HKSAR v. CHONG HON PIU AND OTHERS

CACC404/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 404 OF 2005

(ON APPEAL FROM DCCC NO. 37 OF 2005)

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REASONS  FOR  JUDGMENT

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Hon Lunn J (giving the reasons of the court) :

1. All four applicants sought leave to appeal against both their convictions and the sentences of imprisonment imposed upon them following their trial in the District Court before Judge Chua.  The four applicants were convicted of the 1^st charge, namely conspiracy to rob Chan Yi Wah on 24 June 2002.  In addition, the 1^st applicant was convicted of assaulting Leung Wing Fai with intent to prevent his lawful apprehension for that offence of robbery, contrary to section 36(c) of the Offences against the Person Ordinance, Cap. 212 (Charge 2) and of the offence of dangerous driving, contrary to section 37 of the Road Traffic Ordinance, Cap. 374 (Charge 3).  Those offences were alleged to have been committed by the 1^st applicant as the driver of the ‘getaway car’ immediately after and in the immediate vicinity of the robbery.

2. The 2^nd, 3^rd and 4^th applicants were sentenced to four years’ imprisonment.  The 1^st applicant was sentenced to four years and three months’ imprisonment in respect of Charge 1, one year’s imprisonment for Charge 2 and two years’ imprisonment for Charge 3.  The sentence of imprisonment imposed in respect of Charges 2 and 3 were ordered to be served concurrently with one another, but consecutively to the sentence of imprisonment imposed in respect of Charge 1.  Accordingly, in total the 1^st applicant was sentenced to six years and three months’ imprisonment.

3. At the outset of the hearing of the applications for leave to appeal Mr Dunn, who appears for the 1^st, 2^nd and 3^rd applicants, and Ms Chow, who appears for the 4^th applicant, withdrew their applications for leave to appeal against the sentences imposed on the respective applicants.  Having heard the applications for leave to appeal against conviction, we allowed the application of the 1^st applicant and, treating the hearing of the application as the hearing of the appeal, we quashed the convictions of the 1^st applicant in respect of Charges 1, 2 and 3 and set aside in the sentences imposed thereon.  We dismissed the applications for leave to appeal against conviction of the 2^nd, 3^rd and 4^th applicants.  We indicated that in due course we would give our reasons for so doing.  This we do now.

THE PROSECUTION CASE AT TRIAL

4. The prosecution case was that Ms Chan Yi Wah was robbed of $72,200 in cash and a number of cheques as she was making her way to the bank from her place of work at about 12:10 hours on 24 June 2002 in San Wan Street, Sheung Shui by two men who seized hold of her handbag, in which the monies and the cheques were contained.  They ran off, boarding a motor car driven by a third man in which they made good their escape.  Miss Ki Yuk Mui testified that she had witnessed the robbery and had seen the victim of the robbery chasing after the motor car as it moved away slowly.  She gave the registration number of the ‘getaway car’ as being JP3370.  She had been walking in the street going for lunch with her colleague Leung Wing Fai when the robbery occurred.  Afterwards, she noticed that Mr Leung was on the pavement with a broken leg.

5. In proof of their case against the applicants, the prosecution relied upon the admitted facts, the oral testimony of Ms Connie Lam Wing Man and admissions said to have been made by the 2^nd, 3^rd and 4^th applicants to police officers on arrest after having been cautioned, which oral admissions were recorded in the respective police officers notebooks (exhibits P2, P8 and P12) and in video recorded interviews conducted subsequently (exhibits P4, P6 for the 2^nd applicant, P11 and P14 for the 3^rd and 4^th applicants respectively).  The admissions made by those applicants had been ruled admissible by the judge following the determination of that special issue in a voire dire held separately for each applicant.  The relevant admitted facts, exhibit P16, included the fact that Mr Leung had suffered fractures of his left tibia and fibula and had been detained in hospital until 8 July 2002 and the following :

(1)     On 24 June 2002 in San Wan Road, Sheung Shui, Ms Chan Yi Wah was the victim of a robbery.  Two men actually robbed her and a third drove the getaway car.

(2)     The said getaway car hit Mr Leung Wing Fai as he tried to assist Miss Chan.

(3)     As a result of being hit by the car.  Mr Leung suffered a broken leg.

(4)     Ms Chan Yi Wah was employed at the time of the robbery by Siu Yat Company Ltd (also known as Tai Wing).  She was delivering $72,200 in cash and a number of cheques to be deposited at the bank of China at the time.

(5)     The 4^th applicant was employed by Siu Yat Co. Ltd (Tai Wing) between 15 March 2002 and 14 August 2002.

(6)     Chong Koon Sing is the father of the 1^st applicant.

(7)     Chong Koon Sing is also the registered owner of the motor car (registration number JP3370).

(8)     On 20 September 2002, PC54013 Chan Kin Kew found the motor car JP3370 apparently abandoned and damaged outside a car wash shop at the entrance to Hung Kiu San Tsuen,Man Kam To.  It had been reported missing to police on 25 June 2002.

THE DEFENCE CASE

6. The 2^nd, 3^rd and 4^th applicants all gave evidence in their respective voire dire, but none of the applicants gave or called any evidence in the defence case on the general issue.

THE REASONS FOR VERDICT

7. The judge noted in her summary of the prosecution case against each applicant that there was no eye-witness identification of any of the robbers and said of the roles ascribed to the applicants by the prosecution the following :

“4.     … although D4 was not one of the three who took part in the actual robbery, he with knowledge of what was intended, working in the same company as the victim Chan, informed D1 when Chan was setting off for the bank.

5.       It is the prosecution case D1 instigated the robbery because he was heavily in debt and he drove the getaway car which was registered in his father’s name.

6.       It is the prosecution case in pursuance of the said agreement D2 and D3 were the ones who snatched Chan’s bag and got into the getaway car.”

The 1^st applicant

8. Of the case against the 1^st applicant the judge noted of the oral testimony of Ms Connie Lam, called as a witness for the prosecution, that she was the older sister of the 4^th applicant and, at the time of the events the subject of the Charges, the live-in girlfriend of the 1^st applicant.  The judge noted that she had given some evidence, prior to having been declared a hostile witness.  She summarised that evidence as being :

“12.   … she said D1’s nickname is Ah Biu, that at the time he drove a black Lexus which was registered in his father’s name.  It was their usual practice that he would pick her up from Tseung Kwan O and go home together in the car.  On a day in June, Ah Biu rang her to wait for him in Tsim Sha Tsui.  When they got home his father asked him what was going on, because a policeman had been there.  He had said JP3370 had been involved in hitting someone.  ‘There was a discussion about this and Ah Biu said he thought the car might have been stolen by someone.’  Prior to this, D1 had not mentioned the car had gone missing.  She subsequently asked D1 about this.

