Wat Kwok Leung v. The Queen

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 880 OF 1972

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Coram: Pickering, J.

Date: 17^th January, 1973

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JUDGMENT

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1.  The appellant was convicted of an assault occasioning actual bodily harm and sentenced to detention in a training centre. This appeal is against that conviction.

2.  The victim of the assault the subject of the charge was unable to identify any of his assailants, and the appellant was convicted on the basis of his own confessional statement to the police there being no other evidence whatsoever against him. Evidence as to the circumstances in which the statement was taken was given by D.P.C. 1461 of C.I.D. Shaukiwan and the record of this part of his evidence roads as follows:

“I went up and revealed identity and asked his name and address and he told me he was WAT Kwok Leung and was called Ah Chai and was living in Block 25 of Ming Wah Estate, 339. I said ‘I am now making investigation into an assault case which occurred on 11^th at 8 o’clock near Block 17 of Ming Wah Estate and a man injured as a result. I now want to arrest you because I have reason to suspect you are involved.’ I cautioned him at the spot and gave him notebook to sign and after signing he wrote words on my notebook.

Inspector: I tender notebook.

Mr. Smart: I object on grounds not voluntary. Statement was written in C.I.D. quarters and defendant was threatened and received blows before instructed by P.O.s to copy a statement in words not his own expressions into the notebook.

Bench: I will mark it Provisional Ex.1. I will hear evidence from Defence at conclusion of prosecution case and before I rule on it.

Witness: ‘After I cautioned him he signed and after signing he said he had something to say and then started to write on my notebook.

It was this man (identified defendant) After he wrote he again signed and then I took him to police station where the case was reported to Inspector’.”

3.  At the conclusion of the police constable’s evidence Mr. Smart, solicitor for the appellant in the court below, (the appellant was unrepresented upon his appeal), refrained from any cross-examination and put no witness into the box on the issue of admissibility. He submitted, however, that there was no evidence that the cautioned statement was voluntary in the sense that it was unaccompanied by any force, threat or promise and, in this connection, referred to the case of R. v. Thompson[1]. At this point the record reads:

“Bench: Refers R. v. LEE Fat (1969) H.K.L.R. 349.”

4.  The learned magistrate declared himself satisfied that there was sufficient evidence to admit the statement and did admit it.

5.  At the conclusion of the case for the Crown the defence called no evidence Mr. Smart submitting that there was insufficient evidence for the court to be sure of the guilt of the accused. Relying upon the confessional statement, the learned magistrate convicted.

6.  I have perused the case of Reg. v. LEE Fat[2] in an endeavour to ascertain what it was in that case upon which the learned magistrate in the present case relied, so as to cause him to admit the appellant’s statement as a free and voluntary statement. Being unable to find support for such admission of the statement anywhere in the case of Reg. v. LEE Fat², I have since taken the course of consulting my Brother Huggins, the author of the Full Court’s decision in that case and he concurs with my view that the case affords no authority for the admission of the statement in circumstances similar to those obtaining in the present case.

7.  What presumably the learned magistrate did rely upon, was a passage at p.352 of the report, which reads:

“There is no doubt that if an accused person expressly states that he does not object to the admission of a confession the judges require only a scintilla of evidence to satisfy them that the confession was voluntary. If, therefore, an objection is taken founded upon a story which is disbelieved is the judge entitled to find upon a like scintilla of evidence that the confession was voluntary. We think the answer must depend upon the facts of the particular case. Where there is nothing more on the record (nothing, that is, other than the rejected story of the accused) which tends to show that the confession was not voluntary the judge would be entitled (though not bound) to act upon the slightest evidence which could satisfy him beyond reasonable doubt that the confession was voluntary. However, where there is other evidence tending to show that the statement was not voluntary we think it is incumbent on the judge to consider it, whether it is expressly relied upon by the defence or not.”

8.  I would take that last sentence a little further and say that not only where there is “other evidence” tending to show that the statement was not voluntary, but also where there are grounds for suspicion that such was the case, the court should be particularly alive to the necessity of being satisfied beyond reasonable doubt of the voluntary nature of the statement.

