Fung Po-shing v. The Queen
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CACC000844/1973 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 844 OF 1973 -----------------
----------------- Coram: Full Court (Briggs, C.J., Pickering and Cons, JJ.) Date of Judgment: 25 February 1974 ----------------- JUDGMENT ----------------- 1. The appellant in this case was convicted in the District Court of four charges of wounding with intent. Each charge related to a separate victim, and each victim gave evidence at the trial. That evidence was far from satisfactory, but there is no doubt that the four were joint victims of a gang attack, and that each received serious injuries. None, however, was able to identify even one of his assailants, and the only evidence against the appellant was a statement that he made to the police some twelve days after the incident. That statement was recorded in a police station in the notebook of the investigating sergeant and after the usual preamble setting out the details of the offences being inquired into and the caution it runs as follows:
2. One ground of appeal cogently on behalf of the appellant was that this statement was ambiguous. Whilst it was accepted that the word "them" at the end of the first sentence could refer only to the victims of the attack it was suggested that the same word at the end of the second sentence was equally apt to refer to the attackers. In that case, of course, the statement would not be sufficient to support the convictions. This argument is initially attractive but when consideration is given to the circumstances in which it was made, together with the wording of the preamble and the first sentence of the statement itself, it is obvious that the second sentence is capable of only one interpretation, namely, that the appellant took up arms and joined in the attack. We think the learned judge below was correct to read it in this way. 3. Strong objection to this statement was taken at the trial by the counsel who then represented the appellant. Nevertheless, the judge admitted it. At the appeal it was argued that he was wrong to do so for three reasons. Firstly, it was said that he was wrong to accept the evidence of the investigating sergeant that the appellant volunteered to accompany him to the police station where this statement was made. Our attention was drawn to various matters from which it was suggested the trial judge should have preferred the contention of the appellant that he was taken there under arrest. If that was so the trial judge should have applied the principle laid down in LI Kar-wah(1) and rejected the statement because the Crown had not proved that it was made in the manner as to which the police officer positively affirmed. We do not think there is anything in this point. We see no reason to disagree with the conclusion of the trial judge that the appellant was not under arrest and in any event the fact or otherwise of arrest is not in our opinion the kind of circumstance to which those comments of the Full Court relate. 4. Then it was said that the trial judge misdirected himself when he wrote in his Reasons for his Decision:
It is suggested that he overlooked the possibility that the police were acting honestly in the sense that they genuinely believed the appellant to be guilty and acted wrongfully only in an excess of zeal to obtain by improper means evidence that would be admissible in court. We appreciate the distinction drawn but do not think it sufficient to be material. 5. Finally, it was said that the trial judge should not have taken into account certain matters which arose by comparison with the statement made by another defendant tried together with the appellant. Reference was made again to LI Kar-wah. In that case three defendants were said to have made separate and voluntary statements to separate officers. They contained striking similarities, so much so that the learned magistrate in the that case would have felt some doubt as to their voluntariness had he considered them altogether. However, he felt constrained to deal with them individually and in isolation. The Full Court held that he was wrong to adopt this approach and should not have ignored the overall picture. It was sought to lessen the authority of that case by saying that the point was not argued, counsel for the Crown conceding that the trial court was in error or, alternatively, to limit its authority to the actual circumstances involved. Further, it was pointed out that the law does not allow the use of the statement of one defendant as evidence against other. With respect we do not think the judge was doing that. He did not rely upon the content of the second statement for its truth but observed that it contained the names of only two persons that were mentioned in the first. The appellant and the other defendant had each given evidence of being shown by the police a list of names at the time of making their statements. The trial judge thought it reasonable to assume that if that had been the case, it would have been the same list. As the resulting statements bore such little similarity of names he drew the inference that it had not been so. We think that was an inference he was entitled to draw. 6. Altogether fourteen additional grounds of appeal were lodged with this court but they were condensed at the hearing into five main arguments. With two of these we have already dealt. The third was to the effect that even if the judge was correct in concluding that the statement was voluntary he should still have excluded it on the ground that its prejudicial value was far in excess of its probative value. There is no merit in this point. Upon its only proper construction the statement was a full confession to the offence charged and if accepted as true was conclusive. Its prejudice, in the sense in which that word is used in this context, was nil. 7. The fourth main ground of appeal related to the manner in which the inquiry as to the admissibility of this statement was conducted. This matter was not pressed at the hearing and we do not propose to deal with it. 8. Finally, it was said that there was no, or no sufficient, evidence to support the convictions. Once it is accepted that the statement was properly admitted this ground cannot possibly succeed. 9. It was for these reasons that we refused leave to appeal at the conclusion of the hearing. Representation: B. Bernacchi, Q.C., and P. Woo (Bernard Wong & Co.) for the appellant. P.N. Duncan, Crown Counsel, for the respondent. Copy for Library, S.C. (1) [1970] H.K.L.R. 572 at 579 |