R. v. Lam Yin-yung

CACC000096/1991

Headnote

Wounding with intent - cautioned statement admitted without objection - defence by cross-examination indicated statement obtained by threat or inducement - accused in the course of prosecution's case said statement involuntary - whether judge should then hold voir dire or permit recall of relevant prosecution witnesses for further cross-examination - duty of judge to explain to accused his rights.

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Coram: Hon. Yang, C.J., Bewley & Barnett, J.J.

Date of Hearing: 28 April 1992

Date of Judgment: 28 April 1992

Date of Handing Down Reasons: 22 May 1992

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J U D G M E N T

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Hon. Yang, C.J.:

1. This is the judgment of the court.

2. On the 28th April 1992 we allowed Lam Yin-yung's application for leave to appeal against his conviction of wounding with intent, treated the hearing of the application as hearing of the appeal and allowed the appeal. We accordingly quashed the conviction and set aside the sentence. We indicated at the time that we would reduce into writing the reasons for allowing the appeal; this we now do.

3. The evidence against Lam, which his counsel Mr. Marash conceded was strong, was straightforward. On the 1st July 1990 he and the victim had a minor quarrel over a game of tin-kau. On the evening of the following day when the victim was playing a game at a video game centre at Temple Street, Kowloon, a man suddenly stood behind him and said, "The other night you were cheeky to me." As the victim turned he was stabbed in the abdomen and chopped on the head and arm. Then his assailant rushed out of the centre.

4. The victim was able to identify his assailant in court as Lam Yin-yung. This he was able to do not only because the lighting in the video game centre was very bright, but, more importantly it seemed to us, also because the victim and Lam had often played tin-kau at the same establishment on previous occasions. No identification parade was held.

5. An 18-year old youth, who was also at the video game centre at the time of the attack, gave chase after Lam as soon as he became aware of what had happened. Upon being pursued, Lam drew out his knife and attempted to chop the youth but missed. The youth said that the man he chased after wore a white T-shirt and he identified Lam in court.

6. When Lam was intercepted by the police a blood-stained knife and a paper sheath were found on him inside the waistband. Lam's hand was bleeding and he was taken to hospital.

7. Lam elected not to give evidence and called no witnesses.

8. Four grounds of appeal were advanced but at the hearing before us, it was agreed that if Lam should succeed on the Second Ground, then it would not be necessary to pursue the other three Grounds.

9. The Second Ground reads:

"There was a material irregularity at the trial of the Appellant in that the learned trial judge, being aware that the Appellant was unrepresented and having become aware that the Appellant had always wished to challenge a cautioned statement .which had already been admitted into evidence prior to the Appellant's desire to challenge it becoming known, failed to hold a voir dire or inform the Appellant of his right to give evidence before the close of the Crown case on the limited issue of admissibility."

10. The matter referred to in this Ground of Appeal arose in this way. After the sixth prosecution witness had concluded his evidence on the first day of the two-day trial, Lam indicated to the judge that he wished to discharge his counsel, giving as his reason for doing so that his counsel had failed to object to the victim's identification of him and to the admissibility of the post-recorded cautioned statement, contrary to his instructions. Lam asked for an adjournment in order to engage another lawyer, or to have a trial de novo.

11. One of the police officers PC 9842 who intercepted Lam said in evidence that upon being cautioned, Lam said he had used his knife to chop people in the video game centre "just now". The oral statement was post-recorded in the office's notebook at Queen Elizabeth Hospital to which Lam was taken. The record of the statement was produced without objection by defence counsel though in cross-examination of PC 9842, he was asked if he (the officer) had said to Lam that he must sign the notebook if he wanted to see the doctor. The answer was no. The case for the defence was that he did not make the statement.

12. In refusing to grant an adjournment or to order a trial de novo, the judge said this:

"There are two things: statement and medical report. Mr. Wong (for the Crown) invites me to exercise discretion to exclude the statement. I am not inclined to do that. The statement has been admitted. If you in due course give evidence, it is of course open to you to tell me that it was not voluntary. If I accept that I will exclude the statement. But for now,  it is in evidence and it is staying in. Secondly, there is the medical report ...."

13. In his Reasons for Verdict the learned judge said he did not see the need to consider Lam's cautioned statement as the evidence against him, apart from the statement was to his mind "quite conclusive".

14. Mr. Marash contended that the conviction could not be supported in the light of the way in which the judge dealt with the admissibility of Lam's cautioned statement. It was suggested that, at the point of defence counsel's cross-examination of PC 9842 that the police officer had told Lam he must sign the notebook if he wanted to see the doctor, the judge should have clarified from counsel whether he was seeking to challenge the admissibility of the statement, e.g. on the ground of inducement or threat.

