To Kai-sui and Others v. The Queen
Read the full judgment text of CACC 1189/1979 on BabelCite. This Court of Appeal judgment was delivered on 20 June 1980.
1. The four appellants were convicted of conspiracy to cause grievous harm. The particulars of offence read as follows:
Cited by 2 cases
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CACC001189/1979
----------------- Coram: Li, J.A., O'Connor & Power, JJ. Date of Judgment: 20 June 1980 ----------------- JUDGMENT ----------------- O'Connor, J.: 1. The four appellants were convicted of conspiracy to cause grievous harm. The particulars of offence read as follows:
2. Lo Man-lan, a 20 year old girl gave evidence that she had been the girl friend of the first appellant but she had broken off the relationship in January 1979. On the evening of 5th June 1979 she was standing at the Star Ferry with her new boy friend, waiting for a bus when a person came from behind and slashed the right side of her face. She suffered a 10 centimetre long vertical wound. The other evidence in the case related to the making of statements by the appellants to police officers. The statement of each appellant was admitted into evidence by the learned trial judge after he had held a voir dire on which the first and second appellants but not the third or fourth, gave evidence. By agreement the evidence in the voir dire was treated as evidence in the trial. There was no other evidence. The only evidence incriminating each appellant was his own statement to the police. 3. The Summary of Evidence, provided by the Crown prior to the trial disclosed that the Crown intended to call as witnesses two men Ho Yuk-lun and Chu Ming-san who were expected to give evidence that the first appellant had asked Ho Yuk-lun to find someone to injure Lo Man-lan in revenge for her having refused to marry him and having insulted him. The summary disclosed that these witnesses were expected to prove that Ho Yuk-lun recruited Chu Ming-san who recruited the second appellant and it was agreed that for a payment, they would arrange for the girl's face to be slashed. At the commencement of the hearing Crown Counsel announced that he was unable to call either Ho Yuk-lun or Chu Ming-san. No reason was asked for or given and the trial judge in his judgment comments that speculation as to the reason was pointless and that he would decide the case on the evidence before him. We are of opinion that on the facts set out in the Summary of Evidence those two proposed witnesses were co-conspirators and ought to have been named in the particulars of offence. No point has been taken in the court below, or before us on their absence from the particulars or from the witness box. Their proposed evidence was summarised in the Summary of Evidence, which to some extent gives to an accused person the type of information given in depositions when a trial is on indictment. We find no embarrassment or prejudice caused to the appellants by the absence of these two men's names from the particulars of offence, and their own absence from the witness box. 4. The appellants were all represented by Counsel at the trial, but only the first appellant is represented before us. 5. The first ground of appeal of the first appellant is that the trial judge -
and it goes on to set out a number of alleged breaches of the Judges' Rules. In so far as the wording of this ground of appeal appears to indicate that the finding of a statement to be voluntary and admissible is a discretionary matter, it is incorrect. A decision as to whether a statement is voluntary and admissible in law is in no way dependent upon any discretionary power of the trial judge. If it is voluntary it is admissible. It is only after it has been held voluntary and admissible that any discretionary power to exclude it from evidence can arise. There is no discretion to admit into evidence a statement which is not voluntary. The learned trial judge in his in many ways excellent judgment, demonstrated on this matter a full knowledge of the law and mastery of the facts. Where we find valid points for criticism, they are on matters which are minor and of no substantial significance when viewed against the judgment as a whole. 6. There is no doubt that in the investigation of this case there were a number of breaches of the Judges' Rules. Counsel for the first appellant pressed us with the view that the breaches were such as, viewed cumulatively, amounted to oppression. He referred us to the well known passage in the note to Priestley's case set out at (1967) 51 Cr. App. R.1. He suggested that the breaches were such was were calculated to cause the appellant's will to crumble and result in his making an involuntary statement. It is worth noting that the defence case at the trial was that the first appellant was assaulted, threatened and induced to make a statement but that he eventually signed his name a number of times to documents, the contents of which he did not know, as a result of beatings, threats and inducements and because he was told the contents were trivial. He said in evidence that the only fact in the statement which came from him was that he knew the girl victim, and that all the remainder was made up by the officer. The trial judge found as a fact that these allegations were untrue. There has been no real contest before us as to the validity of those findings. So before us the ground on which the confessional evidence is impugned is that it was obtained by oppression largely resulting from non observance of the Judges' Rules. It is we think proper for us to bear in mind that on first appellant's case as presented at the trial his will did not crumble as a result of oppression, nor did he make any statement as a result of his will crumbling, what happened was that as a result of assaults, threats and inducements he signed his name to what he thought were trivial documents. 7. However that is not an end of the matter. We have considered the breaches of the Judges' Rules which are disclosed in the evidence and whether they are such as might amount to oppression and to a failure by the Crown to have established the voluntariness of the statement. We do not consider it necessary to particularize the circumstances in which the statement was obtained or the individual breaches of the Rules. When considering the manner in which the judge dealt with this matter, we have kept in mind the following passage in Director of Public Prosecutions v. Ping Sin(1):-