13.     The day after this incident, she had read in the newspaper of a robbery and “the registration number and description of the car resembled those of ours.”

9. Of the fact that she had declared that witness to be a ‘hostile witness’, as a result of which she had been cross-examined by counsel for the prosecution in respect of statements made to the police, the judge said that she was satisfied that the witness’s claim in her testimony to having been induced to sign the prepared statements was untrue (appeal bundle, page 18P at paragraph 17).

10. Of the evidential value of the testimony of Ms Connie Lam, the judge said :

“(1)    her out-of-court statements are inadmissible to prove the truth of what is asserted in them, unless she has in the witness-box adopted such parts as true for it is the testimony given in court which is evidence in the case;

(2)     her testimony is not to be rejected outright as unreliable because she has resiled for the most part from her previous statements.  See Driscoll v. R. (1977) 137 CLR 517 at 536”.

In the event, the judge determined :

“18.   As to the parts from her statement which she has accepted had come from her and are true, I am satisfied that evidence can safely be relied on as factual.”

Then, the judge went on to pose for herself two rhetorical questions :

“ I asked myself why D1 did not mention to Connie when he went to pick her up at a place different from their usual pick-up point that the car he normally drove had gone missing, and why no report was made till the day after the robbery.”

11. In the result, the judge convicted the 1^st applicant of all three charges, having concluded :

“19.  From all the evidence before me I arrive at the following irresistible inferences that:-

(1)   D1 was the driver of the getaway car;

(2)   As Chan chased after the car, Leung went to assist her.  D1 used the car as a weapon to disable Leung to enable his escape.”

The 2^nd, 3^rd and 4^th applicants

12. Of the various alleged admissions made by the 2^nd, 3^rd and 4^th applicants to the police the judge determined (see appeal bundle page 21E-H, paragraph 25) :

“Iwas satisfied the prosecution had proved beyond reasonable doubt each defendant had voluntarily signed the post-record of their arrest as being an accurate record.  I was sure each defendant had freely and voluntarily answered all questions when they were video interviewed.  Consequently, the post-records, the cautioned video interviews and other attendant exhibits were admitted in evidence.”

Thereafter, she gave weight to those admissions and, having relied upon them as being true, convicted each of the 2^nd, 3^rd and 4^th  applicants.

GROUNDS OF APPEAL AGAINST CONVICTION

The 1^st applicant’s grounds of appeal against convictions on Charges 1-3

13. By Ground 1(a) and (b) it is submitted on behalf of the 1^st applicant that the judge erred in drawing the inference from all the evidence that the 1st applicant was the driver of the ‘getaway car’ used in the robbery.

14. By Ground 2 it is submitted that the judge erred, in the absence of direct evidence, in drawing the inference that the 1^st applicant had driven the motor car as a “ weapon” in order to make good his escape and thereby causing serious injuries to Mr Leung.

15. By Ground 3 it is contended that the judge erred in admitting into evidence three previous witness statements of Ms Connie Lam Wing Man, she having been declared a witness hostile to the party calling her, namely the prosecution, and that thereby a material irregularity occurred in the conduct of the trial.

16. By Ground 4 it is contended that the judge failed to warn herself, in respect of the evidence of Ms Connie Lam Wing Man, of the dangers of giving full weight to the evidence of a witness who had given conflicting evidence and who had been declared a hostile witness.

THE SUBMISSIONS ON BEHALF OF THE 1^ST APPLICANT

Ground 1

17. On behalf of the 1^st applicant Mr Dunn submits that there was insufficient evidence from which it could be inferred properly by the judge, as she stated she did, that the 1^st applicant was the driver of the getaway car used in the robbery.  He readily acknowledged that the circumstances were highly suspicious, namely :

(i)      the motor car used as the ‘getaway car’, JP3370, was registered in the name of the 1^st applicant’s father and the undisputed evidence that the 1^st applicant drove that motorcar regularly;

(ii)      that motorcar was reported to the police as missing on the day after the occurrence of the robbery;

(iii)     the 1^st applicant’s then cohabiting girlfriend, Ms Connie Lam, was the elder sister of the 4^th applicant who was a fellow employee of the company by which the victim of the robbery was employed;

(iv)     the evidence of Ms Connie Lam that at the time of the robbery the 1^st applicant was in debt and approaches had been made by debt collectors.

Nevertheless, Mr Dunn submitted that the evidence fell short of that from which the inference could be drawn properly that the 1^st applicant was the driver of the ‘getaway car’.

THE SUBMISSIONS OF THE RESPONDENT

18. It was submitted by Mr Raffell, on behalf of the respondent, that the case against the 1^st applicant was a strong circumstantial case, reliance being placed on the matters described above and accepted by Mr Dunn as creating suspicious circumstances.  He suggested that the fact that the 4^th applicant and the victim of the robbery, Ms Chan Yi Wah, were employed by the same company at the time of the alleged robbery was of particular importance because in the circumstances of the robbery it was clear that the robbers had been supplied by someone with ‘inside’ information of the movements of the victim on her way to the bank possessed of a significant amount of cash.  Also, he invited the court to have regard to the evidence of Ms Connie Lam, prior to her being declared a hostile witness, that the 1st applicant had on occasions picked her up in Central after work in that motorcar.  Furthermore, he suggested that it was the evidence of that witness that unusually the 1^st applicant had not met her in Tseung Kwan O in his car that day after work.

