R. v. LEUNG HUNG ON

IN THE COURT OF APPEAL

1995, No 700
(Criminal)

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J U D G M E N T

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Bokhary, J.A.:

1. Late last year, two men appeared before Her Honour Judge H C Wong in the District Court jointly charged with three offences, being burglary under the first two charges and attempted burglary under the third one.

2. This applicant, a man in his late 20's, was the 2nd accused. The 1st accused was a slightly older man.

3. While the 1st accused pleaded guilty to all three charges, the applicant pleaded not guilty to all three of them.

4. In the result, the applicant was found to have no case to answer on the 3rd charge, but was on October 20 last year convicted on the first two charges.

5. He now seeks leave to appeal against those two convictions.

6. The 1st charge was of burglary of a flat on the 22nd floor of a building in Waterloo Road on the evening of July 23, 1994. And the 2nd charge was of burglary on the same evening of a flat one floor lower in the same building.

7. The judge accepted the evidence of the principal prosecution witnesses who were two of the police officers who had been summoned to the scene: that on the evening of the two burglaries they found the applicant and his co-accused in a lift in the building where those burglaries had taken place; that those two men were each carrying a bag; and that each bag contained valuables.

8. The occupant of one of the burgled flats identified some of the valuables found in the bag which the police said had been carried by the applicant as having come from her flat. The occupants of the other burgled flat identified some of the valuables found in that bag as having come from their flat. And the judge accepted all that evidence too.

9. One would have thought, therefore, that the case was a straightforward one. Unfortunately, it turned out to be nothing of the kind.

10. In her Reasons for Verdict, the judge says, among other things, this:

"[The applicant] alleged that he had been assaulted by the police at the police station. This may or may not have happened subsequently at the police station, I find it to be irrelevant to what had happened at the time of the arrest and the manner the Defendants were found by the police [in the lift]."

11. Exactly what happened in the court below is not at all clear from the judge's Reasons for Verdict. But with the assistance of counsel on both sides, who have our thanks of course, we have been able to gather that this was position. The police had in their hands a signed statement by the applicant admitting his guilt. It was in the form of a post-record, taken at a police station, of a verbal admission which the accused was alleged to have made at the scene.

12. For some reason, the prosecution did not seek to lead evidence of that post-record. That may have been because of medical evidence of injuries to the applicant consistent with the ill treatment which he alleged that the police had subjected him to in order to force him into signing the post-record. Nevertheless, the prosecution led evidence of the alleged verbal admission.

13. The judge does not seem to have relied on any verbal admission when convicting. She said nothing whatsoever about any admission by the applicant when she came to give her reasons for convicting him.

14. Nevertheless, that still leaves this point. The applicant said: that his presence at the scene was innocent; that both bags were being carried by his co-accused; and that the police officers were lying when they said that he was carrying one of the bags and had made a verbal admission.

15. Mr Marash for the applicant submits that what the judge said in the passage which we quoted from her Reasons for Verdict shows that the judge failed to take into account, when considering the credibility of the officers in question, her doubt as to whether or not they had assaulted the applicant and then falsely denied that assault.

16. Naturally, the impact of such doubt upon the credibility of the officers was as relevant to whether they were to be believed when they said that the accused was holding a bag as it was to their evidence that he had made a verbal admission. And the judge has treated a relevant matter as an irrelevant one.

17. In convicting as she did, she had to rely - and clearly did rely - on the evidence that the accused was holding a bag. That evidence came from the officers of whose credibility she necessarily expressed some doubt when she said that the applicant may or may not have been assaulted at the police station.

18. It would be an injustice to the police officers concerned to let anyone think for one moment that the courts have actually found that they had misbehaved. No such finding has been made. But since the judge entertained the doubt which she expressed as to their conduct at the police station, it was incumbent upon her to consider the impact of such doubt upon their credibility in regard to what had happened at the scene earlier. She did not do that. Indeed, she expressly set her face against doing that.

19. Quite rightly, Mr Saw for the respondent concedes that these convictions cannot be supported.

20. In the result, these convictions cannot be regarded as either safe or satisfactory. Treating the hearing of this application as that of the appeal itself, the appeal is allowed, both convictions are quashed and the sentences passed thereon are set aside.