THE QUEEN v. KEUNG SAI CHUNG (D2) AND OTHERS

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JUDGMENT

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Cons, V.-P. delivered the judgment of the Court:

1. This appeal is concerned with robberies perpetrated upon various goldsmiths shops. Five took place in January 1984 on shops situated respectively in Shamshuipo, Aberdeen, Hunghom, Taipo and Taikoktsui. The robbery at Taipo did not succeed, but in all the others the thieves made away each time with a considerable amount of gold ornaments.

2. On the 24th February another robbery was attempted, this time in Kowloon City. This too was a failure, but in a shoot out with two Constables on the scene, one of the thieves was injured. This led to his arrest not long afterwards and ultimately to the arrest of six other persons. In due course the six were brought for trial, charged with various offences of robbery, attempted robbery, shooting with intent, possession of arms and ammunition and of handling.

3. The cases for the Crown rested almost entirely upon confessions, although one of the Defendants, the original 3rd Defendant, turned Queen's evidence shortly before the trial and gave evidence in respect of three of the robberies.

4. The voir dire lasted for some 11 weeks. During its course evidence was given by the various officers who formed the police investigation team, which was headed, for day to day purposes, by a Detective Senior Inspector Ng, supported by a Detective Sergeant 6709 and several Detective Constables. The Inspector gave his evidence first and then, as we understand is not uncommon, remained in Court to assist counsel for the Crown. To this end the Inspector made notes of the evidence given by other witnesses on the voir dire, including of course, that of his own officers.

5. At the conclusion of the evidence, and after hearing submissions by counsel, the Judge gave his ruling. He admitted some of the proffered confessions, he rejected others. Then the trial proper began before the jury. It was necessary of course to call again the evidence of the police officers. The Inspector was the first to go into the witness-box, with the others to follow as before. As the Inspector neared the end of his evidence he was approached out of Court by his Sergeant with a request that he read back to the Sergeant the evidence that the Sergeant had given during the voir dire proceedings. The Inspector agreed to do so, and the Sergeant's being unable to understand English, the Inspector translated into Cantonese the notes that he had taken earlier.

6. This matter was brought to the attention of the trial judge, and of course to the jury, during the cross examination of the Inspector The Judge was not specifically asked to make any ruling but his comments at the time indicate that he saga no objection to what had happened. The question came up again later when an application was made to exclude the Inspector from Court for the rest of the trial. This time the Judge, in refusing the application, made clear to the jury that he saw nothing in the incident to substantiate "the allegations of coaching etc." that had been made.

7. It is submitted nova on behalf of the 2nd, 5th and 7th Defendants that the incident constituted a material irregularity in the trial, on the principle that from the time a witness first enters the witness-box until he concludes his evidence, which in the present circumstance is said to have been from his first evidence on the voir dire until his last evidence on the general issues, the witness is not permitted to refresh his memory other than from documents made contemporaneously with the events of which he is speaking. This principle is said to apply to the witness whether he be in or out of Court. Reference is made to the usual practice of warning current witnesses not to discuss their evidence during an adjournment about to be granted.

8. It is well settled that a witness may refresh his memory before giving evidence from a statement which was made earlier. The reasons why are set out in the judgment of the Full Court in R. v. Lau Pak Lam ⁽¹⁾ and have been approved by the Court of Appeal in England in R. v. Richardson⁽²⁾ There is nothing in those reasons to suggest that the principle is limited to statements made contemporaneously, and indeed counsel for the Defendants concedes that no objection could be taken were a witness to be shown before the trial a copy of his deposition taken at committal proceedings, including, if appropriate, the cross examination that then took place.

9. In our view the same principle is particularly apt to the present circumstances. The record indicates that when the Sergeant asked for the notes to be read to him it was then just over 6 weeks,since he had concluded his evidence on the voir dire. The position might be different were it only a question of days, but we would observe that even then no authority has been. shown to us to warrant the exclusion of the subsequent evidence or the vitiation of the trial. It seems to us to go to the weight of the evidence, no more, a matter for?the jury. In that respect we might add that, as we have earlier indicated, the jury were fully appraised of the situation in the present instance.

10. The 2nd Defendant is one of those who gave evidence on the voir dire. Towards the end of the morning on his third day of cross-examination, i. e. the 1st November 1984, he declined to answer questions. A little later, having in the meantime answered a few more, he declined for a second time. He complained of feeling dizzy and of feeling ill. The Court adjourned until after lunch so that if necessary arrangements could be made for him to be seen by a doctor. When the Court resumed the prison doctor informed the Judge that the 2nd Defendant was not able to attend, that he had been "a little aggressive, shouting and talking nonsense". He had given the 2nd Defendant an injection to sedate him. The Judge therefore continued the voir dire with matters that did not affect the 2nd Defendant.

