Yeung Tai Kin v. The Queen

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 874 OF 1972

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JUDGMENT

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Huggins, J.:

1.The Appellant was one of four young men charged with robbery.  There was also a charge of wounding against one of the others, with which we are not concerned. After a trial in the District court the Appellant was convicted and he now appeals against his conviction.  His ground of appeal is that there was no evidence or no sufficient evidence whereon to found the conviction, and he continues to assert his innocence.

2.The evidence for the Crown was that a sergeant of police, who was off duty, was sitting in his car with a young woman.  They had stopped by the side of the road in Lok Ma Chau.  He had switched off the lights but the engine was still running and they were talking together.  While they were talking the off-side door of the car was suddenly opened and four young men were seen outside.  One of them said “C.I.D., don’t move” and a chopper was produced and thrust towards him into the car.  The men outside then demanded money.  He handed over such property as he had on him and the persons outside appeared to be dissatisfied. The young woman, fearful that they were about to use the chopper to hit the sergeant, then produced some money herself and stretched over to the off-side to hand it out.  At some stage she also tried to seize the chopper, which she thought was going to be used against the sergeant, and she received a cut on two of her fingers.  At this point one of the assailants then walked round the car and got in to the car on the near-side and closed the door.  Another man sought to sit in the car on the off-side.  The man on the near-side proceeded to try and remove a necklace from the girl.  At this stage the sergeant pushed away the man who was coming in on the off-side and under cover of the diversion which this caused he drew his service revolver and, from the inside of the car, he fired a shot.  This was aimed at the man with the chopper, but it is uncertain whether that shot hit anybody.  The sergeant then alighted from the car.  It was very dark and he was unable to identify any of the persons outside, but he was able to see what were described as the “shadows”, which really were the silhouettes, of the three men.  It appeared to the sergeant, so he says, that the man with the chopper and another were going to attack him, someone else appeared to be trying to run away – and in the event, if there were four persons there, one of them did run away.  The sergeant again fired his pistol three times and two of the men fell.  The man on the near-side of the car was still inside.  At this point he appears to have thought that discretion was the better part of valour and tried to get out.  He fumbled with the door handle and this enabled the sergeant to run round the front of the car and arrive on the near-side as the man was getting out of the car.  This man then ran towards the rear of the car ignoring shouts to stop, and the sergeant then shot him. 

3.The Appellant was a person who shortly afterwards was found with two gun shot wounds by the side of this car, and the Crown asked the learned judge to draw the inference that he was one of the robbers.  The defence of this Appellant was that although he was at the scene he was not quite in the position which was alleged by the Crown and that, in any event, his presence was entirely innocent.  He said that he had been to the cinema with some friends and that they had then gone to the New Territories to have a joy ride: while they were going round the the New Territories he suffered from diarrhoea: the car was stopped so that he could alight and he decided, as there was a young woman in the car, that he would go to some houses which were nearby and ask to use their toilet: as he went towards the houses he saw another car with some people inside and some people outside apparently talking to them: he had to pass this car but did not get closer than ten or eleven feet and suddenly, as he walked past the car, he was shot: before he became conscious he heard one shot but it is uncertain whether the shot he heard was the one that hit him or a previous shot. 

4.It was for the learned judge to decide whether he was satisfied beyond all reasonable doubt that the story told by the prosecution was true.  The story of the Appellant was supported by another witness, but the learned judge was not impressed with the evidence either of the Appellant or his witness.  He mentioned in the course of his judgment that he thought this was not a casual spontaneous crime and that the robbers must have known the victims would be there.  It is not clear why he thought that, but he did say that the robbers “addressed the sergeant as C.I.D.”.  There may have been a misunderstanding of the sergeant’s evidence.  The evidence, as we understood it, was that the robber announced that he was the C.I.D. but, whichever is the correct interpretation of the evidence, nothing really turns upon it and we do not think that there was any justification for thinking that this was a premeditated crime.  If it was, that went to sentence and not to guilt.

5.In our view it is impossible to say that the learned judge was not entitled to find on evidence which was before him that the Appellant was one of the robbers.  The sergeant identified the shadows at which he fired as some of the robbers and said that he did not lose sight of them.  Not only do we think that there was evidence upon which the learned judge could properly convict but we see no reason to think that he came to a wrong conclusion and this application for leave to appeal against conviction must be dismissed.

6.We did, however, observe a matter upon which counsel for the Crown has asked us to comment.  Part of the evidence adduced against one of the other Defendants was a confessional statement.  The learned judge held a trial within a trial and then gave a ruling.  In it he dealt at length with the philosophical principles underlying the admission of statements in evidence as well as the legal principles.  He made a finding that the story told by the prosecution was true and he was clearly satisfied that no threats and no inducement were held out. Nevertheless he referred to a dictum of a South African judge who had suggested that he would never allow in evidence a confessional statement which had been retracted where that statement was made to a police officer.  The learned District Judge said that this approach commended itself to him and, for that reason, he exercised his discretion against the admission of the statement despite the evidence before him in the voire dire proceedings.  He continued:

“This is because I believe that the voluntariness (in the very widest sense) of any confession made to a police officer and later retracted in court by the accused person, must always be in doubt.”

With respect to the learned District Judge, he was not concerned (nor are any of the courts concerned) with voluntariness “in the very widest sense”.  They are concerned only with voluntariness in the legal sense as has been laid down in cases without number over the past century.  In referring to his “discretion” in relation to voluntariness the learned judge misdirected himself.  If a statement is proved not to have been induced by improper means it is voluntary and if a statement is voluntary it is in law admissible.  If there be a discretion not to admit admissible evidence it must be exercised judicially and there was no ground here which could support the rejection of the statement.  In this jurisdiction a judge is not entitled to reject a confessional statement made to a police officer simply because it has subsequently been retracted.  At least in Hong Kong it is a fallacy to assume that a confession necessarily results from penitence and remorse: very often it results from the shock of being found out and the belief thereby aroused (which may later be displaced) that it is useless to deny the truth.  In our view the learned judge was not justified in the course which he took and judges and magistrates must apply the law as it has been laid down in cases which have been before the Privy Council and before this Court and which have established the meaning of “voluntariness” so clearly that the view which commended itself to the learned judge is no longer tenable in the courts.

4th May 1973.