A CONSIDERATION OF THE SUBMISSIONS IN RESPECT OF THE 1^ST APPLICANT’S GROUNDS OF APPEAL AGAINST CONVICTION

Ground 1

19. There being no dispute that the motorcar used as the ‘getaway car’ was registered in the name of the 1^st applicant’s father, regularly driven by the 1^st applicant and not reported missing to the police until the day after the robbery we turn first to a consideration of the evidence actually given by Ms Connie Lam.  The task is made more difficult by the fact that in cross-examination of her, after she had been declared a hostile witness, a clear division was not made between what she was prepared to accept was in her out-of-court statements made to the police, what she agreed she had said to the police, what she accepted was true, what other evidence she gave on the point and her explanations for differences between them.  Thus, after the witness had been given her statement of 17 December 2004 and she had accepted that she had signed it the following dialogue occurred as counsel drew her attention to specific passages in the statement, references to ‘Ah Piu ‘being references to the 1^st applicant (see appeal bundle page 581I-J) :

“Q.  And on the next one you say, ‘At some day in mid-June 2002, I’m not sure of the exact date because it happened a long time ago.’  Do you see that?

A.   Yes.

Q.   And then you go on to say, I won’t go into the details about the shop and so on, and you say, ‘It was my usual practice at that time was to go to Tseung Kwan O by car after work and Ah Piu would pick me up and drive me back to Sai Kung with his car, JP3370, there.’

A.    Yes.

MR RAFFELL:    Your Honour, as I am going through this statement with her I don’t see why your Honour needs to write it down in longhand.  You can have a copy, I think, as she’s been declared a hostile witness.

COURT:      Well, I don’t know that they want the entire contents in.

MR RAFFELL:   All right.

COURT:      So for the time being, unless it’s disputed, I’ll just take down as you question her.

MR RAFFELL:   Yes, very well.

Q.   And that was true, wasn’t it?

A.    Yes.

Q.  ‘On that day Ah Piu rang me up suddenly before I came off duty and asked me to wait for him at Tsim Sha Tsui instead of Tseung Kwan O after work.’

A.    Yes.

Q.     And you say Ah Piu didn’t tell you why but you had a deep impression of this because he suddenly asked you not to wait for him at Tseung Kwan O and this was not his usual practice.

A.     This sentence is not written by me.

Q.     Is that what you said?

A.     Well, I only said that that evening I went to Tsim Sha Tsui to have dinner.”

20. After an interchange between the judge and counsel the judge told the witness (see appeal bundle page 582P-T) :

“COURT: Now, we are going to proceed in this way.  Counsel is going to ask you if it’s in your statement, and if it’s there and it’s printed, you say yes; if it’s not, if counsel hasn’t misread it, then you say it’s not.  Your explanations, if you want to give one, you can do it afterwards but at the moment let’s proceed by what is in your statement.

           And then you can also ask her whether it’s true, but that’s the next step.”

When cross-examination resumed the following dialogue occurred (see appeal bundle pages 583J-584A) :

“Q.   You got home that night and Ah Piu’s parents were there and they told you the police had been there because his car had been involved.

COURT:     That’s what is in the statement?

MR RAFFELL:   Yes.

COURT:     All right, point it out.

MR RAFFELL:   I’m summarising it, your Honour.

COURT:     All right.  Mr Raffell is going to summarise this what is in your statement.  Go on.

Q.  You got home to Sai Kung.  Ah Piu’s parents were there and they said to you -- asked him what was going on because the police had been around because JP3370 had been involved in hitting someone.

A.   Yes.

Q.  Right.  And then there was a discussion about this and Ah Piu had said he thought the car might have been stolen by someone.

A.   Yes.

Q.  And then ...

COURT:     Well, I think at this stage you could probably -- it can probably be asked her so far were these two matters true?

Q.  That’s a true reflection of the conversation you had with Ah Piu’s parents, is that right?

A.   Yes.

Q.  But Ah Piu hadn’t mentioned to you earlier about his car missing or anything like that, is that right?

A.   Correct.

Q.  And then if we look at paragraph 5, you and Ah Piu went to your room, described as the glass house, and you asked Ah Piu about this.

A.   Yes.

Q.  And he didn’t want to talk to you, didn’t want to answer your questions.

A.   This is not true.

Q.  Is that what you told the police?

A.   No.

COURT:     Is that in the statement?

A.   Yes.”

21. Clearly, it follows from an examination of this part of the cross-examination of Ms Connie Lam that she was not asked either whether or not she had said to the police, or if it was true, that the 1^st applicant had rung her up and asked her to wait for him after work at Tsim Sha Tsui instead of at Tseung Kwan O, let alone if it was true that they had met there and later that they had gone to their home in Sai Kung.  Her evidence of what she had said to the police followed a second passage in the statement being recited to her as to why she had remembered the matter, namely that he had suddenly asked her not to wait for him at Tseung Kwan O as usual, after which she had said (see appeal bundle page 582B-C) :

“A.    This sentence is not written by me.

Q.     Is that what you said?

A.     Well, I only said that that evening I went to Tsim Sha Tsui to have dinner.”

22. It follows that, in the context of Ms Connie Lam’s acceptance that it was true that prior to the 1^st applicant’s parents raising the matter of the police having told them that the motorcar JP3370 had been involved in hitting someone, the 1^st applicant saying in response that he thought the motorcar might have been stolen and the fact that the 1^st applicant had not raised that matter with her earlier, there is no evidence of when and where Ms Connie Lam and the 1^st applicant came to be together prior to the conversation with his parents.  Nor is there any evidence of the time that the conversation between the 1^st applicant and his parents took place.  Certainly, there was no evidence to support what is to be inferred was the judge’s finding of fact which led her to pose the following rhetorical question (see appeal bundle page 19S-U, paragraph 18) :

“I asked myself why D1 did not mention to Connie when he went to pick her up at a place different from their usual pick-up point that the car he normally drove had gone missing…”

23. The significance of the judge’s error is that it is an error in respect of what the evidence was in respect of one of only two specific points adverted to by the judge from the testimony of Ms Connie Lam relevant to the drawing of inferences from the overall circumstantial evidence led by the prosecution.  The other matter to which the judge referred was the fact that a report to the police that the motorcar JP3370 was missing was not made until 25 June 2002.

24. In the result, the ambit of Ms Connie Lam’s evidence, of which the judge had said, “I am satisfied that evidence can safely be relied on as factual”, was significantly less than she stated it to be.  Whilst there was evidence from Ms Connie Lam of the 1^st applicant being told in her presence by his parents at their home in Sai Kung of the report by the police that the motorcar JP3370 had hit someone there was no evidence of when this conversation took place or when she and the 1^st applicant had met.  Furthermore, apart from the bare admitted fact that the motorcar JP3370 had been reported missing to the police on 25 June 2002 there was no detail of when that occurred.  In those circumstances, it being impossible to establish, on the available evidence, how long the defendant claimed to have known that the motorcar JP3370 was ‘missing’ before a report of that fact was made to the police no inference adverse to the defendant could be drawn properly.

