THE QUEEN v. TO KAM-WING AND ANOTHER

IN THE COURT OF APPEAL

Criminal Appeal

No 530 of 1987

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REASONS FOR JUDGMENT

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Clough, J.A. (delivering the judgment of the court):

1. These are the reasons of the court for its order made on the 3rd March 1988 granting leave, allowing the appeals and quashing, the convictions of the appellants on a charge of robbery by His Honour Judge Baily in the District Court on the 22nd September 1987. The appellants were respectively the second and third defendants at the trial with two other co-defendants. For convenience we refer to them as the second and third defendants.

2. The defendants were charged with the robbery of the first defendant's employer on the evening of the 30th March 1987 as he was on his way home from work. The Crown's case was that the first defendant set up the victim who was then surprised by his three confederates who snatched his bracelet and a necklace with a jade pendant and relieved him of $240 and personal property including, his identity card. The third defendant was alleged to have grabbed the victim around the neck and to have threatened him with a knife while the second and fourth defendants snatched his bracelet and necklace and rifled his pockets.

3. The evidence implicating the defendants consisted of oral and written cautioned statements alleged to have been made to the police at and after the arrest of the defendants. Identification evidence given by the victim was rejected by the judge as unreliable. It was an agreed fact that on the 31st March 1987 a Chinese male had pawned a jade pendant in the name of the victim whose identity card had been produced at the pawn shop. The third defendant's second cautioned statement made on the 16th May 1987 contained an admission that he had returned to the scene of the robbery on the night of the 30th March 1987 where he had picked up the pendant which he had pawned the next day. The victim identified the pendant as his property at the trial.

4. The admissibility of all the defendants' cautioned statements was challenged at the trial at which all the defendants were represented. The judge indicated that he preferred to rule on each voir dire as it was completed. No objection was raised to such a course which the judge proceeded to adopt. He held voir dires relating to the statements of the second, fourth, third and first defendants, in that order which was the order of their arrests. He gave recorded rulings at the end of each voir dire, admitting the statements of the second, fourth and third defendants, but excluding the statement of the first defendant which was the subject of the last voir dire.

5. Following the exclusion of the first defendant's statement his solicitor's submission of no case to answer was upheld by the judge and he was acquitted. When delivering his ruling that the first defendant had no case to answer the judge held inter alia that the circumstances surrounding, the making of his oral confession were suspect. The other three defendants did not give evidence or call witnesses on the general issue. Their statements contained clear admissions of guilt. The judge accepted these admissions as being true and convicted them accordingly.

6. The investigation of the offence had been in the hands of a police action squad teams under the leadership of D/Sgt 2024. Apart from him the squad consisted of or included DPCs 3079, 20807, 20557, 21114 and 23L50. The offence having been committed on the 30th March 1987 it was not until the 15th May that the arrests began. Three defendants were arrested on that date. At 6:20 am the second defendant was arrested by DPC 3079 who post-recorded at 7:15 am an admission of quilt allegedly made by the second defendant after caution at the time of his arrest. At 7:30 am the second defendant's cautioned statement was recorded. Between 8:30 and 9:30 am his answers to questions asked, after caution, for clarification were recorded by DPC 3079.

7. The fourth defendant was arrested at 9 am on the same day by DPC 20557. A similar procedure was followed in his case.

8. The third defendant was arrested on the same day at 10:30 am by DPC 2087 who post-recorded at 11:06 am an admission of guilt alleged to have been made under caution at the time of the third defendant's arrest. At 11:35 am DPC 20807 began recording, a cautioned statement from the third defendant and between 1:56 pm and 3:40 pm the same officer recorded fifteen questions that he put after caution to the third defendant followed by the answers received.

9. The third defendant made a further statement under caution on the 16th May 1987. This again was recorded by DPC 2087. In this statement the third defendant admitted having gone back to the scene of the robbery where_, he had recovered, the jade pendant which he said he had pawned the next day, using the victim's identity card.

10. The first defendant was arrested on the 15th May 1987 at 7:35 am by DPC 23150. A similar procedure was followed in his case.