11. The 2nd Defendant did not appear in Court again until the afternoon of the following Monday i.e. the 5th November. His counsel then observed that the 2nd Defendant appeared to be unwell and that arrangements had been made for him to be examined by a psychiatrist later that afternoon. Proceedings were adjourned.

12. The following afternoon, that is the 6th November, the psychiatrist, a Dr. Kingscote gave evidence. He spoke of a significant improvement in the 2nd Defendant from the day before and thought that, although it might take longer to make a firm diagnosis of the disorder, it might well be that he would be sufficiently recovered within a few days to be able to continue his trial. The symptons that the doctor spoke of were lack of comprehension, fear and hallucinations in the form of an image which the 2nd Defendant Felt to be threatening him. The Judge ordered a remand to Siu Lam, which is the Psychiatric Centre of the Correctional Services Department, for observation.

13. The 2nd Defendant was next in Court on Monday the 12th November. That afternoon Dr. Kingscote gave further evidence. In answer to defence counsel he gave as his opinion that the 2nd Defendant was "fit to continue in Court today", and later "Anyway, he's completely fit at present". When asked if the previous condition was likely to recur under the stress of cross-examination he agreed that it was possible and that there were, as he put it, "some elements of vulnerability continuing". However he thought that with the passage of time and the benefit of the counselling that the Defendant had received in Siu Lam the long term prognosis would be good.

14. The 2nd Defendant apparently remained in Court for the rest of that day and the next morning his cross-examination via s resumed. Mr. Keane, who was not in the case below but now appears for the 2nd, 5th and 7th Defendants, has drawn our attention to several answers as indicating that the Defendant was then still labouring under a disability. In our view they cannot be so construed. Cross examination was concluded at 12 noon. The Defendant's own counsel did not re-examine.

15. Section 75 of the Criminal Procedure Ordinance Cap. 221 provides as follows -

"75.   (1)    Where on the trial of a person the question arises (at the instance of the defence or otherwise) whether the accused person is under disability, the following provisions shall have effect.

 

        (2)     The court, if having regard to the nature of the supposed disability is of opinion that it is expedient so to do and in the interests of the accused person, may postpone consideration of the said question (hereinafter referred to as the question of fitness to be tried) until any time up to the opening of the case for the defence, and if before the question of fitness to be tried falls to be, determined the jury return a verdict of acquittal on the count or each of the counts on which the accused person is being tried that question shall not be determined.

 

        (3)     Subject to subsection (2), the question of fitness to be tried shall be determined as soon as it arises.

 

        (4)     The question of fitness to be tried shall, be determined by a jury; and-

         (5)    Where in accordance with subsection (2) or (3) it is determined that the accused person is under disability, the trial shall not proceed or further proceed.

 

      (6)     In this section 'verdict or acquittal' does not include a special verdict that the accused person is not guilty by reason of insanity."

16. At no time did either the prosecution or the defence raise a question of whether the 2nd Defendant was under disability. It is now complained however that the trial judge should have done so of his accord, under the "or otherwise" provision of subsection (1). The crucial date is said to be the 6th November, after the evidence that day of Dr. Kingscote, when the Judge should either have impanelled a jury to try the question then and there, or at least have postponed it for decision, by the jury which was subsequently impanelled, at sometime before the 2nd Defendant was required to open his defence.

17. Section 75 is taken from Section 4 of the Criminal Procedure (Insanity) Act 1964 and is in almost identical terms. With regard to the latter the Court of Criminal Appeal has said ⁽³⁾ -

"As it seems to this court, the issue here depends upon the true construction of section 4(1) of the Act of 1964, in particular on the arises (at the instance of the defence or otherwise) ... ' It is suggested that the question arises whenever a doubt arises in the mind of the judge as to whether a man is fit to plead or not. The court cannot accede to that argument; it seems to this court that the question arises in the ordinary case where the prosecution or the defence get up before arraignment, and say to the judge that there is a preliminary issue, namely, as to whether the defendant is fit to plead. There seems no reason why any different interpretation should be given to this section when considering the judge himself. The judge may have had in the past doubts in the matter; he may have thought it over, the doubts may have been resolved, and it is not until he, at the trial and before arraignment, decides that he should raise the question that a question does arise. The court is quite unable to say that the original adjournment of the case for medical reports, the reading of the reports when obtained, or the questioning of the one doctor showed that a question had been raised at the trial within the meaning of section 4(1) of the Act of 1964."