25. The sum of the available evidence, from which inferences might be drawn that the 1^st applicant was the driver of motorcar JP3370 at the time of the robbery, established only that a motor vehicle registered in the name of his father of which he was regularly a driver was the vehicle used as a ‘getaway car’ by the robbers shortly after noon on 24 June 2002 and that that motor vehicle was reported as missing on the following day.  Further, that at the time the 4^th applicant, the brother of his girlfriend Connie Lam, was a fellow employee of the victim of the robbery at Siu Yat company and the 1^st applicant was in debt and had been dunned for repayment by his creditors.  Clearly, although giving rise to suspicion such evidence fell a long way short of evidence from which it could be inferred that he was the driver of the ‘getaway car’.  There being insufficient evidence upon which it could be inferred properly that the 1^st applicant was the driver of JP3370 at the time of the robbery and that being a matter of which proof was required in respect of Charges 2 and 3 it is not necessary for us to consider the discrete grounds of appeal raised in respect of those two convictions.

CONCLUSION

26. For the reasons set out above we allowed the application for leave to appeal against conviction and we quashed the convictions of the 1^st applicant on Charges 1-3 and set aside the respective sentences.

THE GROUNDS OF APPEAL AGAINST CONVICTION OF THE 2^ND, 3^RD AND 4^TH APPLICANTS

27. Common to the grounds of appeal against conviction of each of the 2^nd, 3^rd and 4^th applicants is the contention that the judge erred in admitting into evidence the alleged oral admissions, rendered into writing in the respective police officers notebooks, of each of the applicants upon arrest and caution and the subsequent video records of interview conducted of them.  Having conducted a separate voire dire for each of those applicants the judge delivered a ruling that dealt with the admissibility of all of the admissions from all three applicants.  In the course of ruling that the admissions were admissible in evidence the judge stated (see appeal bundle page 446J-M) :

“After I observed all the witnesses in the witness-box, listened to what was said by them, examined both the documentary and video-recordings, I was satisfied beyond reasonable doubt the prosecution has proved the defence allegations were untrue; that the defendants freely signed the post records to acknowledge the accuracy of the record; and that each of these defendants voluntarily participated in the cautioned interviews, giving answers they wished to say.” 

28. In her reasons for verdict, the judge made some general findings in respect of her ruling that the admissions of the three applicants were admissible (see appeal bundle page 20P) :

“ 21.       Separate voir dires were held, in which each defendant gave evidence.  I did not believe a word of their allegations.”

Later, at page 21B-I, she said :

“24.        The videos were the best evidence to reveal if the defendants were giving involuntary rehearsed answers.  There was no sign of that whatever.

25.          I was satisfied the defence allegations were false.”

The 2^nd applicant’s grounds of appeal against conviction

29. By Ground 1, it is submitted on behalf of the 2^nd applicant that the judge erred in ruling that admissions made to the police by him were admissible in evidence.  It is submitted that in light of two medical reports, exhibits PD1B and PD1A respectively, in which the 2^nd applicant was diagnosed in a report of 10 November 2004 as having “ abdominal contusion”, the judge was wrong to state in her reasons for verdict that there were no signs of injury on the 2^nd applicant.  Further, that the judge was wrong to conclude that the fact that the 2^nd applicant was seen to be constantly rubbing and pressing his fingers into his abdomen on the videotape of a record of interview was something that he would not have done if his abdomen was tender from having received punches at that place.

30. By Ground 2, it is submitted that the judge erred in indicating to counsel appearing for the 2nd applicant that the prospective evidence of the 2nd applicant’s father was unnecessary and irrelevant with the result that he was not called to give evidence.

31. By Ground 3 and 4, it is submitted that judicial interruptions of the address of counsel for the 2nd applicant to the court in the voire dire made it impossible for counsel to present the 2nd applicant’s case and was such an entry into the ‘ arena’ that thereby it resulted in the 2nd applicant being deprived of a fair trial.

THE SUBMISSIONS MADE IN SUPPORT OF THE 2^ND APPLICANT’S GROUNDS OF APPEAL AGAINST CONVICTION

32. In support of Ground 1, Mr Dunn drew the court’s attention to the passages in the first video record of interview at which Det. Sergeant 23128 interrupted the interview in face of the apparent illness of the 2^nd applicant.  When asked what was the matter with him the 2^nd applicant said, indicating his stomach (see appeal bundle page 57 at counter 129 onwards) :

“129.      I feel great pain in this part.

130.       Why?

131.       It seems that I had hit against something, I think.

132.       Which part was hit?  How was it?

133.       No.  All in all I feel great pain.”

When asked when this had happened the 2^nd applicant replied :

“143.      Just before coming here.”

Mr Dunn submits that this complaint of the 2^nd applicant was consistent with his evidence in the voire dire that he had been assaulted in a motorcar shortly after his arrest and prior to being brought to the police station.  Of the issue of any injury to the 2^nd applicant Mr Dunn points to a medical report (exhibit PD1A, appeal bundle page 415) of an examination of the 2^nd applicant at 03:09 hours on 10 November 2004 at the A&E Department of the Alice Ho Miu Ling Nethersole Hospital in which there is the reference “ abdominal contusion”.

33. In support of Ground 2, Mr Dunn submits that the judge erred in indicating to counsel appearing for the 2^nd applicant that the prospective evidence of the 2^nd applicant’s father was unnecessary and irrelevant but then proceeding to state in her reasons for verdict that the 2^nd applicant’s complaint of assault by police officers was made only after a visit to the 2^nd applicant by his father, it being asserted that the inference to be drawn thereby is that the judge had found that the 2^nd applicant had made the complaint to the duty officer as a result of “coaching” from his father.

34. In support of Grounds 3 and 4, Mr Dunn invites the court to note that in the 32-minute address of counsel for the 2^nd applicant in his closing speech in the voire dire the judge interrupted him 104 times in what he characterised as ‘argumentative’ in nature.

