Leung Wing-ning v. The Queen

CACC000656/1980

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Coram: McMullin, V.-P., Li, J.A. and Silke, J.

Date of Judgment: 12th January, 1981.

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JUDGMENT

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McMullin, V.-P. :

1. I am asked by Li, J.A. to say that he is in agreement with the judgment which I am about to deliver.

2. The appellant was convicted upon two charges of blackmail and one of theft.

3. In February 1979 he was working as a chauffeur for Mr. AU Kin-hung, a director of Messrs. Davie Boag. On the 26th of February Mrs. Au received a number of telephone calls from an unknown caller who demanded a sum of $50,000 accompanied by a threat that harm would come to herself and her children if it were not paid. Eventually, acting under fear of this threat and after some bargaining Mrs. Au agreed to deposit $30,000 in a certain telephone booth nominated by the caller. She was assured that that would be the end of the matter.

4. However, on the 28th of February the same caller demanded $20,000 on the pretext that "his big brother" was pressing him for the balance of the sum originally demanded. The police were contacted and Mrs. Au was supplied with fake money which, following a subsequent telephone call, she placed in a telephone booth outside St. Paul's Convent Hospital at Tung Lo Wan Road. Several police officers in plain clothes including a woman police sergeant were stationed in the vicinity keeping watch. After the money had been deposited by Mrs. Au and she had gone away a man was observed to approach the telephone booth. He did not enter it but stayed for about 20 minutes in its vicinity glancing at it frequently as he walked to and fro outside the entrance to the hospital. Eventually, he entered the hospital and went upstairs in a lift and was thereafter lost to the sight of the police observers. The time was then about 2.30.

5. Shortly afterwards, at about 3.00 p.m. W. Sgt. Lam (P.W. 7) and two other constables on instructions from their superior, Inspector Leung, went to the offices of Messrs. Davie Boag in Oi Kwan Building, Oi Kwan Road, and asked to see an employee there called Simon. The Export Manager, Mr. Joseph Wong, called this man into their presence and the witnesses recognised him as the man they had seen hovering near the telephone booth earlier. This man was the appellant.

6. Mr. Joseph Wong told the court how the appellant had asked for three days' leave to attend to urgent business in Canton. He returned to the office at 8.45 on the 28th of February and soon after that was instructed to drive a Mr. Ma to Kowloon. He was then wearing blue trousers and a light blue shirt and sunglasses and this outfit generally matched the description given by the police witnesses of the man they had observed shortly after 2.00 p.m. near the hospital on that day.

7. There was evidence which was not disputed that the appellant had not gone to Canton but had instead gone to Macau on the 26th leaving by the ferry some time after 12.15 on that day. Immigration chops on his travel documents showed that he had returned on the 27th to Hong Kong.

8. After his arrest at the office of Messrs. Davie Boag the appellant was taken to Happy Valley Police Station shortly after 4.00 p.m. Later in the afternoon he was taken to his own home for a routine search in the company of W. Sgt. Lam (P.W. 7), Sergeant WAN Kwong-sum (P.W. 4), Inspector Leung and another sergeant. The party went there in two police cars. The police spent 40 to 45 minutes at the appellant's premises and then returned to the police station the appellant travelling with W. Sgt. Lam (P.W. 7), Sergeant Wan (P.W. 4) and another police officer in one of the cars.

9. At about 7.00 p.m. that evening the appellant was interviewed by S.D.C. TAM Cheuk-wun (P.W. 8) who was one of the police officers who had gone to the accused's home premises but had not been in the car with him either going or coming back to the police station. This interview lasted about 3 hours and in the course of it the appellant made a long statement which amounts to a full confession to the crimes described in the three charges.

10. Mr. Duckett for the Crown concedes that in the absence of this evidence the remaining evidence although amounting to a case of strong suspicion against the appellant would not be sufficient to support the convictions on any one of the charges.

11. The defence resisted the introduction of this evidence on the ground that there had been gross impropriety in the conduct of several of the police officers prior to the taking of the statement.

12. This issue was not tried by holding a trial within a trial. The judge preferred to use the "alternative procedure" and at the conclusion of the prosecution case the defendant gave evidence on the issue of the voluntariness of the statement and he described the ill-treatment which he said he had received at the hands of the police. His complaint against P.W. 8 was that that officer having questioned him in detail about his family background and his movements between the 25th and 28th of February and having recorded his answers upon a piece of paper then concocted a lengthy statement which took some 2 hours to write and under threats of beating caused the appellant to sign it in several places without revealing to him the nature of the contents.

13. This evidence was controverted by P.W. 8 and having considered all the evidence put before him on the issue of admissibility the judge ruled that the statement was voluntary and he admitted it.

