R. v. YAU SUN-CHOI

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 574 OF 1990

(ON APPEAL FROM HIGH COURT' CASE NO. 95/90)

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J U D G M E N T

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Sears J.

1. This is the judgment of the court.

2. This applicant represented by Mr. Buchanan, seeks leave to appeal against his conviction in November 1990 before Bewley J. and a jury of being in possession of a firearm and ammunition without a licence. He was sentenced to 7 1/2 years imprisonment and seeks leave, should that be necessary,to appeal, unrepresented, against this sentence. The brief facts were that the applicant was arrested at the Wilson Carpark in Shamshuipo, after the police had laid an ambush there for him. He was subsequently taken back to the Police Station and whilst in custody he made a number of statements which amounted to a confession. He admitted that he had a gun in the kitchen cabinet of his home and he said he was willing to take the police to find it. When the police took him back to his flat, a gun was found in the kitchen cabinet.

3. The main evidence against the Defendant consisted of the confession statements which he had made when in custody. The admissibility of those statements was challenged by the Defendant and a voir-dire was held. The grounds of objection were that the Defendant was assaulted on a number of occasions and he was the victim of "oppresive and unfair treatment which includes the apparent methods and interrogative process that he was subjected to during his detention period".

4. A substantial cross-examination took place of the second witness called, who was the statement taker, and various allegations were put by Mr. Buchanan. The third witness was LEE Shek-wing, a detective Sergeant. He was tendered by the prosecution as he was a member of Team C of the Regional Crime Unit (RCU) which had been conducting the investigation into this offence It was put by Mr. Buchanan early in the cross-examination that he and other members of his team had given evidence at the Kwun Tong Magistrate's Court in relation to a preliminary enquiry into a charge of murder and that the Magistrate had rejected several caution statements. The Crown questioned the relevance of these questions and the judge intervened by saying "I trust counsel will link it up, otherwise it is wasting our time". Mr. Buchanan then put a series of questions seeking to demonstrate that the RCU used a certain system and method in order to make a suspect confess to a crime.

5. The evidence in the voir-dire lasted sometime and, in the course of closing submissions, Mr. Buchanan sought to put in the Ruling which the Magistrate had made in those earlier committal proceedings. The judge questioned the relevance of that and Mr. Buchanan categorized it as "an authority". No case law was cited and the judge said he could pay no attention to it. Mr. Buchanan then strenuously sought to persuade the judge that this was a relevant matter which could be taken it into account, presumably to influence the judge in his assessment of the credibility of the witnesses. The judge ruled that the statements were made voluntarily and he admitted them in evidence. He then said to Mr. Buchanan "I would not allow you to cross-examine in front of the jury on that matter we have discussed in the absence of authority.

6. A number of grounds of appeal have been put forward concerning what occurred at the Voir-Dire. In essence, the main ground is that the trial judge erred in preventing the defence counsel from cross-examining police officers in front of the jury on matters which went to their credit with regard to their suggested previous course of conduct. The judge, unfortunately, was given little assistance by Counsel and it appears from the transcript that Mr. Buchanan was seeking to put in this earlier Ruling as though it was some authority to support his submissions. This may well have misled the Judge into assuming that that was the issue on which the Judge had to make some decision.

7. Shortly after the trial, this court decided in R v. HUI Chuen-kit, CA 133/90 (unreported), that questions as to credit asked in cross-examination can only be disallowed in certain defined circumstances. Furthermore, the English Court of Appeal in R.v. Edwards [1991] 1 WLR 207 decided that a police officer giving evidence, who had allegedly fabricated a confession, could properly be cross-examined so as to make the jury aware of the fact that his evidence of a confession in a previous case was demonstrably disbelieved. These authorities had not been decided at the time of Bewley J.'s ruling.

In Edwards Lord Lane LCJ, at P. 219, said

"Relevance, and therefore admissibility,

is a matter of degree and has to be considered not by rule of thumb but against the background of each individual case."

He further stated that when a sufficient connection is shown between the evidence given by a police officer in one trial and the eventual outcome of that trial, it would entitle the defence to cross-examine the police officer concerned about those matters upon the question of their credibility in the subsequent trial.

8. It seems to us there was a considerable misunderstanding between counsel and the Judge here. We make no criticism of the Judge as he was not provided with any clear submissions, nor given any authority to support the line of questioning which Mr. Buchanan wished to pursue. In those circumstances, it seemed to us fair to ourselves examine the earlier Ruling given at the Magistrate's Court with regard to this particular Sergeant to discover whether or not there was some connection between the evidence which he then gave, and which was disbelieved, and the nature of his subsequent alleged conduct at this trial. We have, therefore, read it in full.

9. The magistrate said, in brief, that the Sergeant was telling the truth but not the whole truth and he ruled inadmissible certain statements which were taken, on the ground that the evidence of the Sergeant, the statement taker, was unreliable. We can see no connection whatsoever between the nature of the evidence which was given by the Sergeant in the committal proceedings and the outcome of those proceedings and the conduct which is alleged in this particular case. Mr. Buchanan was perfectly entitled to put questions in cross-examination to the Sergeant as to the fact that he had been disbelieved on an earlier occasion. If the Sergeant had denied such an allegation, Mr. Buchanan could have put the Ruling to him to see whether or not he would change his answer. What happened here was that the Sergeant readily admitted he had given evidence on an earlier occasion which had been disbelieved. In these circumstances the Magistrate's ruling was, in our judgment, inadmissible and the judge rightly so held it. The Ruling is not relevant, it is the conduct underlying the Ruling which may show - and here does not - the "sufficient connection."

10. Counsel is, of course, entitled to put questions in cross-examination of a police officer as to his conduct on earlier occasions and this Court in HUI Chuen-kit has re-affirmed that position. It is for Counsel to establish the connection between a police officer's evidence given on an earlier occasion and disbelieved and his evidence on a subsequent occasion and so lay the foundation for a proper cross-examination. We do not seek to lay down limitation on counsel's right to cross-examine in order to persuade a judge, or jury, that a police officer's evidence is not to be believed. Each case is, of course, dependent on its own facts but we stress that it is necessary for Counsel to lay the foundation for such cross-examintion. In a trial it would be open to Counsel to address the judge in the absence of the jury and to explain the line of cross-examination which he seeks to pursue. Although, therefore, as we have said earlier, there was some confusion at the voir dire, caused really by the submissions being put to the Judge, we are satisfied that there never was any entitlement to put the further questions which Mr. Buchanan had sought to ask.

11. It was for a properly directed jury, as were the jury here, to consider the credibility of the police witnesses. Clearly they believed them.

12. We find nothing unsafe or unsatisfactory in this conviction and the application is refused.