18. In our view the position in the present instance was in principle the same. It may be that after hearing Dr. Kingscote on the 6th November the Judge had some doubts, but it is clear that he was not disposed to come to any conclusion at that time. He wished to see how the Defendant would progress and then, with the aid of further evidence, he would be able to decide whether, as it was put in R. v. Khallouf⁽⁴⁾, there was "a real and substantial question as to the applicant's fitness to be tried" or whether the Defendant had recovered from what had been no more than a temporary indisposition. The Judge came to the conclusion that it was the latter and on the evidence before him we see no reason to think that he was wrong.

19. It is suggested that the possibility of recurrence was such that the question ought in any event to have been left to a jury. We do not agree. Section 76 of the Ordinance provides that where "a finding is recorded that the accused person is under disability, the court shall make an order that the accused person be admitted to the Correctional Services Department Psychiatric Centre or such mental hospital as may be specified by the Governor" and that he shall remain there unless "the Governor, after consultation with the medical superintendent, is satisfied that (he) can properly be tried". We have already referred to such evidence as there was with regard to "continuing vulnerability". We are not persuaded that it was such as required the Judge to put the Defendant to that risk in the absence of a request made on his own behalf.

20. The 5th Defendant raises two further grounds of appeal. The first is that "Generally the Crown evidence as to the admissibility of the cautioned statements was insufficient and unsatisfactory". Comments are then made in relation to various parts of the evidence and the ground concludes "In the premises it is submitted that the evidence was inadequate to satisfy the court beyond reasonable doubt of the voluntary nature of the statement. It is further submitted that the prosecution never affirmatively proved the cautioned statement was freely and voluntarily taken".

21. Our attention has been drawn to several points in this respect:-

                1.     There was a discrepancy in the evidence of the police officers. To appreciate this it is necessary to understand that some, if not all, of the Defendants had made complaints to the Complaints Against Police Office alleging ill-treatment by the police. As a result inquiries had been made of the police team by a woman police sergeant attached to CAPO. A question arose during the course of the voir dire whether the allegations made to CAPO had become known to the police team by April 1984. Detective Sergeant 6709 admitted that they had and that he had in fact discussed them with the others. The rest of the team however denied all knowledge.

                2.     Evidence was given by a Dr. K.B. Chan who examined the 5th Defendant on his admission to Lai Chi Kok Reception Centre 8 days after his arrest. He found burns and bruises which he estimated to have been inflicted respectively between 5 and 10 and between 7 and 14 days earlier, that is, consistent with the Defendant's version of ill-treatment on the evening of his arrest.

                3.     On the other hand 3 days before that examination the Defendant had been taken to Queen Elizabeth Hospital for treatment of what Dr. Chow, whom he then saw, described as something like scabies. The doctor observed no other abnormality on the Defendant's hands, where the burn marks were subsequently observed. (He could not remember having examined the Defendant's body, where the bruises were later discovered.) Nor did the 3rd Defendant make any complaint on this occasion, although he explained that he was inhibited by the fact, that he was then in police custody and shackled.

                4.     The original 3rd Defendant who gave evidence for the Crown said he had been in the cells with the 5th Defendant at both Kowloon City and Shumshuipo Police Stations and later at the Lai Chi Kok Reception Centre He said that in the cells of both police stations kindly guards had given him cigarettes to smoke. At Lai Chi Kok Reception Centre of course, being part of the Correctional Services Department, cigarettes are freely issued. At no stage did the 3rd Defendant allege that he saw the 5th Defendant in possession of a cigarette but the implication was clear.

22. This evidence came late in the Crown's case on the voir dire and was apparently based on a statement given by the witness after some at least of the police officers had already given their evidence. Copies of that statement had been served on the defence only 2 days before the evidence was proposed to be led and was possibly inconsistent with statements that the witness had earlier made when bringing his complaint to CAPO. Objection was taken that 7 days' notice should have been given but after lengthy discussion counsel was content with an adjournment of one hour. At the same time the defence suggested that some of the police witnesses, in particular the Detective Senior Inspector and his immediate superior who was ultimately responsible for the investigation, ought to be recalled to explain how the 3rd Defendant had come to make such a statement at that stage of the proceedings. It is complained that the Judge refused to do so. As we read the transcript it does not seem that he was ever specifically asked. The request was made to counsel for the Crown, who offered the Constable responsible for taking the statement from the 3rd Defendant, but no more. The offer was not accepted. Nevertheless it does seem probable from his comments generally that had he been asked the Judge would in fact have refused. In our view he would have been correct to do so.

                5.     After the 5th Defendant's arrest and his making of the statement in question at the headquarters of the Regional Crime Unit which is in Kowloon City, he was detained in the cells of Homantin Police Station for 2 days. Thus it is said there were "independent" police witnesses who might have been able to give affirmative evidence that the allegations made by the Defendant were untrue and that in that circumstance the witnesses ought to have been called. No authority was quoted in support of this submission and the only authority of which we are aware, R. v. Lo Wing Cheung⁽⁵⁾, is to the contrary.