14. Counsel for the Crown then closed his case and the defendant did not give evidence on the general issue.

15. No point is now made concerning the behaviour of P.W. 8. The single point upon the appeal concerns what was alleged by the appellant to have happened while he was in the custody of P.W. 4 and the other police officers on the way back from his flat to the police station. He said that he was beaten and threatened by P.W. 4 who also tried to expel him from the car and threatened to shoot him as an escaping prisoner. He was thus already in a state of terror when he was questioned later by P.W. 8.

16. The ground of appeal with which we are concerned is framed as follows :

"that one of the objections to the admissibility into evidence of the appellant's cautioned statement (P. 3) was that the appellant was beaten, threatened and induced by P.W. 4 to make the said statement. The Crown failed to call P.W. 4 to give evidence in a voir dire to rebut these allegations."

17. In fact there never was "a voir dire" and the sequence of events surrounding the trial of the issue of voluntariness underscores the kind of difficulties which may arise when the more convenient "alternative procedure" is adopted. Since P.W. 4 had not actually been concerned with the taking of the statement counsel for the Crown, presumably unaware at that stage of the nature of the allegations to be made against that witness, did not question him about the visit to the appellant's premises and the return therefrom. After another witness had been called Mr. Sujanani for the defence told the court that he needed to clarify his instructions in relation to the statement which he anticipated would be introduced in evidence.

18. It should be observed that at the outset of the trial, as the record shows, counsel was in possession of the precis of the evidence of the various witnesses to be called by the Crown and was also aware that a copy of a statement alleged to have been made by the defendant had been included in the papers put before them.

19. There was an adjournment over the weekend before the trial actually started during which one might have expected counsel for the defence to have received at least some instructions. What is clear however is that the solicitor's clerk who should have been attending him was not present in court while the 4th and 5th witnesses were giving their evidence and we must assume that in addressing the court as he did before the 6th witness gave evidence defence counsel was not yet possessed of the details of the appellant's allegations against P.W. 4. Counsel's complaint about the lack of instructions was made during the morning session and the court adjourned first to 11.30 and then to 2.30 when the solicitor appeared and explained the absence of the clerk. The court was informed that Mr. Sujanani was then properly instructed.

20. Thereafter P.W. 7 was vigorously cross-examined as to the incidents which were alleged to have occurred during the journey from the appellant's premises to the police station. She denied that those improprieties or any improprieties had occurred.

21. At the conclusion of her evidence the judge announced that he was going to adopt the "alternative procedure" and he said :

"Witnesses are at large and should be cross-examined on the general issue. The accused may give evidence but confined to the issue of admissibility and I will give my ruling on the issue of admissibility prior to the close of the prosecution case. As regards the last witness, any further questions directed to admissibility, must be put now."

Mr. Sujanani then said he had nothing further to ask and Mr. Goodbody for the Crown asked what the grounds of objection were. These had already been made apparent in the cross-examination of P.W. 7 but Mr. Sujanani gave a brief condensed account of the allegations which, of course, involved the allegation that it was P.W. 4 who had beaten and bullied the appellant. P.W. 3 was then called and cross-examined on the admissibility issue and at the conclusion of his evidence Mr. Goodbody for the Crown said :

"No other evidence to call on this issue or generally."

22. The appellant then was called and gave evidence and the issue was decided in the manner I have already indicated. The appellant did not give any further evidence and following a short adjournment he was convicted upon all three charges.

23. A simple but important point is thus in issue : must the Crown, in discharge of its duty to prove affirmatively the voluntary character of a statement which it seeks to introduce in evidence, call any person whose conduct has been impugned to give evidence in rebuttal or may it rely upon other evidence to rebut the allegations?

24. Mr. Leung for the appellant relies upon a recent decision of the Chief Justice in LUNG Wing-kei v. The Queen⁽¹⁾ an appeal from the decision of a magistrate. In that case four police officers approached the defendant in a public street in the course of a large-scale police raid. He made a statement to one of the police officers admitting membership of a triad society. The defendant said that the statement was a concoction of the officer who first approached him and that his signature thereto had been procured by threats made by another member of the police party. The issue was tried upon voir dire and one of the constables testified that he had taken the statement from the defendant and that the defendant had never been threatened by any member of the police party. Another police constable was tendered for cross-examination and was not cross-examined. The defendant in giving evidence said that neither of those constables was the one who had threatened him. He said that threats had been made by the one who first approached him and this by a process of elimination indicated another constable, D.C. 12927, who was neither called by the Crown nor tendered for cross-examination in the voir dire. The learned Chief Justice said :

"Thus, the officer against whom allegations of threats were made by the defendant was sufficiently identified, though I quite understand how in the bustle and confusion of the trial this may not have become immediately apparent to the Crown, Nevertheless, the Crown did not call this officer to rebut allegations of improper pressure which had been levelled against him. What is the effect of this failure?"

