R. v. Cheung Hon Yeung

CACC000132/1992

IN THE COURT OF APPEAL

1992, No. 132
(Criminal)

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Coram: Silke, V.-P., Power & Macdougall, JJ.A.

Date of hearing: 25 November 1992

Date of judgment: 15 January 1993

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JUDGMENT

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Silke, V.-P.:

1. The applicant, Cheung Hon Yeung, was convicted after trial before Mr. Alan Hoo, Q.C., sitting as a Deputy Judge of the High Court, and a jury of the offence possession of dangerous drugs for the purpose of unlawful trafficking. He was sentenced to a period of 10 years imprisonment and now seeks leave to appeal against his conviction.

2. The offence was alleged to have taken place on 22nd October 1991 at the junction between Saigon Street and Nathan Road in Yaumati. The particulars of the count alleged that he had in his possession 337.86 grammes of a mixture containing 142.38 grammes of salts of esters of morphine for the purpose of unlawful trafficking.

3. At the trial, where the applicant himself did not go into the witness box nor call any witnesses, the Crown sought to lead and in the main was successful in leading, with one major exception, the following evidence. A police constable, PC20106 was on duty at 6:45 p.m. on 22nd October 1991 in the area around Nathan Road near Saigon Street. He saw the applicant board a taxi carrying a "clutch bag". As a result of information given by him to police further along the road, that taxi was stopped.

4. I would interpolate here that at one point the jury posed a question - this in the course of the prosecution case itself:

"Why was the suspect initially suspected on the street by the police?"

5. The trial judge, having consulted counsel, gave the jury a careful direction - for counsel appearing for the prosecution had seen to it that no evidence was led as to anything in the nature of the applicant being a "target person" or a "suspect person" - that there was no evidence that the accused was initially suspected. In the course of his summing up he made further reference to this matter and firmly told the jury that it was only upon the evidence that was before them in the case that they should bring in their verdict. Mr. Sanguinetti, who with Mr. Johnny Chan appeared for the applicant in this court, suggested that the summing up was "ambiguous" and could have misled the jury by leaving them to draw an inference that the applicant was a suspect when first seen by PC20106. I do not find that contention viable. The summing up was, with respect, as clear as it could be and in no way could have misled the jury in the manner suggested.

6. To return to the evidence, PC7810 was in uniform and accompanied by Sergeant 557 - respectively PW2 and PW3 at the hearing. It was he together with the sergeant who stopped the taxi carrying the applicant in Nathan Road. The constable walked to the rear door of the taxi, the sergeant walked to the other side. The taxi driver was asked to switch off his engine by the sergeant and both the taxi driver and the applicant were asked to produce their identity cards. This they did. The constable asked the applicant where he was going to which he got the reply "to Tsimshatsui". The sergeant asked the applicant to hand over that was described as a "clutch handbag" and further asked what was inside that bag. The bag was handed over but the applicant made no reply. The sergeant opened the bag and inside it was found a substance in block form wrapped up in brown paper. The sergeant then asked the applicant what that was. According to the constable, the answer received was that the applicant did not know what it was. The applicant added that he picked it up in the street. The sergeant then again asked the applicant what it was, to which the applicant made no reply.

7. At that point, acting on the instructions of the sergeant, the constable arrested the applicant and told the applicant that he was arresting him for the offence of possession of dangerous drugs fit for the purpose of unlawful trafficking. He then handcuffed the applicant. The applicant was asked to alight from the taxi and initially the constable took the applicant to the pavement. While on the pavement it was his evidence that he gave the applicant the usual caution. The applicant then made reply - the verbal - saying that he had bought the white powder for his own consumption by means of "Ack-Ack Gun" - which means smoking the drug in a cigarette. The applicant was then taken to a spot near the entrance to a construction site in Saigon Street because of the number of people gathering around at the scene. Only the constable heard the applicant's "own consumption" reply. The applicant was then taken to the police station.

8. Now comes the major exception to which I have referred earlier for it was the evidence of the constable that, upon return to the police station and at about 8:47 p.m., that is in the region of an hour after the initial arrest, he post-recorded in his notebook the fact of the arrest, the reason for it and the caution. He further post-recorded that which he said the applicant had replied. Having done that he asked the applicant did he understand and, if he did, then would he sign it which the applicant did. The applicant then added "The white powder is bought by me for self consumption. Give me a chance." The full of the statement was read over to the applicant who also read it himself and the applicant signed the statement.