11. Inevitably, when the voir dires were held there were a number of common witnesses. The situation was one where experience has shown that credibility problems can and do sometimes arise if the judge does not reserve his decision on all the voir dires until he has heard the last one. This gave rise to one of the grounds of appeal advanced by Mr Plowman on behalf of the second and third defendants in which we considered there was substance.

12. Thus in the last voir dire concerning the first defendant's cautioned statement it was alleged by him inter alia that he did not make any confession at the time of his arrest, that DPC 23150 had fabricated his statement after Sergeant 2024 had come in to the room and given him a piece of paper and told him to do it according to that paper, that when the first paragraph was read back to him and he refused to sign the statement DPC 2087 grabbed his hair and struck him several times with his fist, and that he signed because he was very scared.

13. All these allegations and others were dented by the police witnesses, and in particular by DPC 20807 and 23150. The Crown called two doctors to give evidence about the nature of the redness and tenderness on the first defendant's chest. One of the doctors considered that these symptoms were as consistent with the first defendant's complaint of assault as with a self-inflicted injury. The other doctor, who had never seen the third defendant, expressed the view that the description of the injury was not consistent with fiat blows.

14. The judge referred in his ruling to the medical evidence and to the fact that the first defendant had complained to CAPO that he had been assaulted. He said that a reasonable doubt had been raised in his mind that force may have been used in the taking of the first defendant's statement and he gave him the benefit of that doubt. He did not therefore find it necessary to deal with the other allegations.

15. The effect of the judge's ruling was to cast reasonable doubt on the credibility of at least DPCs 20807 and 23150 regarding the very serious allegation, which both of them had denied, that DPC 20807 had assaulted the first defendant on the 16th May 1987 in the presence of DPC 23150 in order to put him in a more co-operate frame of mind regarding his statement.

16. The same officers had been involved with the other defendants on the 15th May 1997 in connection with the same investigation. DPC 2087 was a witness in the voir dire concerning the second defendant's cautioned statement which was recorded by DPC 3079. In that voir dire the second defendant had alleged inter alia that after. his arrest when he had been taken to the police station he was in a room with five police officers (one of whom must have been DPC 3079) and that one of them, DPC 20807 had grabbed the clothing on his chest, told him he was sure he had committed the  robbery and threatened to beat him if he refused to co-operate.   These allegations were denied he was sure he had committed the him if he refused to co-operate by DPCs 20807 and 3079.

17. When the judge believed these denials of DPCs 20807 and 3079 he was unaware that he was shortly going to find himself entertaining a reasonable doubt regarding the credibility of DPCs 20807 and 23150 when denying similar very serious allegations in the voir dire relating, to the first defendant. By then he had already ruled against the second defendant in his voir dire. Mr Plowman contended that the proper course to avoid credibility problems in a case such as this, where witnesses common to all the voir direr were involved, would have been for the judge to reserve his decision on the admissibility of all the cautioned statements until the conclusion of the last voir dire.

18. We agree that this is the preferahle course it is commonly adopted in the courts in Hong Kong. As it was not adopted in the present case we consider that before the close of the Crown's case the judge should have given, and made it clear that he had given further consideration to the credibility of DPCs 20807 and 3079 in the voir dire relating to the second defendant's cautioned statement. The situation is dealt with in relation to a jury trial in Cross on Evidence (6th edition) in the following, passage at p 161 which was adopted by the English Court of Appeal in R v Watson^(l):-

"It should he noted that the judge retains his control over the evidence ultimately to be submitted to the jury throughout the trial. Accordingly, if having admitted a confession as voluntary on evidence given in the absence of the jury, the judge concludes, in the light of subsequent evidence, that the confession was not voluntary, he may either direct the jury to disregard it, or, where there is no other sufficient evidence against the accused, direct an acquittal, or, presumably, direct a new trial, though the circumstances in which he will decide to take any of these courses are likely to be rare:"

19. In the present case the judge has given no indication whether he gave any consideration to these matters and certainly no reason why he considered it safe to accept DPC 20807's denials in one voir dire and not the other. He was, of course, entitled to do so, but in the absence of any manifestation of his awareness of the credibility problem that had arisen or of any indication how he proposed to resolve it, we entertained a very real lurking doubt about the conviction of the second defendant on the strength only of his cautioned oral and written statements. On this ground alone we felt that his conviction was unsafe and unsatisfactory.