THE RESPONDENT’S SUBMISSIONS

35. In the respondent’s submissions, the court is asked to note of the termination of the first record of interview that it came about because of the concerned intervention of the Detective Sergeant.  It was accepted that, whilst there no complaint was made by the 2^nd applicant to the doctors who examined him after that interview was terminated, that is to be viewed in the context that the two officers that accompanied him to the hospital were the ones against whom subsequently the 2^nd applicant made allegations of assault.  It is pointed out that the diagnosis of the 2^nd applicant at 14:11 hours on 9 November 2004 (exhibit PDIB, appeal bundle page 418) was of ‘gastritis’, it being noted in the report that the 2^nd applicant having complained of having ‘epigastric abdominal pain for one-day.’

36. In reply to the submissions made in respect of Ground 2, it is submitted on behalf of the respondent that the judge was correct to indicate to counsel that the prospective evidence of the father of the 2^nd applicant, in respect of his having received a complaint from the 2^nd applicant of police misconduct towards him was inadmissible, being merely evidence of a previous consistent statement made by the 2^nd applicant.  Further, it is not proper to draw the inference from what the judge stated in her reasons for verdict that the judge was finding that the father had “coached” the 2^nd applicant to make his complaint.

37. Of the contentions in respect of judicial interruptions and bias alleged in Grounds 3 and 4 it is pointed out on behalf of the respondent that counsel for the 2^nd applicant had submitted an eight-page written submission in support of which he made the oral speech, interruption of which is the basis of complaint.  It is suggested that the judge’s interruptions are to be viewed as attempts to draw out or clarify the points being made on behalf of the 2^nd applicant and no more.  As a result, it is submitted there was no issue of the 2^nd applicant being denied a fair trial.

A CONSIDERATION OF SUBMISSIONS MADE IN RESPECT OF THE CONVICTION OF THE 2^ND APPLICANT

Ground 1

38. The complaint that the judge had said in the reasons for verdict that there was no sign of injury found on the 2^nd applicant is not an accurate statement of what the judge said (see appeal bundle page 20Q paragraph 23).  What the judge had said was :

“D2 accepted that there were no signs of injury on him (see the medical reports PD 1A and B).”

39. The medical reports at PD1B contain reports bearing the following dates and times of examinations of the 2^nd applicant together with the patient history and the results of the examination :

(i)      14:11 hours 9 November 2004 at the A & E Department of the Alice Ho Miu Ling Nethersole Hospital :

“3.   Diagnosis: gastritis.

Description: he complained of epigastric abdominal pain for one-day.  Examination showed mild tenderness over his epigastric region.”

(ii)    3:09 hours 10 November 2004 :

“1.   Type of cases: common assault.

3.    Diagnosis: Contusion of abdominal wall. 

         Description: he alleged to be assaulted by other on 9/11/2004.  He complained of contusion of his upper abdominal wall by fist.  Examination showed abdominal pain and diffuse tenderness.  He was admitted to Q.E.H. for further management.

4.      X-Ray of chest and abdomen were normal.”

(iii)     06:00 hours on 10 November 2004 A&E Department of Queen Elizabeth Hospital

“ *general condition was good.

 *he was alert & conscious.

 *patient complained of an assault injury by police on 9 November 2004 and presented with abdominal pain.”

Of the abdomen, the report continued :

“*abdomen was soft and non-tender with no signs of injury.  Transabdominal ultrasound showed no free fluid.  Urine for multi stix was negative.”

40. Of the three medical reports the first and last in time reveal that no injury was discerned to the 2^nd applicant after examination.  The medical report of 03:09 hours on 10 November 2004 contains statements that are, perhaps, conflicting.  Whilst the diagnosis is of “contusion of abdominal wall” the passage that follows under the term ‘Description’ makes it clear that that was what was being asserted by the 2^nd applicant, but that the examination revealed only “abdominal pain and diffuse tenderness”.

Ground 2 — the issue of calling the father in the voire dire of the 2^nd applicant

41. There is no dispute that the 2^nd applicant had testified in the voire dire, without the assertion being challenged in cross-examination, that he had complained to his father of the assault upon him by the police after the second record of interview conducted of him, but before the 2^nd applicant lodged such a complaint to the duty officer, who arranged for him to be taken to hospital.  It is correct that the judge expressed the view that such evidence from the 2^nd applicant’s father would be merely evidence of consistency and inadmissible.  With respect if, as counsel told the judge, it was sought to adduce the prospective testimony of the father on the basis that “It goes to consistency”  (See appeal bundle page 449H) the evidence was inadmissible. There was no suggestion that the evidence was to rebut an allegation of recent fabrication.  However, the interchange between counsel and the judge makes it clear that she made no ruling that the witness could not give that evidence.  The following dialogue evidences the tenor of the exchange (see appeal bundle page 449G-O) :

“COURT:   And all this is prior consistent statements.  I’m not even...

MR PERCY:   Well, it’s not going in for that.  It’s not going for that purpose.  It just goes to consistency.  It goes to consistency. 

COURT:     Yes, it does. 

MR PERCY:   Yes. 

COURT:     That’s what I just said. 

MR PERCY: It’s not going in as to the truth of what was done, but just consistent with...

COURT:      Well, we already have the defendant’s evidence. 

MR PERCY:   Yes. 

COURT:     Made to the father, then he made a complaint to the police. 

MR PERCY:   Right. 

COURT:     I don’t see that the father needs to be called. 

MR PERCY:   All right, I’ll reconsider the father.”

42. We do not accept that from the judge’s statement in the reasons for verdict (see appeal bundle page 20Q-T) that the 2^nd applicant “… only made a complaint of police assault after the visit of his father” it is to be inferred that the judge had determined that the father had ‘coached’ his son into making the complaint.  That sentence is to be found amongst a number of factual findings relevant to the making of a complaint by the 2^nd applicant.  There is no dispute as to the factual accuracy of any of them.  Clearly, they are not listed in chronological order.

Grounds 3 and 4 — judicial interruptions and apparent bias

43. It is accepted on behalf of the 2^nd applicant that his counsel at trial, Mr Percy, had presented the judge with an eight-page document containing various submissions upon which the court was invited to exclude from evidence his alleged admissions to the police.  The oral submissions made by counsel for the applicant at the conclusion of the voire dire lasted about 32 minutes.  We do not accept the submissions made on behalf of the 2^nd applicant that his counsel at trial, a barrister of long experience, was subjected to “continual and argumentative interruptions from the judge to an extent that it made it impossible for him to present effectively the 2^nd applicant’s case.”  Indeed, far from shutting out the counsel for the 2^nd applicant in presenting his submissions, the judge invited oral submissions from him to supplement and explain his written submissions.  That much is evidenced from this interchange between counsel and the judge (see the appeal bundle page 438F-L) :

“COURT:   What’s your next point?