9. This post-recording and subsequent statement were made the subject of voir dire proceedings. At their conclusion the trial judge ruled them inadmissible.

10. The taxi driver in evidence said that he had heard the applicant, who had told him to drive to Tai Po market not, as the applicant had informed the police, to Tsimshatsui, say that he had merely picked the bag up in the street. He had seen, for the first time, the clutch bag on the back seat after his taxi had been stopped by the police. The taxi driver did not hear any subsequent conversation once the applicant had left the taxi.

11. The net effect of all this was that the Crown relied, as well as the general evidence of the finding of bag with the applicant, on his admission of possession made at the time of arrest; the quantity of the drug which was not contested; and, to a lesser extent, on the differences in destination as given by the applicant to the taxi driver and that which he told the police and the difference between what the constable and the taxi driver both heard the applicant say as to where he had got the bag and the suggestion made in the course of cross-examination that the bag was found in the taxi by the applicant.

12. Mr. Sanguinetti, whose sole ground is that of unsafe and unsatisfactory, has argued seven particulars attached to that ground - the eighth - the "suspect" point - I have already dealt with. He lays great emphasis on the sequence of events at arrest, that is the initial silence, the denial of knowledge and statement of picking the bag up in the street, the subsequent silence when asked what the contents of the bag was and then the admission. For myself, I find, given the circumstances, nothing unusual in that sequence for it is clear that only after the applicant had been told he was being arrested for possession of drugs for the purpose of unlawful trafficking and was cautioned did he seek to, in effect, confess and avoid.

13. Mr. Sanguinetti further emphasises the lack of safeguards, as he described them, surrounding the production of a verbal of this nature. There was no evidence before the jury that that verbal had been recorded in writing; that it had been shown to the applicant; and that he had been invited to sign. That, as far as it goes, is quite correct. But it would have been wrong for the trial judge to have addressed the jury by informing them, as Mr. Sanguinetti suggested he should have done, that these safeguards were absent while ignoring the evidence that they were but had been recorded in the document he had held to be inadmissible. In any event, this was not similar in nature to the issue which arose in Pattinson & Laws [1973] Crm.App.R. 417. There is a closer analogy however between this case and R. v. Lee Man Liu [1992] 2 HKCLR 41 to which I shall later return.

14. Further, it is Mr. Sanguinetti's contention that: first: the wrong procedure was adopted in relation to the admissibility of the verbal in that this was not considered during the voir dire proceedings held in respect of the written statement and: second: that, as a result of the ruling on the written statement, which Mr. Sanguinetti suggested embodied the verbal, the verbal became suspect and tainted and its admission unfair and it should have been rejected on that basis.

15. He also submits that, because of a sentence uttered at the conclusion of the ruling on the voir dire to the effect that:

"Miss Ma, it is a matter for you whether you wish to pursue with the verbal at the scene at the trial.",

the trial judge erred in law by, in effect, leaving the criteria as to whether or not the verbal was to be admitted in evidence solely at the discretion of prosecuting counsel.

16. As to that last, given the circumstances surrounding the voir dire and the manner in which experienced counsel appearing for the applicant conducted it, the trial judge, in my judgment, did not fall into the error suggested by Mr. Sanguinetti. He was clearly indicating to counsel that it was a matter for her what course she took, there having been no specific objection raised as to the admissibility of the verbal. The nearest that came to was in the address of counsel for the defence to the judge at the conclusion of the voir dire and before the ruling was made. Counsel said this:

"Now then with that background: the three opportunities to admit and two silences and the denial within what is, in my submission a curious situation where he is taken away from the only independent witness [the taxi driver] and is then allegedly cautioned, allegedly told that he doesn't have to say anything if he doesn't want to and being told that, blurts out an admission, that, in my submission, just doesn't have an air of reality about it. On the contrary, it has an air of unreality which, of course, should give your Lordship a considerable concern."

That was said in the context of a submission as to matters which should given the judge real and serious cause for concern in relation to the written statement.

17. Mr. Sanguinetti has drawn our attention to section 78(1) of the Police and Criminal Evidence Act 1984 which, while it is not an act of application in Hong Kong, does, in that cited section, encapsulate in statutory form the common law. It reads:

"In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it."

