Yip Tak Shing v. The Queen
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CACC000706/1980
----------------- Coram: Liu, J. Date of Judgment: 13th October, 1980. ----------------- JUDGMENT ----------------- 1. The appellant was convicted of robbing a hotel in Morrison Hill Road on the 26th January, 1980, together with other persons unknown. 2. The cashier of the hotel, Mr. Leung described in his evidence the manner in which the robbery was executed. He gave particulars of the loss suffered by the hotel, but he was unable to make any identification. 3. The Crown's case was based entirely on a confessional statement of the appellant. 4. The appellant pleaded not guilty, and on remand he complained to a magistrate, "I deny. I was beaten up. In fact it was visible by the police officer." This assertion is, to say the least, ambiguous. It is by no means a clear allegation of police impropriety. It might well be taken as an alleged police assault in the presence of and witnessed by an officer. Neither is it a specific allegation of mistreatment by the officer to whom the written confession was given. 5. At the trial, to the Crown's production of the confessional statement, the appellant raised no objection. The appellant was not legally represented. 6. On his behalf, Ms. Eu contended in this court that the applicant had never been briefed as to his right to object to a statement, not given freely and voluntarily. Capital was also sought to be made by counsel of the fact that no specific finding as to voluntariness was made by the learned magistrate. It was strongly urged upon this court that this vital issue should be permitted to be reopened and fully canvassed. 7. In whatever light the complaint of the appellant at that juncture might be understood, he did not have his allegations (if they could be taken as such) reiterated. In his cross-examination of the police officer, the first question put by the appellant was in the following terms: "Q. You told me to write down the contents in the cautioned statement." The learned magistrate evidently did not take it as an allegation of impropriety. The question as put seems to raise a dispute as to who was the recorder of the statement rather than the author of its contents. If indeed the appellant's allegation, as put in his first question to the police officer, had been that he was dictated to or told what to write down, the learned magistrate being a person of the Chinese race, could not have failed to appreciate its significance. Moreover, no reference was made in his own evidence to any police misconduct; nor did he repeat any of his accusations, if they can be treated as such. It is, of course, desirable to expressly warn an unrepresented accused person of his right to object to a confessional statement on any ground against admissibility. It is also not unwise to make specific finding as to voluntariness of a confession adduced. But there is no conceivable reason why all forms of departure from the counsel of perfection fallen from the lips of Power, J. in the recent case of CHAN Wai(1) would inevitably lead to the quashing of an otherwise well-founded conviction. It need be remembered that magistrates are not required to keep verbatim notes and that sufficient warning and findings are, more often than not, implicit. Each case must be judged on its own merits. 8. In any case, even if the appellant had put forward in his cross-examination of the police officer some allegation of impropriety, that was merely an allegation that he was told to copy down a dictation. His mention of an assault in his earlier statement to another magistrate on remand was never again ventilated. Even if the appellant had been subjected to such alleged act of impropriety, its effect must have dissipated by the time he was visiting the domestic premises. There, at no invitation of the officer, the appellant spontaneously blurted out that he was not holding the knife which was held by one YU Chun. Such volunteered information was not in identical terms with the disclosure in his confessional statement. It is untenable, from the record before this court that this was not a "verbal". 9. The learned magistrate did not need to rely on this "verbal". In his mind as reflected in his Statement of Findings, the cautioned statement was given freely and voluntarily, confessing to the robbery charge. In my view, there is ample evidence to found the conviction. The appeal must therefore be dismissed, the conviction to stand. 10. But for the eloquence of Ms. Eu, I would be tempted to conclude that this appeal is wholly unarguable, and for that reason alone, I do not propose to order the sentence of the appellant to run from to-day. The order that I make is:
Representation: Ms A. Eu instructed by Director of Legal Aid for Appellant. Mr. Cagney, counsel for the Crown/Respondent. (1) Criminal Appeal No. 320 of 1980, the judgment of which was delivered on 1st May, 1980. |