8. In the case of R. v. Li Wai-fat(2) that passage was miscited as 'is satisfied that the judge made a completely wrong assessment'. 9. The judge at one point in his judgment considered the possible sources from which details in the statement attributed to first appellant could have come. He set out the sources as being either the first appellant or else vivid police imagination. He dismissed police imagination and concluded the source must have been the first appellant. The evidence, however, shows that the police had other sources of information from which such details might have been obtained. The most obvious possibility was Ho Yuk-lun who was in custody and who had commenced making a statement, the contents of which were not in evidence, before the taking of the statement from first appellant. We have considered this error of the trial judge in the context of all the evidence and of his judgment as a whole. We are satisfied that if he had not made this error, his conclusion as to voluntariness and reliability of the statement would have been the same and that that conclusion would not have been unsafe or unsatisfactory. 10. The judge having found the statement voluntary and admissible gave express consideration to whether he ought to exclude it in exercise of his discretionary power. He decided he ought not to so exclude it. We do not consider that exercise of discretion to be wrong. 11. The breaches of the Judges' Rules that occurred in this case are of a type not uncommon in Hong Kong. The rules applicable in Hong Kong are those that were drawn up in England in 1912 and 1918 as guidance for police forces in England. In Hong Kong, as in England, these Rules are rules to be observed by the police, not by the judges. Not uncommonly statements are admitted in evidence despite breaches of the Rules which are, it must be emphasized, not rules as to the admissibility of evidence. We consider it unfortunate that they were ever called "Judges' Rules". To a layman the impression may arise that there are rules for judges which judges may ignore. We think that it might well have been better if Hong Kong had never adopted these Rules. In our view rules for the guidance of police officers are the responsibility of the Commissioner of Police, not of the judges and should be formulated having regard to conditions in the country in which the police officers are operating. Judges when considering the admissibility of statements should apply the law and of course give what weight is merited in the particular case to any breach of proper police practice. We consider the attitude taken at the 1965 Conference of the Chief Justices of Australia and New Zealand to be worthy of consideration. A statement issued at that Conference said firstly that in considering admissibility it was always for the judge to take into account all the circumstances of the individual case, secondly that it was not for the judges, but for the authorities in charge of the various police forces to make their own rules for the good conduct and guidance of their officers and the judges were always on their guard to ensure that fair conduct is observed by the police in the examination of suspects, thirdly it would be inappropriate for the Chief Justices' Conference to purport to approve or disapprove of the new Judges' Rules. 12. The second ground of appeal of the first appellant is that the trial judge improperly took into account the statements to the police of the other appellants when considering his verdict in relation to the first appellant. It is clear law that such statements were not admissible evidence against the first appellant. We emphasise the word 'against'. A statement to the police by a defendant cannot be used in any way to support the case against a co-defendant: R. v. Daniel & Watson(3). However the statement to the police of a defendant can for certain purposes be considered in support of a co-defendant. A judge in a voir dire is required to look at the narrative of each confessional statement in order to judge whether or not there are similarities or inconsistencies between statements by different defendants which indicate that they were not made in the manner the prosecution say, see R. v. Li Kar-wah(4), a case to which defence counsel referred the judge at the conclusion of the voir dire. We consider that a judge ought in the trial proper, when considering the weight to be attached to the confessional statement of a particular defendant, consider it together with the statements of other defendants for the purpose of attacking but not supporting the case against the defendant. We must look to see whether that is what the judge did in this case. 13. In his judgment he said:-
He then went on to consider apparent discrepancies which appeared on considering all the statements together, and he demonstrated that the discrepancies were more apparent than real. In the course of doing so he mentioned that the first appellant in his statement:-
The position is that the statement of first appellant never identified Ah Lam as being the second defendant nor described him by any name other than 'Ah Lam'. So the words in parentheses are not justified on a consideration of the statement of first appellant in isolation. After having considered the discrepancies he went on to set out separately the case in respect of each appellant. In doing so he again made the error of assuming that persons referred to in the statement of first appellant were the other defendants, though the statement of first appellant considered alone, did not establish that. He concluded his judgment in the following words:-
