R. v. Lee Chun Chuen

CACC000759/1995

IN THE COURT OF APPEAL

1995, No.759

(Criminal)

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Coram: Hon Mortimer JA, Mayo JA and Sears J in Court

Date of hearing: 16 January 1997

Date of judgment: 16 January 1997

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J U D G M E N T

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Sears J : (Giving the judgment of the Court)

1. This applicant was convicted after trial in October 1995 before Deputy Judge Duggan in the District Court. He faced two charges : trafficking in a dangerous drug and resisting a police officer in the execution of his duty. He was sentenced to five years on the first charge and one month on the second concurrent.

2. Mr Haynes appears for this applicant and takes a number of points. The facts can be briefly stated. A number of police officers were on duty involved in a drugs operation around midnight and were in the vicinity of the Fung Wong Chuen Building in Tze Wan Shan and saw the applicant on the 1st floor while they were, as is said, laying ambush. He was carrying a brown paper bag. They approached him, looked at the contents of the bag, suspected that he was in possession of dangerous drugs and he was arrested.

3. The prosecution case was that at that moment, he pushed one of the police officers away and went down the stairs. He was chased downstairs and as he was chased, he fell. At the bottom of the stairs the police caught up with him, subdued and handcuffed him. He was taken to the police station and two records of interview containing admissions to the two charges were given by him.

4. At the trial, he challenged the admissibility of the records of interview. He said that he had been assaulted by the police officers, that he had been handcuffed at his back and kicked by one of them causing him to fall down the stairs.

5. There was medical evidence produced at the trial which demonstrated that he did indeed have injuries, particularly to the left side of his face and bruises on his back and also on a portion of his abdomen.

6. The Deputy Judge dealt with the admissibility of the statement by the alternative procedure and he found, so that he was sure, that the statements were voluntary.

7. Mr Haynes, as I said, takes a number of points. First, he puts forward some general submissions that when one analyses the statements they would appear to have been made in contravention of certain rules which are now called Rules and Directions for the Questioning of Suspects and the Taking of Statements published by the Secretary for Security in October 1992. Mr Haynes submits that the certificate on the statement was not in the applicant's handwriting and that there were errors in the statements, in that words were used by the police officer which would indicate that the applicant had been charged when factually he had not been charged. He submits also that there are other general matters which would indicate that the statement was taken not in conformity with the published rules.

8. It is difficult for this court to know precisely what occurred below and Mr Haynes has not been able to enlighten the court as to whether or not any points in relation to any potential breaches were taken. However, he submits that it is incumbent upon the trial judge himself to examine the statements and to decide whether or not there were any breaches of those rules and directions. It is not necessary for this court to come to any conclusion other than on the facts of this particular case, but in our judgment if such a point was to be taken, no doubt it would have been taken by counsel and the judge would have been called upon to give his decision and exercise his mind upon those particular matters. As far as the general grounds of complaint are concerned, we do not consider that they in any way assist the applicant.

9. The other major ground of complaint is that the judge, when he came to give his conclusions on the admissibility of the statements, did not indicate with any precision as to why he disbelieved the applicant and why he accepted the evidence of the police officers, particularly, as Mr Haynes submits, the applicant was a man of good character.

10. In our view, it is not incumbent upon a judge, whether in the District or High Court, to give reasons as to why he rejects the submissions made and rules that statements go in. However, if he does give reasons, then of course this court is entitled to scrutinize them. The judge reminded and warned himself that the applicant had a clear record. He is a professional judge, well knowing what a clear record indicates. The judge said this -

"I found the prosecution witnesses to be truthful. They gave their evidence in a straightforward manner. There were no discrepancies in such evidence ..... I found the evidence of defendant and his witness to be lacking any ring of truth. ..... Having found that the crown had proved beyond reasonable doubt that the records were made voluntarily by defendant they were admitted into evidence."

We have scrutinized those reasons, and in our judgment, these were matters essentially within the purview of the judge seeing and hearing the witnesses as indeed he did. We can find nothing which in any way flaws those reasons.

11. Mr haynes has brought to our attention the medical report which contains the injuries to this applicant. There is no doubt at all both from his own account and the police's account that he did fall down the staircase from the 1st floor to the ground floor. The judge said that he was of the view that the injuries were consistent with him trying to escape arrest.

12. Similarly we can find nothing in those reasons which flaw the conviction. We have looked at the matter overall. We can find nothing which would indicate that the conviction here was unsafe or unsatisfactory. In those circumstances, we dismiss this application.

Representation:

Mr John Haynes, inst's by M/s C.K. Tse & Co., for Applicant

Mr Zervos, Crown Prosecutor, for Respondent