THE QUEEN v. TANG YUK YAN

HEADNOTE

The defendant was convicted on a charge of possession of offensive weapons in a public place and was acquitted on a charge of conspiracy to rob. He appeals against that conviction. The trial judge admitted and relied upon a contested cautioned statement. The police officers alleged to have used force and threats were not called to give evidence. The issue before the Court of Appeal was whether those officers had been sufficiently identified and should therefore have been called. It was alleged that a sergeant who was at the police station on the day on which the statement were taken had made threats. In those circumstances, the Appeal Court was satisfied that the Crown should discharge the onus on it to prove voluntariness and should have called either the sergeant, if he existed, or the Duty Officer to swear to the circumstances that obtained immediately prior to the taking of the statement. Application allowed and conviction quashed.

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J U D G M E N T

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Power, J.A.:

1. This is the judgment of the Court.

2. The applicant was convicted on 18th January 1991 in the District Court after trial before District Judge Surman on a charge of possession of offensive weapons in a public place. He was acquitted on a charge of conspiracy to rob which was heard at the same time.

3. The particulars of the offence detailed that he, together with two other persons, on 2nd June, 1990 at the entrance of the Heung Fan Liu Chuen, Pik Tin Street, Shatin, without lawful authority or reasonable excuse had with them offensive weapons, namely three beef Knives. His appeal today is against that conviction only.

4. The Crown relied upon the evidence of a group patrolling police officers who said that they had stopped the vehicle CX 9314 in Shatin in which the applicant and others were travelling and that upon searching the vehicle, they located the three beef knives and a number of other articles under the front seat.

5. The trial judge when convicting, made the following finding:

"The evidence is that the Defendant was in the car where the 3 knives were found. The knives were with him - query did he know about them ?

I have paid close attention to the 2nd statement from Defendant 1 gave under caution and which I admitted into evidence. I place considerable weight on this statement and I am quite satisfied so that I am sure about it that this Defendant 1, from Answer No. 10, knew that the knives were there when he boarded the car.

Having seen the knives, I am satisfied that they could be described as offensive weapons. They were found in a public place - namely a private car parked in a public place. The Defendant 1 has given no sensible explanation or reason why he should have these knives.

I therefore find Charge 1 proved against the Defendant 1."

6. The admissibility of the statement had been challenged by Mr. Midgley, who then appeared for the applicant. The grounds of objection were that the applicant had been assaulted by 6 to 7 police officers, had then been taken by a sergeant and another C.I.D. officer to a nearby lavatory where he was assaulted again and threatened, that the sergeant had told him that the other two persons detained had already given evidence by way of statement, that he was going to be prosecuted with or without his cooperation, that another officer would be introduced to him and that he should be smart and assist that officer. Following this, he was taken to a room and questioned by DPC 16427, the officer to whom he made a statement. No complaint was made concerning the propriety of that DPC's conduct. In the face of these allegations, the only officer who gave evidence in the voir dire hearing was DPC 16427.

7. A submission of no case upon the voir dire evidence was made and the trial judge held that there was a case to answer. The applicant called no evidence and the trial judge then when ruling that the statement was admissible, stated:

    "I have looked at the evidence concerning each Voir Dire separately.

    The first concerns the taking of Statement PP2. The second concerns the taking of Statement PP4.

    I have reviewed the evidence called by the Prosecution on each of them. In neither voir dire did the relevant Defendant give evidence or call any witnesses."

The trial judge then went on to deal with the burden of proof, stating that it lay upon the Crown and that he bore this in mind when coming to his conclusion. He then added:

    "It is not my practice to give detailed reasons for my rulings on the Voir Dires. But I wanted there to be no misunderstanding about the general approach I have taken and the matters I have considered."

8. The trial judge nowhere referred to the submission that there was a lacuna in the Crown evidence, failing as it did to deal with the allegation of assaults and threats by the sergeant and others at a time prior to the taking of the statement by D.P.C. 16427.

9. Mr. Hemmings who appears today for the applicant refers to LEUNG Wing-ning v. R. 1981 HKLR p.96. The headnote of the majority decision reads as follows:

"Although it is always highly desirable in any case in which a particular officer is accused of wrongful behaviour that he should be called to give evidence on the issue of admissibility, and although there may be circumstances when the court will feel it unsafe to rely upon other evidence which purports to discharge the onus on the Crown, there is no principle preventing the onus from being discharged by evidence aliunde."

10. In coming to that conclusion McMullin V.-P. at p.99 referred to the case of LUNG Wing-kei v. The Queen (Cr. App. No. 388 of 1980) saying:

"A simple but important point is thus in issue: must the Crown, in discharge of its duty to prove affirmatively the voluntary character of a statement which it seeks to introduce in evidence, call any person whose conduct has been impugned to give evidence in rebuttal or may it rely upon other evidence to rebut the allegations.

    Mr. Leung for the appellant relies upon a recent decision of the Chief Justice in LUNG Wing-kei v. The Queen, an appeal from the decision of a magistrate. In that case four police officers approached the defendant in a public street in the course of a large-scale police raid. He made a statement to one of the police officers admitting membership of a triad society. The defendant said that the statement was a concoction of the officer who first approached him and that his signature thereto had been procured by threats made by another member of the police party. The issue was tried upon voir dire and one of the constables testified that he had taken the statement from the defendant and that the defendant had never been threatened by any member of the police party. Another police constable was tendered for cross-examination and was not cross-examined. The defendant in giving evidence said that neither of those constables was the one who had threatened him. He said that threats had been made by the one who first approached him and this by a process of elimination indicated another constable, DC12927, who was neither called by the Crown nor tendered for cross-examination in the voir dire. The learned Chief Justice said:

'Thus the officer against whom allegations of threats were made by the defendant was sufficiently identified, though I quite understand how in the bustle and confusion of the trial this may not have become immediately apparent to the Crown. Nevertheless, the Crown did not call this officer to rebut allegations of improper pressure which had been levelled against him. What is the effect of this failure.'

He then referred to the nature of the onus on the Crown - which is not in issue here - and he went on:

'Where the defence puts forward allegations of improper conduct on the part of a police officer who has been sufficiently identified, it is for the Crown to establish, by calling this officer (or another officer where appropriate) that the allegations are unjustified and that the statements were of a voluntary nature.'

The conviction was quashed."

11. We accept that the law is correctly stated in the passage set out above.

12. The issue before us is then whether the officers who were said to have used force and threats were sufficiently identified. It is the submission of the Crown, represented by Mr. Sham, that they were not. We cannot agree. The objection made it quite clear that the person most immediately involved in the threats was a sergeant who was at the station on that day immediately prior to the taking of the statement. D.P.C. 16427 who took the statement gave evidence that:

"I met the Defendant 1 at 3.15 p.m. - when I collected him from the Report Room at Tin Sum Police Station.

    After taking D1 out of the Report Room I took him to Room 211 (2/F) - the CID Room. D1 was handed over to me by the Duty Officer.

The objection detailed threats and force by the sergeant and others immediately before the applicant was handed over to the constable who took the statement. The constable who took the statement said that he had received custody of the applicant from the duty officer. To discharge its onus the Crown could have called either the sergeant, if he existed, or the Duty Officer to swear to the circumstances that obtained immediately prior to the taking of the statement. In fact no evidence was called in this regard. This failure was, in-our view, a fatal one. The application, therefore, must succeed. The hearing of the application is treated as the hearing of the appeal and the conviction is ordered to be quashed.