It appears that the judge, despite correctly directing himself as to the law, has to some extent made an improper use of the statements in that he drew conclusions as to identity of persons mentioned therein from a consideration of the statements together, which he could not have drawn from each considered in isolation. It appears to us that he did this for the purpose of delineating the scope of the conspiracy rather than for the purpose of establishing the involvement of the maker of each particular statement. He does not appear to have made an improper use of the statements for the purpose of deciding what weight to attach to them. In the light of his judgment considered as a whole we do not consider that this error has involved a miscarriage of justice and are satisfied that it is a proper case for the application of the proviso. 14. The third ground of appeal of the first appellant is that the judge misdirected himself in the manner in which he reconciled discrepancies in detail between the statement of the first appellant and the statements of the other appellants. We are satisfied that there are no arguable grounds under this heading. 15. The fourth ground of the first appellant is divided into two parts. The first alleges that the conviction is unsafe and unsatisfactory because the only evidence incriminating the first appellant was his statement. Counsel concedes that there is no principle of law that a conviction cannot stand where the only evidence in support of it is a disputed confessional statement, but he says that in such circumstances the reasons for admitting the statement in evidence and giving weight to it must be compelling. We accept that these matters call for a particularly careful scrutiny and evaluation of the evidence by the trial judge. We are satisfied that in this case there has been such scrutiny and evaluation and that despite the lapses to which we have referred the conclusion reached by the judge is safe and satisfactory. 16. The second part of the fourth ground of appeal of the first appellant is that the conviction is unsafe and unsatisfactory because his statement does not of itself show that he conspired with the other three appellants. His statement took the form of answers to specific questions put to him by a police officer. Immediately before asking the questions the officer told him that he was inquiring into a case that occurred at the Star Ferry on the evening of 5th June when the girl Lo Man Lan was slashed on the face. The first appellant was warned that the officer suspected that he was connected with the case and was cautioned that he need not answer any questions. He decided to answer the questions. It is clear that the questions and answers were in respect of that attack. In the course of his answers the appellant revealed that he had procured Chu Ming San and Ho Yuk Lun (the two proposed Crown witnesses who were not in fact called) together with a man Ah Lam to arrange for the attack on the girl. The statement of first appellant discloses he entered into a conspiracy with those three persons to have the girl disfigured. His statement does not give the full name of Ah Lam. It simply calls him Ah Lam. The statement to the police of the second appellant makes it clear that he is the person referred to as Ah Lam in the statement of first appellant. However, the statement of second appellant is not evidence against the first appellant. The point taken on appeal is that in these circumstances the statement of the first appellant does not establish that he conspired with the other three appellants, who were the only other named co-conspirators in the particulars of charge. 17. The charge against the first appellant is that he and the other three appellants 'conspired together and with other persons unknown to unlawfully and maliciously wound Lo Man-lan with intent to disfigure her'. For a conviction of the first appellant on that charge all that it was necessary for the Crown to prove, was that he conspired with any of the persons named or a person unknown to effect the purpose alleged. It was not necessary, in order to establish the guilt of the first appellant, for the Crown to prove that he conspired with more than one person, and due to the mention in the particulars of 'other persons unknown', that one person did not have to be a named conspirator. Once the Crown had proved that the first appellant had conspired with any one person to effect the purpose charged, they had proved everything necessary for a verdict of guilty in respect of the first appellant. The Crown in respect of the first appellant proved that he conspired with three person, Ah Lam, Chu Ming-san and Ho Yuk-lun to effect the purpose charged. Ah Lam was not proved, in respect of the case against the first appellant, to be one of the named conspirators, nor were the other two men named in the particulars as conspirators, but they all nevertheless fall within the wide class of alleged conspirators. Of course the Crown had hoped to call Ho Yuk-lun and Chu Ming-san who were expected to give evidence of their own involvement and that Ah Lam was the second appellant. The Crown were unable to call those witnesses. It can be said that the Crown ought to have applied to amend the particulars in order to show that one of the alleged conspirators was Ah Lam who might be the second appellant and that the other two were alleged conspirators. That would be in accordance with the principle that a conspirator whom the Crown can name ought not to be left in the indictment as a person unknown. Of course in a sense the situation in regard to Ah Lam would have been unreal, and the difficulty only arose due to the circumstances that the Crown had expected to be able to prove that Ah Lam was the second appellant, but being deprived of those witnesses were left with only each appellant's statement as evidence incriminating him. The defence of course all along knew that the Crown had expected to prove that Ah Lam was the second appellant and that the other two were conspirators. That was clear from the Summary of Evidence. In the circumstances of the case any imperfection in the charge could have in no way embarrassed or prejudiced the appellant, R. v. Chan Kau(5). Convictions should not be upset because of mere technicalities of pleading in an indictment, the appellant all along knew what was the case against him and the facts in support of that case were sufficiently proved, R. v. Cogan and Leak(6). 