R. v. CHOY TAK HING

IN THE COURT OF APPEAL

1992, No. 382
(Criminal)

Headnote

Confession statement made under caution - Judge found it was freely and voluntarily made - "residual discretion" to exclude inappropriate in the circumstances - dictum of Roberts CJ in Lam Yip-ying [1984] HKLR 419 at 424 followed.

IN THE COURT OF APPEAL

1992, No. 382
(Criminal)

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J U D G M E N T

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Litton, J.A.:

1. On the conclusion of the hearing on 19 March 1993 we dismissed the appeal and said we would give our reasons later. We now do so. These are the reasons of the court.

2. The application is by Choy Tak-hing ("the defendant") for leave to appeal his conviction by Deputy District Judge Line on a charge of theft.

3. The charge against the defendant was that on 4 February 1991, at Wyler Industrial Centre, No. 200 Tai Lin Pai Road, Kwai Chung, together with others unknown, he stole a quantity of camera equipment, valued at $5 million, the property of the Canon Hong Kong Trading Company Limited.

4. The background facts, which we take from the judge's Reasons for Verdict, are these. Around noon on 4 February 1991 an unattended goods vehicle loaded with $5 million worth of Canon camera equipment was driven away from the Wyler Industrial Centre in Kwai Chung. The lorry was recovered in Tai Po. It had been emptied. Canon equipment was recovered on the same day in Tsim Sha Tsui. On 6 February more equipment to the value of $3,335,610 was recovered from a plastic factory in Tsuen Wan.

5. The prosecution's case against the defendant was that he was part of a joint enterprise to steal the goods from the outset.

6. The evidence implicating the defendant consisted entirely of two cautioned statements exhibits P1 and P2. The appeal has therefore focussed entirely upon the circumstances under which the statements were taken by the police at the New Territories Police Headquarters at Tai Po. The defendant's case was that when he was taken to the interview room and told that the police proposed to take a statement from him, he said that he knew nothing about the matter; the response from the police was that they would fabricate a story for him. He said that in the course of making the statements he was beaten and threatened with torture; in the case of Ex P2 he was also tired and sleepy when the statement was written and he was asked to sign. He alleged that, at one stage, the police officer said to him: "Now you agree to cooperate with us, later I'll help you write a good statement". In essence, his case was that the statements were fabrications by the police which he signed under duress.

7. The admissibility of the cautioned statements constituted, in effect, the entire trial in the court below. Having heard the police witnesses and the defendant give evidence on the issue of admissibility of those statements, the judge was satisfied that the statements were his and were voluntary. Those statements, if true, constituted a most detailed confession to the crime as charged. As no other evidence was adduced on the general issue, and the defendant did not give evidence in that regard, a conviction on the basis of the confession was inevitable.

8. Mr. Haldane, on the appeal, complained that as the entire case for the prosecution consisted of the cautioned statements, in particular Ex P2, the judge should have been seen to have evaluated the evidence concerning the taking of the statements; and if the judge had found that the defendant had told a pack of lies regarding his interviews, he ought to have said so; he should not have left this finding one by implication. Mr. Haldane referred us to the case of Chan Ho-shing (Cr. App. No. 356/81, 11 November 1981, unreported) where the trial judge, after a voir dire, gave a simple ruling to the effect that the disputed statements had been made "freely and voluntarily" as to which this court said :

"Unfortunately that is all he did say either then or later as to the admission of the statement. He gave no reasons for so finding. This is not a practice we would encourage."

9. Mr. Haldane also referred us to DPP v. Ping Lin (1976) AC 574 where the familiar statement of Lord Sumner concerning confessions in Ibrahim v. The King [1914] AC 599 at 609 was reviewed. Counsel complained of the fact that, in his Reasons for Verdict, the judge did not set out how he had reached the conclusion that exhibit P2 was voluntary; since the defendant had complained both of "fear of prejudice" and "hope of advantage" excited and held out by the police, in the course of his own testimony, it was the duty of the judge to deal with these points in his Reasons for Verdict.

10. Mr. Haldane, however, felt unable to elevate the point to one of "material irregularity at the trial", and did not submit that there was breach by the judge of the provisions of section 80 of the District Court Ordinance as regards the giving of "reasons" for the verdict. The point was left, as it were, in the air. We feel therefore that we need say no more about it. We are satisfied that there was no material irregularity.

11. The evidence adduced by the prosecution, and accepted by the judge, was to this effect. The defendant was first interviewed at the New Territories Police Headquarters between 2.55 p.m. and 5.55 p.m. under caution on 3 October 1991 concerning the theft of the photographic equipment from Wyler Industrial Centre eight months before, that is, on 4 February 1991. From his answers at this first interview, recorded in Ex P1, it was clear that the defendant was involved in the theft of the equipment that day, innocently or otherwise. In essence, he said that he had helped to move the goods from two lorries to some factory premises, but claimed that he only came to know that night, during dinner at the Riverside Restaurant at Kowloon City, that the goods were stolen: though he had some suspicion that they might have been stolen because the people who had asked him to move the goods could not say where the goods had come from. It is one of the main planks of counsel's submission that this statement, exhibit P1, was exculpatory. This was plainly not so. Given the nature of what he had confessed to, it is perhaps not surprising that the defendant, in the witness box, denied that the statement was his; he claimed it was fabricated by the police.

