The Queen v. Cheng Ma-fuk and Another
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CACC001196/1983 [Admissibility of statements.]
BETWEEN:
Coram: Roberts, C.J., Huggins, V.P. & Barker, J.A. Date: January 10th & 26th, 1984. ------------------- JUDGMENT -------------------- Roberts, C.J.: 1. The two appellants, who were the fourth and fifth defendants ("D.4" and "D.5) at the trial, were charged with three other persons with conspiracy to arrange the passage to Hong Kong of unauthorized entrants. 2. The first, second, fourth and fifth defendants were convicted. The third defendant was acquitted. D.4 and D.5 seek leave to appeal against their convictions only. Summary of facts 3. D.1 and D.2 are a married couple who entered Hong Kong illegally from China in 1979. Early in 1981 they decided to try to bring their eldest daughter to Hong Kong. D.3, who was known to D.1 also wished to bring his two children from China to live with him in Hong Kong. 4. On 1st April, 1983, D.1 and D.3 were introduced to D.4, who claimed that he could arrange to bring children illegally into Hong Kong at a charge of $6,000 a head. He discussed with the two parents the method by which the children should be collected in Shum Chun in China and brought into Hong Kong by speedboat. 5. It was arranged that the illegal entry should be carried out on 7th April, 1983, on which date D.2 and D.3 went to China and handed over their children to another man, returning to Hong Kong to await their arrival here. 6. On that evening, however, the police, acting on information, arrested D.1 and D.2. D.3 and D.4, unaware of this, went to the appointed landing place in Hong Kong to collect the children, who did not arrive. 7. D.3 went to look for D.1 at his home, but was arrested by the police, as was D.4 the next day at Sheung Shui. While D.4 was being questioned by the police at Sheung Shui Police Station, D.5 called him through a paging machine. On police instructions, D.4 answered the call and the subsequent telephone conversation was tape-recorded. This conversation suggested that the children would be brought in on 8th April instead of 7th, though the operation did not take place. D.5 was arrested on the afternoon of 8th April. Essence of Crown Case 8. The prosecution case rested primarily on admissions made by D.4 and D.5, in cautioned statements which were admitted in evidence after a voir dire had been held. 9. D.4 made two statements, on 9th April (P .8) and on 15th April (P.9). D.5 made five statements, one on 9th April (P.12), one on 10th April (P.13) and three on 15th April (P.14, P.15 and P.16), of which P.12 contained admissions, whereas the others did not. Neither D.4 nor D.5 gave evidence; and neither called any witnesses. Length of Custody (D.4) 10. At the outset of the hearing, counsel for D.4 very properly abandoned grounds 4 and 7 of the Grounds of Appeal dated 28th December, 1983. 11. Of the remaining grounds advanced by D.4, only one is of a substantial nature. It relates to the admissibility of the two statements made by D.4 on 8th and 15th April, 1983. 12. The sequence of events was as follows. D.4 was arrested at about 1600 on 8th April and taken to Lok Ma Chau Police Station. From there he was removed to Sheung Shui Police Station, where he stayed from about 1745 to about 2020, when he was taken to Tsim Sha Tsui Police Station. 13. At Tsim Sha Tsui, he was cautioned and a statement was taken from him. This started at about 0045 and was completed at 0345, after a half-an-hour, break between 0230 and 0300. 14. The main argument as to the admissibility of this statement was that D.4 had been in police custody for almost 12 hours between his original arrest and the conclusion of the statement. It was submitted that this long interval, which spanned the evening and the early morning, was of such a nature that an inference must necessarily be drawn that the defendant was worn out and no longer fully in control of himself at the time when the statement was given. 15. We are not prepared to say that the fact that a suspect has been in the. custody of the police, and under questioning for part of the time, for a period of 12 hours without sleep is of itself sufficient to reduce a normal person to such a state that it could be said that his will was overborne and that he was no longer fully able to look after himself. 16. We do not say that such an effect cannot be produced on a defendant in such circumstances. But there is no evidence that it happened in this instance, since D.4 himself never complainted that he was overborne by weariness or lack of sleep. Nor was it ever alleged on his behalf during the trial that this was the reason why he made the admissions in P.8 in the early hours of 9th April. 17. D.4's allegations, as put forward in the voir dire, were that he had been subject to threats, inducements and physical violence before he signed P.8. These were rejected by the Deputy judge, who did not specifically deal with the argument now put before us, because it was never put before him. Had it been raised, it would have been open to the Crown to adduce evidence to rebut it. We see no substance in this ground. Admissibility of Statement P.9 (D.4) 18. On the evening of 8th April, before P.8 was recorded, D.4's paging machine operated. At the request of D.P.C. 7390, D.4 phoned the paging number and had a conversation with a person, whom he identified as D.5. 19. The literal words of the conversation were somewhat equivocal. While they might have supported other evidence of a conspiracy of the kind alleged, they would not themselves have constituted damning evidence against D.4 or D.5. 20. It appears, from the preamble to P. 8 that D.P.C. 7390 asked questions of D.4 as to the meaning of his conversation with D.5. No record of this interrogation, however, seems to have been made at the time. Certainly, if it was, it was not adduced in evidence. 21. The introduction to P.9, recorded on 15th April, six days later contains the following passage -
