Li Ming Kwan and Another v. The Queen

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 367 OF 1972

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JUDGMENT

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Huggins, J.:

1.  Four men were indicted for possession of dangerous drugs for the purpose of unlawful trafficking. After a very long trial the two Appellants were convicted and the other two men were acquitted. Both Appellants sought to appeal against conviction and sentence. We were satisfied that there were no grounds for granting leave to the second Appellant and all we desire to say here about his applications is that we rejected the contention that there ought to be a distinction between the sentence passed on an accused person found guilty with the aid of a statutory presumption and one found guilty upon positive evidence.

2.  At this stage we are concerned only with the application of the first Appellant for leave to appeal against conviction. Having regard to the grounds upon which this application is based it is unnecessary to state the circumstances of the alleged offence save in the broadest outline. Apparently acting on information the police followed two vehicles, a car driven by the first Appellant and a truck. The first Appellant was seen to give a signal to the driver of the truck to make a turn. This was done and the two vehicles then proceeded side by side for some distance. Both vehicles made another turn and thereafter yet another, but at this point the police lost sight of the first Appellant’s car. They stopped the truck and there were found on board the other three Accused and a very large quantity of dangerous drugs, consisting of 1,139.76 kilogrammes of raw opium and 226.35 kilogrammes of a mixture containing 189.23 kilogrammes of a salt of morphine. About 1½ hours later the first Appellant was intercepted in his car and was arrested. On him was found $24,400 in cash.

3.  It was conceded from the start by the prosecution that there would be no case for the first Appellant to answer unless the judge admitted in evidence a statement which the first Appellant made later in the day, and the brunt of the attack by counsel for the Appellant has been upon this statement. We must therefore recount what happened after this Appellant was stopped. Although Inspector Jorge, the officer in charge of the arresting party, would not concede that the first Appellant was forthwith arrested, it is abundantly clear that he was. He was, indeed, handcuffed and remained in handcuffs for the 3½ hours which then followed and which immediately proceeded the taking of the statement. The first Appellant was briefly questioned about his personal particulars and Inspector Jorge then left him in the custody of Inspector Ollerenshaw. Inspector Jorge went to the nearest police station to report the arrest and then returned to the Kowloon Headquarters of the Criminal Investigation Department, where he had his office. The purpose of the report to the police station was purportedly to comply with s.51 of the Police Force Ordinance, which required that the Appellant should forthwith be delivered into the custody of the officer in charge of a police station or other authorised police officer. What is more Mr. Jorge caused a report to be entered in the records of the police station that the Appellant had in fact been taken there. As we understand it his evidence was that this was commonly done and we cannot too strongly condemn what is obviously a grossly improper practice. In the mean time Inspector Ollerenshaw took the first Appellant to his factory and to his father-in-law’s house and then eventually to the Kowloon Headquarters of the Criminal Investigation Department, where he delivered him to Inspector Jorge.

4.  Inspector Jorge, in the presence of a detective police constable, proceeded to caution the first Appellant and then to ask him a number of questions, the answers to which were recorded in English and not in the Chinese language in which the Appellant spoke. After this had gone on for some time (and the witnesses could not say how long it was) the first Appellant was again cautioned and himself wrote out a statement in Chinese. One hour and fifty minutes after the interview began the first Appellant stopped writing and asked to go to the toilet. After that he was given lunch and some fifteen minutes later further questions were put to him and his answers thereto recorded in English. Then the first Appellant was formally charged with the offence for which he was indicted and wrote in Chinese: “I really did not know this lot of goods was dangerous drugs”. The statement was then “read over” to him in Chinese and he stated that it was correct. He also stated that he had no complaints about his treatment by the police since he was first stopped by them.

5.  Before passing on to the only grounds of appeal which we think warrant consideration in this judgment we must again express the view of this Court that save in the most exceptional circumstances statements which may possibly be tendered in evidence ought to be recorded in the language in which they are made. It is obviously unfair to ask anyone to sign a document which is written in a language with which he is unfamiliar and the accuracy of which he is therefore unable to verify for himself. A “reading back” of the statement – which is in reality not a reading back at all but a retranslation – is no safeguard, especially where the retranslation is by the person who made the original translation, because any error of translation may well be repeated in reverse. In the present case there was no justification at all for not recording the statement in Chinese since there was a Chinese police officer present at the time. However, the statement having been admitted in evidence it was for the jury to decide what weight they could properly attach to it. Also, we must express our rejection of the suggestion of counsel for the Appellant that a police officer who is recording a statement must enter upon his record a note of everything which occurs in detail. This is a matter for his discretion, although he must bear in mind that the omission of a record of any significant occurrence may be made the subject of comment.

