Mok Kwok-sui v. The Queen
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CACC000702/1978
----------------- Coram: Roberts, C.J., Huggins, J.A. and McMullin, J. Date of Judgment: 17 July 1979 ----------------- JUDGMENT ----------------- 1. The Appellant (who was formerly the 2nd Appellant) was charged in the District Court with thirty-four other defendants. There were five charges of conspiracy before the court, all of which were related, but this Appellant was named as a defendant in only the fifth charge and was the only defendant charged in that charge. Nevertheless, the offence there alleged was conspiracy with fourteen of the other defendants and with nine other named persons as well as with persons unknown. It is only of passing interest that thirteen of the other fourteen defendants alleged in this charge to be co-conspirators were acquitted on the charges which were laid against them. 2. The details of the alleged conspiracy and of the evidence led to prove that conspiracy and to implicate the Appellant in it are irrelevant to the appeal. It is enough to say that a witness named FUNG Hoi-kuen, an undoubted accomplice, gave oral testimony of the material conspiracy and of the Appellant's involvement, whilst two officers of the Independent Commission Against Corruption spoke to five statements taken from the Appellant. The first statement was made on the evening of his arrest and the others on the following day. Three of those taken on the following day contained confessions. 3. The original ground of appeal contained in the notice filed by the Appellant was not argued. The first of the "additional" grounds of appeal drafted by counsel was in these terms:
The argument was based upon three passages in the judgment. Having referred to various criticisms of the manner in which the statements were taken, the judge said:
He then overruled another objection and continued:
The judge said that he therefore went on to look for corroboration of that statement. He found it in the evidence of FUNG Hoi-kuen, of whom he said:
It is contended that these passages indicate (i) that the statements were not reliable, (ii) that the evidence of FUNG Hoi-kuen was not reliable, and (iii) that the judge was wrong to look for, and wrong to find, corroboration. It is said that the judge would not have looked for corroboration of the confessions unless he had had doubts about the truth of the confessions and that, even if he believed the confessions, he clearly never said that he believed the evidence of FUNG Hoi-kuen. 4. The argument addressed to us started with a citation of Reg. v Hester 1973 A.C. 296 and proceeded as though this was one of those cases where corroboration was required as a matter of law or practice. It was not such a case and we do not think that the learned judge was under the misapprehension that it was. In an earlier case the Full Court pointed out that use of the word "corroboration", otherwise than where corroboration is so required, although not necessarily wrong, was liable to mislead, and this case bears out what was then said. We accept that, in stating what he did about the statements on their own, the learned judge meant that he was not persuaded beyond all reasonable doubt that they were true. It does not follow that he thought them unbelieveable to any degree, but he regarded them as a type of evidence upon which he should not convict unless they were supported by other evidence. It was for him to assess the extent of his doubts and to decide the weight of evidence necessary to overcome them. In the event, the nature of his doubts about the truth of the statements was such that they could be, and were, dispelled by the evidence of FUNG Hoi-kuen. That was essentially a matter for the judge and we cannot say that he was wrong. Apart from that, we are not persuaded that the statements were not "intrinsically credible" in the sense in which that phrase was used in The Director of Public Prosecutions v Kilbourne 1973 A.C. 729 and explained in Boardman v The Director of Public Prosecutions 1974 3 W.L.R. 673, 700, but this is not an appropriate occasion for a detailed consideration of those cases. The argument on the appeal was that the statements were evidence of a kind so unreliable that they could not have constituted evidence which could be corroborated in a case where corroboration was required. Even if that were correct it would not affect the present case, as such corroboration of these statements was not required. 5. Again, it was argued that, because the evidence of FUNG Hoi-kuen was said by the judge to be not totally reliable in relation to other defendants, it could not constitute "corroboration" of the statements made by this Appellant. The statements did not require "corroboration": the judge merely wanted them supported. Even though the evidence of FUNG Hoi-kuen was incapable of constituting "corroboration" in a case where such corroboration was required (Rex. v Baskerville 1916 2 K.B. 658) and would itself have required corroboration if the judge had sought to convict primarily upon it, there is no reason why Fung's evidence should not constitute the support for which the judge was looking to satisfy himself that he could accept the statements as true beyond reasonable doubt. Nor, as the statements would not require "corroboration" in the full sense, was it necessary for the judge expressly to warn himself, in relation to this Appellant, that FUNG Hoi-kuen was an accomplice. This point was not strongly argued, and for good reason: the judge warned himself very plainly of the danger of convicting other defendants upon the evidence of an accomplice and acquitted some of them because FUNG Hoi-kuen's evidence against them was not corroborated. It is impossible to believe that the judge was not, when considering the case against this Appellant, fully alive to the fact that FUNG Hoi-kuen was an accomplice. 6. Then it is said that the trial judge failed to exercise his discretion correctly in admitting the incriminating statements attributed to the Appellant; alternatively, that he erred in attaching any weight to them. 7. What distinguished the case of the present Appellant from that of the defendants who were acquitted was that, in addition to the evidence of the accomplice, FUNG Hoi-kuen (who had given evidence against certain of the other defendants also), there were the Appellant's admissions. Admissions made by the Appellant to two investigating officers of the Independent Commission Against Corruption were received in evidence by the learned trial judge after a separate trial of the issue as to their admissibility. Although, following the usage of the learned trial judge, we have referred to "statements" made by the Appellant, only one such statement was made in the sense in which that term is usually understood in criminal proceedings. 