Case Document

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CACC000093/1984

Criminal Law. Evidence in trial by jury.

Once a cautioned statement is admitted in evidence the question whether or not it was made voluntarily is relevant only to its truth. It cannot subsequently be ruled inadmissible as involuntary but the jury may be directed in the summing-up to disregard it or, in certain circumstances, to acquit on such grounds.

IN THE COURT OF APPEAL

Criminal Appeal No. 93/84

BETWEEN

THE QUEEN

Respondent

and

CHIANG Chui-shun

Applicant

Coram: Hon. Cons, Fuad, JJA & Kempster, J.

Dates of hearing: 6th - 8th June, 1984

Date of judgment: 8th June 1984

__________

JUDGMENT

__________

KEMPSTER J.

1. On the 27th February of this year, following a 5 day trial before His Honour Judge O'Dea sitting as a Deputy Judge of the High Court, the appellant CHIANG CHUI SHUN was found guilty by a jury of possessing dangerous drugs for the purposes of unlawful trafficking. Against that conviction Chiang appeals to this Court; the trial judge having given a certificate under section 82 of the Criminal Procedure Ordinance.

2. The appellant's first perfected ground of appeal, with which alone we need be concerned, reads as follows:

"The learned judge erred in law in acceding to the submission of the Crown that he should make a ruling at the end of the evidence in the trail on the voluntariness or involuntariness of the cautioned statement which had been produced by WONG YUK SHING at the request of Defence Counsel in cross-examination."

Albeit he denied the truth of the confession he had made in the cautioned statement in question and which had become admissible as well by reason of his counsel's cross-examination of a prosecution witness as of his consent the appellant wished such statement to remain available for the consideration of the jury to support his evidence of a bargain forced upon him by certain certain Customs officers for the purpose of bolstering up their account of the discovery of incriminating material which, he contended, they had planted in his room. In other words he relied upon the statement and its terms in order to impugn the creditability of those prosecution with witnesses. To adapt some words from the judgment of Yang J.A. in The Queen v. KEUNG SIN-CHI (Appeal No. 965 of 1983, unreported) the appellant had not objected to the production of the statement a matter of admissibility but did challenge its truth.

3. Once the statement was admitted in evidence it was available for all purposes. The question as to whether or not it had been made freely was relevant only to its truth.

4. At the end of the evidence and on the application of prosecuting counsel, at that stage opposed by counsel for the appellant, the learned judge ruled on the admissibility of the document. He found that it had not been made voluntarily and told the jury to disregard its contents for all purposes. To emphasize his ruling he took back copies of the statement which had earlier been distributed to the members of the jury. It is fair to observe that the situation with which he was faced was novel and not, we hope, unfair also to observe that neither counsel appear fully to have been prepared to deal with it. For example, on 22nd of February Mr. Callaghan, who appeared for the Crown below as he does before us, again voiced his concern as to the admissibility of the statement and suggested its withdrawal. To this Mr. Huggins, who appeared below as before us on behalf of the appellant, said, and I quote:

"one thing I am concerned about is that what should not be withdrawn from them is the evidence as to the circumstances in which it came about. Clearly as long as that situation arises and the evidence is preserved to that extent then I cannot at the moment think of any reason why I should object to Your Lordship withdrawing the confession aspect to the statement from the jury."

Later that day Mr. Huggins submitted to the learned judge that clearly the statement had not freely been made by the appellant but subsequently the judge ruled that there was a case for the defendant to answer in relation to admissibility. As we have already mentioned he eventually withdrew the statement from the jury altogether.

5. In the course of argument the Privy Council authority of Ajodha v. the State 1981 3 W.L.R. l, which of course binds us, was cited. At p 10 Lord Bridge, who gave the advice of the Board, referred to the dictum of Lord Summer in Ibrahim v. The King 1914 A.C. 599 at p 609:

"It has long been established as a positive rule of English criminal law that no statement by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement, in the sense that it has not obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority."

6. The significant words in that quotation are, in our view, "against him". Lord Bridge went on to give some very helpful practice guidance though he did enter this caviat at p 13: "Their Lordships would certainly not attempt to lay down an exhaustive code of procedure intended to cover every contingency". The most material guidance appears on the same page under the second hypothesis:

"Though the case for the defence raises an issue as to the voluntariness of a statement in accordance with the principles indicated earlier in this judgment, defending counsel may for tactical reasons prefer that the evidence bearing on that issue be heard before the jury, with a single cross-examination of the witnesses on both sides, even though this means that the jury hear the impugned statement whether admissible or not. If the defence adopts this tactic, it will be open to defending Counsel to submit at the close of the evidence that, if the judge doubts the voluntariness of the statement, he should direct the jury to disregard it, or, if the statement is essential to sustain the prosecution case, direct an acquittal. Even in the absence of such a submission, if the judge himself forms the view that the voluntariness of the statement is in doubt, he should take the like action proprio motu".

