The Queen v. Wan Kit Hung

CACC000620/1987

IN THE COURT OF APPEAL

BETWEEN

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Coram: Hon. Silk, V.- P., Power, J.A. & Hooper,  J.

Date of Hearing: 7th April 1988

Date of Judgment: 7th Apri1 1988

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J U D G M E N T

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Silk, V. - P.:

1. The Applicant Wan Kit Hung was convicted on two counts in a charge sheet which contained in all a total of thirteen counts. The two were Joint counts with four other defendants who were on trial at the same time. The remaining counts concerned those other defendants.

2. The first was conspiracy to commit robbery and the second possession of an offensive weapon.

3. In the early morning of 15th May, two traffic police constables on motor cycle patrol in Clear Water Ray Road came upon an accident. A car, number CY1319. had run into some railings outside the Ngau Chi Wan Fire Station. Five men were seen to be getting out of that car. These five eventua1ly became the defendants at trial. The Applicants the 1st defendant.

4. One police constable spoke to the Applicant who said he was the driver of the car and the other then went up to inspect the damage. In the car, two knives were found, one was in the well in front of the driver's seat, the other was at the back of the car at the rear of the driver's seat. The judge quite properly held both of them to he offensive weapons. Other items were also found in the car.

5. The Applicant was asked to whom the knives belonged and he said one of them had been brought along by the fifth named defendant but he did not know where the second came from. He also said that they were for use in "robbing, couples". That emerges from the evidence of Police Constable 20388 - PW2 at trial.

6. The second constable who as at the scene, and who was PW1 at trial, gave a somewhat different version and it is the contention of Mr. Forrest, who appears for the Applicant in this Court, that the difference was sufficiently great to show unreliability on the part of the prosecution witnesses.

7. The trial judge, having considered the evidence of the two constables, was satisfied that the Applicant being the driver of the vehicle and aware of the presence of the knives was in possession of them. He felt that this was sufficient evidence of the, Applicant's guilt on the second count, that is the possession of offensive weapons, of itself without its being, necessary to consider other evidence which was led in the case.

8. Mr. Forrest, takes the point, that the apparent: conflict between PW1 and PW2 and the possibility that the Applicant was not aware of the presence of the knives until after the crash were matters which the trial judge should have borne in mind and he should, on a proper evaluation, have found both points to be sufficient to show the unreliability of the witnesses and therefore the, conviction could not be based on their evidence.

9. The judge found that both constables were honest witnesses. Mr. Forrest makes the Point that honesty and reliability do not necessarily run hand in hand. The judge did consider the first issue, that is the apparent conflict, but, not unreasonably did not consider the second. On the face of the evidence as it stood, the knowledge of the Applicant was shown to exist. If the constables were believed, as they were, he attempted to put the blame on the 5th defendant.

10. There can be no suggestion that the Applicant has any onus cast upon him to give him evidence but he cannot now, in my judgment, be heard to complain that the judge Took the view he did on the evidence as it stood before him and which evidence he held to have come from honest witnesses. Perhaps the resolution of the apparent conflict could have been made in clearer terms but it is sufficient to say that in his Reasons for Verdict the trial judge showed himself to be aware of it and his conclusions are ones to which he was entitled to come.

11. The second main ground advanced by Mr. Forrest is in relation to a cautioned statement, exhibit P11. This statement was taken at Wong Tai Sin Police Station at 11.30 p.m. on 15th May. That is some considerable time after the arrest of the Applicant but within a 24-hour period. It was taken, by Police Constable 14836 who was not one of the arresting constables nor a member of that particular team. That constable showed to the Applicant a series of statements made by the co-defendants. He askedhim if he were willing to read them and he then cautioned him as follows:

"I now caution you, Wan Kit Hung. You are not obliged to say anything unless you wish to do so, but whatever you say will be taken down in writing and maybe given in evidence. Do you understand?"

12. The Applicant read them. Having finished the reading he said': "Their statement's have betrayed me." There was then a further caution* administered to him, which he stated he understood, and he went on to say:

"At that time, someone proposed to us to go to commit robbery together. I also knew about it and agreed to go together to commit robbery. Anyway, it was not I who made the proposal. However, I do not remember who made the proposal."

13. The admissibility of that statement was contested and the grounds advanced at trial were first that a person, later identified as a Detective Station Sergeant, had aimed a kick in the direction of the Applicant while the Applicant was at the Airport Police Station. This caused the Applicant to cover his face and he was told that he had better admit because a person nicknamed "Fat Boy", who was in fact the 2nd defendant, had already admitted. There was a further threat that if the Applicant did not, admits something would be done to that defendant. These allegations were denied by the Sergeant concerned whose evidence remained the evidence in the case.