8. After his arrest, the Appellant was subjected to lengthy interrogations at the offices of the Independent Commission Against Corruption in Hutchison House on 9th and 10th May. These interrogations resulted eventually in the long narrative statement given by him to the investigating officer, WAI Fook-kit, between 3.47 p.m. and 6.02 p.m. on 10th May 1977. It contains abundant admissions of corrupt conduct of the kind charged against him. This statement, which was made after the usual caution, was recorded in the Appellant's own language - Cantonese -, was read back to him and was signed by him in the presence of WAI Fook-kit. The Crown also introduced in evidence four documents purporting to be a written record, made at the time, of questions put to the Appellant by Mr. Wai and of answers made thereto by the Appellant in the course of four separate sessions of interrogation, the first interview being on 9th May at 10.35 p.m. Three of these were conducted and noted by Mr. Wai and another - the third - was a note by Mr. Wai's colleague, Mr. Cass, of what passed between Mr. Wai and the Appellant. They include many questions of a leading nature relating to the crime of which the Defendant was then suspected. None of these records was read back to the Appellant at the time nor was he invited to make corrections or alterations or to sign any one of them. The language of these records is English although the Appellant was using Cantonese. They were employed at the trial as notes to refresh the memory of the witnesses as to the verbal answers made of the Appellant during his interrogations. 9. We do not think that any admissions thus made can come within the category of true "verbals" i.e. statements suddenly blurted out by persons, whether under arrest or not, whether after caution or not, evidence of which may legitimately be tendered in evidence even although no note was made at the time of what was said. 10. The passages quoted earlier from the judgment made it clear that the trial judge himself was not happy with the course taken by the Crown in this regard. 11. There was no objection to these "statements" being used by the witness who needed them to refresh his memory of what occurred but they should not have been introduced in evidence by the Crown as if they were written admissions by the accused. 12. Where it is intended to permit Crown witnesses to refresh their memories from such records, they should be made available to the defence, which can decide whether to seek to have them introduced as substantive evidence, and not as mere aids to recollection, or can cross-examine as to their contents. 13. It may be helpful if we add a few general remarks about "statements" which take the form of questions and answers, as we view with some concern the growing number of such statements which are being tendered in evidence. We would remind those concerned that a person who has been taken into custody, whether upon arrest for an offence or under s. 54 of the Police Force Ordinance or under the comparable provision of the Independent Commission Against Corruption Ordinance, ought to be cautioned before he makes any statement. A person who has been charged or who the interrogating officer has decided to charge should not normally be asked questions even after caution, although there may be special circumstances which would justify a judge in admitting in evidence a statement which consisted of answers to questions, provided that they were not leading questions, that is to say, questions which suggested the answers. Williams (1978) 67 Cr. App. R. 10 is an example of a case where special circumstances existed and where a statement consisting of answers to questions was admitted in evidence. A person who has been arrested on suspicion should not, save in such special circumstances, be further questioned once the interrogating officer has made up his mind to charge the suspect. These observations should not, of course, be taken as inhibiting the asking of questions to clear up ambiguities in a statement previously made. 14. In the court below, counsel for the Appellant criticized the narrative statement not on the grounds that it was improperly obtained, but that it was to a large extent a fabrication by Mr. Wai, concocted by Mr. Wai from information, which he already had concerning the conspiracy. The trial judge considered these objections but rejected them. However, he added:-
15. It may, we think be taken from this manner of expressing himself that the judge was satisfied that the statement was voluntary and admissible in evidence but that, in accordance with his usual practice, he would not convict upon it in the absence of corroboration. The question we are now concerned with is whether he should have admitted it in the face of the several objections made in respect of it and of the interrogations which preceded it. The main criticisms are as follows:-
16. Objections (b), (d), (e), (f), (g) and (h) were considered by the trial judge. (a) has already been dealt with in our comments on the introduction of such extended "verbals", (c) is more by way of general comment than specific objection. It is not contended that it is incumbent upon the Crown to produce an explanation for any sudden change of attitude in a person under interrogation and counsel merely draws our attention to the fact of that sudden change, which he asks us to consider in the light of all the other objections. 17. It may be said that all these criticisms, with a possible exception of (c), are justified. The real question however is whether, in spite of them, the trial judge must be said to have been in error in admitting the final confessional statement. 18. We do not think that he was in error. His detailed, careful and lengthy judgment, bears every hallmark of a cautious testing of the evidence. If that final statement had not been recorded in the language used by the accused that might on its own have constituted adequate reason for rejecting it. Similarly, if it had not been read back to him and if he had not been given an opportunity (which he was given) of correcting matters appearing in it (which he did) and had it not been signed and adopted by him as his statement the judge would probably have been disposed to reject it. The fact that Mr. Wai was not a qualified interpreter would also have been a grave objection had the accused not in this manner adopted the statement as his statement upon its being read back to him. 19. A further ground of appeal was that the judge failed to have regard to the denials of the 2nd Appellant, contained in the record of the first question and answer session. We do not think there is any substance in that suggestion. Since the judge examined the circumstances of all the interrogation sessions and referred to the fact that the result of the first of those sessions was of a self-exculpatory nature, he was clearly aware of the fact that the confessional statement which he eventually admitted, and accepted as the truth, contradicted the original replies of the Appellant. The substance of that allegation is the change from denial on the night of the 9th to admission on the morning and during the course of 10th May. We have no reason to believe that the learned judge, any more than any judge confronted with that not infrequent phenomenon, was unaware of any possible inference deriving from it in favour of the Appellant. We do not consider that the judge was wrong, either in admitting the statement or in relying upon it as the truth, or that the conviction can be regarded as unsafe or unsatisfactory. 20. For these reasons leave to appeal against conviction is refused. |