9.  In the present case there was no actual evidence to the effect that the statement was not voluntarily made, because the defence offered none; but there were grounds for suspicion, because the defending solicitor made the allegation that the statement had been taken, not in the street as alleged by the police, but in the C.I.D. Room where the appellant was threatened and received blows before copying a statement in words not his own.

10.  At that juncture the prosecuting officer should have made sure that evidence adequate to satisfy the court beyond reasonable doubt of the voluntary nature of the statement was elicited – if it existed to be elicited. This could have been attempted by questions as to whether any threats, inducements or violence were offered to the appellant and whether the statement was his own statement or a copy of something prepared for him.

11.  No such evidence was elicited. All the learned magistrate had before him was the scant prosecution evidence which I have recited above and, on that evidence, there might or might not have existed threats, inducements or violence. I am at a loss to see how, on the meagre evidence before him, the learned magistrate could have been satisfied beyond reasonable doubt that the statement was free and voluntary. It must not be overlooked that the burden upon the prosecution is that of proving affirmatively that the statement was freely and voluntarily made. That proposition is as old as Hale and the word “affirmatively” occurs in many of the decisions upon this topic (see e.g. R.v Thompson¹ and R. v. Warringham[3])

12.  The case of Warringham is directly in point on the facts of the present case. In that case it was argued that on the evidence it did not necessarily appear that the confession was made in consequence of an inducement and that, if the evidence left that fact doubtful, the onus did not lie upon the prosecution to prove the negative. Baron Parke’s reply was both firm and immediate:

“Yes, it does. You are bound to satisfy me that the confession, which you seek to use in evidence against the prisoner, was not obtained from him by improper means. I am not satisfied of that, for it is impossible to collect from the answers of this witness whether such was the case or not.”

13.  That statement of principle remains the law. And, in the present case, as in the Warringham case, “it is impossible to collect from the answers of (the) witness whether such was the case or not.”

14.  Moreover, the standard of proof required is proof beyond reasonable doubt (see R. Sartori, R. v. McLintock, R.v. Cave all of which are unreported but notes of which can be found at (1961) Crim. L.R. 397, (1962) Crim. L.R. 549 and (1963) Crim. L.R. 371, respectively).

15.  On the evidence adduced in the present case, the learned magistrate had no basis for being satisfied beyond reasonable doubt that the statement was free and voluntary. Where, presumably, he fell into error, was by over-reliance upon the phrase “a scintilla of evidence” which appears in the passage from the LEE Fat case² which I have quoted. In the present case however no scintilla of evidence, one way or the other, existed; it followed that the prosecution had not discharged the onus upon it.

16.  No doubt, in these cases, the burden thrown upon the prosecution is that of proving a negative but that can be done if the proper questions are asked and receive credible appropriate answers. It is highly desirable, if not essential, that in preparing the ground for the admission of a confessional statement, questions as to whether any threats, inducements or violence were employed, be directed to the witness who took the statement and to any other witness who was present at the time. Mere assertion by such witness or witnesses that the statement was free and voluntary is open to the criticism that that is opinion and is indeed the very question which the court has to decide. What is required of the witness or witnesses is an account of the factual situation in which the statement came to be given and not an expression of mere opinion. That factual situation can be extracted if the proper questions are asked and receive credible appropriate answers. In the present case the questions were not put and, in my view, the learned magistrate was not justified in assuming that the statement was free and voluntary, for it had not been proved affirmatively and beyond reasonable doubt so to have been taken.

17.  Since there was not other evidence against the appellant, other than his alleged free and voluntary statement, it follows that the appeal must be allowed, the conviction set aside and the appellant released.

Appellant in person.

Mr. Jackson-Lipkin & Caird, C.C. for Crown.

[1] 1893 2 Q.B. 12

[2] 1969 H.K.L.R. 349, 352.

[3] 2 Den. C.C. 445 & 446