The Queen v. Hui Chuen Kit

CACC000133/1990

Headnote

Questions as to credit being asked in cross-examination can only be disallowed if the question, given the nature of the witness's evidence, would not affect its credit, or if the cross-examination as to credit is unnecessarily prolonged, repetitious or merely provocative. If the question does not fall into one of the above categories then the cross-examiner is entitled to ask it.

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

Date of Hearing: 23 & 24 April 1991

Date of Delivery of Judgment: 29 May 1991

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JUDGMENT

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Power, J.A.

1. This is the judgment of the Court.

2. The applicant faced two counts of possession of dangerous drugs for the purpose of unlawful trafficking. He pleaded not guilty and was, after trial before Duffy J. and a jury, found guilty on both counts and sentenced to imprisonment for one year on the first count and thirteen years on the second. The first count charged that on the 24th day of May, 1989 at the main hall, Kwai Fong Mass Transit Railway Station, Kwai Chung, New Territories, Hong Kong, he had in his possession a dangerous drug, namely 13.66 grammes of a mixture containing 13.04 grammes of salts of esters of morphine, for the purpose of unlawful trafficking therein. The second count charged that on the 25th day of May, 1989 at the rooftop, No. 42, Yim Tin Kok Village, Tsing Yi, New Territories, Hong Kong, he had in his possession a dangerous drug, namely 1,312.78 grammes of a mixture containing 1,218.75 grammes of salts of esters of morphine, for the purpose of unlawful trafficking therein.

3. The facts relied upon by the Crown revealed that at 9.50 p.m. on 24th May 1989, he was stopped and searched in the main hall of Kwai Fong MTR station and the drugs the subject of the first count were found on his person. He was then taken together with WONG Siu-lung and CHOW Kwai-fan, who had also been arrested, to the second floor of 42, Yim Tin Kok Village on Tsing Yi Island. When the police party arrived at the premises, WONG Siu-lung's wife (Madam NG Po-emu), his mother-in-law (Madam CHOI Kam-fong), and his sister-in-law (Madam NG Po-ching) were at the premises. The police having searched the second floor premises then searched the rooftop immediately above and found the No.4 heroin blocks which were the subject of the second count. At 4.10 a.m. on 25th May, the applicant was taken to the rooftop. On being shown the dangerous drugs he said, "All the dangerous drugs at the rooftop are mine and have nothing to do with other persons."  This was later reduced to writing and signed by the applicant (Ex. P2). It is the applicant's case that he made no admission on the rooftop, that he signed because the police had threatened to arrest everybody and that the alleged admission was neither voluntary nor truthful.

4. The prosecution also relied on a further confessional statement (Ex. P3) which was sighed at the Narcotics Bureau at 8 p.m. on 25th May 1989, some 14 hours after his arrest. He claims that he signed this because of threats to implicate others and because he was suffering crom withdrawal symptoms. Objection having been taken to the admission of the statements, the trial judge held a voir dire in which the officer in charge of the case, Senior Inspector CHAN Kin-nung, DPC 11934, who was the officer who took the statements, and an officer, SWDPC 15024, who witnessed the taking of the second statement, gave evidence for the prosecution.

5. The applicant gave evidence saying that the confessional statements were false and had been induced by threats, and Madam Choi testified that at the premises she heard an officer threaten to take everyone back to the police station. The judge rejected the evidence of the applicant and his witness in the voir dire.

6. We turn now to the Grounds of Appeal.

"Ground 1. That the verdict and conviction of the Applicant in respect of the 2nd Count was unsafe and unsatisfactory in that the only evidence against the applicant in respect of the said count was his alleged admissions as a result of inducement by Detective Senior Inspector Chan which culminated in two written confessions recorded by DPC11934 (Exhibits P2 and P3) whilst the rest of the Crown's evidence could not by themselves support any conviction for the said count. The admissibility of the said written confessions was objected on the grounds that inter alia the said confessions were a result of threats and inducements and in the circumstances the learned trial judge has erred in admitting in evidence the said statements in particular

(i) when there was evidence from Madam Choy Kam-fong that she heard a policeman said 'you better admit. If you do not admit. All the persons of different ages would be taken pack to police station ......' at the scene before the said statements were taken;

(ii) there was also unchallenged evidence that all persons at the scene except madam Choi Kam Fong, NG Po Ching and a little boy were taken to the Police Station where Ng Po Chi and Chow Kwai Fan were released on bail and nobody else except the Applicant was charged in relation to the drugs found at the scene."