18. There is undoubtedly a discretion in a trial judge to exclude what would ordinarily be relevant, admissible evidence - and I speak only of admissions and confessions - if that evidence was obtained by improper or unfair means. R. v. Sang [1980] AC 420, DPP v. Ping Lin [1976] AC 574 are more than sufficient authorities for that proposition. There was no direct suggestion here of any improper or unfair means used upon or to the applicant at the time of arrest.

19. I would entirely agree with the submission of Mr. Cross, with him Mr. W.S. Cheung, that the issue of the credibility of the verbal was, in isolation, solely a matter for the jury: was it made or was it not. (Ajodha v. R. [1982] AC 204). My difficulty is that, in reality, it was not in isolation. The written statement did no more than reiterate that which was said at the scene, which, on the face of it, was accepted by the applicant as having been said, and, in addition, repeated in slightly different words precisely the same admission. As I have indicated, the circumstances of the signing of that written statement and the adding of the additional words were contested. We have the benefit of the short ruling of the trial judge on the record and what he said was this:

" Although I am satisfied from the evidence that the accused was not assaulted, I am however not satisfied the post-entry exercise occurred in the manner as described by the two officers.

I will therefore give the benefit of the doubt to the accused and rule that the evidence relating to the making of the post-entry, the post-entry itself and the subsequent admission as not being admissible."

20. I would interpolate here that I am in entire agreement with my Lord Macdougall J.A.'s observations on the passage he cites from R. v. Li Kar Wah [1970] HKLR 572 at 579 in his judgment about to be delivered which I have had the opportunity of reading in draft.

21. The questions are: If the trial judge found the credibility of the post-recording constable, who is the same one to whom the verbal had been made, dubious, then should this not have been considered as affecting, to use as neutral a word as possible, his credibility as to whether the verbal was or was not made? If so, should the trial judge have exercised his discretion, without being asked to do so, and spread his ruling to cover the verbal as well? The jury could not know - although it has been suggested that the defence might have introduced the fact that the post-recording had been rejected in the course of cross-examination in the trial proper - that there were other matters which could bear on their determination, other that is than the simple question: was that verbal made or not.

22. A reverse situation arose in R. v. Lam Chi Ming and Others [1991] 2 HKLR 191 where the trial judge, having refused to admit confessional statements and video recordings relating to several appellants, did, after objection, admit the last act in that chain of evidence of the appellants being brought to a sea side spot and pointing out where a knife used in the killing could be found. The knife then recovered could not have been but for that indication. The Privy Council took the view that it was, if I may coin a phrase, "all or nothing" and said that this final piece of evidence should not have been admitted.

23. I said I would come back to Lee Man Liu. There it was held at page 42, line 20-27:

"Where the evidence of the taking of a post-recorded statement fails to establish beyond reasonable doubt that the statement was voluntary, the evidence of the statement-taker about earlier oral admissions recited in the post-recorded statement must necessarily be regarded as suspect and so rejected. Where however a court is left in no doubt that the earlier oral admissions were freely volunteered at the time of an arrest there would be no ground for rejecting those oral admissions simply because of a failure to prove beyond reasonable doubt that the post-recorded statement was voluntarily given."

That decision was given in the context of a trial before a judge of the District Court who, of course, acts as both judge and jury. The circumstances there were unusual and the facts are dissimilar to the facts in this instant case. It would in my view be dangerous to use Lee Man Liu as having strict analogy to proceedings in the High Court and to apply it to those proceedings automatically. There the functions of the judge and the jury are fully separated. Further, the decision in Lee Man Liu very much depended on the course the trial took in that case.

24. But that having been said, what is the answer to the questions I posed myself a little while ago? The fact remains that there was no suggestion made to the trial judge that he should have ruled the verbal to be inadmissible as a result of his ruling on the admissibility of the cautioned statement. Can he be faulted therefore in failing to exercise his discretion if indeed, in those circumstances, he had such a discretion?

25. Sir Denys Roberts, C.J. in R. v. Lam Yip Ying [1984] HKLR 419 at 424 line B said on unfairness:

"So 'fairness' is not to be limited by category, but must be left flexible, though it has been established that it may operate where the prejudicial effect of a statement would outweigh its probative value - e.g. if a statement contains matter which is of small probative value as to guilt, but admits a number of previous convictions by the defendant; ..."

