THE QUEEN v. SIN YUK WAH

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J U D G M E N T

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Kempster, J.A. :

1. On 23rd September 1987 in the District court Sin Yuk Wah, then 20 years of age, was convicted by H.H. Judge Souyave of trafficking in a dangerous drug. Against that conviction he seeks leave to appeal.

2. The evidence called by the Crown may briefly be summarised. On 7th April 1987 a flat on the 7th floor of a block in the Wang Tau Hum Estate, Kowloon, was under observation by police officers from a position in premises opposite to that block but at a higher level. Powerful binoculars were used. At about 6 p.m. the applicant, who was known to the officers concerned, was seen to enter the flat and to leave it five minutes later carrying a white plastic bag. Woman police constable Choi, the observer, sent a radio message to a colleague, police constable Wong, who was keeping observation at ground level. He saw the applicant emerge from the block and hand the plastic bag to another man who hoarded a taxi which drove off. Police constable Wong and another officer followed in a different taxi. When the first taxi stopped, the recipient of the bag alighted as did the police constables from their taxi. The recipient of the bag was arrested; the bag in question being found in a pocket of his jacket. It was common ground at trial that the bag contained dangerous drugs. The trial judge viewed the scene to check for himself the site-lines of the 2 constables.

3. At about 7 p.m. on the same evening woman police constable Choi, with a male constable, went into the block which she had kept under observation and on the 6th floor found the applicant. We was arrested on the charge of trafficking in a dangerous drug and cautioned. Later he made 2 statements which, it is conceded, supply ample corroboration for his identification if admissible in evidence. The gravamen of this application is whether or not these statements should have been admitted in evidence as they were.

4. It is submitted before us, though it was not so suggested at trial, that the statements should have been excluded as having been taken in circumstances demonstrating that the applicant's will had been overborne by fear for his girl friend, also in custody, and also by reason of the fact that breaches of the Judges' pules had occurred in that he was cross-examined in relation to earlier admissions.

5. The Judge's Rules provide guidelines for police officers required to question suspects calculated to ensure that principles of fairness are observed and to put them in perspective judgment of Edmund Davies L.J. (as he then was) in R. v. Prager ⁽¹⁾ at p. 160 is helpful:

"Mr. Comyn submitted before us that it was imperative that the Lord Chief Justice decided first whether Rule 2 of the Judges' Rules had or had not been breached, for, if it had been, the confession should not have been admitted until there emerged 'some compelling reason why the breach should have been overlooked'. He cited no authority for that proposition, which, he claimed, involved a point of law of very great importance. This 'complete lack of authority' (to use Mr. Comyn's phrase) is not suprising, for in our judgment, the proposition advanced involves no point of law and is manifestly unsound. Its acceptance would exalt the Judges' Rules into rules of law. That they do not purport to be, and there is abundant authority for saying that they are nothing of the the kind. Their non-observance may, and at times does, lead to the exclusion of an alleged confession; but ultimately all turns on the judge's decision as to whether, breach or no breach, it has been shown to have been made voluntarily. In the present case, the Lord Chief Justice was, without deciding the point, prepared to assume in the accused's favour that there had been a breach of Rule 2, and then proceeded to consider whether its voluntary nature had nevertheless been established. In our judgment, no valid criticism of that approach can be made. On the contrary, it appears to us entirely sound".

6. That authority was not cited in R. v. Lam Yip Ying ⁽²⁾, which concerned a jury trial, but like conclusions were reached. Giving the judgment of the Court at p. 424 the chief Justice succinctlyexpressed the duties of a trial judge at the end of a voir dire as follows :

"... he must ask himself -

(a) has the Crown established beyond reasonable doubt that the statement is voluntary in the sense described above; and

(b) if he is so satisfied, and the evidence suggests that it was obtained 'unfairly'or that its use in evidence would he unfair, should he exercise his discretion to exclude it?

    The power to exclule confessions on the ground of unfairness should seldom be employed. First, because it involves the judge in withdrawing relevant and admissible evidence. Secondly, because in almost all cases, the kind of conduct which would constitute 'unfairness' should already have excluded the confession as involuntary.

    As this court has previously said, it is not necessary for a trial judge to give reasons for his finding as to whether a statement is voluntary or not, not for his refusal to exercise his residual discretion".

7. There are other English and Hong Kong authorities to the same effect.

8. The conclusion of the trial julge after the voir dire, during which the applicant swore that the police officer taking the statements had threatened to refuse bail to his girl friend and to charge her if he did not admit the offence, was:

"On a full consideration of the whole of the evidence and the statements in dispute I have no doubt whatsoever in my mind that PW3 has told the truth. I accept his evidence. I reject that of [the applicant] as untrue". In my view the contents [of the two statements]... were voluntarily made by [the applicant]. I was also much impressed by PW3's frankness. I admit [the two statements] as voluntary ..."

9. The submissions of Mr. Pernacchi do not persuade us, in the absence of evidence from the applicant that at the material times he was indeed uncomfortable, unrefreshed or tired, that there are any grounds for questioning the conviction entered by the trial judge. In particular, there was no irregularity and no wrong determination in law.

10. The application for leave to appeal against the conviction is dismissed accordingly.

(1) [1972] 56 C.A.R. 151

(2) [1984] HKLR 419