He then referred to the nature of the onus on the Crown - which is not in issue here - and he went on:?

"Where the defence puts forward allegations of improper conduct on the part of a police officer who has been sufficiently identified, it is for the Crown to establish, by calling this officer (or another officer where appropriate) that the allegations are unjustified and that the statements were of a voluntary nature."

The conviction was quashed.

25. Mr. Duckett for the Crown concedes that Sergeant 194 ought to have been called since he was available as a witness and it was his conduct which had been specifically impugned. He accepts the basic principle as propounded by Pickering, J. in WAT Kwok-leung v. The Queen⁽²⁾ viz. : that the burden upon the prosecution is that of proving affirmatively that the statement was freely and voluntarily made. He maintains however that there is no rule deriving from precedent which would prevent the Crown from discharging that onus by evidence other than the evidence of the person whose conduct has been impugned. He relied upon certain passages in LI Ming-kwan⁽³⁾ and POON Chi-ming⁽⁴⁾ which he said supported this view. These cases are not however of much assistance. In LI Ming-kwan the Court of Appeal rejected the contention that the Crown had failed to prove affirmatively the voluntary nature of a statement merely because it had failed to call a particular police officer in whose custody the defendant had been for a period of hours and since there had been no allegation of impropriety against that officer. In POON Chi-ming, delivering the judgment of the court I was concerned with an allegation that a named police officer in whose custody the defendant had been for a period of two hours had threatened him and urged him to make a confession. The only witness called by the Crown was a police inspector who could not speak of the period under question. Although the appeal was dismissed it was said (page 427) that all periods of custody ought to be covered by affirmative evidence from the side of the prosecution. That however is now to be understood as meaning that all periods of custody in which improprieties are alleged to have occurred must be so covered. (See LO Wing-cheong v. R.⁽⁵⁾). Even thus explained that case does not purport to decide that where a particular person is identified as the malefactor and is available as a witness it is essential that he be called in order to rebut the allegation.

26. Mr. Duckett indeed derives comfort from expressions used in both those cases in seeking to persuade us to the contrary. At best however that support is tenuous and oblique for in neither case was the court directing its mind to the particular point which is before us now.

27. The most direct authority is that in the judgment of the Chief Justice which has been referred to already. We are of course not bound by that authority although it necessarily deserves, as a considered opinion, very careful consideration. Moreover, although the researches of counsel in the present case did not extend so far, there are two other recent decisions which we find it necessary to consider before propounding a rule which will necessarily be binding upon all the courts in this territory.

28. In NG Tat-shing and CHEUNG Kuen-yuen v. The Queen⁽⁶⁾ the court was dealing with an appeal from a conviction on a count of conspiracy. At the trial evidence had been tendered of a verbal confession made by one of the defendants. Objection was taken to it on the ground that it had been produced by a threat made by Jones, an officer of the I.C.A.C. Jones was not called as a witness but another officer, Lee, who said that he had been present when Jones questioned the defendant was called and he denied that there had been any impropriety. The learned Chief Justice said (page 10) of the judgment :

"This was an unfortunate omission by the Crown. And in our opinion this made it impossible for the Crown to discharge in the proper manner the burden which lay upon it to establish that this statement was voluntary."

29. At first sight that might seem to be a clear statement favouring the principle for which Mr. Leung argues in the present case. The point is however somewhat clouded by an earlier passage in the judgment where it is said :

"The evidence does not make it clear as to when this threat was supposed to have been delivered, nor as to whether it was delivered by Jones when he and the second appellant were alone, or when LEE also was present."

It appears that Lee was not asked whether Jones could have been alone at any time with the appellant. Although Lee had asserted that he was present whenever Jones questioned the second appellant the Court of Appeal was evidently not satisfied that the evidence was sufficient to show that that was the case. This case therefore does not seem to propose any principle wider than that which can be found in LO Wing-cheong v. The Queen and the earlier cases. Presumably if Lee had been asked that question and had replied in the negative his evidence might have been regarded by the Court of Appeal as sufficient to discharge the onus on the Crown. Certainly, that is how the decision in NG Tat-shing appears to have been understood by Zimmern J. in AU YEUNG Choi-ling⁽⁷⁾. In that case the admissibility of the defendant's statement was tried upon voir dire. She accused two police officers of having bullied her to make a statement. They were said to have been together at the time. Only one of them was called to give evidence on the voir dire and he said that neither he nor the other officer had at any time threatened her or induced her to make a statement. The trial magistrate admitted the statement and on appeal Zimmern J. referred to LO Wing-cheong and to NG Tat-shing and said :

"As I read the authorities which bind me it is open to the prosecution to call one officer to cover each allegation without calling all alleged to have been involved."