He went on at line G:

"The power to exclude confessions on the ground of unfairness should seldom be employed. Firstly, because it involves the judge in withdrawing relevant and admissible evidence from the jury, whose function it is to weigh such evidence. Secondly, because in almost all cases, the kind of conduct which would constitute 'unfairness' should already have excluded the confession as involuntary."

26. It would, in my judgment, have been open to counsel to invite the judge to consider rejecting the evidence of the verbal in the light of the ruling he had given on admissibility. I do not consider that which was said in Ajodha as prohibiting such a submission at that stage of the case.

27. However, if experienced counsel does not - as here - raise the issue of the rejection of the evidence concerning the verbal in the course of or at the conclusion of the voir dire - and if no unfairness is alleged in respect of the taking of the verbal - and if the rejection of the statement recorded by the self same witness is not, as it could have been later, drawn to the attention of the jury then: first: I do not consider it incumbent on the trial judge to exercise his own discretion to reject that evidence nor: second: is he required to draw to the attention of the jury, in the course of the trial proper, his refusal to admit into evidence the statement.

28. In the event, though by a slightly different route from my brother Macdougall, I too have come to the conclusion, while granting leave, that that which I treat as an appeal should be dismissed.

Power, J.A.:

29. I have had the advantage of reading in draft the judgments of the Vice-President and of my brother Macdougall. I am persuaded by the reasoning of the latter judgment and am in agreement with the conclusion reached therein. I am satisfied that once the applicant in the present case denied that he had made the oral admission, the matter was one of credibility which was for the decision of the jury.

30. As this matter involves the difficult question of the extent of the "residual discretion" (The Queen v. Lam Yip-ying [1984] HKLR 419) of a judge to refuse to admit evidence on the ground of unfairness I feel it appropriate to add the following comments. The answer to that question can, I am satisfied, be found in R. v. Sang (1980) AC 404. The House of Lords was there asked:

"Does a trial judge have a discretion to refuse to allow evidence - being evidence other than evidence of admission - to be given in any circumstances in which such evidence is relevant and of more than minimal probative value?"

As can be seen from the wording of the question that appeal was not, in terms of the question posed, concerned with evidence of admissions. However, the judgments did, of necessity, deal, inter alia, with that matter. Lord Scarman recognizes an overriding duty upon a judge to ensure that an accused has a fair trial. However the extent to which this duty gives a discretion to a judge to exclude otherwise admissible evidence is examined in more detail by Lord Diplock who says, at p.435:

"Nevertheless it has to be recognized that there is an unbroken series of dicta in judgments of appellate courts to the effect that there is a judicial discretion to exclude admissible evidence which has been 'obtained' unfairly or by trickery or oppressively, although except in R. v. Payne [1963] 1 WLR 637, there never has been a case in which those courts have come across conduct so unfair, so tricky or so oppressive as to justify them in holding that the discretion ought to have been exercised in favour of exclusion. In every one of the cases to which your Lordships have been referred where such dicta appear, the source from which the evidence sought to be excluded had been obtained has been the defendant himself or (in some of the search cases) premises occupied by him; and the dicta can be traced to a common ancestor in Lord Goddard's statement in Kuruma v. The Queen [1955] AC 197 which I have already cited. That statement was not, in my view, ever intended to acknowledge the existence of any wider discretion than to exclude (1) admissible evidence which would probably have a prejudicial influence upon the minds of the jury that would be out of proportion to its true evidential value; and (2) evidence tantamount to a self-incriminatory admission which was obtained from the defendant, after the offence had been committed, by means which would justify a judge in excluding an actual confession which had the like self- incriminating effect. As a matter of language, although not as a matter of application, the subsequent dicta go much further than this; but in so far as they do so they have never yet been considered by this House."

Lord Diplock went on, at p.437, to answer the question posed:

"I would accordingly answer the question certified in terms which have been suggested by my noble and learned friend, Viscount Dilhorne, in the course of our deliberations on this case. (1) A trial judge in a criminal trial has always a discretion to refuse to admit evidence if in his opinion its prejudicial effect outweighs its probative value. (2) Save with regard to admissions and confessions and generally with regard to evidence obtained from the accused after commission of the offence, he has no discretion to refuse to admit relevant admissible evidence on the ground that it was obtained by improper or unfair means. The court is not concerned with how it was obtained. It is no ground for the exercise of discretion to exclude that the evidence was obtained as a result of the activities of an agent provocateur."

