THE QUEEN v. YEUNG KIN CHUNG AND ANOTHER

Cautioned statement - admissibility of.

Long period of interrogation without caution whilst accused in custody - whether oppressive.

Cautioned statement following immediately after interrogation - whether oppression continued to operate in relation to the cautioned statement.

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JUDGMENT

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Hon: Yang, C.J.:

1. This is the judgment of the Court.

2. The two applicants were convicted after trial by Deputy District Judge Candy of conspiracy to defraud. D1 (Yeung) now seeks leave to appeal against conviction and sentence, and D2 (Wong) against conviction only. They were both sentenced to three years' imprisonment.

3. The particulars of offence relied on by the prosecution are that between the 1st and the 25th of October 1989, Dl and D2, together with a person unknown, conspired to defraud one Mr. Yu Kam-fuk of RMB$520,000 by falsely representing to Mr. Yu that the sum of HK$750,000 was credited to Mr. Yu's bank account with the Chase Manhattan Bank on the 25th October 1989.

4. The prosecution evidence came mainly from the victim Mr. Yu and Dl's and D2's cautioned statements. The Crown however fairly conceded before this Court that Mr. Yu's evidence, if unsupported by the cautioned statements, would not be sufficient for the prosecution case to go before the jury.

5. The admissibility of both cautioned statements was disputed on the grounds of assaults, threats and inducement. After a voir dire, the learned trial judge took time for deliberation and delivered a reasoned ruling admitting the statements as being voluntary.

6. Referring to the medical evidence in respect of D1 in his ruling the judge gave it no weight and went on to say: "D1 alleges that he was severely beaten and at one stage given 50 - 60 punches all in the same area of his body. Such a beating would produce much more severe injuries than those noted on D1" both at the United Christian Hospital and Lai Chi Kok Prison. He was satisfied beyond reasonable doubt that Dl was not subjected to any assault, threat or inducement, and there was no oppression. Having noted that Dl was in custody for some hours and was not cautioned until after 5 p.m., he ruled that these were not matters which would render it unfair to Dl for his statement to be admitted. He was also satisfied that D2 was not subjected to threats, assault or inducement.

7. D1 was apprehended at 12 noon on 10th November. At 4 p.m. questioning of Dl commenced. It lasted about an hour, with 19 questions asked. At about 5 p.m. Dl said he was now willing to confess. He was then cautioned for the first time. At 5.03 p.m. a cautioned statement was taken from him. The taking of statement concluded at 7.04 p.m.

8. In the statement D1 made a full confession and described how he and his confederates set about to defraud Mr. Yu. He said that his role was that he "only found male surnamed Yu and introduced him to Lee Wai-kuen for the trading of Renminbi". The judge found that Dl's confession corroborated the evidence of Mr. Yu as to how the fraudulent transaction had taken place. He found as a fact that D1 knew the scheme was to defraud some person of Renminbi currency and he knew the details of how the plan would be executed before he in turn introduced Mr. Yu as the victim. He was also satisfied, on the evidence, that Dl accompanied Mr. Yu and took possession of the RMB$520,000.

9. On D2's statement and Mr. Yu's evidence the judge also found D2 guilty.

10. Three grounds of appeal are advanced on Dl's behalf. Firstly the judge erred in admitting his statement because the statement arose from the culmination of a period of police interrogation of D1 when he was in police custody and had not previously been cautioned. In addition the record of the interrogation prior to caution was not before the judge. The second ground of D1's appeal is that the judge in his ruling on admissibility of the statement failed to consider (i) the matters outlined in the first ground of appeal, (ii) the medical evidence, and (iii) he erred in drawing the conclusions that the allegations of assault would produce much more severe injuries than those described in the medical evidence. The last ground of appeal is that the conviction was unsafe and unsatisfactory, and there were material irregularities.

11. D2, in his home-made grounds of appeal, says that the evidence of the prosecution witness was full of contradictions thereby showing that those witnesses were lying. He then argues there was no evidence connecting him with the offence. Thirdly, his cautioned statement was made as a result of threats and assault. And lastly the judge was biased against him. However he has nothing to add to those grounds of appeal, and he gives no particulars. Having perused the Reasons for verdict and examined the evidence, we find nothing in his appeal that causes us concern. We therefore dismiss his application.

12. Coming to D1's first ground of appeal our attention has been drawn to R v Poon Chi-kwong [1968] HKLR 345, where it is clearly recognised that the questioning of a person whilst in custody without caution is a breach of Rule 3 of the Judges' Rules. A very helpful authority is The Queen v Law Shing-huen [1989] 1. HKLR 116 where Lord Ackner, in dealing with a cautioned statement which followed an earlier one made in circumstances involving oppression, held that the prosecution had to establish, beyond reasonable doubt, that the oppression from the first statement, by the time the second statement was taken, had been dissipated (at p. 122 C-G).

13. Clearly in the present case the interrogation of Dl without a prior caution was against Rule 3 of the Judges Rules. Beyond saying that that period of interrogation was not unfair, the judge did not appear to have addressed his mind specifically to the possibility of oppression. It could well be that if the judge had properly directed himself and considered the question of oppression, he might have dome to the conclusion that there was none, but we cannot be sure. If the circumstances in which the interrogation had been conducted amounted to oppression, the fact that the cautioned statement followed immediately upon the interrogation, and that though the cautioned statement was taken by another police officer yet in the presence of the interrogating officer, could well lead to the conclusion that the cautioned statement is tainted by the interrogation - a fortiori, the recording officer having immediately after administering the caution repeated D1's actual words of admission, adding that he had some questions to clarify those words.

14. We are left with an uneasy feeling that the interrogation might have been oppressive and if it was, the oppression might have continued to operate in relation to the cautioned statement.

15. In this connection, we think it necessary to state our views on the use the record of the interrogation was made. Upon the request of defence a copy of the record was given to the police officer who conducted the interrogation whilst he was giving evidence. Defence counsel had the document translated to him by his clerk during an adjournment, from Chinese into English. The judge did not see it and thought it was irrelevant. It was not produced as an exhibit. What happened in the court below was a departure from the general principle of practice, that all evidentiary matter which was available and relied upon as probative, should be adduced as evidence.

16. We now come to the second ground of appeal. The first medical report was dated the 14th November 1989, i.e., some three and half days after the taking of the cautioned statement, and it showed a number of bruises and scratches on Dl consistent with "hard impact and friction". The second medical report, produced by the defence, was dated 5th December 1989, showed bruising over the front of his body.

17. In our judgment, whilst the trial judge might have reasons for arriving at the conclusion that D1 had been exaggerating, he did not explain why there could not have been assaults of a lesser severity than that described by the accused, in which case the voluntariness of the cautioned statement must be called into question.

18. For the reasons given above the application is allowed. We treat the hearing of the application as the hearing of the appeal and allow the appeal. The conviction is accordingly quashed.