12. The first interview recorded in Ex P1 finished at 5.55 p.m.

13. After an evening meal at the New Territories Police Headquarters the defendant was interviewed again, starting at 10 p.m. The questions and answers were taken down in Chinese characters, in the usual way. There came a time when the defendant was asked who had been present at a gathering which he had mentioned during the earlier interview. In answer, the defendant named a number of persons, including a Michael Poon. But earlier he had denied knowing a Michael Poon. Admirably alert, the officer queried the contradiction, whereupon the defendant said :

"Ah Sir, there is something incorrect as regards the thing I have just said. In fact, I was aware from the beginning that the goods had been stolen. Yet, I hoped that Ah Sir would give me a chance. If I am willing to be a witness, can the police not charge me?"

Whereupon the officer replied:

"I must tell you clearly that I have no authority to promise allowing you to become a prosecution witness. Now, I am not giving you any promise to become a prosecution witness either. As regards your case, a decision has to be made by the Crown Counsel of the Legal Department. But if you want to make a statement, I will put down the thing said by you in writing. At the same time, the statement will be given to the Crown Counsel in order to express your suggestion. But I caution you. The suggestion proposed by you may not be accepted. If you are charged for any offence in the future, the following things said by you may be given in evidence".

14. There was a pause at this point, and the statement was then given to the defendant to read by himself. The defendant was then asked whether he understood the contents of what he had just been told, and asked to repeat the contents, which the defendant in substance did, saying : "I know the meaning, is that you cannot accept me to become a prosecution witness (as) a decision has to be made by the Crown Counsel. If I am charged as regards the thing I say, the thing said by me may be given as evidence". He then went on to make a full confession of having taken part at the beginning in stealing the goods, and went on to give a detailed description of how the stolen goods were taken to Tai Po and then distributed onto two vehicles, how the driver of the lorry from Wyler Industrial Centre drove one of them, and he drove the other, and how the goods in his vehicle were taken to a factory in Tsuen Wan.

15. On the appeal counsel argued that what the police officer said, as quoted above, shows that an inducement to confess was offered to the defendant. This was an extraordinary submission. When counsel was pressed to indicate what, in his submission, the officer should have done in the circumstances, the answer was that the officer should have discontinued the interview at that point, and invited the defendant to speak with his superiors with, perhaps, a solicitor present. In our judgment, this submission is without merit. The judge thought that the police officer was "assiduous in taking care to raise no false hopes and to warn that what was said could be used in evidence". We agree with the judge's observation.

16. The interview continued until 1.40 a.m. when the officer asked the defendant whether he needed to rest or to go to the toilet. The defendant said he wanted to go to the toilet, whereupon the interview was discontinued for ten minutes. It resumed at 1.50 a.m. with the officer reminding the defendant that he was still under caution. The judge, in dealing with the cautioned statement, "drew a line" at 1.40 a.m. The statement from 1.50 a.m. onwards was given a different exhibit number : Ex P3. The judge thought that the interview had gone on too long and "in the absence of an urgent need there can be no justification to interview suspects through the night". However, at the trial, counsel for the defendant did not object to the statement which resumed at 1.50 a.m. and terminated at 5.15 a.m. On the contrary, counsel for the defendant wanted the whole statement Ex P3 admitted in order to "make points on the general issue". Thus, the judge admitted the whole statement into evidence but "indicated" that he would not "look at exhibit P3 as being evidence probative of the defendant's guilt and that the material was there for the purpose counsel had intimated only". In fact, Ex P3 added little to the detailed confession the defendant had earlier made.

17. On the appeal, counsel for the defendant complained that the "line" drawn by the judge was arbitrary. We agree. The judge should not have proceeded in the way he did. The judge had found as a fact that the statement was freely and voluntarily made and noted that although the interview took a long time this was because the recording in Chinese characters was long and laborious; there were under fifty questions in all. The judge also found as a fact that "this was not interrogation in the sense of a wearing down by verbal attack". Having reached this point, it is difficult to see how "the residual discretion" vested in the judge required the exclusion of Ex P3. The ruling is the more curious for the fact that it was admissible for the purposes of the defence but not of the prosecution. If evidence is relevant and admissible, it is admissible for all purposes. It is well to recall Sir Denys Roberts CJ's remarks in Lam Yip-ying [1984] HKLR 419 at 424 to the effect that the power to exclude confessions on the ground of "unfairness" should seldom be employed: "Firstly because it involves the judge in withdrawing relevant and admissible evidence from the jury whose function it is to weigh such evidence. Secondly because in almost all cases the kind of conduct which will constituted "unfairness" should already have excluded the confession as involuntary".

18. Having referred to the judge's error as stated above, we find it odd that it was made a ground of appeal, for the error favoured the defendant.

19. It is for the reasons set out above that the appeal was dismissed on 19 March 1993.