R. v. LAU HAK TUNG

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J U D G M E N T

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Sir Derek Cons, V.P., delivered the judgment of the Court:

1. At 5 a.m. on 24th August 1989 a number of men entered the Telford Commercial Complex in Kowloon. They knocked out a security guard and then broke into the Fotomax shop premises to steal a considerable amount of video and audio equipment. They were surprised by the arrival of police but made their escape in a van and a car which the police attempted to prevent by firing several shots, one of which eventually led to the death of one of the culprits. The van was found about an hour later and all the stolen property was recovered.

2. Arising out of that incident a charge of burglary was laid on the 5th August 1991 against Lau Hak Tung ("the applicant"). He pleaded not guilty. He was tried before Her Honour Judge Fi-lan Chua on the 18th to 21st February this year.

3. The only evidence against the applicant was a statement made by him on the 19th July last year. He had been stopped in the street for an identity card check, from which the police information system brought out the fact that he was wanted in connection with the burglary we have just mentioned. He was detained overnight and taken next morning to the airport police station which was the station dealing with the offence. There he made the statement in question which, if true, is a full confession to the burglary and conclusive evidence of his guilt.

4. At his trial challenge was made to the admission of the statement as evidence. It was suggested that it had been fabricated and that his signature obtained thereto by threats and other malpractices on the part of the police. The judge heard evidence on a voire dire from both the police and from the applicant. She was satisfied therefrom that the statement was a voluntary statement. She admitted it in evidence and, being satisfied also that it was true, convicted the applicant, who applies today, with the assistance of counsel, for leave to appeal against the conviction.

5. Four grounds have been lodged as "Perfected Grounds of Appeal". Taking them out of order the second suggests that "there was a material irregularity in the course of the trial in that the learned District Judge failed to consider and thereafter to exercise her discretion to exclude" the confession in question. This ground is based on the fact that at one stage the officer taking the statement showed to the applicant a statement made by one Lau Tak Ming which accused the applicant of also taking part in a robbery which had admittedly occurred shortly before the burglary. The officer then asked the applicant for his explanation of that allegation.

6. That was a clear breach of the Judge's Rules: see Rule 8 of the 1912 Rules. However the judge was well aware of that breach and observed, as is correct, that a breach of the Judge's Rules does not ipso facto render a confession inadmissible; Mr. Saw, who appears today for the Crown, adds that the incident occurred at a very late stage in the taking of the statement and after the applicant had already fully set out what happened on the night in question and his participation in the burglary so that it could have had no prejudicial effect. We are not satisfied that there was a material irregularity as thus suggested.

7. The other three grounds may be taken together. Firstly it is suggested that no reasonable judge could have found in the circumstances as they were that the confession was made voluntarily; secondly, that even if she did so, no reasonable judge could have found that the confession was true; and thirdly that in any event this Court, applying the healthy scepticism which is inherent in any court's approach to confession statements, should have a lurking doubt as to the safety of the conviction.

8. In a forceful submission Mr. Egan has urged for the applicant many points which would militate against the voluntary nature of the confession, e.g. that it came after some two years during which, had the applicant felt any real or genuine sense of remorse, he could have easily surrendered himself to the police and that there is no other evidence of any kind whatsoever which might have induced him to advance an admission.

9. Mr. Egan has also taken us through the reasons given by the district judge for her conclusion on the voire dire and for her verdict of guilty, criticising from time to time the language in which the judge expressed her conclusions; and he has taken us to the statement itself, commented on its character, in particular the way in which the narrative would appear to have been based on unrecorded questions and the use of what he referred to as "police language". All these, and other matters which we have not mentioned, could have been, and most probably were, advanced to the judge below as reasons for rejecting the admission of the confession. Whether in the light of them no reasonable judge could have found that the confession was voluntary, or if it was that it was true, must depend also on the actual evidence that was before the judge. We have not been referred to that evidence. No transcript has been called for by either party to these proceedings. But deciding, as we must, upon what is before us we have no hesitation in rejecting the suggestion that no reasonable judge could in the circumstances have found that the confession was either voluntary or true; nor are we ourselves left with any lurking doubt as to the safety or satisfactory nature of the conviction.

10. For these reasons the application is refused.