18. We consider we should deal with another matter. The case of R. v. Greenfield(7) is illuminating on the question of whether a charge is bad for duplicity, or on the other hand while not being duplex, is open to attack as being supported by evidence showing more than one conspiracy. Assuming that conspiracy is an exception to the rule in D.P.P. v. Merriman(8), that on a joint charge defendants can be convicted of committing the offence independently, the question arises as to whether the verdicts of guilty against each appellant can stand together or whether they fall by virtue of being on the basis of different conspiracies. The short answer is that each appellant's incriminating statement was in relation to his involvement in a conspiracy to effect the attack which eventually occurred. It is clear that the appellants were all involved in the one conspiracy to effect that common purpose. 19. The second appellant appeared in person and made a number of submissions to this Court suggesting that his conviction was unsafe and unsatisfactory. We did not consider that there was any substance in these submissions. However we set out and deal with the more important of them hereunder. 20. He submitted that the Learned Trial Judge had failed generally to properly consider the reliability of the prosecution witnesses. He pointed particularly to the discrepancies which existed between the evidence of PW 10, Detective Sergeant 7002, and PW 11, Senior Detective Constable 4084. These discrepancies occurred in the evidence given by the witnesses as to the circumstances surrounding the arrest of the second appellant. It is true that the Learned Trial Judge did not examine and dispose of each of these discrepancies individually; however, we have no doubt that he had them in mind when coming to his decision and he did advert, in a general way, to this matter in his reasons for verdids, when he said at page 135:
Having considered the matter we do not consider that there is any substance in this ground. 21. The second appellant also submitted that an examination of the wording of his statement (Exhibit 5) indicated that it had not been given voluntarily by him. We have examined the words to which he referred and found no substance in this submission. 22. He, moreover, submitted that the statement should not have been admitted because there was no corroborative evidence to show that it was voluntary. It is true that the only evidence as to the taking of the statement from the second appellant between 6.05 a.m. and 6.45 a.m. came from Senior Detective Constable 4084. This witness did say that the officer in charge of the case was present in the room during some of the time when the statement was being taken. However, his evidence indicated that the officer had been going about other duties. In the outcome this officer was not called to give any evidence to support that of Senior Detective Constable 4084. The Learned Trial Judge was fully aware of all of the circumstances surrounding the taking of the statement and that the evidence concerning the taking of the statement came only from Senior Detective Constable 4084. He was nonetheless sure beyond reasonable doubt that the statement was voluntary and admissible and we do not consider that anything has been advanced to warrant interference with that finding upon the ground that there was no corroborative evidence. 23. In an endeavour to demonstrate that the statement was involuntary the second appellant further submitted that the statement could not have been made within the time span of 40 minutes as alleged by Senior Detective Constable 4084. Again we do not consider that we can give any weight to this submission. The Learned Trial Judge was fully aware of this matter when he ruled that the statement was voluntary and nothing has been advanced to occasion us any doubt as to the correctness of his implicit finding that the taking of the statement occupied a period of 40 minutes. 24. The third appellant, who also appeared in person, suggested that he should not have been convicted upon the basis of his cautioned statement alone. We can see no merit in this submission as we are quite satisfied that upon the evidence the Learned Trial Judge was entitled to find the cautioned statement was given voluntarily and that he was entitled to act upon its content when coming to his decision. 25. The fourth appellant, who also appeared in person, raised only matters of fact in his submission to us. He pointed out that he was under 16 when the statement was taken and that his parents had not been present at the time. This was a matter of which the Learned Trial Judge was fully aware and he dealt with it in his reasons for decision. The fourth appellant stated to this Court that he had signed the statement because he was under threat and inducement and was very frightened. He did not, however give any evidence raising such matters at the trial and we are satisfied that the Learned Trial Judge was entitled, upon the evidence before him, to find as he did that the statement of the fourth appellant was made voluntarily and to admit. 26. When considering the appeals of the second, third and fourth appellants we have given them the benefit of the argument advanced on behalf of the first appellant insofar as they are applicable to the case of each. 27. The first appellant also appeals against the sentence of three and a half year's imprisonment. He is aged 20 years and has no previous convictions. This was a planned attack for which he recruited other persons for payment to disfigure a young girl. We see no reason to interfere with the sentence. 28. The applications for leave to appeal are dismissed. Representation: Lord Hoosen, Q.C. & David G. Sparrow (H.M. So & Co.) for the first appellant. The second, third and fourth appellants in person. G.W. Alderdice, Assistant Crown Prosecutor & Conynghan for the Crown/respondent. (1) (1975) 63 Cr. App. R.14 at 26 (2) Cr. Appeal 355 of 1977 (3) (1973) Criminal Law Review 627 (4) (1970 H.K.L.R. 572 (5) (1965) H.K.L.R.662 (6) (1975) 61 Cr. App. R. 217 (7) (1973) 57 Cr. App. R. 849 (8) (1972) 56 Cr. App. R. 766 |
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