THE QUEEN v. CHAN YIP KAN

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JUDGMENT

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Sir Alan Huggins, V.-P.:

1. This Applicant was convicted with others of conspiracy to arrange the passage to Hong Kong of unauthorized entrants. He applies for leave to appeal against that conviction, and the main point argued on his behalf relates to the admission of a confession statement. There were other statements with which we are not concerned.

2. It was not denied that the statement, which was in writing, had been signed by the Applicant: his main contentions were that the statement had been fabricated by an Inspector of Police, that when he signed it he did not know what it said and that in any event he had been induced to sign by a hope generated by the police that he would be allowed to turn Queen's evidence. He told the judge on the voire dire that, having been arrested and formally charged with a conspiracy which eventually formed the subject matter of a second and alternative count in the indictment, he had indicated to a police constable that he would like to give evidence as a prosecution witness and that he was prepared to make a statement lifting the veil on the activities of other persons: he was promised by the constable that he would be allowed to give evidence for the Prosecution and thereafter was taken before the Inspector, who had already written out a statement and who proffered it to him for signature without reading it to him: the Inspector repeated the promise made to him by the constable and he signed without knowing what it said. The Inspector denied fabricating the statement, and both he and the constable denied having held out any inducement to the Applicant. However, in his evidence the Inspector admitted that the Applicant said to him "I want to point all of them out. I wish I could be turned as a Crown witness" and that, as he had never been faced with such a situation before, he hesitated before deciding what to do: in the event he did not give a direct answer to the suggestion made to him but cautioned the Applicant in the usual manner and the Applicant then, made the statement complained of.

3. The Ruling of the judge was that the Applicant

"made the statements voluntarily and in the manner and circumstances described by the police officers concerned".

Having thus disbelieved the Applicant's evidence about an express promise the judge appears to have taken the view that, although it mattered not whether any inducement was initiated by the Applicant or by the police, the circumstances (including the administration of the caution) negatived any inducement: there was nothing to show that the Inspector was "going along with the proposition" made by the Applicant.

4. The third of the Additional Grounds of Appeal alleged that the judge failed to give any or sufficient consideration to various matters, but in truth the real complaint is that the judge misdirected himself on the issue whether the statement was voluntary: as a matter of law the findings as to the circumstances surrounding the taking of the statement did not justify the conclusion that the statement was voluntary.

5. There is no doubt but that the burden was on the Crown to establish the voluntariness of the statement. In the present case the significance of this is that it was for the Crown to establish that the statement was not induced by the conduct of the Inspector and not for the Applicant to establish that it was so induced. The fact that the Applicant said (untruthfully) that the statement was induced by an express promise that he would be called as a prosecution witness did not in itself negative the possibility that he was induced by other conduct of the police. The judge's ruling undoubtedly involved a finding that there was no express promise. Did it also necessarily involve a finding that there was no implied promise? The substance of the appeal is that it did and that, far from there being no evidence upon which the judge could properly find that there was no implied promise, the evidence of the police officers as to the manner and circumstances of the making of the statement (which the judge believed) showed that there was an implied promise. The contention on behalf of the Crown is that the judge rightly concluded that the Appellant already contemplated, when taken to the Inspector, the making of a statement and already hoped that he would be accepted as a Crown witness and rightly held that what the Inspector said and did could not reasonably be interpreted as agreeing to his suggestion that he be allowed to turn Queen's evidence. If that be correct the judge's approach was not that there was an implied promise although it did not induce the Applicant to make the statement: rather did he find that there was no implied promise and that the question whether an existing implied promise induced the statement did not arise.

6. Mr. Wong's submission is that the Crown's approach is too simplistic: in the first place there was an implied promise and secondly there was nothing to show that the Applicant did not in fact believe that his suggestion had been accepted: the Inspector had (albeit without any improper intent) done nothing effectively to dispel the Applicant's belief, if it existed.

7. To a lawyer the administration of the caution would have indicated that he was still being treated as a defendant and not as a Crown witness, but to a person with the limited education of the Applicant the significance of the caution might not have been apparent: he already knew that he was not obliged to say anything (but he had offered to do so as a prospective Crown witness) and he would be unlikely to appreciate that if he were to be a Crown witness his statement as such could not be given in evidence unless he turned hostile. Mr. Bruce for the Crown fairly conceded before us that what the Applicant said to the Inspector contained a hidden question, namely "If I am willing to give evidence against the others involved in the conspiracy, will I be allowed to become a prosecution witness?" That question called for an unambiguous answer, but the Inspector admitted that no direct answer was given. The counsel of perfection for the Inspector was to reply to the effect "I must make it clear to you that I have no power to give you an undertaking that you will be allowed to become a prosecution witness and I give no such undertaking: this is a matter for the prosecuting authority to decide. If, nevertheless, you wish to make a statement, I will take it down in writing and pass it to the authority with a notification of your proposal. I warn you, however, that your proposal may not be accepted and that anything you say may be given in evidence if the charge against you is pursued". It should not be thought that any blame attaches to the Inspector for not appreciating at the time that the course he in fact decided to follow might be regarded as misleading, and no one has for a moment suggested that he was not trying to be entirely fair to the Applicant: voluntariness in relation to a confession does not primarily depend upon the impropriety of the conduct of the person in authority: see Director of Public Prosecutions v PING Lin 1974 A.C. 574, 594C.