7. Mr. Alexander Wong, who appeared for the applicant both here and below, submitted that the trial judge had clearly erred in admitting the two statements by failing to give weight to the evidence of Madam CHOI Kam-fong that she had heard a threat, and to the undisputed evidence that although all of the persons at the scene, except for Madam CHOI Kam-fong, Madam NG Po-ching and a small boy, were taken to police station. In the outcome only the applicant was charged.

8. The trial judge before admitting the statements ruled:

"I am satisfied beyond a reasonable doubt that the statements, Exhibits P.2 and P.3, are voluntary. In coming to that conclusion I have taken all of the evidence into account, both for the prosecution and the defence. Suffice it to say that no doubt whatsoever was caused in my mind by the evidence either of the defendant or Madam Choi. There is further no grounds for my exercising a discretion to exclude this evidence. These statements therefore, Exhibits P.2 and P.3, will be admitted into evidence."

He was clearly not impressed with the evidence of Madam Choi and rejected it. He was entitled so to do. Indeed a reading of it occasions us no surprise that he was not prepared to give it any weight. The evidence that a number of people were taken back to the police station is, in our view, by no means evidence so cogent in support of the suggested threat that it should have driven the trial judge to conclude that it must have been made. Far from it. It is equally consistent with there having been no threat at all and with the police being faced with the fact that a number of persons were found on the premises any one of whom might, despite the applicant's admission of sole responsibility, have been involved in the offence being investigated. We are satisfied that there is nothing in this ground.

"Ground 5. The learned trial Judge has further erred in failing to consider and or to consider adequately

(i) Why DPC 11934 took nearly half an hour to write down 9 lines of sentence when it took the applicant only half a minute to finish one line in Exhibit P2 and

(ii) Why the Applicant need to sign two signatures, one from the very beginning before 'I understand and one at the end of his confession and that the six former Chinese characters were of a heavier strokes and the pause in between which are indicative that there was indeed a pause in the taking of the said statement and that some conversation might indeed have taken place."

9. In support of this ground, Mr. Wong urges that the trial judge failed to give proper consideration to the circumstances surrounding the taking of Exhibit P2, the first of the applicant's statements. The matters to which the ground refers were all in evidence before the judge and were matters for his determination. He was clearly not impressed by the submissions of counsel, which have been repeated to us, with regard to this evidence. There is nothing which would warrant our interfering with his decision thereon.

"Ground 4. The learned trial judge has erred in jumping into the arena when SWDPC 15024 has given certain evidence favourable to the Defence thereby inadvertently and or otherwise putting pressure on the said witness to rephrase her answer or evidence in different light.

(i) In so doing the learned trial judge has dropped the mantle of a Judge and - neutrals observer thereby losing his impartiality and that justice has not been seen to be done;

(ii) In the circumstances there is a reasonable and justified suspicion and or real likelihood that the learned trial Judge might be biased against the Applicant who has justified reason to feel aggrieved and has justified reason to suspect that injustice had been done to him and or that there were reasonable suspicions that he had been so prejudiced."

It is true that the judge asked SWDPC 15024 a number of questions. He did so, however, after the completion of re-examination which is the proper time for the court to seek clarification of matters left in doubt. During her evidence, this witness had said that she was able to hear all that transpired when Constable 11934 was taking a statement from the applicant at the office of the Narcotics Bureau on the late afternoon of 25th May, 1989. In evidence in-chief, she said she was present to prevent the applicant from escaping and to act as a witness, and that she heard no threats or inducements offered to the applicant. Under cross-examination she said she was not able to hear every word that was said, but was able to hear the questions being put to the applicant. Later in cross-examination, she said it was possible that she had not heard mention being made of Madam Choi and of the other civilians present in the premises on the night of the seizure. There was no re-examination by Mr. Halley for the Crown and her evidence was left in a less than satisfactory state. She appeared to be saying both that she had been in a position to hear everything and that no threats or inducements had been made and also to be saying that it is possible that a threat or inducement was made which she didn't hear. It was this which, understandably, concerned the trial judge.  He directed questions to her to ascertain what exactly she had meant by her evidence. Having done so he made it clear that he was not going to place any reliance upon her evidence. In our view, the questions of the trial judge did not exhibit any bias against the applicant but showed an understandable concern with the imprecise and contradictory evidence of the prosecution witness. We are satisfied that there is nothing in this ground.

