Kwok Kwan Ho and Another v. The Queen

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 870 OF 1972

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JUDGMENT

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Huggins, J.:

1.These two Appellants were among three men charged before the District Court.  All were charged with wounding one SHUM Ki-hoi with intent to do him grievous bodily harm, and the first Appellant only was charged with wounding PUN Hung-hoi with a similar intent.  The third man was acquitted at the trial: these two were convicted.  The first Appellant was sentenced to two years’ imprisonment on each charge consecutive and the second Appellant was sentenced to three years’ imprisonment.  The first Appellant appeals against conviction and sentence and the second against sentence.

2.The Grounds of Appeal which were filed were against conviction were:

“(1) That the learned trial judge erred in admitting the statements, Exhs. 1, 2 and 3 [these were confessional statements] without evaluating the evidence given in the voire dire.

(2) That the learned trial judge erred in admitting the said exhibits without making any or any explicit finding that he was satisfied beyond reasonable doubt of their voluntariness”.

During the course of the hearing in this Court leave was given to add a third Ground of Appeal, namely

“That the judge erred in law in admitting the said exhibits without any affirmative evidence that they were made voluntarily”.

This third Ground was added as a result of something which was said by Pickering, J., and the basis of the argument has been a previous judgment of Pickering, J. sitting on appeal from a magistrate.  The circumstances of the offences are really not material to this part of the appeal.  In each, it was alleged, the Appellants with others had assaulted and seriously injured the victim, and the main issue in the case was one of identification.  Both Appellants were identified by the victims.  They were both known to the victims.  There was also a confessional statement made to the police by the first Appellant shortly after arrest and two answers to formal charges made when he was charged.  The question which has been argued on the appeal is whether the evidence justified the learned judge in admitting these statements at all.  The evidence was mainly that of a police constable, HO Shu-kei, and it is necessary to set out his evidence in full:

“On morning of 12.9.72. I went to 5 Ho Pui Street, Tsuen Wan. At 8.45 a.m., I saw 1st Accused and 3rd Accused enter those premises. I revealed my identity. I asked 1st Accused his name. He said KWOK Kwan-ho. I asked if he had any other. He said, ‘Yes, Lo Tai’. I said I was arresting him for wounding on 9th April this year. Took him to Tsuen Wan Police Station.

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I went back to Tsuen Wan Police Station then to Tsimshatsui Police Station.

At about 10.30 a.m. I was in C.I.D. Office with 1st Accused at Kowloon Headquarters. Told him I was inquiring into wounding on 9th April. I took notes of what I said and 1st Accused said. I cautioned 1st Accused before taking any statement. He signed voluntarily and wrote a statement voluntarily. At the end of it he signed and so did I. To clear up certain matters I asked some questions and he gave answers.

I went on to ask about 19.8.72. Reminded 1st Accused of caution and he signed. He gave a statement which he wrote and we then both signed. I asked some questions in clarification. He answered, then signed.

I read both statements to him, asked if anything to alter or add.  He said, ‘No’.”

The statements were then produced and they were objected to.  A trial within a trial was held: the witness was further cross-examined but added nothing of any materiality and the first Accused gave evidence.  A sub-inspector of police then gave evidence about the other two statements in answer to the formal charges and the first Accused gave evidence that he had been assaulted and that he had been made to copy a statement which had been prepared for him by the police.  The learned judge then ruled upon the admissibility of the statement, saying only “Exhibits 1, 2 and 3 admitted in evidence”.

3.The question raised is wheter or not there was evidence which justified the learned judge in coming to the conclusion that the statements were voluntary.  It is, of course, complained in the Notice of Appeal that the learned judge did not, in fact, evaluate the evidence at all, and by that we understand it to be said that he ought to have given a ruling setting out the evidence both for and against voluntariness and then making clear findings of fact on that issue.  We were referred to a judgment of this Court in WONG Kam-ming v. Reg. 1970 H.K.L.R. 446 which was to the effect that it was desirable that a judge or magistrate should state in his ruling on a voire dire, if such is the case, that he is satisfied beyond reasonable doubt on the evidence that a statement or statements were voluntarily made, or words to that effect, so as to exclude any possibility of doubt in the matter.  There was a more recent decision of this Court, the name of which unfortunately escapes me at the moment, in which it was said that it was, indeed, often desirable that there should be some kind of a summary of the evidence and a ruling on it, but it was indicated that that was not necessarily so and, in our view, it is not in every case necessary for there to be such a full ruling.  In the present case the issue was a very short one, very little evidence was before the judge and we have no reason to think that he did not consider such evidence as there was and evaluate it.  It was not necessary for him to set out his reasons in full and the mere absence of detailed ruling was not sufficient to justify our interfering.  We do not think it was essential that he should make an express finding that the statement was voluntary and say that he was satisfied beyond all reasonable doubt as to  its  voluntariness.  The question is whether or not there was any evidence which entitled him to find that the statement was voluntary.  There was no other evidence than that which I have read and, in our view, that was not enough to justify the inference which, we must assume, was made.  This is identical in principle with the case of VAT Kwok-leung v. Reg. Cr. App. No. 880 of 1972, and we would endorse the words of Pickering, J. in that case.  He said first:

“It must not be overlooked that the burden upon the prosecution is that of proving affirmatively that the statement was freely and voluntarily made”,

and he said further:

“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 or 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.”

We adopt that as a correct statement of the law.  It would be wrong for a witness to be asked whether a statement was voluntary.  We are not to assume that every witness, even a police officer of long experience, knows what the law means by “voluntary”.  Pickering, J. did not intend, and neither do we, to suggest that there are certain specific questions which must be asked in every case, but what has to be done is to ensure that, whatever questions are asked, the evidence which is on the record is such that a judge can be fully satisfied that it has been proved affirmatively that the statement was voluntary.  It was suggested that it was open to a witness to say that a statement was voluntary because that was in effect a form of shorthand.  We entirely reject that, and we even more wish to say that we cannot accept the other proposition that a judge who hears a witness say that there has been no inducement or threat is entitled to record that evidence in the form “The statement was voluntary”: it is the duty of a judge, even though he may not be making a verbatim note of the evidence, to record the evidence as nearly as possible in the form in which it is given and not to change it in the manner which it has been suggested he could do.  In our view the evidence here did not justify the conclusion that the statement was voluntary and these statements should not have been admitted in evidence.

4.That being so, the question thenarises whether or not it is open to us to apply the proviso. The position is that we can only apply the proviso if we are satisfied that even though these statements had not been before the learned District Judge he would have returned the same verdict.  We have looked at the evidence and the manner in which the learned judge assessed the witnesses’ evidence.  Mr. Shum clearly identified the first Appellant and he knew the first Appellant before-hand.  The victim in the second charge also identified him and the first Appellant does not deny that he was present on each occasion.  In our view there can be no real doubt that even without the statements the learned judge would have convicted and in those circumstances we are of opinion that no substantial miscarriage of justice occurred by reason of the wrongful admission of these statements.  The application for leave to appeal against conviction must be dismissed.

5.We then turn to the matter of sentence.  In each case the trouble appears to have arisen over a girl.  In respect of the first charge, apparently the girl had been living with the first Appellant.  She left him and when the first Appellant came to a bar on the night in question he saw the girl with Mr. Shum.  He then went away and came back with a gang of youths and attacked Mr. Shum.  As the learned judge has said in his Reasons for Sentence, severe injuries were caused – and just how severe appears from the medical report which is before us.  There are no less than thirteen injuries, the most serious of which appears to be “a linear cut wound six inches in length and muscle deep on the right side of the face extending from the right temporal region to the right ankle [I think that probably means ‘angle’] of the mouth, cutting the branches of the right facial nerve”: there was then a linear cut wound on the occiput two inches long and bone deep: there were two big wounds on the back of the left forearm, one linear six inches in length and the other of an inverted V shape three inches long cutting one of the tendons: there was a cut wound four inches long on the front of the right knee cutting both the right tibia and the patellar tendon partially.  Those were the worst of the wounds: some of the others were far from insignificant.  The learned judge remarked that the first Appellant was unrepentent and impudent and he thought that each of these offences merited four years but that as he intended to impose consecutive sentences he should limit them to an over all sentence of four years made up as to two years consecutive on each charge.

6.In our view he was, if anything, lenient.  The four years might well have been justified for each of these offences.  We think that probably the proper sentence in all the circumstances might well have been one of three years’ imprisonment on the first charge and then, having regard to the fact that he was passing a consecutive sentence on the second charge, one (or possibly two) years on the second, but the total which was imposed was, we think, well merited and we see no reason whatever to interfere with the order which was made in respect of the first Appellant.

7.The second Appellant took part in the first attack and he was given three years.  The reason he was given three years was that he was convicted of only one offence.  If the learned judge had passed sentences of three years on each of the Appellants for the first offence that would have been a proper sentence.  We see no reason to interfere with the sentence of three years passed on the second Appellant: there was no reason to believe that his part in this offence was any less than that of the first.

8.For these reasons the applications both for leave to appeal against conviction and leave to appeal against sentence are dismissed.

2nd May 1973.