31. As I read the judgments in R. v. Sang, in particular that of Lord Diplock, there are three categories of admissible evidence which a judge has the power to exclude. The first covers admissions made by a defendant where it has not been proved that they were made freely and voluntarily. Lord Diplock, at p.436 explains the basis for this power in the following terms:

"The underlying rationale of this branch of the criminal law, though it may originally have been based upon ensuring the reliability of confessions is, in my view, now to be found in the maxim nemo debet prodere se ipsum, no one can be required to be his own betrayer, or in its popular English mistranslation, 'the right to silence'. That is why there is no discretion to exclude evidence discovered as a result of an illegal search, but there is discretion to exclude evidence which the accused has been induced to produce voluntarily if the method of inducement was unfair."

32. The second is where the judge is satisfied that the prejudicial effect of the evidence outweighs its probative value. Evidence of bad character and of similar facts are the two leading types of evidence of this kind. Another type of evidence falling with this category is where the evidence is equivocal, as it was in the case of R. v. Christie (1940) AC 545 where the Crown sought to lead evidence of the silence of the accused contending that in the circumstances it amounted to an admission.

33. The third category is a much less certain one. This covers evidence obtained unfairly or by trickery. Into this category fall what might be described as quasi-confessions such as that in R. v. Payne [1963] 1 WLR 637. It is, however, to be noted that this is the only recorded case in which a discretion has been exercised to exclude evidence in this category. It may well be that the categories will in time be extended. However, as the law now stands, it seems clear from the decision in R. v. Sang that while a judge has a general discretion to ensure a fair trial that discretion does not extend to the rejection of otherwise admissible evidence outside the three categories set out above.

34. Turning to the present case, given that there was a denial that the oral admission was ever made, it is clear that:

(1) No issue under the first category, i.e. that the statement was not made freely and voluntarily fell for determination.

(2) No suggestion was, or could have been, made that the statement fell into the second category i.e. that its prejudicial effect outweighed its probative value. In the case of evidence of an oral admission no such balancing exercise can be carried out. There is no question of a jury being "prejudiced". The evidence has probative value if accepted but it has no additional prejudicial effect such as would render the trial unfair. (See Viscount Dilhorne at p.441 of R. v. Sang).

(3) No suggestion was made that might have placed the statement in the third category i.e. that it was obtained unfairly or by trickery.

35. I am, therefore, satisfied that there was no discretion to exclude this evidence. It was a matter for resolution by the jury. The application must be dismissed.

Macdougall, J.A.:

36. The applicant was convicted after trial before Mr. Allan Hoo Q.C., sitting as a deputy judge of the High Court, and a jury of having in his possession on 22 October 1991 a dangerous drug, namely, 337.86 grammes of a mixture containing 142.38 grammes of salts of esters of morphine for the purpose of unlawful trafficking. He now applies for leave to appeal against that conviction.

37. The evidence for the prosecution was that the applicant was seen by a police officer, PC 20106, to be boarding a taxi DY6870, in Pak Hoi Street Kowloon and carrying a black clutch bag. The officer relayed this information by means of a two way radio to PC 7810, who with sergeant 5571 was at the junction of Nathan Road and Saigon Street. When the taxi reached that junction it was stopped by the sergeant and PC 7810.

38. The driver was told to switch off his engine, and both he and the applicant were requested to produce their identity cards. The sergeant, on asking the applicant where he was going, received the reply "Tsimshatsui". The sergeant then asked the applicant to hand him the clutch bag, which was then resting on the applicant's thigh, and asked him what it contained. When the applicant failed to respond, the sergeant took hold of the bag, opened it and withdrew a package wrapped in brown paper. He asked the applicant what it was, whereupon the applicant replied that he did not know and that he had picked it up in the street. On unwrapping the paper, the sergeant saw that it contained what was later found on analysis to be a block of heroin wrapped in masking tape. Having unwrapped some of the tape, the sergeant asked the applicant what the block was. The applicant made no reply. The sergeant then instructed PC 7810 to arrest him, whereupon PC 7810 told the applicant that he was under arrest, handcuffed him and took him to the pavement where he administered a caution. The applicant replied that he had bought the white powder for his own consumption "by means of ack-ack gun". PC 7810 explained to the jury that he understood this to mean consuming heroin by inserting it into a cigarette and smoking it. In the course of his testimony, the applicant denied that he had made any admission to PC 7810 and asserted that that officer's evidence concerning the verbal was pure concoction.

