The Queen v. Wong Kwok-lim
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CACC000971/1983
BETWEEN:
Coram: Roberts, C.J., McMullin, V. P.& Li, J. A. Date: 10th February, 1984. ----------------- JUDGMENT ----------------- Roberts, C.J.: Background 1. The applicant seeks leave to appeal against his conviction on two charges of burglary. 2. The primary evidence against him, on both charges, consisted of three confessions which he made to police officers, and which were admitted in evidence after a voir dire. 3. As a result of information received, the police officers arrested the defendant in the Sun Hing Billiard Room at about 12.15 a.m. on 22nd April. 4. No. 14464, D.P.C. Wong, questioned the defendant on the spot in the Billiard Room before he took him back to the Wanchai Police Station, after being in the Billiard Room for 30 to 45 minutes. 5. After they arrived at the Police Station, D.P.C. Wong had to perform other duties and therefore only began "to post-record" what bad taken place between him and the defendant in the Billiard Room at about 2.20 a.m. in the police station. This took about two hours. 6. This record shows that the defendant was cautioned by D.P.C. Wong at the Billiard Room immediately after his arrest and before the defendant had made any admissions. The defendant, having admitted that he had taken part in the burglary in the second charge, was again cautioned. In the course of subsequent questioning by D.P.C. Wong, he admitted the burglary contained in the first charge. 7. The record made by Constable Wong is signed by the defendant under a paragraph which reads -
8. In the margin of the last page of the record, the signature of the appellant appears in four places, against alterations in it. 9. The record contains the recollection of D.P.C. Wong of what happened at the Sun Hing Billiard Room, of the questions which the constable asked and the answers which the defendant gave at the Billiard Room, including clear admissions by the defendant that he took part in the two burglaries with which he was charged. Admissibility of record 10. During the course of the trial, the defendant's counsel challenged the admissibility of this statement and of two further "records", which were made by D.P.C. Wong later on 22nd April, on the ground that the defendant had been subjected to a series of assaults, both in the Billiard Room and subsequently in the Police Station when D.P.C. Wong was recording the first statement. 11. The trial judge admitted all three statements, accepting the evidence of D.P.C. Wong, that the admissions had been made voluntarily by the defendant and rejecting his allegations of assault. We are satisfied, from an examination of the evidence of the defendant, the police officers and the doctors, that there was ample justification for this finding. Post-recording 12. It has, however, been argued before us, that the judge failed to consider, as he ought to have done, the possibility that it was inherently unlikely that D.P.C. Wong would have been able to remember as much as appears in the first record, which was admitted as P.16, since there was a gap of about two hours between the incidents it describes and the making of the record, which itself took a further two hours to complete. 13. The post-recording, after a significant interval, of long statements or confessions is full of danger. Assuming that a police officer is being entirely fair and honest, it is nevertheless easy for him to make mistakes, if there is anything like a substantial interval between the events which he purports to record and the actual reporting of them. It is therefore right that the courts should scrutinize with great care post-records of this nature. 14. We cannot say that the mere fact that there is a substantial time interval between events and the record, nor that the record itself is long and detailed must necessarily lead a court to the conclusion that the record is inaccurate, or unfair in its emphasis. Human beings vary in their ability to remember just as they do in other ways. 15. In this instance, however, the record was, if the evidence of D.P.C. Wong is accepted, as it was by the judge, read over to the defendant who was invited to make alterations to it. The defendant appears to have done this, since his signature appears in the margin of the record alongside amendments that had been made to the record. 16. The judge rejected the allegations that the defendant had been forced to sign this record and found that he had made voluntarily the admissions contained in it. Further, it must follow that the judge found that the defendant, by signing the record as accurate, has given his approval to it as a proper record of the events which took place. 17. It is worth, perhaps, adding that an examination of the construction and language of the record does not, on the face of it, suggest that it is other than an effort to record events as the police officer neceeuctad them. Other evidence 18. It was conceded by the Crown that, if the statements were excluded from evidence, the judge would have been left with no alternative but to rule that there was no case to answer, at the close of the Crown case. Inherent in that concession is a recognition that the remainder of the evidence taken by itself would have been insufficient to sustain a conviction. It is nevertheless worth mentioning that the other evidence which was adduced was of a substantial nature. 19. In the course of the first record the defendant mentioned that he had taken part in an earlier burglary, about six months before, at Man Yee Building, in a beauty salon. This had not been reported to the police as a burglary. Soon after the defendant's admission, on 22nd April, police officers took him to the place which he had described and there interviewed the proprietor of the beauty salon, who agreed that there had been two burglaries some months' before at the premises in question and that money had been stolen each time. 20. Substantial support for the Crown case emerged during the evidence of the third defendant, the defendant's uncle, who gave evidence in his own defence, in contrast to the defendant who gave no evidence and called no witnesses. 21. The third defendant described how he was telephoned by the defendant in the early hours of the morning of the night during which the burglary in the second charge had taken place. The defendant asked him if he could assist him in the disposal of several cameras which, according to the facts agreed at the outset of the trial, were among the articles which were stolen that morning from the premises described in the second charge. 22. This evidence thus placed some of the articles stolen in the hands of the appellant, within a few hours of the burglary taking place. 23. In spite of the persuasive argument of Mr. Ramanathan, we are satisfied that this was a proper conviction, that the statements were correctly admitted by the judge and that the application for leave to appeal against conviction must be dismissed. Representation: K. Ramanathan (D.L.A.) for Applicant G.W. Alderdice, Snr. Asst. Crown Prosecutor, for Crown. |