LAU CHIN FAI v. R.

1993, No. 80
(Criminal)

IN THE COURT OF APPEAL

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J U D G M E N T

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Bewley J.:

1. This is the judgment of the court but is a majority decision.

2. The application for leave to appeal against conviction comes to us from the District Court, where on 3rd February this year the applicant was convicted by Deputy Judge Z.E. Li on three charges of burglary.

3. The evidence against the applicant consisted of confession statements, the voluntariness of which the Crown asserted and he denied. The learned judge concluded that they were voluntary and convicted the applicant on the strength of them.

4. What we have now to decide is not whether there was evidence upon which the judge could have come to that conclusion. Undoubtedly, there was such evidence. The question for our decision is whether that conclusion - and therefore the convictions based thereon - is unsafe or unsatisfactory.

5. Among the applicant's grounds of appeal is this one, the second:-

"In describing the Appellant's allegations of assaults on him at the hands of the police as being 'unbelievable' and the whole of the prosecution evidence on the taking of the cautioned statements as being 'unassailable', the learned trial judge failed to properly and fairly evaluate the evidence before him and in particular the evidence of the defence."

6. The word "unassailable" was used by the judge when in his Reasons for Verdict he said this: "I found on the whole the prosecution evidence on the taking of all the cautioned statements unassailable".

7. It is in the following passage in his Reasons for Verdict that he use the word "unbelievable":-

"The allegations of assaults are unbelievable. They are not supported by medical or independent evidence. I cannot imagine how the defendant sardined with 3 other persons in the back seat of a moving private car could have been punched on the chest by an officer seated on his left. The defendant also appeared to have difficulty in giving me a reliable estimate of the measurements of the lift in which he said he was assaulted by police officers. He was not convincing."

8. In R. v. Lam Chun Hoi, Criminal Appeal No. 172 of 1989, 8th February, 1990 (unreported), where the expressions used by the trial judge in characterizing the defence evidence were "inconceivable" and "ludicrous", Silke VP, delivering the judgment of this court, said (at p.3):-

"The use of such emotive words do not enhance Reasons for Verdict but do cause this Court some alarm as to whether or not the judge who used them has evaluated properly the evidence before him."

9. However, he went on to say this (at pp.3-4):-

"That having been said, the evidence here of the police officers was straight forward and certainly open to being accepted by the trial judge as evidence of the guilt of the applicant. In those circumstances, we are not prepared to upset this conviction which was fully justified on the evidence and that application is refused."

10. In the present case the language used by the judge was unfortunate but the majority of this court believe that, if his observations are considered in the context in which they were made, it is evident that he was not saying that it was literally unbelievable that any assault could have taken place in the back of the police car. It is manifestly obvious that it could have taken place.

11. Although the judge did not say so in specific terms, we are satisfied that what he was attempting to say was that, having regard to all the matters to which he referred, including the conditions in the back of the car, he did not believe the applicant's version. The issue was one of credibility and the language of the judge must be viewed in the light of his assessment of the whole of the evidence.

12. The applicant alleged that he had been assaulted six times altogether. On at least one of these occasions the hitting was serious and very painful. He was in Yuen Long police station from the morning of 21st January to the evening of 22nd January and from time to time in the custody of the Duty Officer, yet no complaint to him is on record. He was interviewed by a solicitor on the afternoon of 21st January, but made no complaint to him. There is no evidence that he complained to the magistrate on any of his court appearances. He said in evidence that he went to Princess Margaret Hospital the night he was released on bail, but this statement was unsupported by medical evidence.

13. The applicant admitted that he was willing to assist the police and that he had told them on arrest that he would talk at the police station. The officers had no reason to rough up the applicant from the outset: they already had his co-operation.

14. Furthermore, if the police had cowed the applicant to such an extent that he agreed to write 16 dictated cautioned statements, it is remarkable that the police should have bothered to compose 13 denials. In the case of Ex.P11 an initial denial of the burglary charged is followed by a confession to a burglary in the same block on the same evening but three floors up. There was other evidence that those premises were burgled at that time. Why should the statement taker have gone to such lengths? That he should have perpetrated such an elaborate refinement is unreasonable.

15. It is not surprising in these circumstances that the judge found the applicant's evidence to be unconvincing. Nor, having found no cause to doubt the evidence of the prosecution witnesses, that he should have found that the three inculpatory cautioned statements were made voluntarily.

16. Having regard to the weight of evidence against the applicant on this issue, we are satisfied that the judge's unfortunate phraseology does not render the convictions unsafe or unsatisfactory. There is no substance in the other grounds of appeal and we refuse the application.