14. Prior to exhibit P.11 being taken, another statement, identified as P10, had also been taken but this by one of the arresting constables. The judge ruled that statement to he inadmissible. In ruling on it, he said:

"I have to accept the possibility that he (the constable) may be similarly mistaken as to whether anybody else had the opportunity of speaking to the defendant before the statement was taken."

and he went on:

"I should add that I believe in all probability that PW2 started the statement down in the Report room and concluded it in the Criminal .Investigation Department but that is not his evidence and is not what the statement actually says.

15. Judge Lonely felt that it was incumbent on the Crown to establish beyond reasonable doubt the circumstances in which the statement was made and the events that it so as to exclude beyond all seasonable doubt the occurrence of anything improper. This here seems to reflect the narrow view of the onus on the Crown; that is that they must cover every single moment of the period during which a person is under arrest. While it is undoubtedly correct that the onus of proving a statement to he voluntary rests beyond reasonable doubt upon the Crown, this Court has said on previous occasions that the narrow view which the judge adopted places too great an onus upon the Crown and it is not necessary to cover every single moment unless specific complaints are made. But, having said that the seeing and the hearing judge has the feel of the case and we accept that it is proper for him to come to his own views having heard the witnesses and assessed their evidence.

16. Mr. Forrest suggests that if there had been pressure, the possibility of which seems to have been in the judge's mind; then it would not have been dissipated between the taking of P10 and the taking of exhibit P11. While the judge gave reasons for his view that any such pressure had been dissipated those views are flawed.

17. Mr. Forrest makes the further point that certain of the statements shown to the Applicant before he made the admissions in exhibit P11 were themselves,in the course of the trial found to he inadmissible. He submits that if the constable who showed these statements knew that they were, as he put it, "false statements", then the constable was deliberately.taking an unfair advantage of the Applicant. If they were honestly shown then the Applicant was placed under a disadvantage in so far as they were later' held to be inadmissible.

18. The statements which were held to be inadmissible were ones concerning a robbery unconnected with the charges before the Court and which the Applicant himself denied. Two of the statements which were shown to him, those of the second named and the fifth named defendants, related to events concerned in the charges before the Court and both these statements had been admitted,

19. The trial judge was asked, he having treated the issue of the admissibility of the statements made by various defendants as separate issues in relation to each of them, to reconsider his ruling on the admissibility oft exhibit P11. He did so but declined to accept the invitation to rule exhibit P11 inadmissible.

20. In the judge's ruling as to admissibility there was one passage which gave, us some pause for thought: That is where he said in relation to the dissipation of pressure:

"Thirdly, any pressure that he may have felt he was under to give an account of what had happened would have been dissipated by giving P10 which is an alleged account of what occurred that evening. Indeed, P11 adds nothing to P10 but it appears to me to he a reaction to being shown the statement of his co-defendants."

21. Again, we think that this passage could have been more happily phrased. It seems to us however that what the judge was saying was that any pressure which was in existence at the recording of P10 had been released by the giving of that statement and bearing in mind that the Constable who took exhibit P11 was a different one from he who recorded P10, was not of the same team and further that the Applicant had been shown statements which clearly implicated him in the offences with which he was charged, then what he said in exhibit P11 was a natural reaction to the fact that he thought himself to have been betrayed.

22. It has been suggested that in any event looking at the matter overall and, of course as I have said it must be borne in mind that the judge merely had the evidence of the prosecution and nothing else, the concept of unfairness should have been brought into play and the judge should have excluded the statement on that basis.

23. With respect, we do not agree. "Unfairness" is something which, if it exists, is within the reasons for refusal to admit statements where the allegations come within Abraham⁽¹⁾, as added to by Ping Lin⁽²⁾. Of itself, it is seldom something which can render a statement inadmissible and its use for that purpose must be a very sparing one. Be that as it may, we do not think unfairness to have occurred here.

24. Mr. Forrest has also raises an issue on rule 8 of the Judge's Rules, 1912 - 191R. This relates to where two or more persons are charged with the same offence and statements are taken separately from them then the police should not read the statements of one to the other, but each should be given a copy and nothing should he said or done by the police to invite any reply. If the person charged does desire to make a statement he should then he cautioned. Because the Applicant was not charged, nor were the other persons whose statements he was shown at the time he was shown them, Mr. Forrest submits that exhibit P11 was in breach of this rule. He adds that, by administrating a caution before the statement were read by the Applicant the Constable was saying or doing something which invited a reply.

25. Rule 8 is clearly intended to protect those who have already been charged from being questioned or having to make statements after that charge. The Applicant here was not in that position. We do not think that rule 8 is applicable here and, in any event, we do not think that the caution which was administered could he considered in any way to he an invitation to make a reply. There is an express warning contained in it he is not obliged to say anything.

26. We do not find these convictions to he either unsafe or unsatisfactory and the applications are therefore refused.

(1) [1914] A.C. 599

(2) [1976] A.C. 574

Representation:

Robert Forrest, Esq. (John M. Pickavant & Co.) for Appellant

I.G. Cross, Esq. for Crown/Respondent