30. That, we think, correctly states the extent of the Crown's duty in this matter and is in accordance with the other authorities as we understand them. It is true that W. Sgt. Lam (P.W. 7) was not the officer directly accused and that Sgt. Wan (P.W. 4) was said to be the only one of the three officers in the car who actually assaulted and threatened the defendant. But if any such thing had occurred in the presence of P.W. 7 and the other officer and without remonstration or objection on their part it would be difficult to regard them as not having been involved. Although therefore it is always highly desirable in any case in which a particular officer is accused of wrongful behaviour that he should be called to give evidence on the admissibility issue, and although there may be circumstances when the court will feel it unsafe to rely upon other evidence which purports to discharge the onus on the Crown, we are satisfied that there is no principle preventing the onus from being discharged by evidence aliunde. Furthermore, we do not think this was a case in which reliance upon such other evidence was unsafe or unwarranted.

31. In the present case the suspect witness had actually been called and was available at the time when P.W. 7 was being challenged in accordance with the instructions of counsel. It would have been better if counsel for the Crown had recalled P.W. 4 and at least tendered him for cross-examination but it would be unrealistic to overlook the fact that it was open to defence counsel at that stage to demand his recall.

32. The judgment of the Court of Appeal in NG Tat-shing was delivered by the learned Chief Justice. It seems unlikely therefore that in LUNG Wing-kei (which was an appeal from a magistrate) he can have intended to lay down a more stringent rule than that which is to be gathered from the earlier case and we do not think he is to be interpreted as doing so.

33. For these reasons we think the appeal must be dismissed.

Representation:

Frankie Leung (Michael Jenkins & Co.) for appellant.

Duckett for Crown/respondent.

(1) Criminal Appeal No. 386 of 1980.

(2) unreported Criminal Appeal No. 880 of 1972.

(3) (1973) H.K.L.R. 275.

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

(5) Criminal Appeal No. 378/79.

(6) Criminal Appeal No. 56 of 1979.

(7) Criminal Appeal No. 615 of 1980.

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 656 OF 1980

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Coram: Court of Appeal (McMullin, V.P., Li, J.A. & Silke, J.) in Court.

Date of Judgment: 12th January, 1981.

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JUDGMENT

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Silke, J.:

34. On the 26th February 1980 Madam So Po Lin the wife of a successful businessman Mr. Au Kin Ho was in a flat at Fontana Gardens, Causeway Bay where she lived with her husband and two children, a girl of fourteen and a boy of thirteen, and an amah.

35. Mr. Au was away.

36. At 9.20 a.m. on that day Madam So was called to the phone by her amah and the caller told her that a "they" wanted $50,000 which she was to take downstairs to a telephone booth near St. Paul's Hospital. She was told that if she made a report to the police or if she refused to pay harm would be done to her family and her son.

37. The time limit for the deposit was 10 a.m. and Madam So was frightened.

38. At 10 a.m. she received another telephone call the caller again making reference to the $50,000 whereupon Madam So said she did not have that amount and could she pay $20,000. The caller refused to accept this, saying "at least $30,000".

39. The time limit was extended to 11 a.m. Having gone to her bank and drawn out the money she went to the telephone booth put the money inside a telephone directory and left the scene returning home.

40. About one and one half hours later a further phone call was made to the flat and taken by Madam So's mother-in-law. Madam So could hear what was said by the caller which related to having "fixed it up".

41. A half an hour later then was yet another phone call, also answered by the mother-in-law, and words to the same effect were used. Madam So was sufficiently angry to take the telephone off the hook.

42. Two days later on the 28th of February the same person, she says, telephoned her and demanded another $20,000 intimating that his "big brother" was alleging that the caller had kept some of the money for himself - the original demand being for $50,000 and but $30,000 being received. The caller went on that he was being pressed for the balance and instructed Madam So to take $20,000 to the same telephone booth before 11 a.m.

43. Her mother-in-law then called Mr. Au's younger brother to the flat. After his arrival the phone rang again and was answered by Mr. Au Kin Ling, the brother-in-law. The caller said he wanted to talk to the absent Mr. Au and after being told he was abroad said he wanted $20,000 which was to be taken to the phone booth. The caller also said "If you are not going to pay be careful."

44. A report was then made to Happy Valley Police Station and as a result a Police Sergeant - Sergeant 194 Wan - came to the flat and connected a tape recorder to the telephone. After this was done the phone again rang and again the brother-in-law spoke to the caller. After some discussion Mr. Au Kin Ling told the caller the money was being taken to the phone booth.