MR PERCY:   I say it’s all in the very comprehensive submissions for D2.

COURT:     Yes, that may be.  I’m asking you to address me, using that as an aide memoire.

MR PERCY:   Yes, yes.

COURT:     What’s your next point?

MR PERCY:   I’m inviting your Honour to read it at your leisure before making a ruling.

COURT:     I want you to address me.”

44. It is perfectly clear from a reading of the transcript of the interchange between the judge and counsel that the judge was trying to elicit from counsel responses to concerns that she had in respect of the points that he was making on the evidence and in doing so she was doing no more than giving counsel an opportunity to deal with those issues.  Nevertheless, is clear that on occasions hyperbole used by counsel in his advocacy prompted responses from the bench that diverted both counsel and bench from the issues at hand.  For example, in respect of the evidence of the termination of the first video record of interview conducted of the 2^nd applicant and his being taken to hospital for medical examination and treatment the following dialogue ensued (see appeal bundle page 433C-E) :

“He’s dragged off to the hospital, what does he do?  He’s surrounded by two policemen in the presence...

COURT:     He’s dragged off to the hospital?

MR PERCY:   He’s taken to hospital in an ambulance...

COURT:     Yes.”

CONCLUSION

45. Almost all the matters canvassed before this Court were canvassed at length before the judge at trial.  There is no merit in any of the grounds of appeal against conviction advanced on behalf of the 2^nd applicant.

THE 3^RDAPPLICANT’S GROUNDS OF APPEAL AGAINST CONVICTION

46. The simple effect of the 3^rd applicant’s grounds of appeal against conviction is to take issue with the decision of the judge to admit into evidence various alleged admissions made by the 3^rd applicant to the police following his arrest.

47. By Ground 1(b), it is complained that nowhere in her ruling admitting those admissions into evidence did the judge deal specifically with the evidence of the 3^rd applicant’s sister, Ms Wong Lai Man, who had given evidence that she had been present in the family home when the 3^rd applicant returned to be confronted with the police officers who were waiting for him.  She had testified that she heard the police officers swearing and urging him to confess, telling him that others had already done so.

48. By Ground 1(c), the court is invited to note that the evidence of Madam Wong was “virtually unchallenged in cross-examination” by counsel for the prosecution at trial.

THE SUBMISSIONS MADE IN SUPPORT OF THE 3^RD APPLICANT’S APPEAL AGAINST CONVICTION

49. In support of Ground 1(b), Mr Dunn points to the following evidence of Ms Wong Lai Man, as she described having left a bedroom where she was with her baby and having gone into the sitting room where the three police officers were with her brother, the 3^rd applicant (see appeal bundle page 454T-455A) :

“ … after I got to the sitting room I saw the three policemen and my elder brother seated and was talking.  The police officer was talking to my elder brother in a loud voice and then another police officer told -- I was standing there and listening in and another police officer told me to go back into the room and don’t come out.”

Later, in her testimony she went on to say (appeal bundle page 455O-T) :

“ A.         I just stood there and listened and I heard the police officer spoke foul language and told my elder brother to confess because his peers had already admitted.  Well, for fear of scaring the child I then took her back into my mum’s room.”

50. In support of Ground 1(c) it is submitted that the only challenge in cross-examination of Ms Wong’s evidence were the following passages (see appeal bundle page 457Q-R) :

“Q.   You never saw any police officer shove some document in front of your brother and say that “Ah D” has already signed and he was in trouble and so on, or anything of that sort.

A.     Well, I saw a number of piles of papers and he was told to sign at various places.”

and later at appeal bundle page 458K :

“Q.   You did not hear the officer say that your brother had to confess, and if you did I’d like you to tell us the exact words you heard.

A.     I just saw a lot of papers and he was told to sign and to admit guilt.”

51. Mr Dunn complains that because the judge did not advert specifically to Ms Wong at all in either her ruling on the voire dire or in her reasons for verdict it is not clear whether the judge accepted or rejected Ms Wong’s evidence, or even if she considered it.

THE SUBMISSIONS OF THE RESPONDENT IN RESPECT OF THE 3^RD APPLICANT

52. Mr Raffell, who appeared for the prosecution at trial, sought in his written submissions to explain his initial indication to the judge that he did not wish to cross-examine Ms Wong on the basis that he took the view that her evidence did not support the testimony of the 3^rd applicant as to what had happened in the premises and it was not necessary to cross-examine her.  However, he points to the fact that, at the instigation of the judge, who had observed in the face of that indication (see appeal bundle page 456K) :

“ … if you don’t ask questions, it is possible that people might think that you are accepting it as true.”

he told the court that the prosecution did not accept it as true and had then challenged in cross-examination the material parts of Ms Wong’s evidence.

A CONSIDERATION OF THE SUBMISSIONS MADE IN RESPECT OF THE 3^RD APPLICANT

53. We do not accept Mr Raffell’s assertion that Ms Wong’s evidence was not capable of casting doubt on the prosecution evidence as to the circumstances obtained in at his home at a time when the post record of his oral admission was made in the police officers notebook.  She had testified of behaviour by the three policemen at her home that was consistent with bullying, intimidation and cajoling of the 3^rd applicant, in particular that foul language had been used by the policeman and her brother had been told to confess because others had done so.  It was necessary for the prosecution to challenge that evidence.  However, we are satisfied that Ms Wong’s evidence -in- chief was challenged, in its material respects, albeit in the short cross-examination conducted by counsel.  It was made perfectly clear to the court and to the witness that her testimony that the 3^rd applicant had been bullied and intimidated in the context of being asked to confess was not accepted.

54. In the course of the hearing, as a result of our enquiries, the court was informed that the three policemen who had arrested the 3^rd applicant at his home had given evidence in the voire dire.  Of course, one of them was DPC13250, who had arrested and cautioned the 3^rd applicant and who had made the notebook entry signed by the 3^rd applicant.