39. The taxi driver testified that he had picked up the applicant outside the Nathan Hotel and was told to drive to Taipo Market. After the police had stopped his taxi at the junction of Nathan Road and Saigon Street, he heard one of the police officers ask the applicant where he was going, to which the applicant replied "Tsimshatsui". Although he could not clearly remember the whole of the conversation between the police officer and the applicant, he particularly recalled that he turned around and saw the officer holding an object in his hand and heard him ask the applicant what it was. He then heard the applicant reply that he had merely picked it up in the street. The evidence of PC 20106, however, was that when he arrived at the scene he identified the clutch bag as the one that the applicant had been holding when he saw him boarding the taxi in Pak Hoi Street.

40. The arresting officer, PC 7810, further testified that he took the applicant to a police station where he post recorded the caution and the applicant's verbal reply. The applicant responded by writing "I understand. White powder is bought for my consumption".

41. During the course of a voir dire held to determine whether the applicants written statement should be admitted in evidence as having been made voluntarily, the applicant gave evidence that at the police station he had told the sergeant that he had picked up the package in the taxi. The sergeant then threatened him that if he did not cooperate he would be beaten up. Following this, the sergeant tapped him on the head with a document that he was holding and told him not to "play on" but to cooperate and say that the drugs were for his own consumption and that at the drugs were for his own consumption and that at the worst he would be bound over or fined. The applicant then wrote down, at the sergeant's instruction, the statement whose admissibility was the subject of the voir dire. His explanation for doing so was that the sergeant had told him to write it and that he would mitigate on his behalf. These allegations were denied by the sergeant and PC 7810. It was their testimony that it was PC 7810 who took the post recorded statement and that he did so alone in a room with the applicant.

42. The judge gave the following ruling :

"The Crown seeks to produce a post-entry record of an admission made earlier by the accused and a short admission immediately after the post-entry. The accused objects to the admissibility on the ground that it was not obtained voluntarily.

I have considered carefully the evidence of police officers called by the Crown and the evidence given by the accused. I am mindful that the burden is fully on the Crown to prove the voluntary nature of the statement, and the standard of such proof is proof beyond reasonable doubt.

Although I am satisfied from the evidence that the accused was not assaulted, I am however not satisfied the post-entry exercise occurred in the manner as described by the two officers.

I will therefore give the benefit of the doubt to the accused and rule that the evidence relating to the making of the post-entry, the post-entry itself and the subsequent admission as not being admissible.

Ms MA, it is a matter for you whether you wish to pursue with the verbal at the scene at the trial."

43. I am left to speculate as to precisely what the deputy judge meant by the words "I am, however, not satisfied the post-entry exercise occurred in the manner as described by the two officers". It is not unlikely that he had in mind the following somewhat misleading passage in the judgment of the Full Court delivered by Rigby CJ in R. v. Li Kar-wah [1970] HKLR 572 at 579:

"We think the onus of proof necessarily involved the prosecution satisfying the magistrate that the statements were made in the manner in which the police officers positively affirmed that they were made, because if the police officers' evidence as to that was not believed that was sufficient to raise doubts as to the voluntary nature of the statements even though the magistrate did not go to the full extent of accepting that the statements were obtained in the manner in which the accused themselves said they were obtained. Unless a judge or magistrate is satisfied that he has been told the truth as to the method employed in taking a statement how can he be certain that the method which was employed did not involve a measure of inducement?"

44. The literal interpretation that counsel not infrequently invite courts in Hong Kong to give to this passage runs counter to authority and, in my view, does not represent the law. The task of a judge hearing a voir dire concerning the admissibility of a statement made by an accused is to determine whether the statement was made voluntarily, not to decide whether the manner in which it was taken was strictly in accordance with the testimony given by the police officer or officers concerned. Simply because the judge thinks that some detail or details testified to by the relevant officer is or are inaccurate, it by no means follows that the statement must be rejected. It is only where the testimony of the officer or officers concerning these matters leads the judge to have a reasonable doubt that the statement was given voluntarily that they are of material significance. I have no doubt that that is what the Full Court meant to convey in the loosely worded passage I have quoted from Li Kar-wah.

