R. v. TUNG KIN KWOK

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL No.636 of 1996

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J U D G M E N T

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1. The appellant was found guilty of two counts of burglary. He now appeals against conviction. He was not represented in the court below but on the first occasion, he was represented by a duty lawyer. At the beginning of the trial, he indicated that his defence was that he did not commit the two burglaries and hence it was decided that the civilian witnesses would not be called.

2. The conviction was based solely on the cautioned statements given by the appellant. The officer said that the statements were taken in the way as recorded. He was then making inquiries from the appellant on some other matter. Under cross-examination, it was put to the officer but he denied that there was an inspector present who raised the question of two other burglaries, the subject matter of the present case. It was suggested to the officer that the inspector had induced the appellant by promising bail if he admitted the two burglaries. The appellant gave evidence in the voir dire as well as on the main issue. He said he did not sign the statements voluntarily but did so as a result of the promise offered to him by the inspector and the officer. In fact he had made a complaint to the CAPO on one or two occasions about the conduct of the police officers. He also said that after the complaint to the CAPO, he had the opportunity to go back to the police station but was then assaulted by the same officer who had apparently been made aware of his report to the CAPO.

3. From the transcript, it appears that towards the end of the trial, notwithstanding one of the earlier answers given by the appellant that he did not know where he was at the time of the burglaries, he indicated to the learned Magistrate that he could then say where he was when the burglaries were committed. So the court re-opened the issue and he was allowed to give further evidence. He called his aunt a Madam Tung. The gist of this "alibi" evidence was that the appellant was with the aunt at various times during the two days on which the two burglaries were committed. I do not think I need to go into details of this evidence. In any event, the learned Magistrate, considering the timing of events relevant, asked the appellant whether he would agree and accept that notwithstanding his presence with the aunt on various occasions during the course of these two days, he had the opportunity to commit the crimes. The appellant said he accepted that. Having heard all the evidence, the learned Magistrate accepted the evidence of PW1, the officer. He also disbelieved the appellant. He mentioned and referred to the alibi raised at the end of the trial but rejected it.

4. A number of grounds of appeal had been raised. I think the first main ground was that the learned Magistrate had failed to apply his mind to the defence case. It was said that because of this and also other matters, the appellant did not have a fair trial. The sole evidence against the appellant was clearly the cautioned statements which were ruled admissible after a voire dire. In my view, the court was then entitled to give such weight as he thought fit to these cautioned statements. The admissions made by the appellant in the cautioned statements clearly contradicted his evidence when he said he was not at the scene and he did not commit burglary. These admissions and his oral evidence cannot be reconciled. The court is entitled to accept one and reject the other. It has to see whether any reasonable doubt can be raised in favour of the appellant taking into consideration both the admissions and his oral evidence. Apparently in this case, the Magistrate accepted the cautioned statements as were true and rejected the appellant's oral evidence. In my view, that was exactly the exercise the learned Magistrate was doing when he said he accepted the confessions were voluntarily made, that due weight would be given to them in the normal way and that these confessions robbed the appellant's evidence of credibility.

5. Another main ground of appeal was that the learned Magistrate had failed to deal with the alibi defence. It is trite law that it is for the prosecution to disprove an alibi. But the appellant had to raise it first. According to the evidence of the appellant and his aunt, it seems that he was with the aunt on a few occasions and at various times, but during the course of the two days, there were in fact, opportunities when the appellant could have committed the burglaries. This is of course far from saying that because the appellant had the opportunity, therefore, he must have committed the burglaries. I think the learned Magistrate was there dealing with the alibi evidence. Having considered the evidence given by the appellant and his aunt, I think the learned Magistrate was correct to say that in fact that was not capable of being an alibi at all. I agree that there was no proper alibi. This is not a case where there was some evidence that he was not at the scene of crime or that he could not have been at the scene of crime. In my view, the learned Magistrate had sufficiently dealt with the question of alibi.

6. Finally, there was the allegation that the appellant did not have a fair trial. The first point raised was that he was not legally represented. As I said, he did have a lawyer on a previously occasion and there was no reason made known to the Magistrate or to this court as to why he did not see fit to take advantage of a duty lawyer. In any event, it was not demonstrated to me that there was any unfairness. The second point raised was that the learned Magistrate did not deal with some of the allegations raised by the appellant such as the presence of the inspector during the interview. In my view, the learned Magistrate had that point in mind when he dealt with the cautioned statements or their admissibility.

7. One minor point which was not touched upon in the oral submission was that in the written submission and the perfected grounds of appeal it was alleged that during the cross-examination, the learned Magistrate allowed an admission of a similar charge to be given. I think the learned Magistrate did say in his Statement of Findings that the answer came so quickly and he could not stop it in time. But in any event, he had ignored it. It was submitted that looking at the transcript, one would have been left with a lurking doubt. It was further argued that there were all the hallmarks of an unfair trial of a person who was not represented. Having looked at the transcript and the Statement of Findings, while I agree that it was a short trial and that some of the questions and answers were terse, it is clear that the learned Magistrate did try on several occasions to assist the appellant. I do not think any unfairness has been made out by the appellant. Nor do I think there is any lurking doubt at all. The convictions are not in any way unsafe or unsatisfactory. In these circumstances, I would dismiss the appeal.