22. D.4 was reminded that he was under caution and asked if he was prepared to listen to the tape being replayed to him, which he said he was. He was asked a number of questions,which were said to be in clarification of the contents of the tape. His answers afforded substantial further evidence against him. 23. We were somewhat disturbed by the failure of D.P.C. Lam to record, as we assume he did not, admissions of the kind quoted in the preamble to the statement and set out above, for six days after they were made. 24. This is a dangerous omission and may give rise to a suspicion of the authenticity of the supposed admissions. Had this criticism been made of P.9, by D.4 or his counsel, it might have given us serious concern. 25. However, this is not the way in which D.4's defence was conducted. In relation to P.8 he alleged assaults, threats, inducement and fabrication. As to P.9, he insisted that it was fabricated, in that he was not asked any questions and that it was composed by D.P.C. Lam. 26. These allegations were carefully considered by the judge, who for adequate reasons found, as a matter of fact having had the advantage of hearing the witnesses, that he did not believe D.4, whereas he was impressed by the manner in which the Crown witnesses gave their evidence. 27. Although D.P.C. Lam omitted to record, on the evening of 8th April, the admissions about the tape recording which were made by D.4, some hours before P.8 was taken from him, they were included in the preamble to P.9. The authenticity of this preamble was not the subject of attack by the defence, save to the extent that the rest of P.9 was. 28. The judge, in his ruling, has disbelieved D.4's allegations of fabrication and has accepted D.P.C. 7390 as a witness of truth. Inherent in this is a finding that P.9 was an accurate record of D.4's admissions, whether in the preamble or in the body of the statement, and that, when D.4 signed it, he was acknowledging it to be correct. The challenge to the admissibility of this statement must therefore fail. Failure to call police officer (D.5) 29. At the outset of the hearing before us, counsel for D.5 abandoned all but one of his main grounds, but contended that the conduct of the defence case was materially hampered by the prosecution's failure to call Sergeant Tam, who was said to be a crucial witness as to the circumstances of the taking of the cautioned statement P.12. This contained damaging admissions, on the basis of which D.5 was convicted. 30. The solicitor representing D.5, at the trial, when objecting to the admission of all five statements given by D.5, alleged that Sergeant Tam, immediately before P.12 was taken on 9th April, had assaulted D.5 by kicking him on the left thigh, after which he was further assaulted by D.P.C. 681. 31. D.P.C. 681 testified, on the voir dire, that he was present when the contested statement (P.12) was taken and that no assault of any kind on D.5 had taken place. He specifically denied that Sergeant Tam had kicked D.5 or that he himself had assaulted him. 32. It is not disputed that Sergeant Tam was present when the cautioned statement was taken from D.5, nor that the reason for his failure to give evidence was that he had been severely injured in a traffic accident and was in hospital at the time of trial. 33. The basis of the submission made on behalf of D.5 was that, since Sergeant Tam was named as having assaulted D.5 the Crown could not have satisfied the judge that the statement concerned was a voluntary one, without calling Sergeant Tam to deny that he had been guilty of any physical ill-treatment of D.5. 34. It was added that, as a result of the absence of Sergeant Tam, D.5 was at a serious disadvantage since, had the Sergeant been called, D.5 would have had the opportunity to cross examine him and perhaps to strengthen his case that the statement had been obtained from him by physical pressure. 35. It was not suggested that there is any obligation on the Crown to call as witnesses all who were present at the time of an alleged assault by a police officer preceding a voluntary confession. If it had been we would have had no difficulty in rejecting the argument. 36. What the Crown would normally be wise to do, and it risks a finding that it has not established the voluntary nature of a confession if it fails to do so, is to call, if it is reasonably possible the police officer against whom an allegation of ill-treatment is directed. 37. If the Crown does not do this, for sufficient reasons, it will normally be enough to call another officer who was present at the time of the alleged assault, as happened in this instance. D.P.C. 681 gave evidence that he was present at the time of the supposed attack by Sergeant Tam and that no assault took place. 38. We think that the judge was entitled, on the basis of D.P.C. 681's testimony to find that the Crown had established that no assault by Sergeant Tam had taken place. 39. The solicitor representing D.5 made no request that the Sergeant be tendered for cross examination, nor any application for an adjournment of the case until Sergeant Tam was available. We might have felt obliged to reach a different conclusion, had either such application been made and refused by the judge. 40. As it is, we do not think that any injustice was done to the defendant. 41. At the conclusion of the hearing before us, we dismissed the application of D.4 and said that we would give reasons later which we have now done. 42. The application of D.5 for leave to appeal against conviction is dismissed. Representation: G.A. Mackay (C.M.P. O'Cock) for D.4 A.C. Macrae (Kwan & Kwan) for D.5 M.N. Rice, C.C. for Crown. |