45. Mr. Sanguinetti, who appeared for the applicant in this court but not in the court below, advanced one ground of appeal, namely, that the conviction should be set aside as unsafe and unsatisfactory. He submitted that the conviction "depended substantially, if not wholly," on the oral admission which the applicant denied making to PC 7810 at the scene of arrest and that since it was alleged to have been made after the applicant had either remained silent or denied any knowledge of dangerous drugs when questioned in the taxi by the sergeant, it could not be said to have been made spontaneously.

46. First, I do not accept that the conviction "depended substantially, if not wholly," on the oral admission. The jury would have been entitled without more to convict the applicant on the evidence that he was found to have in his possession in the taxi the same clutch bag that he had been seen carrying when boarding the taxi and that that bag contained a block of heroin weighing 337.86 grammes.

47. Secondly, that the applicant had initially remained silent when the sergeant asked him what the clutch bag contained but, soon afterwards, when the bag was opened and the brown paper package withdrawn, had replied to a further question from the sergeant that he did not know what the package was and that he had picked it up in the street, and then, when the package was unwrapped and he was asked what the block was, had made no reply, lends no justification, in my view, to the contention that the credibility or reliability of the applicant's subsequent admission to PC 7810 was so undermined that the conviction was rendered unsafe or unsatisfactory.

48. The principal argument on which Mr. Sanguinetti relied was that, in the light of the deputy judge's ruling at the conclusion of the voir dire that the evidence relating to the post recording of the oral admission and the subsequent written admission were inadmissible, he should have ruled proprio motu that the evidence as to the earlier verbal admission was also inadmissible.

49. Mr. Sanguinetti submitted that the situation in the present case was no different from that in R. v. Lee Man-liu [1992] 2 HKCLR 41 where Power JA in delivering the judgment of this court said :

"The approach, as we understand it, that has been adopted in Hong Kong where objection is taken to post recorded statements, in circumstances such as this, is for the voir dire to be held as to the written statement and in those proceedings to canvas the circumstances of both the alleged oral admissions and of their post recording. Post-recorded statements are almost invariably made by the officer to whom the oral admissions were made. If the evidence of that officer fails to establish beyond reasonable doubt that the statement was voluntary, his evidence as to the oral admissions must necessarily then be regarded as suspect and so rejected. There clearly can be circumstances in which, although a post-recorded statement is rejected, it will not automatically follow that the earlier oral admissions must also be rejected, e.g. where evidence as to the admissions comes from a credible source unconnected with the taking of the rejected post recording. Both logic and common sense dictate that suspected impropriety in the taking of a post-record would be no ground for rejecting [an] oral admission if the court was left in no doubt that those admissions were freely volunteered at the time of arrest."

50. However, it was not intended that this should apply to proceedings in the High Court. Indeed, the words "in circumstances such as this" were used to make this perfectly plain.

51. Where an accused person denies that he made an oral admission at the time of arrest, and alleges that he made an involuntary written admission after the police officer concerned had made a post recording of the earlier non-existent oral admission, it is then the function of the judge to hold a voir dire to determine whether the written admission made was made voluntarily.

52. Although, in the process of doing so, the judge will almost invariably hear evidence as to all the circumstances leading up to the making of the written admission, including those of the making of the alleged earlier oral admission, no issue as to the voluntariness of the oral admission can arise. Since the accused contends that he did not make the oral admission he cannot be heard to say that it was involuntary. The only issues that arise in respect of the alleged oral admission are, first, whether it was made and, second, if so, what weight should be given to it.

53. Where the trial is before a judge alone, the judge will be required to determine not only whether the written admission was given voluntarily and, if so, what weight to attach to it, but also the issue as to whether the oral admission was in fact made. If the evidence of the police officer who took the written statement fails to satisfy him beyond reasonable doubt that it was made voluntarily, it would normally follow, unless there is good reason to the contrary - an example of which was given in Lee Man-liu - that he will have a reasonable doubt as to the truthfulness of the same officer's testimony that the accused made the earlier oral admission, and that he would therefore place no reliance on that testimony.