45. Madam So did this, again putting the money inside the telephone directory in the booth. She then left.

46. This time there were watching amongst others Sergeant 194 Wan (PW4) DC 11287 Cheung (PW6) W. Sergeant Lam (PW7) and DC 6195 Tam (PW8), all stationed at various places in and around the hospital close to the telephone booth.

47. It was Sergeant 194 Wan's evidence that he saw someone nearby looking at the telephone booth and wearing gold rimmed sunglasses. This person stayed in the vicinity for about twenty minutes. W. Sergeant Lam also saw a person hovering around wearing what she described as spectacles, not sunglasses.

48. Later that afternoon acting upon the instruction of her superior she went to the firm in which Mr. Au Kin Ho worked and, upon a person called Simon being brought to the office of a Mr. Wong, she immediately identified him as the person she had seen hovering around near the phone booth.

49. The man Simon was brought to Happy Valley Police Station where he was seen by Sergeant 194 Wan who also identified him.

50. In court both these witnesses maintained the identification of the accused as the same Simon.

51. It was Madam So's evidence that he was a driver in her husband's firm and that she knew him as he had driven her husband - and herself on occasions.

52. But that was as far as her identification went for she did not identify the voice of the caller, nor did she see anyone at the telephone booth on either the 26th or the 28th February. Some time after the accused was brought to the police station he was taken from there to his home for the purpose of that place being searched. Two cars went on that journey, the party including an Inspector Leung, Sergeant 194 Wan, Sergeant 8859, W. Sergeant Lam and some other police whose names were not known to W. Sergeant Lam.

53. On the way to the accused's premises she was in the same car as the accused together with Sergeant 194 Wan.

54. A search was carried out and nothing of significance was found. The two cars started on their return journey with the same persons in the car containing the accused. That car arrived back at Happy Valley Police Station about five minutes after the car carrying the rest of the police party.

55. At the Police Station DC 6195 Tam, who had not travelled back in the car with the accused, interviewed him and recorded a lengthy cautioned statement.

56. It is conceded by Mr. Duckett, who appeared for the Crown on the hearing of this Appeal, that, without this statement, the case for the Crown was not sufficiently strong to found a conviction. The admissibility of this statement was contested.

57. It is necessary now to make reference to the course the trial took in the court below.

58. The trial started on the 4th July 1980 - a Friday - when Counsel then representing the accused asked for an adjournment on the ground that he had received the summary of evidence at about 5 p.m. the previous day and he wanted time to prepare the defence case. This request was granted and the trial proper started on the following Monday.

59. Before evidence was called the trial Judge adverted to the fact that he had received together with the summary of evidence a copy of the statement made by the accused. He criticised the fact that it had been sent to him. I mention this merely to underline the fact that Counsel must by then at least have been aware that there was in existence a cautioned statement.

60. Madam So was the 1st, Mr. Au the 2nd, a Mr. Wong the 3rd and Sergeant 194 Wan the 4th witness called.

61. It has significance in view of later events that Sergeant 194 Wan was not led by the Crown in relation to events surrounding the journey to and from the flat of the appellant after the latters arrest - the summary of evidence makes no mention of this journey - nor was he cross-examined in any way concerning those events.

62. After him, as PW 5, came an Immigration Inspector whose evidence related to the exit from Hong Kong on the 26th February of the appellant and his return, from Macau, on the 27th of that month. He had told his employers that he was going to Canton.

63. The Crown then called, as PW 6, DC 11287 Cheung Chi Shing. Before this witness entered into evidence Counsel for the appellant, who was under the erroneous impression that DC 11287 Cheung was about to give evidence as to the cautioned statement, intimated that he needed to clarify his instructions as to that statement but that he was without any instructing solicitor present and, as he was unable to speak directly to the appellant there being a language difficulty, apart from anything else, he needed an adjournment.

64. This was granted until 11 a.m. and upon the Courts resuming at that hour Counsel remained in the unfortunate position of still being without an instructing solicitor - the Judge quite rightly expressed disapproval requested the attendance of the solicitor concerned at 2.30 p.m. and adjourned to that time.

65. At 2.30 p.m. the solicitor was present, explained the absence of the clerk though illness, undertook to see that there was someone present to instruct Counsel at all times and apologised.

66. The trial then continued with the evidence of PW 6 DC 11287 Cheung being taken - not, as I have said, in respect of the statement.

67. Then came W. Sergeant Lam (PW7).

68. In the course of her cross-examination there were put to her certain allegations concerning the propriety of the conduct of Sergeant 194 Wan (PW4) which had bearing on the voluntary nature of the confessional statement taken by DC 6195 Tam but no criticism was directed towards her own conduct.

