Yu Tak Ho v. The Queen

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 740 OF 1972

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Coram: Leonard J. in Court

Date: 4^th January, 1973

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JUDGMENT

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1.  When dismissing this appeal against conviction and sentence I promised to give my reasons in writing and now do so.

2.  In the court below the appellant having been charged with the robbery, which allegedly occurred on the 2^nd August 1972, of a Rado wrist-watch from a person unknown was found guilty of the theft of the watch in question and was sentenced to detention at the Detention Centre.

3.  In the court below the sole evidence involving the appellant in the alleged or indeed any offence was that of the police constable who arrested him. According to the evidence of that constable, he was on the 6^th August 1972 engaged in enquiries relating to another robbery case. Late on that night he went to Tung Choi Street near Argyle Street in furtherance of these enquiries and there saw two Chinese males one of whom he was anxious to interview. He identified himself to them and they separated and ran away. He ran after and arrested the appellant after a short struggle. He told him he ahd received information that he was connected with a robbery which had occurred on the 25^th July 1972 at Nelson Street and brought him back to Mongkok Police Station. Shortly after they got to Mongkok Police Station the appellant’s mother arrived and in the mother’s presence he questioned the appellant about the robbery on the 25^th July; the appellant denied complicity in it but volunteered the information that he had been involved in other robberies whereupon he was cautioned and made a statement which was admitted in evidence by the learned magistrate after he had held a voire dire. As a result of the information contained in the statement the wrist-watch in question was recovered from a hawker to whom the accused had led the constable.

4.  The appeal against conviction turned on the question whether the learned magistrate had rightly admitted the statement in evidence, the relevant portion of the notice of appeal reading:

“1. The learned magistrate’s finding that the statement made by the appellant was admissible is against the weight of evidence;

2. The learned magistrate failed properly to consider the circumstances under which the statements of the appellant were obtained;

3. The learned magistrate failed to consider the Judges Rules in ruling that the statements were voluntarily made by the appellant”.

I would pause to remark that I failed to understand this final ground of appeal as drawn but I gathered from appellant’s counsel that the ground intended was that the learned magistrate (a) should have been satisfied on the evidence that the police constable had failed to act in accordance with the Judges Rules and (b) because of the breach of the Judges Rules should have exercised his discretion to exclude the statement even though he held that it was voluntarily made.

5.  The first question for decision then is was the learned magistrate justified in his finding of fact that the statement was voluntary. There is nothing in the statement itself which suggests that it was other than voluntary. It is clear from it that the appellant was interrogated about an offence allegedly committed on the 25^th July 1972 and that while maintaining his denial of any connection with that offence the flood-gates opened and he volunteered his connection with many other offences including:

“On 2^nd August 1972 at the staircase in Fa Yuen Street I, together with Ah Kan, Ah Lun, Ah Shing robbed a Rado watch .... The watch was given in ... (illegible).”

The statement was signed by the appellant and bore the following endorsement:

“The above statement has been read over by C/M. YU Tak-hoo and his mother LO Oi-lin and considered that no alteration to be made and signed

(Signed) LO Oi-lin
(Signed) D.P.C. 6718 NG Yung-kan”

The following day a Rado watch was recovered from a hawker to whom it had been given in pledge by the appellant. This watch was subsequently produced by the police constable.

6.  Before me in a detailed examination of the evidence of the police constable on the voire dire counsel for the appellant (who had not been engaged in the court below) pointed to three apparent inconsistencies in the evidence of the police constable as to the manner in which the statement had been written by the appellant in the constable’s notebook. The constable had been cross-examined in considerable detail and his counsel in support of his contention that there were inconsistencies in his evidence relied on three passages from his evidence. The first occurred in examination-in-chief and reads as follows:

“After verbal caution given I wrote caution into my notebook – then I read it to defendant and asked him if he understood it.

He said he understood it – I asked him to sign notebook and he signed there to that effect.

I then asked him if he wished to make statement.”

The second came towards the beginning of the cross-examination and reads:

“Actually I wrote caution and the words ‘do you understand’ then read it to defendant at same time gave him notebook to read from.

Defendant then wrote ‘I understand’ and signed his name.

Because I had asked him to write that if he did understand.

After that he continued writing his statement.”

[Counsel alleged an inconsistency between this version and that earlier quoted because (he argued) the use of the words “he continued” amounts to a suggestion that the constable had not asked him if he wished to make a statement.]

7.  The third comes on the second day of cross-examination. It reads:

“After defendant wrote ‘I understand’ he said to me ‘should I write the things that I have done’ I said ‘yes, go ahead’. He then continued to write”.

8.  I must confess to great difficulty in seeing any inconsistency whatsoever in these three versions. The magistrate has not recorded the examination-in-chief and cross-examination verbatim in that he has not recorded both question and answer; he has recorded the sense of what the witness said. Clearly what the witness is alleging is that after the appellant had denied his complicity in the robbery in respect of which he was being interrogated he admitted his complicity in others. He was cautioned. He wrote ‘I understand’ and while he had the notebook in his hand the witness asked the appellant if he wished to make a statement; thereupon the appellant asked the witness if he should write what he had done and the witness (no doubt not displeased with such co-operation) said ‘yes, go ahead’ and the appellant continued to write. All this, according to the witness, was a in the presence of the mother of the appellant.

9.  At the conclusion of the voire dire the learned magistrate commented:

“satisfied beyond reasonable doubt that statement voluntary – D.P.C.’s evidence sound and though challenged remained creditable. Defendant and mother I find to be untruthful the latter to protect her son.

Statement will be admitted in evidence.”

In his statement of findings the learned magistrate amplifies this note and states that he found the D.P.C. to be an “honest, competent and reliable witness”. He goes on to comment:

“Naturally in cases of this sort in particular the demeanour and credibility of witnesses are most important and I paid particular attention to this. P.W.1 emerged unshaken by strong and lengthy cross-examination. His evidence was given quietly, clearly and confidently.”

In commenting on the evidence of the appellant he refers to the fact that he was “unimpressive” and stated:

“What emerged from his evidence, even if it were accepted, was that the statement was in fact true although involuntary and therefore (if I accepted his evidence) to be excluded”.

10.  It is correct that the learned magistrate does not deal with the question as to whether there had been a breach of the Judges Rules or as to whether he should have exercised his discretion to exclude a voluntary confession on that account.

11.  There was a technical breach of the Judges Rules in that the appellant was questioned (about another offence) after his arrest. It is not clear from the record that this was present in the learned magistrate’s mind or that he consciously refrained from exercising his discretion to exclude the statements. Had he considered the question I have no doubt whatsover that he would have refrained from so exercising his discretion. On the facts as the learned magistrate found them the D.P.C. acted very fairly in permitting the mother of the appellant to be present throughout. Indeed I can only regard the appeal against conviction as bordering on the frivolous.

12.  As to the appeal against sentence, it is clear that the learned magistrate gave most careful consideration to this question. He had the benefit of a report from the probation officer and as to the appellant’s fitness for the Detention Centre. For a young man of the appellant’s character and antecedents and having regard to the nature of this theft as disclosed in his statement and to the fact that it cannot have been prompted by any financial need, detention in a Detention Centre appears to me to have been the obvious solution.

13.  I accordingly had no hesitation whatsoever in dismissing this appeal.

Mr. Patrick Woo (K.C. Yung & Co.) for Appellant

Mr. Stapp C.C. for Crown/Respondent