Chan Chi-loi v. The Queen

CACC000691/1981

Criminal law - District Court - evidence on voire dire treated as evidence on general issue by consent - not apparent that judge had considered this evidence in deciding weight to be attached to confession - other factors affecting weight to be attached to oral evidence of identification not mentioned in Reasons for Verdict - concession by Crown on appeal that a co-defendant who also made a confession had been in prison at time of alleged offence but trial judge not so informed - verdict unsafe and unsatisfactory.

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Coram: Sir Alan Huggins, V.-P., Power and Hooper, JJ.

Date of hearings : 28 January 1982

Date: 28 January 1982

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JUDGMENT

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Sir Alan Huggins, V.-P. :

1. This Appellant was charged in the District Court on four charges of robbery and one of possession of an offensive weapon. He was acquitted on the last of those charges but convicted on the four robbery charges. He appeals against his convictions.

2. Although brevity in a judgment is something to be sought after, nevertheless we think that the judgment in this case is unsatisfactory and does not deal with matters which should have been considered. There was before the judge evidence of a confession to each of the four robberies. On three of the charges that was the only evidence of identification. Only on Charge 4 was there evidence of identification from the two victims, a husband and wife. Although the confessions were admitted in evidence after a trial within a trial, the judge did not say expressly that he would have believed the confession on the 4th charge without the evidence of visual identification, although it does seem probable that he would have done so. The judge was not obliged to give reasons for his decision on the issue whether these confessions were admissible, but after they had been admitted counsel agreed that the evidence at the trial within a trial should be adopted as part of the evidence on the general issue. It was then incumbent upon the judge to assess it as evidence on the general issue and it should have appeared from his Reasons for Verdict that he had done so. He did not indicate that he had done so.

3. As to the evidence of visual identification, the judge merely said that he was in no doubt that the husband genuinely believed that the Appellant was one of the robbers and did not discuss the possibility that the witness's genuine belief was mistaken. This was a serious omission for two reasons: first, there was criticism of the husband's evidence on the ground that he expressed uncertainty as to his identification, and, secondly, because it was suggested that there was a conflict between the evidence of the husband and the wife as to the identification. We are bound to say that the judge insufficiently dealt with this identification evidence. The evidence itself was not entirely satisfactory. The judge may be taken implicitly to have rejected the wife's evidence, but he did not mention the uncertainty which the husband expressed of his own identification.

4. That leaves us with the confessions themselves. The Appellant was taken into custody in the very early hours. The confessions relied upon were made late on the following night - just before midnight. This in itself casts some doubt upon the weight which ought to be attached to those confessions. There is another matter which has been brought to our attention. Although the Appellant was charged in the District Court with one other co-defendant, there was before the magistrate's court another co-defendant by the name of Ma. He also confessed to this 4th charge, but the proceedings against him were discontinued. The confessions made by him and by the Appellant were in fact signed by different constables.  The Appellant contends that throughout he and Ma were together. It is conceded by counsel for the Crown before us that Ma, having confessed to this offence, was subsequently shown in fact to have been in prison at the time of the alleged offence. One therefore is left inquiring Why did Ma confess? and there is at least a possibility that he confessed for the reason which the Appellant put forward as the reason why he himself confessed, namely that they were both under duress. This, of course, could have been investigated at the trial, but the learned District Judge was not informed that Ma had been released, nor of the reason why he was released, and there was no investigation before him as to why Ma had confessed. We cannot but feel some anxiety. We feel that the Appellant should have an opportunity to raise this possible ground for showing that his statement was in fact, contrary to the decision of the District Judge, an involuntary statement.

5. For all the reasons which I have mentioned we think that this trial was unsatisfactory and that there ought to be a new trial. We allow the appeal and remit the case for re-trial before another judge.

28th January 1982.

Representation:

Appellant in person.

Cahill for Crown/Respondent.