground is concerned. and ground two that the judge did not apply the same rule to the appellant, we are of the opinion that such administrative directions do not apply to Hong Kong. As such, the judge had a discretion whether to follow it or to apply it to individual accused persons. To begin with, such directions are ancillary to the judge's rules which are not rules of law but rules of administrative practice. The judge obviously had a discretion. We also take into consideration that at the time of the arrest the 2nd accused was 13 years old. The appellant in the age of 16 years and 8 months, nearly 17. The judge gave reason why he applied the administrative directions in the case of the 2nd accused but he did not apply to the case of the appellant. The reason would be obvious and there was no necessity for him to state it in so many words and explain why he did not apply it to the appellant. There is, therefore, no substance in the points a and b. 19. As to ground 3, the judge said. that he found there was some truth in the appellant's evidence (albeit more fiction than truth). That was so because obviously a substantial part of the appellant's evidence could not be all true particularly allegations as to the form of assault, number of assailants and the manner in which he was assaulted. The judge was clearly entitled to reject a great portion of the appellant's evidence. 20. As to ground 7, no argument has been advanced in support of it. It's difficult, on the face of the statement by itself, to suggest that the statement was prompted. The judge having seen and viewed the witnesses, he was the best person to decide on that ground alone whether the statement on the face of it was free and voluntary. 21. Referring to the additional ground of appeal, it is true that the trial judge said in his reasons for verdict as follows:-
Later he said, at page 14 of the transcript, as follows:-
We observe that in the course of evidence in the general issue, the father of the appellant offered to give evidence on behalf of the appellant practically on the last day of the trial. He alleged that the appellant returned home shortly after 11 p.m. There was evidence by the 3rd accused saying that he was with the appellant on the evening of 4th. They parted company at ten past eleven that evening. It is argued on behalf of the appellant that such evidence corroborates the alibi evidence put up by the appellant who himself gave no evidence. Counsel said that since the 3rd accused parted company with the appellant at about ten past eleven, it corroborated the father to the extent that he would be home shortly after eleven. That being the case, it was an alibi raised by the appellant. It is for the Crown to negative that alibi. It is not for the appellant or his witnesses to satisfy the judge that such alibi be true. 22. It would have been more satisfactory if the trial judge abstained from using the words "to satisfy me". However, we find that this is not objectionable because, having regard to the totality of the evidence, one cannot complain that the judge was sceptical about the evidence of the alibi. 23. The appellant's father had known of the arrest of the appellant presumably from the date of arrest. He was in court day after day throughout the trial. It was not until the last minute that he offered to give evidence. If the appellant left the 3rd accused at 11.10 it would require some imagination to stretch the meaning of the word "about" used by the 3rd accused and the word "shortly" used by the appellant's father. We find that there is no substance in this additional ground of appeal. 24. We now come to the complaint of the other three grounds alleged. We find it very difficult to reconcile the time taken to obtain the confessional statement. According to the prosecution witness, P.W.7, he started to take the cautioned statement at 1704 hours on the 10th of October, 1981. He had to write out the preamble. When the appellant finished the statement, he allowed the appellant to read it over and the latter signed his name without making any alteration at 1825 hours. The total time was an hour and twenty-one minutes. The length of the caution together with the statement consists of 14 horizontal lines of Chinese writing. In his evidence, the constable said it took him 30 to 40 minutes to write out the caution and the particulars of the offence alleged. It took the appellant about 15 minutes to write the statement. Putting it at the highest in his own estimate the time taken should be 55 minutes, leaving a gap of 21 minutes unaccounted for. He then said: "Well, of course, the appellant have to read over it and he had to read it over to appellant." Having regard to the length of the statement and the time required to read it over by both the constable and the appellant, we cannot help feeling that there is a doubt whether it was really necessary to take such a long time. 25. This is not the only objection. It was said that the appellant had been taken to various rooms, assaulted. There was medical evidence which suggests that the injuries on the body of the appellant were consistent with hard impact sustained in the course of the previous seven days i.e. within the period when the appellant being under arrest. 26. The trial judge gave reason for his ruling to which I have referred. In his ruling he gave some detailed reason why he rejected the statement given by the 2nd accused whom he acquitted. However, his reason for admitting the statement by the appellant, was no more than what appears in the two paragraphs that have been cited previously.It is true that a district judge is not obliged to give detailed reasons as to why he does or does not believe a certain witness. Indeed, in the case of CHAN King-man & Others v. The Queen (1) the learned Chief Justice cited a passage from Mr. Justice Blair-Kerr in the case of R.E. Low (2) as follows:-
With this passage, we respectfully agree. In a case when there is evidence in support of the finding that is reasonably clear that finding should be so inferred. However, in the case of YEUNG Chiu v. The Queen (3) Mr. Justice McMullin, having said of the duty of judge in giving reasons and whether he is obliged to give detailed analysis of the reason, said:
27. Speaking for myself, I can see no conflict in the two extracts of the two judgments so cited. It is a basic principle of law that where a trial judge gives reasons for his findings of fact, the court of appeal will interfere only when there is no evidence in support of that finding, or that the reason so given by the trial judge is wrong in principle. When a judge gives no reason for his finding, this court will not normally interfere. However, the appellate court will take into consideration all the evidence in the court below and will have no option but to take over and consider the case itself and see whether there is reasonable evidence to support the finding of the court below. 28. In the present case, we start with the proposition that the statement so obtained took a much longer time than it was necessary to have it written out. This, coupled with the allegation, however exaggerated the appellant being taken from room to room and the medical evidence that the injury so sustained could have been sustained within the period while the appellant was in police custody, and that the appellant took the very first opportunity to complain when he was transferred to the Pik Uk Correctional Institution, we cannot help feeling that there should have been a lurking doubt in the mind of the trial judge. In that event, the trial judge should not have admitted the cautioned statement. Once that cautioned statement was rejected there was absolutely no evidence against the appellant. 29. For this reason, the appeal is allowed. The conviction is quashed. The sentence is set aside.
(1) 1980 H.K.L.R. 105 (2) 1961 H.K.L.R. 13 (3) Crim. App. No. 1043 of 1975 Representation: J.G. Stevenson (Chung & Kwan) for appellant Miss Ida Cheung (Crown) for respondent |