FUNG KWAN NANG v. THE QUEEN

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY APPEAL N0. 543 OF 1985

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BETWEEN

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JUDGMENT

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1. The appellant was convicted, by a magistrate, of robbery and sentenced to be detained in a training centre. The appeal against sentence was abandoned and I dismissed the appeal against conviction, saying that I would give reasons later which I now do.

2. The original grounds of appeal, which were in general terms, were replaced by grounds settled by counsel and dated 1st July 1985 and they were in turn replaced by "perfected" grounds settled by the same counsel and filed on the eve of the hearing.

3. The brief facts of the case are that two plain clothes police officers saw a man alight from a taxi by the right rear door. A second man, the appellant, alighted, saw the police officers and ran off, joined by the other man, who was subsequently charged jointly with him, and who is referred to in the magistrate's record as D2. The time was 1.50 a.m. on a day in February. The police officers, shouting to the men not to run and that they were police, gave chase into the Kwai Fong Estate, lost sight of them, but on discovering that the road they had entered led only to a public toilet, they searched it and found both men in cubicles there. The first of the officers (P.W.1) gave evidence that he asked the appellant why he had run earlier and the appellant replied that someone was going to cause trouble to him and he was so scared that he ran. P.W.1 searched the appellant and found $240 on him. After hearing something from his colleague a (P.W.2) P.W.1 asked the appellant "how much he had robbed of the taxi" and the appellant replied that it was $230, that it had nothing to do with his friend and that he had done it himself.

4. P.W.1 and his colleague arrested the appellant and D2 and took them to a police station where the appellant made a written statement under caution as follows :

5. I took away the taxidriver's money because I needed money to spend at the time. I knew I am wrong. The matter of taking away money was by me only. It has nothing to do with TSE Shun-lung.

6. That statement together with a written preamble containing the police officer's account of the events at the scene of arrest was admitted in evidence by the trial magistrate after hearing objections as to its admissibility and after hearing evidence on that issue from the police officer and from the appellant.

7. There was no evidence from the taxidriver, whom the police had failed to trace.

8. Both the appellant and D2 gave evidence to the effect that they had been beaten by the police and had made up the story of robbery in order to avoid further maltreatment. The appellant said that he had felt dizzy at the police station when the statement taking started and that he had been persuaded to write what he did in order to obtain lenient treatment.

9. The first ground of appeal was that "the magistrate wrongly admitted the statement, having failed to consider at the trial whether the appellant's state of mind at the time it was taken rendered admission of the statement unsafe".

10. At the trial, the case of the appellant on the issue of voluntariness of the statement was that he had been struck on the forehead and the chest at the public toilet. He was also kicked in the police station. When he arrived at the police station he began to feel dizzy. When he wrote the statement he "was not fully conscious?

11. According to counsel for the appellant, the learned magistrate made no specific finding as to whether the appellant at the time of making the statement was fully conscious.

12. In a careful statement of findings, the magistrate gave a detailed summary of the evidence and made it clear that he knew what were the issues of fact in relation to the making of the statement. He accepted the denials by the police witnesses of the allegations made against them. He found that there was no violence either used or threatened and no inducements had been given either before or during the taking of the statement, which had been freely made. He disbelieved the appellant's allegations of violence, threats or inducement. He was satisfied that the statement was voluntary. The appellant's evidence implied that the alleged dizziness stemmed from the alleged violence which, the magistrate found, had not taken place.

13. Counsel for the appellant referred to the decision of the Court of Appeal in CHENG Pak-chang v. R. Cr. App. No. 61 of 1979, in which the extent is discussed of a judge's undoubted discretion to exclude a statement made by an accused whose state of mind is such as to make it unsafe to admit it.

14. In the present case the magistrate accepted the Crown's evidence and disbelieved the appellant's evidence as to the circumstances in which the statement was made and it is implicit in his statement of findings that he rejected the suggestion that the appellant was not fully conscious when he made it. The question of discretionary exclusion, therefore, did not arise. The magistrate was satisfied that the admissions made by the appellant at the scene of arrest and at the police station were voluntary. The statement was properly admitted.

15. The second ground of appeal was that the learned magistrate erred in law in admitting P1, the cautioned statement, when its content operated unfairness on the appellant.

16. Relying on the authority of TSANG Hon-sum v. The Queen, Criminal Appeal No. 870 of 1977, Mr. Tang for the appellant argued that the nature of the written preamble to the cautioned statement was such that its prejudicial effect outweighed its probative value and the magistrate should have excluded it. In TSANG Hon-sum, the Court of Appeal said that a judge should be slow, having admitted a disputed statement in evidence, to allow that statement to be placed before a jury together with a recital of the caution administered before the taking of the statement which recital contains reference to previous inculpatory statements alleged to have been made by the accused. The Court warned that such a practice could operate unfairly against the accused. In that case, however, the Court of Appeal considered that no harm existed sufficient to warrant allowing the appeal. In the present case, direct evidence of the making of oral admissions at the scene of arrest was given and it was accepted by the magistrate. I found that the admission of the document containing the preamble which recited the previous oral admissions did not do such harm in all the circumstances as to render the conviction unsafe.

17. With regard to the matter of the oral admissions, counsel, relying on R. v. Pattinson (1974) 58 Cr. App. Rep. 417 submitted that evidence of oral admissions is unreliable in the absence of other evidence. In the present case there was other evidence. However, Pattinson was decided upon its own facts. There is no rule of law to the effect that "verbals" as they are commonly called, are inherently unreliable. It all depends on the circumstances. The magistrate, having seen and heard the witnesses giving evidence was perfectly entitled to find that the oral admissions had been made and that they were true.

18. The third ground of appeal was that "The conviction of the appellant was such (sic) inconsistent with the acquittal of the codefendant, TSE Shun-lung that it rendered the said conviction unsafe and unsatisfactory.". There was evidence upon which the magistrate could have convicted D2, TSE Shun-lung, but he explained fully in his statement of findings why he did not. After analysing the evidence, he felt that to there was a reasonable doubt as to the guilt of D2 and it was therefore his duty to acquit D2 as he did. The evidence against the appellant was stronger than that against D2 and the acquittal of D2 does not in my view suggest that the conviction of the appellant was unsafe.

19. The fourth ground of appeal was that there was insufficient evidence to found a convictions. The argument here was that it was not possible to convict without the evidence of the victim, a taxidriver, who had not been traced. This is a hopeless argument. A conviction must be evaluated in the light of the evidence which was called, and that evidence was sufficient.

20. The fifth ground of appeal was that the magistrate erred in law in admitting evidence of a conversation between P.W.2,  the second police witness, and D2 at the time of arrest, the prejudicial effect of it allegedly outweighing its probative value. In that conversation, D2 alleged that the appellant had robbed the taxidriver. The magistrate was well aware that what D2 said to P.W.2 in the toilet was not evidence against the appellant and he said so in terms at page 32 of his statement of findings.

21. The final ground of appeal was that the conviction was unsafe and unsatisfactory. I could find no grounds for such a conclusion. The appeal against conviction was therefore dismissed.