Li Wing Loi v. The Queen
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CACC000601/1974 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 601 OF 1974 -----------------
Coram: Briggs, C.J., Huggins & McMullin, JJ. Date of Judgment: 17th October, 1974. ----------------- JUDGMENT ----------------- 1. In this case the appellant, LI Wing Loi, a young man of about 17 years, appeals against his conviction for the murder of IP Kin-wing. 2. At about 4 a.m. on September 9th, 1973. IP Kin Wing went to a tea-house with two friends, Mr. Kwok and Miss Wong. The tea-house is on the first floor and the three persons went upstairs and sat at a table. 3. A large party of persons arrived and sat at the next table. They were joined by a smaller party. Mr. IP, the murdered man, waved to one of the persons sitting at the large table, who waved back. There was no other communication between the two tables. 4. The time came for Mr. Kwok, Miss Wong and the victim to leave. And they descended the staircase, Mr. IP, the victim, in front followed by Mr. Kwok and Miss Wong. 5. The party reached the bottom of the stairs when two men attacked Mr. IP. Mr. Kwok said he saw one of them stab the victim with a weapon and Miss Wong said she saw one of the men punch him. Miss Wong and Mr. Kwok retreated up the stairs quickly and practically every one in the teahouse ran off. 6. The victim was found lying in the roadway shortly afterwards. He died from the effect of those wounds before he reached hospital. 7. The appellant was not arrested until March 1974, some six months later. The Inspector of Police who made the arrest said that when he went to look for the appellant he had no evidence incriminating the appellant which he could produce in court. However, upon learning of the identity of the appellant he arrested and handcuffed him and took him to a police station. 8. While he was in custody the appellant was asked certain general questions by a detective sergeant. His answer to one question seemed to indicate that he had taken an active part in the killing of IP Kin-wing. The detective sergeant therefore cautioned the appellant in the usual form. After the caution had been administered the appellant made a full and frank confession. He described how two others besides himself were involved. Himself and one of the other two men waited at the bottom of the staircase for the victim to come down. When he did so the appellant and the other man attacked him. The appellant said he tried to stab the victim and later punched him. Then the victim, the appellant and his accomplice ran outside. The accomplice has not been found. 9. The trial judge held a voire dire and decided to admit the statements made by the appellant. He admitted both the questions and answers given and made after the appellant had been arrested but before he was cautioned as well as the confessional statement he made after being cautioned. 10. In making his ruling, the trial judge referred to the fact that part of the statement of the appellant, namely the questions and answers, had been taken when he was in custody but before he had been cautioned, and that this was in breach of the Judges' Rules. However, he pointed out that his sole duty was to decide whether the statements made by the appellant were admissible in evidence, that is to say, whether he was satisfied beyond reasonable doubt that the statements were voluntary statements: non-compliance with the Judges' Rules not being fatal to the admissibility of a statement. The trail judge was so satisfied and admitted the statements, as I have already said. 11. Counsel for the appellant in the court below admitted that the appellant was in the tea-house at the relevant time. The statements of the appellant contained considerable detail as to the motive for and circumstances of the killing. The appellant elected to give no evidence in his defence. The purpose of the admission was to explain the details contained in the statements. 12. Apart from this admission and the statements there was, it is safe to say, virtually no other evidence against the appellant. 13. Various grounds of appeal were filed. We think it is only necessary to deal with two. 14. The main ground of appeal was that the trial judge was wrong to admit the statements of the appellant because they include answers to questions which were put to the appellant after he had been arrested but before he had been cautioned. 15. Mr. Mumford, for the appellant, suggested that the Judges' Rules which state that persons in custody should not be questioned nor be allowed to volunteer a statement until they have been cautioned are declaratory of a rule of law or at least of practice which is binding on the courts apart from the Judges' Rules. 16. To prove this theory, Mr. Mumford quoted a long line of cases, starting with Gavin (1) and ending with Dwyer (2). 17. We do not think that it is necessary for us to review these cases here. It is enough to say that we do not think that these cases prove that there was such a rule of common law or such a practice. All they show is that the courts have not been wholly consistent; some judges being more strict than others in excluding statements made by persons in custody who have not been cautioned. 18. Counsel also suggested that one purpose of the Judges' Rules is to enable the courts to discipline the police and that the Rules in fact enable the courts to say that they will not listen to statements made by a person who has been arrested but not cautioned. 19. This most emphatically is not the case. It is no part of the duties of the court to discipline the police or to interfere with the investigation of criminal activities in any way. 20. It is settled law that what the judge has to do is to satisfy himself beyond reasonable doubt that any statement put before him is a voluntary statement as that phrase has been interpreted in the courts. One matter he can take into consideration is whether or not there has been a breach of the Judges' Rules. 21. The principle was very clearly stated by Davies, L.J. in R. v. Prager (3) and has been quoted many times. He said: -
22. In our view the record clearly shows that the trial judge exercised his discretion in a proper manner and rightly admitted the statements. 23. The second ground of appeal with which I shall deal also concerns the Judges' Rules. 24. In his summing-up the trial judge referred to the Judges' Rules when referring to the weight that the jury should give to the statements of the appellant which he had admitted. The judge said: -
25. He then goes on to say -
26. The second of those passages was perfectly right. The first was also right although it could possibly have been open to misunderstanding. The fact that there had been a breach of the Judges' Rules did not concern the jury but the circumstances which constituted a breach of the Rules did concern them for those circumstances might indicate that less weight ought to be given to the confession than might otherwise have been the case. The reason that the judge referred to the Judges' Rules in his summing-up was because counsel had referred to them when addressing the jury. In our view this should not have been done. 27. In the voire dire, when the jury is not present, it is proper for counsel to refer to the Judges' Rules for the question of admissibility of a statement is then in issue. However, when a statement has been admitted it is for the jury to decide what weight to give to it, and it cannot assist them to know that there has or has not been a breach of the Judges' Rules. Indeed, there may be a danger that the jury will think that they are rules of law instead of advice to the police. 28. In the event, there is nothing in this ground of appeal. This application for leave to appeal is dismissed.
Representation: (1) (1885) 15 Cox. 656 (3) (1972) 56 Cr.App.R. 151. |