Chung Wing Wah v. The Queen
|
CACC001222/1978
Coram: Roberts, C.J., Leonard & Li, JJ. Date of Judgment: 13 December 1979 ----------------- JUDGMENT ----------------- Roberts, C.J.: Facts 1. CHUNG Wing-wah seeks leave to appeal against his conviction in the District Court on two charges of robbery. 2. Evidence was given by the victims of two robberies, which took place on the 7th and 8th September 1978, as to how they were robbed and as to the articles which were taken from them. Neither of the victims was able to identify either of the two persons whom they said were involved in the robberies. 3. Two persons were charged with these robberies, MAK Kam-po and CHUNG Wing-wah. The first defendant pleaded guilty. The second defendant, who is the appellant today, pleaded not guilty. 4. The only evidence against him was that of a statement, which was made by him on the evening of the 9th September, the day on which he was arrested by the police and contained a clear admission of guilt. Admissibility of statements 5. In relation to the first robbery, he said in the statement "I understand. It was done by me, together with MAK Kam-po. The gold chain sold by me on the same day to Chow Sang Goldsmith Shop, and the jade pendant was retained by MAK Kam-po." 6. In relation to the second charge, he said "I understand. This matter was done by me together with MAK Kam-po and TAI Wai-kwong, three persons together. The chain together with the jade pendant were sold by MAK Kam-po to a goldsmith shop at Temple Street, Yaumati." 7. When the Crown sought to tender these statements in evidence, their admissibility was challenged by the solicitor appearing on behalf of the appellant, on the grounds that the appellant had been beaten up by an identified police witness (Detective Constable CHEUNG) in the presence of the Sergeant In Kowloon Police Headquarters, shortly after arrival there and that there had been threats from Detective Constable CHEUNG and the Sergeant that the second appellant would suffer if he didn't admit the charges. 8. It was also asserted that Detective Constable CHEUNG told the appellant that the sentence for these charges would only be a few months because they were small matters; that the contents of the statements were dictated to the appellant by Detective Constable CHEUNG; and that he was asked to write down what the Detective Constable told him. 9. The judge conducted a voir dire, in the course of which the appellant gave evidence. He repeated, in essence, the objections which the solicitor had put forward, when contesting the admission of the statement in evidence. 10. The judge ruled that the statement was voluntary in the following terms -
11. Counsel for the appellant has criticized the admission of the statement on the ground that the judge misdirected himself by not giving sufficient weight to the discrepancy as to time between the evidence of the Sergeant and that of Detective Constable CHEUNG. As to this the Judge commented, in his ruling on the voir dire,
12. We agree that there is nothing to show that this discrepancy was a matter of any significance in deciding whether or not the Crown had established the voluntary nature of the taking of the statement. Nor do we see no reason to disagree with the conclusion reached by the trial judge that the version given by Sergeant Wong should be accepted. Cross-examination during voir dire 13. Counsel for the appellant submitted that there had been a substantial irregularity, in the course of the voir dire, by reason of the following questions, put by counsel for the Crown to the appellant.
14. Although the wording of this passage is obscure, the meaning is clear. Crown Counsel was suggesting to the appellant that the contents of the statement which he made to the police were true. 15. The question of whether or not counsel for the Crown should put such a question, during the course of a voir dire, has recently been considered by the Judicial Committee in the appeal of WONG Kam-ming v. The Queen(1). Lord Edmund-Davies, delivering the majority opinion observed -
And at the end of his opinion, he says -
16. Counsel for the Crown has sought to persuade us that this opinion does not go so far as to prevent counsel for the Crown putting such a question to an accused person during a voir dire on the ground that the Crown is under an obligation, as he described it, to put its case and that its case was that the accused was guilty of the crime which he admitted having committed in his statement. 17. The argument that whether or not the contents of a statement to the police are true is relevant to deciding whether or not complaints about ill-treatment by the police are well-founded, was one which prevailed in the case of R. v. Hammond(2) which is considered in WONG Kam-ming v. R. However, the effect of WONG Kam-ming v. R. is to prohibit prosecuting counsel during a voir dire from asking the accused whether the statement which he is alleged to have made is true. 18. The Board has ruled that such a question is irrelevant because it does not go to the issue which is at that point before the court, whether the Crown has established the voluntary nature of the statement; at that stage the court is not concerned with the truth of its contents. Effect of irregular questions 19. It remains to consider the effect of the question, since following the phraseology used by the Board, we must regard it as a material irregularity. 20. The effect of such a question was recently considered by this court in FUNG Chi-keung v. R.(3), in which Huggins, J.A. comments as follows -
21. In this instance, we cannot imagine that those particular questions and answers can have had any substantial influence on the judge's mind. We are satisfied that he would have reached the same conclusion whether or not those questions had been asked, since he decided that he had accepted the evidence of the police officers concerned that the statement was voluntary. 22. We therefore refuse leave to appeal against conviction. Representation: Sparrow (K.Y. Woo & Co.) for appellant Lucas for crown/respondent (1) [1979] 1 A.E.R. 939 (2) [1941] 3 A.E.R. 318 (3) Crim. App. 2 of 1979 |