THE QUEEN v. MOK SIU FUN

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REASONS FOR JUDGMENT

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Clough, J.A.

1. Delivering the judgment of the court.

2. These are the reserved reasons of the court for its refusal on the 12th July 1991 to grant leave to the applicant Mok Siu-fun (D2) to appeal against his conviction on the 15th June 1990 after trial in the District Court by Deputy Judge Jenkins of 2 offences of robbery and three offences of handling stolen goods.

3. D2 was tried together with Wong Kwok-wah (D1) who was charged with the same two robbery charges as D2 and also with seven other robbery offences. Both defendants had made a number of cautioned statements to the police admitting all the offences with which they were subsequently charged. In addition to D2's cautioned statements the Crown's case against him on the handling charges also relied upon the admitted fact that in each case he had pawned the goods in question the day after they had been the subject of robbery from their owners.

4. The admissibility of all their respective statements was challenged by the defendants who were represented by the same counsel at the trial. The judge held a separate voir dire and admitted all the statements of D1 and D2. Thereupon D1 elected to plead guilty to all the robbery charges against him. He gave evidence on behalf of D2 who did not give evidence himself or call any other witnesses in his defence. The judge convicted D2 on the evidence contained in his cautioned statements (which he held to be credible) and on the evidence of the admitted pawning by D2 of the stolen goods which were the subject of the three handing charges.

5. The defendants had been arrested together at about 6.10 a.m. on the 9th January 1990 at a flat in Block 11 in the Ngau Tau Kok Estate. They were taken to the Sau Mau Ping Police Station where DPC 9172 (PW14) recorded two cautioned statements from D2 between 7.30 and 10.25 a.m. These statements contained admissions of the robbery offences. On the next day (10th January) between 2 p.m. and 6.25 p.m. PW14 recorded a further three cautioned statements from D2 in which he admitted the handling offences.

6. In his personally drafted grounds in his notice of application for leave to appeal against conviction D2 relied on a number of matters. The only matter which is now relevant concerns the events at the police station after his arrest which he referred to as having occurred at 6 a.m. on the 9th January 1990. He went on in his grounds to say:

"     A policeman there told me that I was suspected of getting involved in a robbery. But I told him that drug addict as I am, I did not commit the crime. Yet, I became more sick and could not stand the beating. So, I signed the testimony at the night of 10 January. If I really signed it at my will, why was the signature delayed so long? Besides, there are records of my taking methadone in the police station. But the prosecutor covered up this fact at the court. Under such circumstances, how could the testimony take effect?"

7. At the initial hearing of D2's application before another division of this court he appeared in person. The application was adjourned to a date to be fixed. It appears from subsequent correspondence between the Attorney General's Chambers and the Registrar of the Supreme court and between the Registrar and the Legal Aid Department that the reason for the adjournment was that, as a result of D1's complaint to the other division of this court, a full transcript had been ordered and, as the Registrar, by his letter dated the 19th March 1991, informed the Director of Legal Aid:

"         The Crown was asked to ascertain whether or not Wong Kwok Wa (D1 at trial) had been provides with methadone. It was the allegation of the Applicant (D2 at trial)that while D1 was given methadone he was denied."

8. The sequel to the adjournment of the application was that D2 received legal aid and appeared by counsel, Mr. Plowman, at the resumed hearing on the 12th July 1991.Counsel had been supplied by the Crown with a copy of a summary of the relevant entries in the police detention register of the police station in question. Mr. Plowman had, ex abundanti cautela, settled a notice of motion for the admission of these entries under section 83V of the Criminal Procedure Ordinance (Cap. 221), but it seemed to us that this was not necessary as the court had, in effect, directed that this evidence be produced.

9. The relevant entries in the register showed that, after his arrest at 6.10 a.m. on the 9th January 1990, D2 had first received methadone treatment at 7.12 p.m. on the 10th January (i.e. 47 minutes after he had completed his last cautioned statement). It also appears that D2 was taken from the police station at 8.05 a.m. on the 11th January 1990 for his court appearance and that he receives methadone treatment at 8.10 p.m. on that date and thereafter in the evenings of the 12th, 13th, 14th and 15th January. At 8.20 a.m. on the 16th January he was taken to court and thereafter remanded in jail custody. In the case of D1, the entries show that he received medical treatment at 1.40 p.m. and his first methadone treatment was at 7.05 p.m. on the 9th January. Thereafter he received methadone treatment every evening until the 16th January when he was remanded in jail custody. He also received medical treatment in the mornings of the 10th and 12th January.  He had been taken to court on the same two occasions as D2.

10. In perfected grounds settled by Mr. Plowman in support of D2's application it was contended that D2's conviction was unsafe and unsatisfactory because the trial judge had wrongly admitted or, alternatively, wrongly relied upon D2's cautioned statements. The first reason for this contention was that it had been part of D2's case that he had been induced to sigh a number of documents by being told that afterwards he would be given methadone treatment It was contended that the trial judge had failed to deal adequately with this issue when he ruled that D2's cautioned statements were admissible.

11. Whilst it is clear that D2 did not receive methadone treatment until he had been in custody for about 36 hours and after the time (7.12 p.m. on the 10th January) when the Crown alleged that D2 signed his last cautioned statement to the police, it is equally clear from the record that in the voir dire D2's case (as put to PW14 and asserted in D2's evidence) was, hot that he had signed the statements on the 9th and/or 10th January as a result of being told that he would be denied methadone treatment until he did so, but that he had signed them by reason of that inducement after he returned to the police station from his court attendance on the 11th January. According to D2's evidence he had been denied methadone until this time and was feeling unwell because of withdrawal symptoms. Senior Inspector Lam wai Ming (PW13) said under cross-examination in the voir dire that he did not know if Dl or D2 had been given methadone in the police station. PW14, who had recorded D2's statements, had said under cross-examination that he knew that D2 was a drug addict because he checked his record.  He denied that he had induced D2 to sign the statements by telling him, after D2 returned from court (on the 11th January), that "if he wanted to have dangerous drugs he should sign the documents". PW14 insisted under cross-examination that D2 had not signed anything on that day.

