R. v. KAM KWOK CHEUNG

IN THE COURT OF APPEAL

1995, No. 495
(Criminal)

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J U D G M E N T

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Mortimer, J.A. (giving the judgment of the Court) :

1. On 1 June 1995 the applicant was convicted by Deputy Judge Muttrie of an offence of robbing a girl in a lift lobby on the Lok Wah Estate. He took $1,100. That offence took place in April 1994 and was convicted with another man. Previously, the applicant had pleaded guilty before the same judge of another offence of robbery committed with two other people on 14 May 1994. He was later sentenced by the judge to a total of 5 years imprisonment for the two offences. He seeks leave to appeal against the conviction.

2. The evidence consists entirely of a written confession under caution. The applicant challenged the admissibility before the judge but the judge rejected the challenge and then admitted the statement.

3. The applicant had made a confession of the charge to which he pleaded guilty (P2). That confession was said to have been made between 6.30 and 8.30 a.m. on 25 May 1994. The confession statement (P3) relating to the count upon which he was convicted was made between 4.30 and 6.00 p.m. on that same day. He contended that he was beaten up, punched and stamped on which led to him signing the statement relating to the first charge. He also said that it was composed by the police. He said he signed the second statement because he was in fear of further ill treatment.

4. When the judge came to consider whether the second statement (P3) was voluntary the circumstances in which the first statement had been taken were relevant. Therefore, he considered the first statement as well as the second statement when he gave his reasons for verdict.

5. In rejecting the submission and finding that the statement had been made voluntarily, he referred to the evidence of the police officers and to the evidence of the applicant. In short he believed the officers and disbelieved the applicant. He said he admitted "the statements" but actually he was only admitting P3.

6. The applicant takes two points by his counsel, Mr McGuinniety. First, the judge gave reasons for admitting the statement and some of the reasons he says were flawed. The judge said this:

"It is clear that some of the information contained in the statement could only have come from him; it could not have been composed by a police officer."

Mr McGuinniety says that the judge was clearly wrong because the information in the statement could have been composed by a police officer. He could have found the information elsewhere or he could have made it up himself. Whereas the precise words used by the judge may indeed be the subject of some criticism on the basis that P3 could possibly have been composed by a police officer, the judge's meaning is clear when one reads the whole of the reasons. The judge meant that the circumstantial detail found in those statements relating to the manner in which the offences were committed was of a kind highly unlikely to have been composed by a police officer. There were details which he could not have known and therefore it would follow, if it did not come from the applicant, it must have come out of the officer's imagination.

7. So far as the second statement is concerned, if the police made it up, it would be surprising. The police officer was inquiring into robberies which he knew had taken place in that district. It follows that he knew the details. The confession related to an offence of which the officer did not have details. The details, therefore, were highly unlikely to have been provided by the officer.

8. In the result, although some criticism can be made of the exact words used by the judge, the judge's reasons looked at as a whole are not flawed. They are acceptable and proper.

9. The first ground of appeal is rejected.

10. The second point, taken by Mr McGuinniety, is that the judge gave more weight to the contents of the statement than he should have done. Counsel below submitted that the applicant pleaded guilty to the second offence, therefore, if he were guilty of the first offence, surely he would have admitted his guilt as well. When dealing with that point, the judge considered the applicant's evidence given on the voir dire to test it. He noted that the applicant had sought to minimise his role in the second charge, having regard to the admitted facts and in those circumstances he found no much merit in the argument. The judge saw and heard the witness. He was perfectly entitled to come to this view. There is nothing in the second ground advanced.

11. In these circumstances we reject the application for leave to appeal against conviction.