Ground 2

6.  For too long and despite repeated statements by the courts to the effect that “the Judges’ Rules” are not rules of law it has been sought to treat them as such. Because of this they have possibly, in the event, created more difficulty than they ever sought to overcome. They are in truth merely guidance to the police. If they are observed the police may reasonably expect that any statement will be admitted in evidence provided that there is no other indication of an inducement which may lead to doubt as to the truth of the statement. If they are not observed any statement may not be admitted. That, and that alone, is the relevance of the rules.

7.  Nor are the courts concerned to “interpret” the rules, in spite of suggestions by textbook writers to the contrary. What the courts are concerned with is primarily the voluntariness of any statement tendered in evidence. Clear authority for this rather obvious proposition is to be found in Reg. v. Prager 1972 1 W.L.R. 260. In that case Lord Widgery, C.J. refrained from making a finding whether a breach of the rules had been committed: even if there had been a breach, it was still possible that the statement was voluntary and he found that it was.

8.  In the present case the judge found that there were breaches of the rules but did not specify which rule or rules had been broken. There was no need for him to do so. Indeed, as was said in LI Wai-leung v. Reg. Cr. App. No. 549 of 1972 there was no absolute necessity for him to give reasons for his ruling on the question of admissibility. He did so and his reasons are, of course, open to scrutiny. He was satisfied that the prosecution had established the absence of any improper inducement and we see no ground for the contention that this finding was against the weight of the evidence. It was argued (Ground 1) that the judge did not consider a great many points which were relevant to his decision, but we are not persuaded that there is any justification whatever for this argument. The matters had been dealt with at such great length by counsel that it is inconceivable that the learned judge failed altogether to consider them and the judge expressly said that he had considered them all.

9.  When dealing with the matter of admissibility a judge is not concerned to exercise a discretion. It is true that originally the exclusion of statements which were not proved to be voluntary was based upon an exercise of discretion, but (rightly or wrongly) what was originally a matter of discretion has long since become in effect a rule of law. Even so, one must not lose sight of the reason underlying the rule, namely that a statement which is not proved to be voluntary may be involuntary and an involuntary statement may not be true. If a statement is admitted to be true then, despite the fact that what was an exercise of discretion has now become in effect a rule of law, it would be absurd to reject it as inadmissible and we do not think the law requires a judge to do anything so absurd.

10.  If the material question in the present case was whether the statement was voluntary, and if a statement can be voluntary although there has been a breach (or breaches) of the Judges’ Rules, it was obviously not essential for the judge to decide, upon the issue of admissibility, which of the “Rules” had been broken. The fact remains that he appreciated that there had been improprieties, but he was none the less satisfied that the statement was voluntary. We cannot say he was wrong.

Ground 3

11.  The Notice of Appeal says:

“That in admitting in evidence Exhibit P.18 as having been made freely and voluntarily made by the 1st Appellant to Detective Inspector F.L. Jorge, the learned Commissioner erred in law and/or misdirected himself in that he took into account an irrelevant consideration, namely the statutory presumptions obtained (sic) in the Dangerous Drugs Ordinance (Cap. 134) (p.619 Letter ‘E’ of the Record of Proceedings), and/or failed to give any or any adequate consideration to the weight to be given to Exhibit P.18 in order to enable him to exercise his discretion judicially as to whether or not it should be excluded as having little or not evidential value.”

12.  That clearly complains of a failure by the judge at two points in his consideration of the objections to the statement: (a) on the question of admissibility and (b) on the question of discretion. It is conceded that the present complaint should have been limited to the stage when the judge was called upon to exercise his discretion.

13.  Before proceeding further it is necessary to emphasise that the discretion is one to exclude admissible evidence and not one to admit evidence. Where, therefore, a judge has admitted a confessional statement it is impossible to say that he has completely failed to exercise his discretion, because by admitting it he has automatically exercised his discretion not to exclude it. Whether he can be shown to have exercised his discretion wrongly is another matter.