"Ground 7.  In the circumstances of the case when it is the duty of a trial judge at the end of a voir dire to ask himself, has the Crown established beyond reasonable doubt that the statements are voluntary in the sense that it was not obtained by threats, promises, oppression or deception and if he is so satisfied, and the evidence suggests that it was obtained unfairly or that its use in evidence would be unfair, should he exercise his discretion to exclude it; the learned trial Judge should or ought to give or alternatively it is desirable to give a brief reason for the reasons of admitting the said statements in particular if they are the only evidence against the Applicant in respect of the said Count, the least should be a clear indication that evidence has been properly evaluated with brief finding of facts and his belief or disbelief of the witnesses' evidence. In this respect the obiter dictum of Robertd, C.J. in R. v. Lam Yip Ying [1984] H.K.L.R. 419 ought not to be followed or should be distinguished."

Mr. Wong in this ground asked that this court hold, contrary to the decision in R. v. LAM Yip-ying [1984] HKLR 419, that a judge is required to give full reasons when ruling on the admissibility of disputed cautioned statements. Mr. Wong took us through the cases relevant to this matter in both Hong Kong and elsewhere. None gives any real support to the approach urged by Mr. Wong. They make it clear that in neither the United Kingdom nor in Hong Kong has the judge ever been required to give full reasons when admitting a contested statement. In Hong Kong, this is firmly established by both precedent and practice, and nothing has been said that would warrant our departing therefrom.

10. We come finally to Grounds 2, 3 and 6 which, in our view, contain the real thrust of this appeal.

"Ground 2. The learned trial Judge has further erred in disallowing questions from the Defence concerning matters which would negative any suggestion that Madam Choy Kam Fong has been approached by the Applicant to concoct evidence favourable to the Defence. Statement was read to her at p.100 which is important to determine whether she had given a true account to the Court or that she has her own or some other reasons for coming to Court to support the Applicant's version of event, in the circumstances the learned trial Judge has further erred in failing to take any note of it or to rule that it does not arise out of cross-examination when it had been suggested by the Crown that the said witness or her family appears to have a close connection with the applicant.

Ground 3. The said disallowance was unfair and prejudicial to the Defence for the learned trial Judge has by admitting the said statements impliedly rejected the evidence of Madam Choy Kam Fong without allowing her the chance to give full evidence of her reasons for coming to Court to give evidence and has further erred in making any finding of her credibility without hearing the full evidence from her which he ought to hear and or listen instead of not making any note of it."

Madam Choi Kam-fong in her evidence in chief said that she heard a policeman say to the applicant, "You had better admit. If you do not admit, all the persons of all - of different ages would be taken back to the police station".

11. At the end of her examination in chief, Mr. Wong put the question "When were you first approached to give evidence in this court?" When, quite properly, queried by the court as to the relevance of this question, he said "My lord, its just to eliminate any suggestion of any ...".  The court the said that there had been no such suggestion and ruled, quite correctly in our view, that it was not a question for examination in chief. Mr. Wong said, "I will reserve it, if it arises."

12. During cross-examination, it was put to Madam Choi that there was a close connection between her family and the applicant. She was the cross-examined as follows:

The following exchange between the judge and counsel then took place:

Mr. Halley was canvassing the relationship between the witness, her family and the applicant, the visits by the witness to the applicant while he was in prison and the possibility that she had discussed his case with him. It was not put directly to her that she and the applicant had put their heads together to concoct evidence, but it was clearly being suggested that she had had bote motive and opportunity so to do.

13. She was also asked whether anyone had told her what she should say in evidence. She denied this. She was then cross-examined on a statement which she had made to the police on 17th August 1989 in order to show that she had made no mention therein of any threat to take all of the persons back to the police station. The thrust of the cross-examination was, in our view, clear. It was being suggested, indirectly it is true, that there was a real likelihood that she had concocted her evidence.

When Mr. Wong was re-examining, the following passage occurred:

Again there was an exchange between the judge and counsel:

It is correct' that the initial question regarding the first approach by solicitors to the witness did not arise out of cross-examination and the judge was right so to hold. However, it is clear from what Mr. Wong went on to say that he was preparing the ground for further questions in which the witness would be asked whether she had concocted her evidence or had discussed it with anyone. Mr. Wong submits that, given the cross-examination, these were matters very much in issue which he was entitled to raise with the witness. It might be suggested that. the judge when he said "Yes, carry on." was indicating that he was prepared to allow this line of questioning. Mr. Wong says, however, that this was not so and that he took the words to mean that he was to carry on with other matters. That this must have been so seems to us clear from Mr. Wong's final words: "I abide by your ruling. I have no more re-examination." Had the judge intended by the words "Yes, carry on" that he was allowing the line of questioning, he would no doubt have made that clear to Mr. Wong at this stage.