8. In applying the test laid down by Lord Sumner in Ibrahim v R. 1914 A.C 599, 609 one must recognize that a hope of advantage may be "held out" by a person in authority although it is already in existence in the mind of the defendant: Zaveckas (1969) 54 Cr.App.R. 202. In that case the advantage hoped for was the granting of bail. The Defendant asked "If I make a statements, will you give me bail now?" and the officer replied "Yes". It was held that that answer was an inducement. The Court of Appeal (Criminal Division) referred to Northam (1967) 52 Cr.App.R. 97 and in particular to the passage in the judgment of Winn, L.J. at p.104 where, in considering whether there was an inducement, he said:

"It is not the magnitude, it is not the cogency to the reasonable man or to persons with such knowledge as is possessed by lawyers and others which is the proper criterion. It is what the average, normal probably quite unreasonable person in the position of the appellant at the time might have thought was likely to result to his advantage from the suggestion agreed to by the police officer."

Equally, as it seems to me, one must consider how the average, normal and probably quite unreasonable man would interpret the reply to any question (express or implied) put by him to a person in authority. Here, in the absence of a direct answer, the Applicant might well have concluded (incorrectly and unreasonably) that the Inspector was agreeing to his suggestion. It is a very different case from Reg. v LUI Sui-kee & others Crim.App. 1977 No. 918 where Lui's statement ended with the words

The I.C.A.C officer has never offered me any promise or inducement. But I hope to be a Crown Witness".

That was evidence that the hope had not been generated by a person in authority. Here it was not impossible that the Applicant interpreted what the Inspector said and did as being an implied promise.

9. The question then arises whether the Prosecution negatived the possibility that that implied promise operated upon the mind of the Applicant. Mr. Bruce relies upon Reg. v Rennie 1982 1 W.L.R. 64, where, in the course of an interrogation, the detective sergeant, after telling the appellant the gist of the information already possessed by the police, said "Dome a favour, this was a joint operation by your family to defraud the bank, wasn't it?" and the appellant replied "No, don't bring the rest of the family into this, it was my fault. I persuaded Jacqueline to get involved". The court held that any hope the appellant might have had that the police would cease their inquiries into the part played by the appellant's mother was self generated. The facts of that case were different from those with which we are concerned - there was no promise and therefore could be no reliance upon a promise - but emphasis was placed upon this passage in the judgment at p.69C:

"The question whether the confession had been shown to be voluntary raised an issue of fact. The evidence material to this issue consisted of (i) the evidence of the officer as to what was said and done at the interview, both by himself and by the appellant, (ii) the evidence of the appellant on the same matters, and (iii) the evidence of the appellant as to his motives for making the confession. But the speculations of the officer as to the motives of the appellant were not admissible in evidence."

(The last sentence refers to answers to questions put to the detective sergeant about the appellant's reasons for making the confession.) What is contended here is that, the Applicant having given evidence that the statement was not his at all and that there was an express promise, it was not open to the judge, having rejected that evidence, to speculate that his motive in making the statement might have been his hope that he would be allowed to give evidence for the Prosecution: the issue whether that was the motive arose only if there was some direct evidence that it was. On the other side it is said that, if the burden is on the Crown to establish the voluntariness of the statement, the Crown must negative the possibility that the statement was induced by a hope of advantage: just as, on a charge of murder, if the defendant alleges self defence the judge may be under an obligation to direct the jury on provocation, so here it was open to the Applicant to argue that the statement was induced in a manner other than that principally relied upon by the adducing of evidence: the vital element was the inducement and not the nature of the inducement. If Mr. Wong's analysis of the situation is correct, the judge reached his conclusion that the Applicant was not induced to make the statement by a hope of advantage excited by a person in authority upon the same basis as did the court in Reg. v Rennie - that if there was no promise there could be no reliance upon promise: he did not make a finding that the implied promise which I think did exist did not in the event operate on the mind of the Applicant. Mr Wong contends further that if the judge had made such a finding, there was no evidence to support it. I think that he is right and that the judge misdirected himself.

10. For these reasons I would hold that the prosecution did not establish that the statement was voluntary and therefore hold that the statement was inadmissible. Fuad, J.A. has indicated that he is of the same opinion. The application must be granted and the appeal allowed.

11. In the event it is unnecessary for us to decide the other matters raised on the appeal. There was, indeed, only one other matter which cause us any anxiety and that was the interruption by the judge of defence counsel's closing speech. With respect to counsel I have some sympathy with the judge, because the passage immediately prior to the interruption was extremely obscure. Nevertheless the effect of the interruption was to deny the defence the opportunity of leaving clearly before the jury an alternative approach to the confession statement. The main case for the defence was that the statement had been fabricated or had been induced by an express promise and counsel unwisely agreed with the judge when he asked if that was not "his case". In truth it was not his only case and we now understand that counsel was endeavouring to explain that, even if the statement were the Applicant's own statement and there were no express promise, the statement was unreliable as a record of truth because it was made by someone who was desperately trying to impress the police with his value as a prosecution witness and who consequently might exaggerate not only the part played by the other conspirators but also the part which he himself had played. That was a point which could properly be made to the jury - although perhaps not a strong one - and it had in fact been made a few paragraphs earlier in the address. The judge destroyed the effect of that earlier passage by his assertions that "there are no alternatives" and that "a lot of what you are saying is totally irrelevant and improper". Incomprehensible it may have been, but not improper.

12. Mr. Bruce accepts that the judge may have given the jury a wrong impression, but he submits that the summing up as a whole removed any false impression which may have been created and that, even if it did not, this was a case for the application of the proviso: he contended that the point was based upon speculation.

13. In my judgment there was an error and the jury may have been led to think that once they rejected the possibility that the statement had been fabricated or induced by the police they should assume its truthfulness. That was a material error and, on consideration, I would not have applied the proviso.

21st January 1986