THE QUEEN v. LAM HON-CHEUNG

Headnote

                Due to an oversight the arraignment of the accused was not completed until after a voir dire had been held to decide the admissibility of a confession statement, although before the jury was empanelled and sworn.

                Held, applying R. v. Williams [1977] 1 All E. R. 874, that the proceedings on the voir dire were not a nullity.

BETNWEEN

ate of delivery of judgment: 29th August, 1985

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JUDGMENT

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Cons, J. A. delivered the judgment of the Court:

1. The, Applicant, who seeks leave to appeal to this Court, was indicted for robbery.   On the 9th April this year, when he was first called before the Court, an application was made for adjournment to the next day. The application was granted. No plea was taken at the time.

2. Part of the evidence which was intended to be adduced against the Applicant, indeed really the only evidence against him, was a cautioned statement in which he admitted the offence. Objection was to be taken as to the voluntary nature of that admission. Therefore, on the following morning, when the case was called again, counsel who then appeared for the Applicant opened the proceedings by raising that objection. The voir dire was consequently held and concluded or that day, i.e. before the jury was empanelled and sworn; a course that is possible now by reason of Sec. 41(3) of the Criminal Procedure Ordinance.

3. During the course of the voir dire the learned Deputy Judge, His Honour Judge Cruden, realised that the arraignment of the Applicant had not been completed. He drew the attention of counsel to that fact. Counsel for the Applicant observed that the matter could be rectified the following day and added that he would not seek to make anything of the point. Nevertheless, the Judge adjourned to consider the position. Having done so he took the view that the omission would not vitiate the trial provided no objection was raised.  None was. The arraignment was completed the following day and in due course the jury was empanelled, the Applicant put in their charge and the trial proceeded, resulting in the conviction of the Applicant.

4. A similar position had arisen earlier in England: R. v. Williams⁽¹⁾The facts are identical save that the absence of the arraignment was realised, not during the course of a preliminary issue as to the admissibility of evidence, but subsequent to the trial proper which had been fought out as though a plea of not guilty had been entered. The Court of Appeal, taking the view that it was abundantly clear that a plea of not guilty had been intended and had been tacitly conveyed to the prosecution and the Court by the conduct of the accused and his counsel, adopted principles suggested by commentaries from the United States of America and accepted that the right to be arraigned had been waived.

5. Provisions as to arraignment in England depend upon the common law. In the jurisdiction they are statutory. Sec. 4.9(2) of the Criminal Procedure Ordinance provides:

"The indictment shall then be read over to [the accused] by the Registrar, and explained, if necessary, by the Registrar or the interpreter of the court; and he shall be required to plead instantly thereto, unless he objects to the want of due service of the indictment and notice of trial, and the court finds that he has not been duly served therewith."

6. Mr. van Buuren, who now appears for the Applicant, seeks to distinguish Williams ⁽¹⁾ on that ground. He suggests that the provision is mandatory and cannot be ignored. With respect we do not read it that way. It seems to us to be directory rather than mandatory, merely reducing the common lair to statutory form without altering in any way its substance. Further Mr. van Buuren warns of the dangers which would follow from accepting that conclusion, but with every respect we find it difficult to apprehend any reality in the possibilities that he has specifically suggested.

7. We do not wish to be taken as in any way encouraging the omission of the arraignment in any case, but we would respectfully adopt the reasoning and conclusion of The English Court of Appeal.

8. The second ground of appeal suggests there to have been a material irregularity in that Crown Counsel to a large extent took his witness through the evidence on the voir dire with the aid of leading questions.

9. No objection was taken at the time. It is suggested that the Judge should have taken the objection himself. We do not agree. The basis of the adversarial system is that the parties call such evidence as and how they wish. Evidence by leading questions may, of course, not carry so much weight as evidence adduced otherwise.  Even so it is common practice to lead in this way evidence to which no objection is To be taken. It saves a considerable amount of time and we would not seek to discourage it.

10. The third ground of appeal is that the voluntary nature of the statement could not have been proved beyond reasonable doubt because a police sergeant, who kept watch at the doorway for about five minutes while the Applicant was left otherwise alone, was not called as a prosecution witness.  The sergeant was present in Court, but counsel for the Applicant indicated that he did not wish to cross-examine.