69. It was suggested to her that, in the car in which she was a passenger returning from search of the appellant's flat, Sergeant 194 Wan repeatedly told the appellant to admit to the blackmail, hit the appellant, told the appellant that he would pull the appellant out of the car and shoot him on the grounds that he was trying to escape and, after the car had stopped and the appellant refusing to be pulled out, again said to him that he had better admit to the blackmail. It was further put that the appellant then said "alright I admit" and that she herself said to the appellant that if he had admitted earlier there was no need for him to be beaten up.

70. The suggestion was that the appellant would have been in terror at the time he made the statement to the Constable.

71. All these suggestions were denied by the witness.

72. Immediately after her evidence concluded the trial Judge indicated that he intended to adopt that which is termed the "alternate procedure" in relation to the question of admissibility of the cautioned statement. He clearly indicated the procedure to be adopted, that is that the general issue and the issue of admissibility would run together and cross-examination should cover both, that the appellant could give evidence on the issue of admissibility and confined to that issue, that he would rule on the admissibility prior to the close of the case for the prosecution.

73. There was therefore no trial within a trial in the conventional sense.

74. Counsel for the appellant had no further questions to put to W. Sergeant Lam and the Counsel then appearing for the Crown requested that the grounds of the objection to the admissibility be given.

75. They were, in a truncated form, and, in respect of those allegations concerning Sergeant 194 Wan, were in line with the questions put to the W. Sergeant Lam in the course of her cross-examination.

76. It was also intimated that objection would further be taken to admissibility on the grounds that DC 6195 Tam, the actual taker of the statement, had, in effect, fabricated the statement and had offered the appellant an inducement to sign.

77. Immediately upon this DC 6195 Tam was called gave his evidence and was subjected to cross-examination.

78. Let me say now that in respect of the allegations as to the conduct of DC 6195 Tam, these were put to the witness when he gave evidence, that evidence was considered by the trial Judge and the allegations were rejected. No point arises in this appeal concerning them.

79. When DC 6195's evidence had finished Counsel for the Crown intimated that he had no other evidence to call on the issue of admissibility or generally. The appellant gave evidence on the issue of admissibility and that evidence was generally in line with the allegations put to W. Sergeant Lam and those put to DC 6195 Tam.

80. Both Counsel submitted on this issue and, after an adjournment for a day, the trial Judge ruled the cautioned statement to have been freely and voluntarily made.

81. It will be immediately apparent that Sergeant 194 Wan was not recalled by the Crown in the course of the alternate procedure prior to the appellants giving evidence nor was it sought to call him in rebuttal.

82. After the statement had been submitted no evidence on the general issue was called by the defence and there remained the final submission on behalf of the appellant.

83. In the course of that submission no point was taken on the failure of the Crown to call Sergeant 194 Wan.

84. The appellant was convicted and in his careful and full reasons for verdict the trial Judge considered both the question of the voluntary nature of the cautioned statement and the question of what weight he should give to it.

85. In so doing he made reference to the fact that the allegations regarding Sergeant 194 Wan were never put to him and later that the Sergeant "was not cross-examined at all relating to his alleged role in the inducing of the accused to make a statement."

86. The sole ground of appeal argued by Mr. Leung, who appeared for the appellant in this Court, consisted of three heads, viz:

87. I am taking it that by the use of the expression "voir dire" it is intended to mean the trial of the issue of admissibility conducted under the alternate procedure.

88. It is common case that the onus is upon the Crown to prove positively that a statement sought to be produced has been voluntarily made on the normal criminal burden.

89. It is common case that where allegations are made against members of the police force either generally or specifically then there is an onus upon the Crown to call evidence to rebut those allegations.

90. Mr. Leung relies heavily on Lung Wing Kei v. The Queen⁽¹⁾ (unreported), an appeal from a Magistrate, wherein the Chief Justice had for consideration the failure by the Crown to call the police officer, against whom the allegations were made, to rebut those allegations.

91. In that case it would seen that a police party of four officers conducted a police raid - there were other squads involved but the one with which the court was concerned was made up of an Inspector and DCs 12673, 9611 and 12927.

92. DC 12673 had given evidence to the effect that he had approached the appellant, asked him what he was doing there and had cautioned him in respect of a triad offence. The Constable sought to produce his note book in evidence for in that note book was an admission by the appellant that he was an office bearer of a triad society.

93. The admissibility of the admission was challenged, the solicitor for the appellant objecting on the grounds that there had been threats by another member of the police party. DC 12673 asserted that the appellant was never threatened, that DC 9611 was with him all the time and that DC 12927 did not see the defendant until after the statement was taken.

94. In the trial DC 9611 was tendered for cross-examination, of which there was none, but it would appear that DC 12927 was not called at all.