15. The leading case on the subject is Ajodha v The State (1982) AC 204. Mr. Marash argues that Lam came into the second situation of the four situations considered by Lord Bridge where the voluntariness of incriminating statements was in issue: vide page 222B. The second situation (analogous to the situation in the present case) is where the accused denies authorship of the written statement but claims that he signed it involuntarily. In such a case the judge must rule on its admissibility, and if he admits the statement, leave all issues of fact as to the circumstances of the making and signing of the statement to the jury to consider and evaluate: vide page 222B. It may sometimes happen that the accused himself will raise for the first time when giving evidence an issue as to the voluntariness of a statement already put in evidence by the prosecution. Here it will be a matter in the discretion of the trial judge whether to require relevant prosecution witnesses to be recalled; for further cross-examination; the judge should explain to the accused his rights in the matter: vide page 223F-G. In Ajodha, counsel for the state invited the Board to uphold the conviction of the defendants on the sole ground that no formal objection to the admissibility of the confession statements was taken. The invitation was refused, for an appellant should not be disentitled to rely on the narrow technical ground that his counsel omitted -what would have been the pure formality of taking a point on his behalf (p. 222H to p. 223A).

16. Ajodha was followed in R v Wong Yun-fat [1986]  HKLR 5.

17. In R v Ho Yin-fai [1970] HKLR 415, the Full Court held that when the question of admissibility of a statement is at issue, the judge sitting without a jury must ensure -

(1)    that the defence is not left with the impression that the right of cross-examination is limited to the issue of admissibility;

(2)    that the accused is heard on the issue of admissibility if he so wishes; and

(3)    that a ruling on the admissibility is made at or before the close of the case for the prosecution.

18. In It R v Watson [1980] 1 WLR 991 Cuimning-Bruce L.J. held (at page 994A-C):

"In our view the Judge was wrong to rule as he evidently did that he had no power to consider the relevance of evidence, given after the trial within a trial, upon the issue whether the written statements were not voluntary and therefore inadmissible. He should have allowed counsel to develop his submission and should have ruled upon its merits.

It is the duty of the judge to exclude from the jury's consideration evidence which is inadmissible. In the case of a written statement, made or signed by the accused, the judge must be satisfied that the prosecution have proved that the contested statement was voluntary, before allowing the jury to decide whether to act upon it. Experience has shown that 'where the question of the voluntary character of a statement has been investigated and decided at a trial within a trial, it is only in very rare and unusual cases that further evidence later emerges which may cause the judge to reconsider the question whether he is still satisfied that the statement was voluntary and admissible. But where there is such further evidence, the judge has power to consider the relevance of the admissibility of evidence upon which he has already ruled."

19. The situation now under consideration is somewhat similar to that which before Liu, J. in R v Chan Chun-ming [1980] HKLR 785. There the appellant in the course of the trial indicated that he had no objection to the production of his statement. But later at the trial the appellant, when giving evidence, gave his own version of the circumstances which tended to show his statement had been obtained by unfair tactics. R v Watson was followed, and it was held that a judge retains control over the evidence throughout the trial, and therefore may reconsider the issue of admissibility of a statement at any stage if further relevant evidence emerges. Liu, J. continued to say (at page 787):

"In the case before the learned magistrate, the appellant was not briefed as to his right to seek a reconsideration by the court of the issue of voluntariness; it does not appear from the record that the learned magistrate had considered the case of Watson or at any time sought to apply the principles enunciated therein.

The appellant pleaded not guilty and was acting in person. No sooner had he consented to the production of his confession than he broached the unpleasant subject of unfair tactics. Even if the appellant's right of objection had been fully explained to him, his immediate complaint was clear enough indication that he remained oblivious of the subtle distinction between production and admissibility. In view of The Queen v Watson, the issue of voluntariness ought to have been re-ventilated. It is on this ground alone that I choose to base my decision in allowing the appeal."

20. In this connection, we cite but do not discuss in detail the important decision of McMullin, J. (as he then was) sitting in the Full Court in Leung Siu-ng v The Queen (unreported, surprisingly) Crim. App. 570 of 1974 which set out in great detail the steps a judge should take when the admissibility of a written statement made by an accused was considered. In that case, the decision in R v Ho Yin-fai (supra) was followed.

21. The judge when faced with the kind of situation then under cross-examination has an extremely difficult task to do, for an error can so easily be made by an omission or by over-reaction.

22. Here, when defence counsel cross-examined PC 9842 as to whether he had said to Lam that he must sign in the notebook if he wanted to see a doctor, the judge should seek to clarify from counsel whether he was objecting to the admissibility of the statement. This unfortunately was not done.

23. The next point in time when admissibility fell for consideration was when Lam discharged his counsel on the ground that his counsel knew that Lam had signed the statement involuntarily but did not object to the production of it. Though the statement had already been admitted into evidence, the judge could nevertheless hold a voir dire or adopt the "alternative procedure" and tell Lam of his rights to have the relevant prosecution witnesses (including PC 9842) recalled for cross-examination. The steps outlined in R v Ho Yin-fai (supra) should have been adopted. We agree entirely with Liu, J.'s judgment in R v Chan chun-ming (supra).

24. It was of the highest importance that, at the close of the prosecution case, Lam should have known the strength of the evidence against him so that he could make an informed decision as to whether to give evidence. Believing, as he must have done, that his cautioned statement had been admitted and would weigh heavily against him might have materially affected his decision.

25. With great respect to the trial judge, in our judgment the authorities cited above appeared not to have been followed. That amounted to a material irregularity which, in our view, was not amenable to the application of the proviso. For this reason we allowed the appeal and ordered a retrial.

Representation:

Mr. D.Y. Marash (Gary Mak & Co.) for applicant

Mr. A.A. Bruce for Crown/respondent