7. This hypothesis, like the others in the advice, is given on the footing that it is the prosecution which seeks to introduce the relevant statement. The appellant's counsel here made no submission that the jury should be directed in the summing-up to ignore the statement and, in the circumstances already outlined, could not have done so. No judge, in our view, could act proprio motu contrary to the interests of the defence as expressed and explained by competent counsel properly instructed. Before parting from this example it might be helpful to observe that such expressions as "a single cross-examination"; "the close of the evidence" and "direct the jury to disregard it" suggest a procedure which is the antithesis of anything analogous to a voire dire. It was in this context that the learned judge made his ruling. We find that it constituted an improper exclusion of evidence.

8. We now turn to the provisions of the section 83 of the Criminal Procedure Ordinance. It reads:

"	Except as provided by this Ordinance the Court of Appeal shall allow an appeal against conviction if it thinks:-
	(a)	that the conviction should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory; or that the judgment of the court of trial should be set aside on the ground of a wrong decision on any question of law; or
	(b)	that there was a material irregularity in the course of the. trial end in any other case shall dismiss the appeal.
	Provided that the Court of Appeal may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no miscarriage of justice has actually occurred."

In consequence this Court must allow the appeal if it believes that the verdict of the jury is unsafe or unsatisfactory by reason of the wrongful exclusion or withdrawal of the statement and, in determining whether or not this constituted a material irregularity, has considered the effect of that withdrawal on the minds of the jury in what was, in our view, a very strong case from the point of view of the Crown. The question could be formulated in this way: "Can we be sure that the jury would inevitably have returned the same verdict had the statement remained in evidence?" This test was forcefully illustrated by Lord Hewart in Rex v. Philips (1936) 156 Law Times 80 at p 81 where, in relation to similar legislation and giving the judgment of the Court of Criminal Appeal, he said:

"It seems to this Court impossible to say that if the evidence excluded had been allowed to be heard the jury must certainly or would inevitably have arrived at the same verdict."

Li J.A. used similar words in another unreported Hong Kong case The Queen v. WONG TAK LAM and others (No. 1120 of 1981):

"We may observe that it is settled law that before this Court does apply the proviso we have to be satisfied that without the misdirection or irregularity the jury must inevitably have convicted the appellant."

The test could be put in yet another way: "Has the appellant demonstrated that the has lost a chance of acquittal which was fairly open to him?" We have sought to apply these tests to the circumstances of this appeal. It is common ground that the appellant, being the occupier of a bedroom where considerable quantities of heroin were found, possessed everything in that room of which he was aware. The prosecution was entitled to rely on a presumption in the Dangerous Drugs Ordinance which reads:

"A person who is proved or presumed to have in his possession more than 5 packets of salts of morphine or more than 2.5 grammes of a mixture containing not less than a fifth of 1% of a salt of morphine is presumed to have those drugs in his possession for the purpose of unlawful trafficking unless the contrary has been proved."

The quantities of drugs involved in this case far exceeded the figures I have just mentioned. And we have taken into account the fact that although the learned judge withdrew the copies of the statement and directed the jury to ignore its contents counsel for the defendant, in the course of his final address, made it clear to them, if only byway of reminder, that the document contained a confession. He was also able to say to the jury:

"I would ask you to take account of the fact that the appellant did want the whole story as to what happened to him that evening to go before you and the circumstances surrounding it. In my submission that indicates a man who is confident that if he reveals everything that happened, come what may, never mind what is in it but you will be able to see that he is telling the truth and the officers are not."

If the members of the jury were still left in any doubt as to the nature of the document withdrawn from them, and it was open to them to regard the contents as true, the learned judge in his summing-up made the position sufficiently clear:

"Let me just go back now to the defendant's evidence. He described the manner in which a cautioned statement was taken which spent a period of 11 pm to 5 am the following morning. It is not disputed that during this period of time his family members continued to be detained at Customs Headquarters and it was this the defendant says which was used in the form of inducement or threats to force him to sign his name to a statement which, he maintains, is largely untrue and invented by the Customs officers recording it. - You may take into account the conflicting evidence before you as to the manner in which the statement was taken, if you think that it assists you in assessing the credibility of the various witnesses you heard. The defence argue, of course, that if you believe threats and inducements were used to persuade the defendant to sign the statement that sort of conduct is indicative of the disgraceful manner in which these officers acted to ensure that stronger evidence than actually existed would be placed before the Court and that if they were prepared to go to such lengths to get a statement they would equally be prepared to manufacture evidence and give you quite false accounts as to where the drugs were located in the accused's room."

He went on to advise the members of jury that even the Customs Department might not be without its black sheep.

9. We do not think that the appellant was effectively deprived of any significant advantage by the withdrawal of the statement. We do not think he lost any chance of acquittal which was fairly open to him. Doing the best we can we are satisfied that if the excluded evidence had remained with the jury when they retired for their deliberations they would certainly and inevitably have arrived at the same verdict. Accordingly we dismiss this interesting appeal.