95. When the appellant gave evidence on the voir dire he alleged himself to have been threatened by "the officer who first approached him" and that this was not DC 12673 nor was it DC 9611. That left, if he were a member of the police party, D.C. 12927.

96. The Chief Justice then posed the question what is the effect of the failure to call DC 12927 - and went on to say:

"Where the defence puts forward allegations of improper conduct on the part of a police officer who has been sufficiently identified, it is for the Crown to establish, by calling this officer (or another officer where appropriate) that the allegations are unjustified and that the statements were of a voluntary nature."

97. He allowed the appeal on the grounds that he was not satisfied that the Crown had established the voluntary nature of either statement, that is neither the verbal admission nor the recording of that admission in writing, for if the threat, if there were one at all, had been made before the verbal confession it would have vitiated both the verbal and the written confessions and the proper officer was not called.

98. Mr. Duckett propounds the proposition that, accepting that there is a general onus upon the prosecution, how that onus is discharged is a matter for the prosecution and the prosecution is not precluded from proving the voluntary nature of a statement by other evidence without necessarily calling the officer against whom the allegations are made.

99. For this he relies on the phrase used by the Chief Justice in Lung Wing Kei⁽¹⁾ "...... by calling this officer (or another officer where appropriate) ......" with the emphasis upon the phrase in brackets.

100. He seeks support from Li Ming Kwan & another v. The Queen⁽²⁾ and has drawn our attention to Poon Chi Ming & another v. The Queen⁽³⁾.

101. In Li Ming Kwan⁽²⁾, where no particulars of the allegations were given and where an Inspector of Police was not called as to the period in which a defendant was in his custody, Huggins, J. (as he then was) had this to say at p.284:

"The one point relates to the fact that from about 10.10 to about 13.25 the appellant was in the custody of Inspector Ollerenshaw and that Mr. Ollerenshaw was not called as a witness in the trial within a trial, nor was anyone else called to say that no inducement was held out to the appellant during this time."

102. Mr. Duckett lays emphasis on the phrase "nor was anyone else called."

103. Poon related to an unexplained period but it is now clear law that a mere unexplained period, in the course of which there is no allegation of misconduct, does not have to be explained by the Crown and does not affect the issue of voluntariness if no evidence is called in respect of it.

104. In this instant case the Sergeant was identified, he was available, the allegations against him were known and the appellant gave evidence concerning those allegations - and Sergeant 194 Wan was not called on the issue.

105. It is not, of course, nor can it ever be, for this or any other Court to direct the Crown's proofs: the Crown can, within the limits of propriety and the law, conduct its case as it wishes.

106. For my part I do not think that the phrase used by the Chief Justice "(or another officer where appropriate)" nor the phrase in Li Ming Kwan⁽²⁾ "nor was anyone else called" can avail the Crown in the circumstances which pertain here for in neither case was the Court concerned with point in issue now.

107. Clearly there can be occasions where a witness is not available and where his absence can be explained: then the evidence of another officer, supposing him to be able to give such evidence, may be appropriate on the issue of admissibility and may be sufficient to establish the case on the Crown. In my view this is the situation envisaged in both Li Ming Kwan⁽²⁾ and Lung Wing Kei⁽¹⁾.

108. But here that is not the end of the matter for there are two further matters for consideration. And in considering them I bear in mind that which Huggins, J. (as he then was) said at p.286 of Li Ming Kwan⁽²⁾:

"We have to ensure that the criminal law remains an instrument for convicting the guilty and acquitting the innocent and does not become merely an instrument for acquitting both the guilty and the innocent."

First: were the denials of W. Sergeant Lam sufficient, in the absence of Sergeant 194 Wan, to discharge the onus placed upon the Crown? and second: given the fact that Sergeant 194 Wan in giving evidence on the general issue was not cross-examined on the allegations - and it must be remembered that, if admitted, then the weight of the confessional statement had still to be considered - is it sufficient to say that "it could have been done but was not" and therefore, while he was not called in the course of the alternate procedure, it matters not?

109. It must be bornein mind that it is but the rarest of criminal trials in this jurisdiction wherein there is no issue on the admissibility of a confessional written statement. I do not know the exact percentage but from my own observations I would think it to be close to 90% of all such trial wherein this type of evidence is sought to be produced by the Crown.

110. On the matter of the allegations having been put to W. Sergeant Lam I have considered Ng Tat Shing and Cheung Kuen Yuen v. The Queen⁽⁴⁾. That concerned a trial in which one I.C.A.C. officer, Jones, was alleged to have offered a threat to induce the making of a statement but, and this is important, the evidence did not make it clear as to when that threat was supposed to have been delivered, nor as to whether it was delivered by Jones when he and the second appellant were alone, or when one Lee was also present.

111. The witness Lee gave evidence that nobody had delivered in his presence any threats of the kind alleged at any time after arrest nor up to the time of the making of the statement.

