CHAN CHI FAI and Another v. R.

IN THE COURT OF APPEAL

1993, No. 636
(Criminal)

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J U D G M E N T  O F  T H E  C O U R T

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Macdougall, V.-P.:

1. The applicants were convicted of robbery after trial before Deputy Judge Pang and a jury and were sentenced to 8 years' imprisonment. They now apply for leave to appeal against both conviction and sentence.

2. There was undisputed evidence that on 31 August 1992 four men rushed in to the staff changing room of the Cafe de Coral in Wanchai, overpowered and tied up four members of the staff, including three women, and menaced a male employee, Mr Hung, at knifepoint and ordered him to open a safe. When Mr Hung made it plain that he did not have a key to the safe, the robbers seized a cloth bag which bore the logo of Hongkong Bank and contained a number of rolls of coins wrapped in plastic. They also robbed Mr Hung of a wallet containing $900, two credit cards and a Money Link card, and forced him by means of kicks and fist blows to disclose the personal identification number of one of his electronic teller cards.

3. Shortly after the robbery one of the robbers was arrested and found to have in his possession a key to a room in the San Diego Hotel. There was evidence that when the police raided that room at about 7.07am that day they found present there the two applicants. Lying on the floor of the room were a cloth bag and rolls of coins which Mr Hung identified as those which had been taken in the robbery.-

4. On being asked by a police officer to explain the presence of the rolls of coins, the 1st applicant made no reply. When, however, the question was repeated he admitted that he had robbed the Cafe de Coral with four others whom he named. He asserted that he had played the role of look-out and that after the robbery "they" had escaped from the scene in a taxi and had gone to the San Diego Hotel.

5. At 7.30am the 1st applicant was formally arrested and cautioned. In reply he stated that he needed money, and repeated that he had gone to rob with other named persons so that he could pay the rent and care for his daughter. Subsequently, at a police station this statement was post-recorded in the police officers notebook and the applicant signed the record. After a further caution the applicant then answered a number of questions about his accomplices, his role in the robbery, how much money had been taken and the identity of the instigator of the offence.

6. In response to the last of such questions he replied that on the evening of 29 August he heard Yeung Bor, Li Po-lam and Ah Wah telling Sze Ngan Chai "to go to rob" and that he himself suggested that they all participate.

7. The admissibility of these statements was challenged on the basis that they were involuntary. The 1st applicant alleged that he had never been cautioned, that by means of assaults and threats he had been forced to sign the written statement taken at the police station and that none of the questions and answers recorded in that statement had been asked or given. At the conclusion of the voir dire the deputy judge ruled that the statements had been made voluntarily and admitted them into evidence.

8. The Crown also adduced evidence that when the security chain was released on the door to the hotel room the 2nd applicant was seen through the partially opened door to throw something onto the floor. One of the officers then asked 2nd applicant what he was doing in the room and whether he had been involved in the robbery at the Cafe de Coral. When the applicant failed to reply, the officer searched him, following which he arrested and cautioned him. The 2nd applicant then admitted that the robbery had been committed "by five of us", that he had been responsible for tying up the victims, that they then fled by taxi to the San Diego Hotel, that two of the accomplices had then left and that shortly afterwards the police had arrived.

9. After the 2nd applicant had been taken to the police station the police officer post-recorded his oral statement in his notebook and the 2nd applicant signed the post-recording and acknowledged that it was correct. He was then cautioned again and, on being asked to do so, provided descriptions of his accomplices in the robbery.

10. At the trial the 2nd applicant challenged the admissibility of the statements which the police alleged he had made. He contended that he had never been given a chance to explain his presence in the hotel room, that he had been threatened and assaulted and that the written statements which he had signed had been concocted by the police.

11. It is convenient to deal with the 2nd applicant's grounds of appeal first. Mr Percy, who appeared for the 2nd applicant in this court but not in the court below, submitted that the verdict is unsafe and unsatisfactory because, first, the prosecution had failed to call as a witness before the jury one of the police officers, a Station Sergeant, who had given evidence on the voir dire and against whom allegations had been made by the defence that he had used violence against the applicants. Secondly, that although immediately prior to the summing-up the jury had inquired from the deputy judge whether there was any reason for the Station Sergeant not having been called to give evidence, the deputy judge did not properly deal with that query.

12. What happened was that, as soon as the jury had made their inquiry, the deputy judge, at the request of defence counsel, heard submissions from counsel as to the direction which the jury should be given. At the conclusion of addresses it was agreed that the deputy judge would give the jury the standard direction framed in these terms:

"Sometimes when jurors retire to consider their verdict they decide they would like to know more about something. Well, members of the jury, the case is closed. You have before you all the evidence you are going to have, and you must do your best on the basis of the evidence that you have. You should not speculate on the reason why Sergeant CHAN was not called to give evidence."