14.  The passage in the judge’s ruling of which complaint is made is as follows:

“As to Mr. Sanguinetti’s submission that the prejudicial effect of the statement outweighs its evidential value, I cannot agree. Reference to the statement will show that it connects the 1st accused with the drugs in that he had arranged for the lorry and coolies to be hired and that he had agreed to store these boxes which were found to contain the drugs, and that he had received the sum of $22,500 from this Mr. Chan for his services. Of course, the statement is prejudicial, although it is not in fact a confession of guilt as the accused said he did not know what the boxes contained. However, especially in the light of the statutory presumptions that apply to a case of this nature I am perfectly satisfied that the prejudicial effect of this statement does not outweigh its evidential value.”

15.  Counsel for the Appellant submits that the prejudice likely to be engendered by the admission of the statement was greatly in excess of its probative value and that instead of the provisions of s.47 of the Dangerous Drugs Ordinance (relating to presumptions) having the effect of increasing the probative value of the statement (as the learned judge said) it in fact increased its prejudicial effect. At first sight the argument might appear to have a certain attraction, but we are satisfied that it is fallacious. The relevance of the statement was that it tended to connect the Appellant with the lorry and the cargo which it was carrying. It was only when the prosecution had proved his control of the lorry and its cargo that the presumption could arise. However, once that control was proved to the satisfaction of the jury the presumptions would indeed have the effect of increasing the possible probative effect of the evidence by which the control had been proved, i.e. of the statement. On the other hand there was in the argument of Mr. Sanguinetti a tendency to overlook the contrast between the prejudicial effect of evidence and the probative effect of evidence. In one sense evidence which tends to prove the guilt of an accused person is prejudicial to him but the prejudice with which we are here concerned is prejudice to the fair trial of the issues before the court. “Prejudice” arises where evidence may appear to a jury to be probative although in fact it is not. Perhaps the commonest example is evidence of a previous conviction where that conviction is not an ingredient of the offence charged.

16.  It is fairly contended that the probative value of this statement was initially small, because of the fact that part of it was recorded in a language other than that in which it was made. If there had been any prejudicial effect which might have arisen, that prejudicial effect might possibly have outweighed the initial probative value. But we see no “prejudice” which could have arisen from the admission of the statement. We cannot accept the submission that a statement which is of doubtful weight has an inherent prejudice, any more than any other kind of evidence which is of doubtful weight can be said to have an inherent prejudice. Unless the jury were satisfied that the confession was the confession of the Appellant they could not if they were of sound mind have thought that it could in any way tend to show the guilt of the Appellant. Therefore, whether the existence of the presumptions, which clearly increased the over all probative effect of the statement, were properly to be considered as increasing its probative effect for the purpose of the exercise of the judge’s discretion is immaterial: if there was no prejudicial effect it could not outweigh the probative value, however small that probative value might be. There is a manifest danger in taking into account what we might call the statutory probative effect as well as the true or primary probative effect, but counsel for the Crown, having conceded that if there had been no presumption the prejudicial effect of this statement might have outweighed its probative value, seems to have urged upon us that the statutory probative effect is a material consideration. That concession was inconsistent with his previous contention (which we think was right) that there was no prejudice which could have outweighed the probative value, but it highlights the difficulty which may arise in deciding whether or not to exercise the discretion where some possible prejudice did exist. Having drawn attention to the danger inherent in taking into account the statutory probative effect we think it unnecessary to say more in the present case.

Ground 5

“That in admitting in evidence Exhibit P.18 as having been freely and voluntarily made by the 1st Appellant to Detective Inspector F.L. Jorge the learned Commissioner erred in law and/or misdirected himself in that there was no or no sufficient evidence that Exhibit P.18 was free and voluntary.”