20. A similar doubt arose concerning the conviction of the third defendant. In his voir dire both DPC 20807 and 23150 were again involved. In this case DPC 20807 had recorded the two statements of the third defendant who alleged inter alia that he had been taken into a room at Sau Mau Ping police station where Sergeant 2024 and DPCs 20807, 3079 and 23150 were present and that he had then been told that he would not suffer any more and would be granted hail if he admitted his guilt but, if not, he would be locked up for a few nights and beaten up until he did admit his guilt. He further alleged that DPC 23150 had hit him on his back and that DPC 3079 had struck him on his chest and pulled his hair. All these allegations were denied by the police officers concerned.

21. The judge having admitted the third defendant's statement at the end of the voir dire and believed the denials of the police officers including DPCs 20807 and 23150, whose credibility regarding denials of similar allegations had subsequently given rise to reasonable doubt in the mind of the judge at the end of the first defendant's voir dire, the same difficulties arise for the same reasons as in the case of the second defendant. We therefore considered that his conviction on the basis of his cautioned statements only was unsafe and unsatisfactory.

22. There were other grounds of appeal of varying degrees of substance, but having concluded that the ground considered above was in itself sufficient to render the convictions of the second and third defendants unsafe and unsatisfactory, it is unnecessary to deal with them.

23. We did not accede to the submission of the Crown that a re-trial should be ordered because we considered that the first defendant (in chose voir dire the police evidence had been doubted) having been acquitted below, the second and third defendants might be prejudiced in a re-trial in which he would not he involved.

IN THE COURT OF APPEAL

No 530 of 1987

(Criminal)

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J U D G M E N T

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Kempster, J.A. :

24. On 22nd September 1987 Chin Sik To, To Kam Wing and Ho Chi Keung were convicted of robbery by Judge Baily in the District Court. All three made applications for leave to appeal against such convictions but on 17th December 1987 Chan Sik To gave notice to the Registrar that he abandoned his appeal which, in consequence, was deemed dismissed. Rule 39 of the Criminal Appeal Rules refers. The applications of the other two men were pursued and were successful. Another division of this Court quashed their convictions on 3rd March 1988 following which, on advice, Chan Sik To petitioned His Excellency the Governor to refer his case to this Court notwithstanding the earlier dismissal. His Excellency acceded to the petition by instrument dated 19th of this month. The case is to be treated for all purposes as an appeal rather than an application for leave to appeal. The grounds which have, been filed are the same, mutatis mutandis, as those which were relied upon by To Kam Wing and Ho Chi Keung.

25. The evidence of identification having been found unsatisfactory at trial the judge relied upon oral and written confessions in convicting Char. To and Ho. Those confessions, together with that of another accused, the first defendant, were challenged as involuntary; allegedly having been procured by the use of force and threats by two police officers present on all relevant occasions. A voir dire was held in relation to each defendant and that relating to the confession of the first defendant was the last to be heard. The judge was not satisfied that the confession was voluntary and acquitted that-defendant on a submission of "no case". By then he had accepted the police evidence in relation to the circumstances in which the confessions of the other three accused, including Chan Sik To, were made. The other division of this Court felt a lurking, doubt as to the propriety of the convictions of the applicants To and Ho whose applications for appeal were pursued before it on grounds of consistency and quashed them.

26. Today it is submitted on behalf of Chan that a similar doubt must arise as to whether the oral and written confessionsupon which his conviction was based were voluntary. No distinction, it is submitted, falls, to be drawn between the circumstances in which his confessions and those of his co-accused were made.

27. We respectfully agree with the terms of the careful reserved judgment given by Clough JA on 15th March 1987 and ourselves feel a lurking doubt as to the voluntary nature of Chan's oral and written confessions.

28. In the circumstances we allow the appeal and quash his conviction.

(1) (1980) 70 Cr. App. R. 273 (C.A.)