Pang Wing Yeung and Others v. The Queen
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CACC000679/1974 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 679 OF 1974 -----------------
----------------- Coram: Briggs, C.J., Huggins & McMullin, JJ. Date of Judgment: 4 February 1975. ----------------- JUDGMENT ----------------- 1. The three Appellant were jointly charged in the District Court on three charges of robbery, one of aggravated burglary and one of burglary. In addition, the second Appellant was charged with resisting a police officer in the execution of his duty. The second and third Appellants pleaded Guilty and now appeal only against their sentences. The first Appellant was convicted after a trial and gave notice of appeal against his convictions on the five charges against him. At the hearing counsel moved the Court for leave to amend the notice of appeal by substituting for that given in the Notice a new ground relating to only the first four charges. We allowed the amendment with the limitation that we refused to hear any argument based on the failure of the judge expressly to state the degree of proof required in a criminal trial. 2. It is conceded by counsel for the Crown that there could have been no convictions had two confession statements by the first Appellant not been admitted in evidence, and the argument on the appeal has centred principally upon those statements. Equally it was common ground in the court below that if the statements were admitted and believed the first Appellant must stand convicted. 3. It cannot gainsaid hat the trial pursued a very erratic course. The judge's notes indicate that a trial within the trial was embarked upon before any attempt had been made to adduce the three statements alleged to have been made by the first Appellant. When objection was eventually taken to the first of them the document was not marked for identification as it should have been. The other two statements were tendered by the prosecution during the trial within a trial relating to the first. Had the judge indicated that he intended to follow the "alternative procedure" it would have been proper to tender the later statements at that stage of the proceedings, but they could not be relevant to the admissibility of the first statement and evidence relating to them should not have been admitted in this trial within the trial. Nor should other evidence directed to the general issue and not to the issue of admissibility have been received either from the prosecution or from the prosecution or from the defence. Again, if the "alternative procedure" had been followed such evidence would have been receivable from the prosecution but it would still not have been receivable from the defence: see Leung Siu Ng v. Reg. Cr. App. 570 of 1974 (not yet reported). In the event the judge wrongly allowed the defence to adduce evidence which was irrelevant not only to the issue of admissibility of the first statement but even to the admissibility of the other statements, and irrelevant cross-examination was also permitted. The solicitor who appeared for the first Appellant in the court below then took the extraordinary step of telling the judge at the conclusion of what had started out as a trial within the trial, and before the judge had ruled upon the admissibility of any of the statements, that he did not intend to call further evidence on the general issue and that he would invite the judge to treat the evidence already called by the defence as part of the evidence on the general issue. One wonders what possible purpose he thought could be served by his having objected to the admission of the statements in the first place, for the trial had followed a course which would have been entirely unobjectionable if no point had been taken as to their admissibility. 4. What happened was that the judge ruled on the issue of admissibility in respect of all three statements in the course of his judgment and in fact declined to admit the first of them. The procedure followed was wrong, but in view of the attitude adopted by the solicitor for the first Appellant we do not think it can fairly be said that any substantial miscarriage of justice resulted merely by reason of the departure from the established. 5. Had there been no objection and had the judge merely said that he attached no weight to this first statement no difficulty would have arisen. However, he rejected this statement because "it was not admittedly signed by [the first Appellant] nor was apparently a certificate in accordance with the judges rules endorsed". We take it that the learned judge meant to say "it was admittedly not signed". What certificate he had in mind is not clear, since the Judges' Rules do not require any certificate. It seems probable that the learned judge misdirected himself as a result of his having referred to the advice given by the judges in England to the police in 1964. The fact is that the first Appellant refused to sign the first statement: his case was that he was forced to write the statement at the direction of the police and that that was why he refused to sign. What the judge said was:
The implication seems to be that he refrained from ruling upon the voluntariness of the statement and excluded it in the exercise of his discretion, doing that because of some rule which does not exist. The difficulty is that in the absence of any finding that the statement was voluntary we must assume in the first Appellant's favour that the judge was to satisfied it was voluntary. 6. That brings us to what logically is the first of the substantial complaints made upon the appeal: it is contended that in the absence of any finding that the first statement was voluntary the judge should have addressed his mind to the possibility that any inducement which might have existed in relation to that statement was still operating upon the mind of the first Appellant when he came to make the later statements. As to those statements the learned judge said:
Normally that would clearly suffice, but for some reason the judge chose to rule on the later statements first and when he did that it was, therefore, open to doubt whether he considered the possibility of the continuance of a pre-existing inducement not immediately related to the later statements. Counsel in effect submits that this is one of the instances where a judge ought to indicate expressly whether he has directed his mind to a particular matter, since it was one which was not so obvious that any judge must be assumed to have considered it: here, indeed, the failure to make a finding as to the voluntariness of the first statement was enough to raise a doubt whether he had so directed his mind. If he did not, then his ruling on the later statements would be vitiated. In fairness to the judge it must be said that the solicitor does not appear to have argued that there was a possibility of a continuing pre-existing inducement. 7. Since Mr. Sanguinetti has argued the appeal upon the basis of an unsafe and unsatisfactory verdict, it may be desirable to see whether any of his other complaints raise doubt as to the result of the trial, Having admitted the two later statements the judge said:
Assuming the the full stop ought to be a comma we are bound to say, with respect, that there seems to be an implication that once the statements were admitted convictions were inevitable. Strictly that was not so. for it was still for the judge to decide what weight he ought to attach to the statements: even though admissible they might not be true. Nowhere does the judge say anything which dispels the suspicion raised by the passage cited that he may not have appreciated the necessity for assessing the weight of this evidence. 8. No other complaint has been made which seems to us to have any substance and the question now arises whether what we had said leaves us with any real bout whether justice has been done. Mr. Sanguinetti conceded that individually the complaints he made might not raise such a doubt, but he submits that together they should, It is a border-line case, but the possibility that the later statement ought not to have been admitted at all, although it may be fairly remote, leads us to the conclusion that the convictions of the first Appellant on the first four charges cannot stand. His appeal is allowed, the convictions on those charges quashed and the sentences set aside. We will hear argument on the question whether a new trial should be ordered. 9. The sentences passed on the second and third Appellants were as follows:
All three Appellant were brothers, the second Appellant being the oldest. He also had the worst criminal record, which included three convictions for aggravated robbery, The third Appellant had two previous convictions for robbery. The present offences were a series of attacks upon restaurants and in some instances knives were produced and fokis tied and blind-folded. One man was actually punched four times in the chest. We were satisfied that the sentences imposed were richly deserved and the applications of the second and third Appellants were dismissed. 4th February 1975. Representation: |