17.  Subject to the one point – a point which counsel for the Appellant at one stage abandoned – we have found nothing in this ground of appeal. The one point relates to the facts that from about 10.10 to about 13.25 the Appellant was in the custody of Inspector Ollerenshaw and that Mr. Ollerenshaw was not called as a witness in the trial within a trial, nor was anyone else called to say that no inducement was held out to the Appellant during this time. The contention on behalf of the Appellant is that it was for the Crown to prove affirmatively that the statement tendered in evidence was made voluntarily and that, since there was a period of time in respect of which no evidence was forthcoming, it could not be said that the burden of proof had been discharged. On the face of it that is a perfectly sound argument, but it raises a serious practical difficulty. It has been frequently contended by counsel representing accused persons that there is no obligation upon the defence when objection is taken to the admissibility of a confessional statement to give particulars of the promise, threat or other inducement which it will be alleged prevented the statement from being voluntary: it is said that the prosecution must prove the negative without assistance from the defence and that the defence is free to remain silent from beginning to end. In other words all that counsel need do on objecting to the statement is to say that it was not voluntary by reason of some unspecified pressure put upon the accused. That would present no difficulty if the burden on the prosecution had to be discharged only on a balance of probabilities, because once it was proved that no impropriety had occurred at the time the statement was taken that might be sufficient proof of voluntariness. As I pointed out in CHAN Wai-keung v. Reg. 1965 H.K.L.R. 815, 837, there seems to be no solid basis in law for requiring proof beyond all reasonable doubt, although I accepted that grounds of practical safety might be a reason for doing so. What was said in Reg. v. Robson 1972 1 W.L.R. 651 with reference to the admissibility of tape recordings has given us renewed anxiety about the correctness of the decision in Reg. v. Sartori 1961 Crim. L.R. 39. However, once it is accepted that the voluntariness of a confessional statement has to be proved beyond all reasonable doubt then the prosecution’s task may become well nigh impossible in the absence of particulars from the defence. Where the accused person has been, or may have been, in contact with the police or other persons in authority over an extended period before the statement is taken, it will be necessary for them to account, at least in a general way, for every moment of that period, otherwise the defence will be able to say that it has not been proved that it is not reasonably possible that some pressure was brought to bear upon the accused which was still operative when he made the statement. In the present case not only was no allegation made, at the time the objection was taken, that there was any impropriety during the time the Appellant was in the custody of Mr. Ollerenshaw, but even at this stage no such allegation has been made. The contention is therefore without the slightest vestige of merit, but it is nevertheless one which the Appellant is entitled to raise.

18.  We have yet, with respect, to be persuaded of the wisdom of the decision in Reg. v. Sartori but we hesitate to introduce further uncertainly by declining to follow that decision in a case which is not certain to go to the Privy Council. We therefore agree that we should consider ourselves obliged to assume that the standard of proof required was proof beyond all reasonable doubt. We are then left with the task of deciding whether there is any way in which we can avoid the more absurd consequences of a rigorous application of the rule. The only reasonable conclusion seems to us to be that we must encroach upon an accused person’s alleged “right to silence” to the extent of insisting that when he objects to a confessional statement on the ground that it was not voluntary he must give reasonable particulars. We do not propose to lay down any more precise rule and every case must be judged on its own facts. The court must weigh the reasonable requirements of the prosecution in preparing to discharge the burden of proof which is upon it against the reasonable desire of the defence to avoid giving information which will unfairly forewarn the prosecution of its case and enable any dishonest witnesses who may be called by the prosecution to shape their evidence accordingly. Where particulars which ought to have been given have not been given, it will then be open to the court to draw the inference that no inducement arose at the time which would have been indicated had particulars been given. We have to ensure that the criminal law remains an instrument for convicting that guilty and acquitting the innocent and does not become merely an instrument for acquitting both the guilty and the innocent.

19.  In the present case, as we have said, no particulars were given. The prosecution had no reason to believe that any allegation would be made in respect of the period when the Appellant was in the custody of Mr. Ollerenshaw and for that reason did not call a witness to speak to that period. The Appellant did not give evidence in the trial within the trial and therefore neither counsel for the prosecution nor the learned judge had reason even at that stage to think that there was a contested issue regarding the allegation of impropriety during that period. That being so counsel had no cause to call Mr. Ollerenshaw and the learned judge was justified in concluding that if no pressure was put upon the Appellant at the time the statement was made it was a free and voluntary statement. If the Appellant had given evidence of an inducement during this period and the prosecution had failed to adduce rebutting evidence the position might certainly have been different.

Ground 7

“That the learned Commissioner erred in law and/or misdirected himself in admitting (at p.228 of the Record of Proceedings) evidence that $24,400.00 was found on the 1st Appellant’s person upon his arrest in that such evidence was not relevant, alternatively, that its prejudicial effect outweighed its probative value; further the learned Commissioner failed to put to himself and consider the question to what, if anything such evidence was relevant so that he could not and did not exercise his discretion judicially as to whether or not to exclude such evidence as being more prejudicial than probative.”

20.  This point arises only because of the course the proceedings took in the court below. It is conceded on behalf of the Crown that had the statement made by the Appellant not been admitted in evidence the prejudice which might have arisen from the evidence of the finding of the money on his person would have outweighed its probative value.