55. The judge’s ruling on the special issue came at the end of the voire dire that she had conducted for each respective applicant.  Evidence had been over a period of 7-8 days, at the end of which the judge had received written and oral submissions from each of the counsel for the applicants.  Whilst the judge’s ruling on the special issue is succinct, encompassing less than one page of transcript, there is no doubt that it addresses all the requisite issues.  She stated that in determining that she was satisfied beyond reasonable doubt that that the alleged admissions made by the applicants, including the 3^rd applicant, had been made voluntarily she had (see appeal bundle page 446J) :

“ … observed all the witnesses in the witness box, listened to what was said by them, examined both the documentary and video recordings..”  [emphasis added]

56. Furthermore, in her reasons for verdict the judge specifically adverted to the fact that each of the 2^nd, 3^rd and 4^th applicants had testified in their respective voire dire and said that she found (see appeal bundle page 20P, paragraph 22) :

“ I did not believe a word of their allegations.”

Later, at paragraph 25 (see appeal bundle page 21E) she went on to say :

“I was satisfied the defence allegations were false.”

57. Clearly, in rejecting the evidence of the 3^rd applicant, in particular his evidence as to the conduct of the police officers at his home, and determining that the defence allegations were false it follows that the judge necessarily was rejecting the evidence of Ms Wong insofar as it supported his evidence of circumstances of bullying, intimidation and inducement.

CONCLUSION

58. There are no merits in the grounds of appeal submitted on behalf of the 3^rd applicant.

THE 4^TH APPLICANT’S GROUNDS OF APPEAL AGAINST CONVICTION

59. By Ground 1, it is submitted on behalf of the 4^th applicant that the judge erred in determining that the 4^th applicant’s hope, expressed as a request to the police, that he become a prosecution witness was self-induced. 

60. By Ground 2, it is contended that a material irregularity occurred in the course of the trial arising from the judge’s refusal to permit counsel for the applicant to ask of DPC49352, the officer who conducted the video recorded record of interview, that he recite from memory the statement that he had made to the 4^th applicant in the video record of interview following the 4^th applicant’s request that he be given the chance to become a prosecution witness. 

61. By Ground 3, it is submitted that the judge failed to consider, or consider properly, the point made in cross examination of DPC49352 and repeated in closing submissions that the post-recorded notebook entry of the oral admission of the 4^th applicant could not have been made in the time stipulated by the officer, namely 12 minutes. 

62. Finally, by Ground 4, it is submitted that the judge erred in stating in her reasons for verdict that the video recordings of the records of interview of the applicants, including the 4^th applicant, were the best evidence as to whether the admissions were voluntary or not.

SUBMISSIONS IN SUPPORT OF THE 4^TH APPLICANT’S GROUNDS OF APPEAL AGAINST CONVICTION

63. In support of Grounds 1 and 2, Ms Chow reminded the court that it was the testimony of the 4^th applicant in the voire dire that, prior to the video record of interview, he had been offered, as an improper inducement, an invitation to become a prosecution witness and invited to make such a request in the video record of interview and that he had done so.  In that context, Ms Chow invited the court to examine the response of DPC49352 to the 4^th applicant’s request to be given the chance to become a prosecution witness and, in particular, to view the video tape in which the police officer is depicted as referring to a piece or pieces of paper as he spoke.  We did so.

64. In cross-examination of DPC49352, Ms Chow had suggested to him, but the officer had denied, that he was reading words of an appropriate response to a request by a suspect under interview to become a prosecution witness and that he was doing so because he knew in advance, it having been suggested to the 4^th applicant that he make that request, that the 4^th applicant would make such a request and, as a result, he had available to him in the video record of interview a document from which he read the words of response to the 4^th applicant.  In that context, Ms Chow contends that it was a material irregularity for the judge to deny her request that the officer’s evidence be tested by his being asked to recite the words that he had given in his oral response to the 4^th applicant.

65. In support of Ground 3, Ms Chow referred the court to the entry in the police notebook of DPC49325, exhibit P12, of the alleged oral admission by the 4^th applicant on arrest.  She points to the length, neatness and absence of corrections or deletions to that notebook entry in support of the submissions made at trial that it was not written by the officer and signed by the 4^th applicant immediately after his arrest in a motorcar, which was parked nearby to the place of arrest.

66. Finally, in support of Ground 4, Ms Chow submits that in light of the 4^th applicant’s evidence as to the conduct of the police prior to the video recorded record of interview, namely that he had been assaulted and then offered the inducement of becoming a prosecution witness, the reasons for what the 4^th applicant said in the record of interview would not necessarily be evident in the tapes.

THE SUBMISSIONS OF THE RESPONDENT IN RESPECT OF THE 4^TH APPLICANT

67. In respect of Ground 1, Mr Raffell invites the court to have regard to the terms of the 4^th applicant’s statement to the police officer at an early stage in the video record of interview, namely (see appeal bundle page 307 at counter 20) :

“ I have nothing to do with this case, Ah sir.  I helped Ah Biu by providing him with information because he owed someone money, and forced my elder sister to go out to turn the debt collector/s away.  I did not want my elder sister to go on like that any more, only then was I forced to provide him with information.  I will cooperate with you.  Ah sir, give me a chance and turn me into a witness.”

68. Of the assertion made on behalf of the 4^th applicant that the paper from which DPC49352 was seen to be reading in the video record of interview was a written draft of a ‘pro forma’ response to a request from a suspect to be made a witness for the prosecution Mr Raffell points to the differences between what the officer said to the 4^th applicant in the video interview (see appeal bundle page 308 counter 25) and the ‘pro forma’ which was made an exhibit in the trial, namely exhibit P15.  In exhibit P15, there is no mention of it being the “court” nor, alternatively, the “Director of Public Prosecutions” who would decide whether the 4^th applicant could become a prosecution witness nor that the officer would inform his superiors of the 4^th applicant’s request as DPC49352 had told the 4^th applicant in the video record of interview.

69. In respect of Ground 2, namely the judge’s refusal to allow counsel to invite DPC49532 to recite the statement that he made to the 4^th applicant following his request to become a prosecution witness, Mr Raffell submits that counsel for the 4^th applicant was permitted to cross-examine as she wished at trial.