14. Mr. Saw, for the Crown, argued this matter upon the basis that, even if the questions should have been allowed - he did not concede that they should have - there was no eventual unfairness to the applicant as the witness was, in her cross-examination generally and, in particular as to her statement, totally discredited. This is a dangerous line as it is Mr. Wong's contention that the very purpose of the questions which were disallowed was to show that she should not have been regarded as having been discredited by the cross-examination. We are satisfied that the questions should have been allowed as they concerned matters which, given the cross-examination, were the legitimate subject of further enquiry in re-examination. we are not, however, persuaded that this, had it stood alone, would have been sufficient to warrant us holding that the conviction was unsafe and unsatisfactory.

"Ground 6. The learned trial Judge has also erred in disallowing question concerning the Detective Senior Inspector Chan's previous practice and or experience if any of any plea bargain which is relevant in the determination of the credibility of the said witness which also goes to the core of the Applicant's contention and or objection to the admissibility of the said statements and to the relevant question whether the Applicant's evidence would be probably capable of belief."

The relevant passage in the record reads as follows:

15. The Court intervened:

"Court: Sorry, what is the point of that question?

Mr. Wong: Sorry, my Lord, I'll try to rephrase it. My Lord, I'll withdraw that.

Court:. I think you should get on about it."

Cross-examination then continued:

Again the judge intervened:

16. It was the evidence of the applicant that one of the police officers, after they had come down from the rooftop, had said to Senior Inspector Chan that no one claimed to be the owner of the drugs found on the rooftop, and that the senior inspector had then said that if no one admitted, everybody should be arrested. The applicant said that he then made a false admission because of this pressure. The admissions which he made later were, he said, equally false and were made because of further pressure. The whole of the prosecution case rested upon these admissions. If it was shown that the applicant was pressured into making the admissions or if a doubt was raised as to whether that might have been so, the admissions must have been held to have been inadmissible and the Crown case would have collapsed. The defence was seeking to question the senior inspector as to his approach to situations such as this on other occasions. The tenor of the questions that would have been asked is obvious. Counsel would no doubt have taken the line that, on a previous occasion or occasions, the Inspector had used the same tactic, namely, to threaten to take an entire group of people to the police station in order to induce one of them to volunteer an admission. Such questions, of course, go to credit and not to the issue, but they are nonetheless proper questions. Phipson on Evidence 14th Edition at p.242 succinctly sets out the position:

"A witness is compellable to answer every question put to him in cross-examination which is relevant to the issue, unless protected by public policy, or privilege, or unless the case is one in which oral evidence is excluded by documentary. He is also, in general, compellable to answer questions relevant merely as affecting credit; but the judge has a discretion to excuse an answer when the truth of the matter suggested would not, in his opinion, affect the credibility of the witness as to the subject-matter of his testimony."

17. The cross-examiner accepts an element of risk when he asks such questions as he is bound by the answers, but the risk is one which he is entitled to take.

18. A judge can excuse a witness from answering such questions if the answer, given the nature or his evidence, would not affect his credit. Could it be said in the present case that the answer could not have affected his credit?  In our view the answer must be no.

19. It is correct also that if cross-examination as to credit is unnecessarily prolonged, repetitious or merely provocative, the court can quite properly bring it to an end. Such was clearly not so in the present case. If the cross-examination was within the bounds of what is properly permitted, and we are satisfied that it was, the judge had no proper ground for disallowing it. It was Mr. Saw's submission that the evidence from the applicant and Madam Choi as to the suggested inducement was shown by cross-examination to be so unsatisfactory that it was inevitable that the trail judge would have refused to accept it and that the applicant therefore suffered no real prejudice when his counsel was not allowed to cross-examine the police officer as to his credit.

20. We do not agree. This was a case where the prosecution. was forced to rely solely upon confessional statements and the only defence was that the statements had been obtained by inducement. We have no doubt that the proposed cross-examination of the inspector going to his credit was a legitimate area of cross-examination upon which counsel should have been permitted to embark.

21. We are in the circumstances satisfied that the conviction cannot be regarded as safe and satisfactory. The application for leave to appeal against conviction is allowed. The hearing of the application is treated as the hearing of the appeal and the appeal is allowed.

Representation:

Mr. D.G. Saw (Crown Prosecutor) for the Respondent.

Mr. Alexander Wong (D.L.A.)(re conviction) for the Applicant.