54. Where, however, the trial is before a judge and jury, it is the function of the jury to decide whether the oral admission was made and, if so, what weight they should attach to it. Whatever view the judge might have formed of the testimony of that officer in the course of the voir dire held to determine the issue of admissibility of the written admission, the issues relating to the oral admission remain exclusively within the province of the jury to resolve.

55. In delivering the reasons for the decision of the Privy Council in Ajodha v. The State [1982] (PC) 204, Lord Bridge, having referred to the situation where the defence case is simply that the interview never took place or that the incriminating answers were never given, said this at p.222 :

"In this situation no issue as to voluntariness can arise and hence no question of admissibility falls for the judge's decision. The issue of fact whether or not the statement was made by the accused is purely for the jury."

56. Mr. Sanguinetti's subsidiary submission was that the deputy judge should have excluded the evidence of the oral admission in the exercise of his general discretion to exclude evidence that has been obtained by improper or unfair means.

57. As I have already observed, however, the evidence concerning the oral admission was not, and could not have been, the subject of a voir dire to determine whether it was made voluntarily. Moreover, there was no allegation by the defence that that admission had been obtained as a result of any unfairness or improper means on the part of the police, nor was there any evidence to that effect either on the voir dire or before the jury. Indeed, the applicant elected not to give evidence before the jury. A judge does not have a general discretion to exclude evidence simply because he personally does not believe it or is not satisfied beyond reasonable doubt as to its truth. The evidence as to the oral admission was properly left to the jury, as the deputy judge, by his remark to prosecuting counsel at the conclusion of his ruling on the voir dire, clearly intended it should be.

58. During the course of his submissions concerning the foregoing matters, Mr. Sanguinetti cited various authorities. These included Turner (1975) 61 Cr.App.R. 67; Lo Sun-wa v. R. [1980] HKLR 253; R. v. Scott [1991] Crim.L.R. 56; R. v. Bryce [1992] Crim.L.R. 728; Chan Kwong v. R. (unreported) Criminal Appeal 191/1982; Lam Chi-ming v. R. [1991] 2 AC 212; and Pattinson (1974) Cr.App.R. 417. Since I did not find any of these cases to be of assistance in coming to my conclusions I do not propose to make further reference to them.

59. Finally, Mr. Sanguinetti submitted that the summing-up was ambiguous and would have misled the jury into thinking that before the police stopped the taxi in which the applicant was a passenger he was already a suspect and that there must have been other evidence as to his guilt which had not been led.

60. This related to the testimony of PC 20106 that he had seen the applicant carrying a clutch bag when he boarded the taxi in Pak Hoi Street. The importance of the evidence of this officer was that the clutch bag that had been taken from the applicant at the scene of arrest was the same one that he was carrying when he boarded the taxi. This effectively negated any suggestion that the clutch bag had been left in the taxi by the previous passenger and that the applicant had innocently picked it up during the course of his journey.

61. After the taxi driver and PC 7810 had given evidence before the jury, the foreman sent a note to the deputy judge in which he asked, "why was the suspect initially suspected on the street by the police?" There then followed submissions by both counsel to the deputy judge in the absence of the jury, at the conclusion of which it was agreed that the jury should be directed that there was no evidence that the applicant had initially been suspected on the street by the police, that it was a matter for the prosecution and defence as to what evidence they wished to adduce and that the jury's function was to deal with the evidence presented to them. The jury then returned to the courtroom and were directed in those terms by the deputy judge.

62. During the course of his summing-up the deputy judge again dealt with the matter. He said :

"I would repeat here what I have instructed you yesterday that there is no evidence that the accused is (sic) under any initial suspicion when he arrived at the scene. You must deal with the evidence as it is presented to you.

When you consider the evidence, you may not speculate about it. You must not imagine what might have happened where there is a gap in the evidence."

63. I do not think that the jury were in any way misled. The directions given to them were entirely proper. There is no merit in this submission.

64. For the reasons I have given I would refuse the application for leave to appeal against conviction.

Representation:

A.J.J. Sanguinetti, Esq. & Johnny Chan, Esq.m (Tang, Wong & Cheung) for Applicant

I.G. Cross, Esq., Q.C. & Cheung Wai Sun, Esq. for Crown/Respondent