13. In the course of his summing-up the deputy judge gave the jury that direction. He also told them:

"Please bear in mind that the prosecution must prove his guilt. An accused person does not have to prove his innocence or indeed anything. He does not have to call any witness".

14. Mr Percy contended that it was incumbent on the prosecution to call the Station Sergeant to give evidence before the jury to face the same allegations as those levelled at him by the defence in the voir dire and thereby provide the defence with an opportunity of undermining before the jury the cogency of the cautioned statements.

15. We do not agree. The Station Sergeant was not one of the witnesses named on the back of the indictment, nor was any request made by the defence of the prosecution that he be tendered for cross-examination. Indeed, even where a witness is named on the back of the indictment there is no obligation on the prosecution to call him, but merely a duty to have him available for cross- examination, if required. Moreover, the Station Sergeant was not a witness not named on the back of the indictment whom the prosecution were aware had made a statement favourable to the defence - see Dallison v. Caffery [1965]1 QB348. On the contrary, to the knowledge of both prosecuting counsel and defence counsel, the Station Sergeant's evidence would have been totally at variance with the defence case.

16. Mr Percy was unable to cite any authority to support his submission that prosecuting counsel must, as a matter of course, call all the witnesses who gave evidence for the prosecution on the voir dire to again give evidence before the jury. There is neither in law nor in practice any duty on prosecuting counsel to do so.

17. Furthermore, we do not accept Mr Percy's submission that, it having been agreed by counsel that the deputy judge should give the jury the standard direction in response to their question, it was incumbent on him to do so before he began his summing-up which commenced immediately after the jury returned to the court room at the conclusions of submissions. It was Mr Percy's contention that by giving the direction in the course of the summing-up there would have been insufficient focus upon it to enable the jury to realise that it was an answer to their question and that they might therefore have thought that, the prosecution not having called the Station Sergeant, the defence were under a duty to do so. As a result they "might have speculated to the detriment of the applicants".

18. In our view this is entirely fanciful. The deputy judge's direction was perfectly clear and correct. No reasonable jury could possibly have failed to understand that it was a response to their inquiry. It mattered not whether the deputy judge gave the direction immediately before the summing-up commenced or whether he made it part of the summing-up. Moreover, he made it abundantly clear that the defence were under no obligation to call witnesses.

19. Mr Percy also sought to derive some assistance from obiter dicta in Tsang Hon-sum v. R. Criminal Appeal 870 of 1977 (unreported) in which the court expressed that view that, in general, a judge, having admitted a disputed statement into evidence, should be slow to allow that statement to be placed before the jury together with a recital of an earlier caution which contains a reference to previous inculpatory statements alleged to have been made by the accused.

20. We are of the opinion that it is perfectly proper for the prosecution to produce in evidence, either on one piece of paper or on consecutive pages of a police notebook, a post-recording of a caution admitted at the scene of arrest and oral statement given in reply thereto, and a caution and statement recorded thereafter. If the court in Tsang was expressing a view to the contrary then we respectfully, but most emphatically, reject that view. It is completely immaterial whether it is on one or two separate sheets of paper that the jury have presented to them the record of what the accused is alleged to have said in his post- recorded statement and any statement which follows the post recording. Where more than one cautioned statement is admitted into evidence the jury will have before them each and every one of such statements irrespective of however many pieces of paper on which they are recorded. We are at a loss to understand how it could prejudice an accused if the record of more than one cautioned statement appears on one piece of paper or on consecutive pages of a police notebook.

21. Mr Percy submitted that a police officer should make a record in his notebook of any oral statement made by an accused person as soon as practicable thereafter and that this should not be post recorded in writing for the accused to acknowledge as correct. According to Mr Percy the police officer should use his notebook to refresh his memory at the trial and simply tell the court what the accused had said.

22. On the contrary, we think that, where an oral statement is later recorded in writing by a police officer, it is much fairer to an accused person to give him an early opportunity to reject as wholly or partly inaccurate the officer's recollection of what was said. By seeing the officer's post-recording of his recollection of what was said the accused has this opportunity. This is so whether the post-recording is made on the same or a different sheet of paper or page in a police officer's notebook as that on which any subsequent caution and reply thereto is recorded. It follows that we see no objection to the long accepted practice of police officers recording cautions and signed statements in police notebooks. More often than not the notebook is the only convenient means by which a statement can be recorded.