70. Of Grounds 3 and 4, namely the judge’s failure to consider or consider properly the points made by counsel for the 4^th applicant that the notebook entry was not made in the 12-minute period as testified to by DPC49532 and the judge’s reference to the video tape itself as the “best evidence”, Mr Raffell submits that the resolution of these factual matters fell squarely within the province of the judge.  He suggested that the videotape was an objective and neutral record of events and that, having viewed it, the judge declared herself satisfied that nothing seen or heard in the video caused her to doubt the voluntariness of the video interview of the 4^th applicant.

A CONSIDERATION OF THE SUBMISSIONS MADE IN RESPECT OF THE CONVICTION OF THE 4^TH APPLICANT

Grounds 1 and 2

71. There is no dispute that within one hour of his arrest in the street at 09:58 hours a video record of interview was begun of the 4^th applicant by DPC49352 at 10:54 hours.  Similarly, there is no dispute that within six or seven minutes of that interview commencing it was the 4^th applicant who raised the subject of his becoming a prosecution witness in the case.  At issue in the trial, were the circumstances in which the 4^th applicant had come to make that request and the circumstances in which DPC49352 had replied.

72. In cross-examination, DPC49352 denied that the document, which he picked up at that point in the interview, was a document prepared in advance of the interview in the knowledge that the 4^th applicant would make a request to become a prosecution witness (see appeal bundle page 495S).  He testified that he knew of the terms of the appropriate response from his training and repeated it from memory.  However, when Ms Chow asked that officer to recite that declaration in court the judge declined to permit her to do so saying that she did not wish to waste time.  (See appeal bundle page 490Q).  Very soon afterwards cross-examination ended.  There was no re-examination.

73. In the course of submissions by Ms Chow for the 4^th applicant at the end of the voire dire and at her request the part of the videotape at which the police officer responded to the 4^th applicant’s request to become a prosecution witness was played to the judge.  Similarly, as indicated earlier, at her invitation we viewed the relevant portion of the videotape in the course of the hearing.  Clearly, DPC49352 is seen to pick up a paper or papers from his right hand side and place them in front of him.  Whilst so doing he continued to speak to the 4^th applicant, placing his right forefinger on the different places on the paper as he did so.

74. In her submissions to the judge, Ms Chow asserted that DPC49352 was clearly reading from the piece of paper that was in front of him. Having being reminded by counsel in her closing speech that she had not been permitted to test the officer’s claim to have recited the formula of words that he had used in response to the 4^th applicant’s request to become a prosecution witness from memory, by inviting him to repeat those words in court, the judge indicated that in retrospect she had probably been at fault.  Thereafter, counsel for the prosecution indicated that he was now possessed of a copy of a ‘pro forma’ containing a series of declarations, including that to be given to a suspect who were asked to become a prosecution witness and asked for leave to recall DPC49352.  The judge acceded to that request and the witness was recalled to give further testimony.

75. In further cross-examination of that witness, DPC49352 denied that he had a written declaration with him at the time of the video interview appropriate for a police officer’s response to a request of a suspect to become a prosecution witness.  The relevant portion of the videotape having been replayed to him in court DPC49352 testified that he had reached for and picked up a document that he described as a ‘directive’ for taking video records of interview, namely exhibit PD3, which is entitled ‘Aide-Memoire for Video Recorded Interviews’.  He said that he was looking at that document for an appropriate formula of words with which to respond to the 4^th applicant’s request to become a prosecution witness.  Not being able to locate anything of relevance in the document he recited a formula of words as best he could recall.

76. Ms Chow accepted that nowhere in the further cross-examination of DPC49352 did she ask that officer to recite the words that he had spoken to the 4^th applicant after his request to become a prosecution witness.  She explained to this court that she had not done so because the prosecution had obtained leave to recall him in order to put to him the written ‘pro forma’ of multiple declarations to be used in appropriate circumstances and that it was to be inferred that he would now have learned the declaration.

77. In re-examination, DPC49352 identified a two-page document, exhibit P15, containing nine declarations in Chinese characters as being a document kept in his office at Tai Po Police Station, but which he did not have with him in the video record of interview conducted at Sheung Shui Police Station.  He said that the document contained all the declarations appropriate for use in an interview of a suspect.  DPC49352 confirmed that there were several differences in what he had said to the 4^th applicant in the video record of interview from the words of the declaration on exhibit P15, namely that there was no mention of the permission of the court, alternatively the director of public prosecutions, being given first before such a person would be allowed to become a prosecution witness.  Furthermore, there was no mention in P15 of officers superior to the police officer to whom the request was made being informed of that request.

78. Having had the opportunity to view the relevant passage of the videotape, as the judge did, and having regard to the points made by Mr Raffell of the differences between what DPC49352 said to the 4^th applicant in the video record of interview in response to his request to become a prosecution witness, which points were made to the judge, we are satisfied that the judge was entitled to determine, as she did, that she was sure that the 4^th applicant voluntarily participated in that video record of interview and to rule it, exhibit P14, admissible in the trial.

Grounds 3 and 4

79. The issue of the circumstances in which the record in the notebook of DPC49352, exhibit P12, of the 4^th applicant’s alleged oral admission to that officer on arrest had come to be made and signed by the 4^th applicant was canvassed at some length before the judge, not only in cross-examination but also in the closing speech of counsel for the 4^th applicant.  The criticism of the judge in Ground 4 in respect of her statement of relative importance of what was depicted on the videotapes is misplaced.  She did not say as is stated in that ground that “video is the best evidence as to whether admissions were voluntary or not.” What she said was (see the appeal bundle page 21C, paragraph 24) :

“The videos were the best evidence to reveal other defendants were giving involuntary rehearsed answers.”  [emphasis added]

80. In our judgment, having viewed the videotape and in the context of the 4^th applicant’s testimony, the judge was perfectly entitled to have reached that conclusion.  Of course, she did not say that it was the only evidence relevant to the issue of voluntariness.  In the ruling on the special issue she said that she had (see appeal bundle page 446J) :

“ … observed all the witnesses in the witness box, listened to what was said by them, examined both the documentary and video recordings. …”

There is no merit in any of the grounds of appeal advanced on behalf of the 4^th applicant.

CONCLUSION

81. For the reasons set out earlier, the application for leave to appeal against conviction of the 1^st applicant was allowed and, treating the hearing of the application as the hearing of the appeal, we ordered that the conviction of the 1^st applicant on Charges 1, 2 and 3 be quashed.  The applications for leave to appeal against conviction by the 2^nd, 3^rd and 4^th applicants were dismissed.