112. Jones himself was not called as a witness and the Chief Justice, in the judgment of the Court, had this to say:

"This was an unfortunate omission by the Crown. And in our opinion this made it impossible for the Crown to discharge in the proper manner the burden which lay upon it to establish that this statement was voluntary."

113. He went on to consider the decision in Lo Wing Cheong v. The Queen⁽⁵⁾, which clarified Poon⁽³⁾, and, having said that it is not necessary to cover the whole period between arrest and the taking of a statement if the defence does not allege any impropriety during that period, he continued:

114. I accept that that case differs somewhat, but only in degree, from this instant case. For whereas W. Sergeant Lam was with the appellant and Sergeant 194 Wan when the threat and beatings were said to have been made and taken place and they were put to her, Lee in Ng Tat Shing⁽⁴⁾ was not asked whether he was with the second appellant at all times during the period nor was he asked if Jones could have been alone at any time with the second appellant.

115. Zimmern, J. in Au Yeung Choi Ling v. The Queen⁽⁶⁾ (unreported) considered both Lo Wing Cheung⁽⁵⁾ and Ng Tat Shing⁽⁴⁾.

116. That was a case where the allegations were that the appellant was taken to a room where two police officers were - PW1 and PW4 - and that PW1 issued the threats and there were other allegations against both PW1 and PW4. Only PW4 gave evidence on the voir dire. He denied any threats by either himself or PW1. And he was the recorder of the statement. The appellant did not give evidence.

117. Zimmern J. had this to say:

"As I read the authorities which bind me it is open to the prosecution to call one officer to cover each allegation without calling all alleged to have been involved. It depends on circumstances. In this case the appellant's allegations are against PW1 and PW4 when they were together.

There is no allegation that PW1 was alone at any time with the appellant when threats or inducements were made. The failure to call PW1 was not fatal. PW4 was called to cover the entire period."

118. The appeal was dismissed.

119. I would however distinguish Au Yeung Choi Ling⁽⁶⁾ from this instant case in that the allegations here were directed solely against Sergeant 194 Wan and the appellant did give evidence concerning them.

120. The short answer to the first question I posed must in my judgment be that Sergeant 194 Wan being an identified, available witness, the only witness in this context against whom allegations were made, the circumstances here required that he be called.

121. The second question however gives me considerable difficulty. I must confess that had there been a straight forward trial within a trial, and this is not intended as any criticism of the trial judge, without the general issue intruding and Sergeant 194 Wan again not called my difficulties might have been eased if not erased.

122. At the time when Sergeant 194 Wan did give his evidence in the course of the trial it was known that the Crown would seek to rely on a confessional statement, indeed that that statement would be its strongest plank must have been apparent to Counsel. Counsel then appearing for the accused had had a weekend to prepare his case and I cannot assume other than that he must have had at least basic instructions as to a contest on admissibility, if there were to be such, whatever additional clarification he might have needed later.

123. But nothing either as to weight or admissibility was put to Sergeant Wan. Did counsel assume that the Sergeant would be called in the course of a voir dire? It would have been a fair assumption to make but never the less the witness was in the box and most certainly the opportunity was there for him to put his clients case to the Sergeant although the sergeant was not led in chief on the matter. That opportunity was not availed of.

124. But the issue of admissibility arose well after Sergeant Wan had concluded his evidence and in a straight forward voir dire the general issue and the issue of admissibility are entirely separate, more particularly so in a jury trial than perhaps before a judge sitting alone, but never the less two separate things.

125. It is impossible to see into the mind of Counsel who is also, as I have said of the Crown, entitled to conduct his case in his own way. I do not know what he did or did not assume.

126. As Mr. Duckett quite rightly concedes the best course here would have been to recall Sergeant 194 Wan before the Crown closed its case on the issue of admissibility.

127. His was undoubtedly the best evidence and he was available. In all the circumstances here I do not think that the non-calling of the Sergeant to have been cured by either W. Sergeant Lam's denials or the non cross-examination of Sergeant Wan when he was called on the general issue and therefore in those circumstances I am not satisfied that the Crown had established the voluntary nature of the statement.

128. I find myself in the unfortunate position of being in disagreement with my Lord Vice President and my Lord Mr. Justice Li. I would allow the appeal.

Representation:

Mr. Frankie Leung (Michael Jenkins & Co.) for appellant.

Mr. Duckett for Crown.

(1) Crim. App. 386/1980

(2) [1973] H.K.L.R. 275

(3) [1973] H.K.L.R. 414

(4) Crim. Appeal 56/1979 (C.A.)

(5) Crim. Appeal 378/1979 (C.A.)

(6) Crim. Appeal 615/1980