23. Mr Percy's final ground of appeal was that the deputy judge "might have confused the jury in determining what weight, if any, to place upon the statement" by telling them:

"If, on the other hand, you are sure both that it was made and is true, you may rely on it even if it was made or may have been made as a result of oppression or other improper circumstances".

24. This direction was in accordance with the model direction supplied to judges at that time. However, following R. v. Yu Ho-man Criminal Appeal 370 of 1992 (unreported) that model direction was withdrawn. In that case this court said: -

"While such a direction is strictly correct we consider that it is undesirable for judges to tell juries that they may rely on a confession even if it was made or may have been made as a result of 'ill-treatment or inducement or other improper circumstances.'

We strongly advise judges to omit this formula. Having referred the jury to the defence allegation that the statement was given as a result of violence, threats, promises and inducements or such one or more than one of these that are alleged, it is advisable for the judge to say no more in his direction to the jury than that before they can use the statement against the accused they must conclude that it was made by him in the sense that it was the product of his mind and that it is true."

25. While we affirm our view that it is undesirable for judges to use the now withdrawn model direction we do not accept that that direction would have produced any confusion in the mind of the jury.

26. Mr Dennis Law, who appeared for the 1st applicant, both in this court and the court below, adopted the Station Sergeant ground of appeal that was argued by Mr Percy for the 2nd applicant. He also submitted that the deputy judge was wrong to find on the voir dire that the 1st applicant's cautioned statements had been made voluntarily. It was his contention that the deputy judge ought to have had a reasonable doubt as to their voluntary nature and have excluded them from evidence.

27. In advancing this ground Mr Law referred us to various aspects of the evidence. However, none of these leads us to think that the deputy judge, who enjoyed the undoubted advantage of hearing and seeing the witnesses give evidence, was wrong in accepting the evidence of the police officers and rejecting the allegations that were made against them.

28. Collateral to this ground was a contention that the deputy judge failed to exercise or exercise properly his discretion to exclude the cautioned statements on the ground that there had been a breach of the Judges Rules by the arresting officer in that he proceeded to question the 1st applicant at the San Diego Hotel without first administering a caution.

29. We emphasise that a judge's discretion is not one to include, but one to exclude. That being so, he is not required to announce that he does not intend to exercise that discretion. It is perhaps opportune to issue a reminder that the Judges Rules are not rules of law but merely serve as guidance for police officers.

30. It follows from our rejection of the submission that the statements were wrongly admitted into evidence that we must also reject Mr Law's further contention that the conviction must be quashed because there was no evidence against the 1st applicant other than that he was found very soon after the robbery in a room with part of the proceeds of the robbery lying on the floor. In the light of the confessions and the circumstances in which the 1st applicant was found the jury were entirely justified in returning a verdict of guilty of robbery.

31. For the reasons we have given the applications for leave to appeal against conviction were refused.

32. With regard to sentence it was submitted that since the group of robbers did not enter the Cafe de Coral armed with weapons it cannot be said that the applicants must have known that, once inside, one of their companions would take up a knife and threaten Mr Hung with it. In those circumstances they should have been sentenced on the basis that they had merely intended to participate in an unarmed robbery.

33. We are not attracted by this process of reasoning. It is a notorious fact that, in order to avoid the risk of being caught carrying weapons in a public place, robbers frequently arm themselves with knives after gaining entry to the premises in which the robbery is to be carried out. We are not disposed to distinguish between those who take weapons into premises and those who from part of a gang, one or more members of which take up weapons when inside. In the present case not only was a weapon used but the victims were tied up and one of them, Mr Hung, was kicked and beaten in an attempt to force him to open the safe. Neither applicant made any attempt to disassociate himself from this conduct.

34. It was also submitted that the applicants are aggrieved because their three companions, two of whom pleaded guilty to three robberies and the other to two robberies, received concurrent sentences of six years' imprisonment, whereas they, the applicants, received sentences of eight years for only one offence.

35. In our opinion the other three robbers were extremely fortunate. That fact however does not entitle the applicants to a reduction of the perfectly proper sentences of eight years' imprisonment that were imposed after a contested trial for a robbery such as we have described.

36. The applications for leave to appeal against sentence were also refused.

37. Before parting with this appeal, we wish to commend for their alertness and initiative the police officers who noticed two of the robbers acting in a suspicious manner when using Mr Hung's stolen card, they were attempting to extract money from an electronic bank outlet. The officers' prompt action led to the arrest of a gang which had been responsible for a series of robberies and which would otherwise undoubtedly have continued to prey on the staff of fast- food restaurants that open for business early in the morning.