12. The allegations on D2's part in the voir dire also included numerous allegations of assault. The judge was faced, as he frequently is in a voir dire, by issues of credibility arising from a substantial volume of evidence relating to all the allegations by the defendants. He had to consider all these matters, including D2's allegation regarding the inducement of methadone treatment. He reminded himself in his Ruling at the end of the voir dire that the onus was on the Crown to satisfy him that each statement of D1 and D2 was voluntary. He did not review the allegations and evidence in detail. But indicated that he could find no significant discrepancies or  variations in the police evidence and concluded:

13. It seemed to us that the judge, who was aware that D2 was a drug addict and had heard his allegations against the police as well as the evidence of the police officers denying the allegations, particularly that of PW14 regarding the alleged methadone treatment inducement on the 11th January, was clearly indicating in his Ruling that he believed the police evidence and disbelieved that of D2 (and D1) on the voir dire issues. We did not accept that the judge could be faulted for dealing with issues of credibility in the way that he did. Mr. Plowman suggested that D2 had clearly been confused about the dates when he signed his cautioned statements when he said in evidence that it had been on the 11th January. Our attention was drawn to the fact that D2 had asserted in his personally drafted grounds of appeal (in the passage quoted above) that he had signed the statements on the night of the 10th January. This submission might have carried some weight if D2 had merely referred to the 11th January at the trial, but in fact D2 made it clear in his evidence both in chief and under cross examination that he was claiming that the inducement and the signing of the statements occurred on the day of his first court appearance, which was the 11th January. He said in chief:

"   On 11/1/90 I was taken to Kwun Tong Court. I had not been given any methadone from my arrest until 11/1/90. After leaving Court I returned to the police station. I Felt unwell because of withdrawal symptoms. He wanted me to sign certain documents. He said 'If you sign it you will be taken to drink methadone. Otherwise you won't have any methadone like 2 days before.' My mind was a little bit shaken. I was given those things to sign. In the evening I was taken to have methadone. I signed at various places as I was told because I was having withdrawal symptoms and my mind wasn't clear. I was in need of dangerous drugs or methadone. When I was told I could have methadone, I very much wanted to drink it so I signed."

14. Thus in his evidence D2 clearly related the relevant alleged inducement and the alleged signing of the statements to the day he had been taken to court (which was the 11th January) and so there could not have been any confusion in his mind about the alleged sequence of events even if he may not have been clear about precise dates.This was the evidence of D2 which the judge heard and Disbelieved. He is not to be faulted on this account and we were not persuaded that either his Ruling in the voir dire or his verdict was unsafe or unsatisfactory for the first reason advanced by Mr. Plowman.

15. The second reason advanced by Mr. Plowman was eased on the fresh evidence of the entries in the police detention register indicating when D1 and D2 had received methadone treatment.  Mr. Plowman stressed that the Crown had adduced no evidence that D2 had received such treatment - this had only emerged in D2's evidence. He also stressed that counsel for the Crown's cross-examination of D2 had been to the effect that his evidence about his withdrawal symptoms was concocted. It was submitted that the judge's comment in his Ruling in the voir dire that D1 and D2 "appear to be drug addicts" indicated an uncertainty in the judge's mind whether D2 was a drug addict.

16. Against this background Mr. Plowman contended that if the evidence of the methadone treatment of D1 and D2 had been before the trial judge he might have formed a different view of the admissibility or reliability of D2's cautioned statements, became the entries showed that D2, who was a drug addict, had been in custody for 36 hours without methadone treatment. Moreover his case had been that he had been told he would get methadone treatment after signing his statements and he had in fact received such treatment within 47 minutes of doing so.

17. We were not able to accept these submissions. The evidence of PW14 had been that D2 was a drug addict and we were left in no doubt that the judge so regarded him. The evidence of D1's and D2's methadone treatment could have been obtained with reasonable diligence by D2's professional advisers and adduced on his behalf at the trial. If the evidence had been obtained and adduced it would have shown that D2 was given methadone treatment on the 11th January(at 8.10 p.m.) as he had alleged in evidence. However, the entries also showed that he had not (as he alleged in evidence) been deprived of such treatment until the 11th January. He had received it at 7.12 p.m. on the 10th January. Moreover his defence was not that he had signed the statements oh the 9th or 10th January because induced to do so by being promised methadone treatment (which he received on the 10th) on either of those days. Under cross-examination he had insisted that he had (although asked to sigh something) signed nothing except the charge sheet between the time he was taken to the police station and the time he was taken to court (on the 11th January). We therefore concluded that if the relevant entries from the detention register had been before the judge they would not have assisted D2's defence and his case in the voir dire: on the contrary they would have destroyed it.

18. Accordingly we refused D2's application for leave to appeal against conviction. The court also informed D2, and we now reiterate, that he was fortunate to receive such a light sentence which we would have increased if he had appealed against sentence. The two robberies for which D2 (who has a bad record) was convicted were lift robberies committed in domestic premises at night by D1 and D2 in combination and the victims were threatened with a melon knife. Applying the tariff laid down in Mo Kwong Sang [1981] HKLR 610 in relation to two such robberies and 3 handling offences in relation to the disposal of the fruits of similar robberies we consider that a total effective sentence of 7 years imprisonment would have been appropriate on conviction after trial. The effective sentence of 5 years imprisonment which D2 received would have been more appropriate to a single lift robbery conviction after trial.