11. It is conceded that there is authority of this Court that it is not necessary to cover every moment that an accused is in police custody, or to deal with fanciful allegations which are not specifically made. We find no substance in this ground of appeal.

12. The fourth ground of appeal is that the Judge misdirected the jury by saying that the evidence of Ng Ka Fai was neutral. Ng Ka Fai was an accomplice who took part in the robbery.  His evidence was that the Applicant was not told of the reason for the money which it was accepted that he provided.

13. In order to understand this ground it is necessary to interpose something of the nature of the case against the Applicant. A gang of youths intended to commit robbery. The gang included the Applicant's son, who was eventually convicted of handling goods obtained by the robbers. The gang was discussing the robbery at tea in a restaurant. They were bemoaning the fact that they had no money to buy the large knives they thought necessary for their purpose. At that moment the Applicant came into the restaurant and heard their complaint. They asked him for money and he offered and gave 200. In return they promised him some benefit from the proceeds.

14. The defence that was put forward at the trial, - put forward by the Applicant's son, for the Applicant himself gave no evidence, - was that while the father was at the table with the gang there was no mention of the robbery whatsoever, but that at sometime during the course of his taking tea, his son took him on one side and asked for money, not for robbery but in order to pay the tea bill. It was for that purpose that the money was given, although in fact it was used to buy knives for the robbery.

15. This ground of appeal may be conveniently taken together with ground 6, which is that the Judge failed to point cut to the jury that the evidence of Ng Ka Fai was favourable tot he Applicant in that it, showed he did not know the purpose for which the money was to be given.

16. We may observe that in dealing with the evidence of Ng Ka Fai, which the Judge did quite fully, he did not just say that the evidence of Ng was neutral. He said, after recounting the substance of the evidence, "so his evidence is neutral and would not assist you as to why the father gave the son the money". That indeed was the only issue, which the jury had in fact to decide. Ng Ka Fai's evidence was neutral. It did not help the jury one way or the other. We see no misdirection.

17. Ground 5 cirticizes the Judge for making it obvious to the jury that he himself would have placed little or no reliance upon the son's evidence. We are not able to accept that criticism. A Judge is perfectly entitled to make his own views known provided, as he did in. this case, he advised the jury that they are not bound to accept is views and must in the end form their own.

18. The 7th Ground arises in this way. While the jury were considering their verdict, they posed four questions to the Judge. He gave the answer. to the first in this way:

"Your first question is: 'Why was LAM Hon-cheung arrested?' The answer to that question is that the evidence of the 3rd prosecution witness was that on the 12th of January, 1985, he stopped and searched the accused. He then checked PONICS which indicated that the accused was wanted in connection with a robbery case in Tsimshatsui."

PONICS we understand to be a police radio information service. Mr. van Buuren has drawn our attention to the cases of R. v. Saunders ⁽²⁾ and R. v. Howarth⁽³⁾, referred to in Archbold at p.8611, 11-6, but with every respect we find no assistance in them. They are concerned with questions and answers as to information received by a police witness which could have conveyed to the jury an impression of substantive evidence which was not otherwise before them and which tended to indicate the guilt of the accused. The present case is different. The evidence here indicated that the police thought the Applicant had some connection with the robbery in question. Whether he had or not was of course the very question which the jury had to decide. It had been carefully emphasized to them that that was a question for them alone, and that it was a question that they should decide only on the evidence before them.

19. We find it a little difficult to see why the evidence of his arrest was led at all. It did not indicate guilt in any way, nor did it seem to be required for any other reason. It might have been better had the Judge added that the reason for the arrest, which was obvious from the evidence itself, was of no help to the jury. On the other hand we cannot see that the Applicant was in any way prejudiced by its introduction.

20. We might also add that the evidence, which the Judge correctly summarised in the answer we have just quoted, had been put before the jury with the consent of the Applicant's counsel by way of the constable's witness statement's being read out. It is not easy to criticize a judge for reading to the jury evidence to which the defence has expressly agreed.

21. For these reasons, we see no merit in any of the grounds of appeal advanced and the application for leave to appeal against conviction is refused.

(1)    [1977] 1 All E. R. 874

(2)    (1899) 1 Q. B. 490

(3)    (1926) 19 Cr. App. R. 102