               6.     At the close of his cross examination of the 5th Defendant counsel for the Crown declined what seemed to have been an invitation from the Judge to put to the witness the suggestion that the Defendant had inflicted the injuries upon himself or that he had caused some other person to do so. Counsel observed that the Croon case had at no time been that the witness inflicted his own injuries, merely that the police did not, a suggestion which he had in fact put to the 5th Defendant. We would respectfully agree with the position taken by counsel.

23. Points 1 and 2 are such as could be, and no doubt were, urged upon the trial judge in favour of the Defendant, but they are by no means conclusive. Point No. 3 is to some extent against him. The rest have no relevance. There was ample other evidence on which the Judge could find the statement eras voluntary and we see no reason to interfere.

24. The 5th Defendant's second ground of appeal is that "The learned judge in his summing up passed improper comments, which were detrimental to the Appellant, inaccurate, speculative and lacking in judicial balance".

25. The "inaccuracy" suggested is that in summing up the Judge spoke of the Defendant's claim that he was "hit and poked with a wooden pole for a period of one and a half hours", whereas the evidence mentioned - after some discussion with the interpreter - "a wooden stick" and the beatings' being only "discontinuous" or "on and off" for that period of time. We think we need say no more.

26. The Judge went on to observe to the effect that, despite the alleged extensive beating and burning, all there was to show was, apart from the accepted burn marks, two small bruises on the Defendant's chest and four more bruises on his back. The Judge commented -

"It seems to me that either he must be seriously exaggerating this beating up the assault by the police - and that he could not have been tortured as suggested or else in fact it never happened at all and he or somebody else inflicted these bruised marks and burnt marks on his body."

We do not regard that comment as speculative, or in any way unfair.

27. Finally in this respect we are asked to note that the constable who recorded the contested statement from the 5th Defendant, that is DPC1462, had thereafter recorded two statements from the 6th Defendant. All three statements concluded with almost identical words to the effect that "the above statement consisting of so many pages has been read over by me all is true and correct. No alteration is necessary", followed by the signature of the appropriate Defendant. The statement which the Constable had prepared for committal proceedings however said simply "I had read over the statement in punti dialect to him. He himself expressed that it was correct and no alterations were required. Also signed. I signed as well." Under cross-examination the Constable admitted that by mistake he had omitted one sentence, i.e. that the Defendant himself had also read the statement.

28. It is suggested that in the light of this error (repeated in respect also of the two statements of the 6th Defendant), the 5th Defendant's limited education and the fact that the statement was admittedly based on the Constable's own recollection of what had earlier transpired, the Judge ought to have warned the jury more strongly of the possibility that in reality the statement was not that of the 5th Defendant at all. These considerations however were reflected in the summing up and in addition the Judge dealt with Constable 1462 in terms that were by no means favourable to him. We see no judicial imbalance.

29. A separate ground of appeal by the 7th Defendant alleges misdirection by the Judge with regard to the Appellants credibility. It is necessary to set out exactly what the Judge said -

"        He 7th Defendant) says that 1327 tortured him by pressing down on the left side of his chest where the operation had been performed and that that man scolded him and twice threatened him. Also that he snatched the oxygen, kept it away from him when he himself had turned over to the wall and just wanted to have nothing more to do with the detectives.

 

        He wasn't closely cross-examined on these allegations - I don't mean "allegations" on these claims that he made in evidence. But what I think was of significance was that these particular allegations were never put to the detectives in cross-examination - these allegations of physical mistreatment. Indeed, was never suggested to 1327 - and none of these suggestions were ever put to 1327.

 

        The other detective 1565 was only asked, when he gave evidence, if he had interfered with the 7th accused's system-tubes connecting him with his body. I think at that stage it was suggested that he had some saline drips and glucose drips, and so forth, and that there had been interference with those tubes.

 

        So this indicated that the 7th accused was telling a completely different story in the witness-box before you, from what he must have told his lawyers earlier, because they put a completely different case to the police witnesses. So you may feel that you can't believe anything of what he has told you now in evidence and you may feel, as was suggested to him in cross-examination by Mr. Pallaras who appeared for the Crown, that he has concocted this whole story as to how the statement was taken."

30. It is said that the comment made by the last paragraph is unfair as the Judge well knew, although the jury did not, that the story told by the Defendant to the jury was in substance the same as he had told to the Judge on the voir dire. That is so, give or take some slight embellishment on the second occasion. But what the Defendant had originally told his counsel is reflected in the misconduct first alleged by his counsel on the vior dire. There, so far as ill treatment was concerned, the misconduct had been limited to a hand upon the drainage tubes, disconnection of which, the doctor had told him, might prove fatal. In the circumstances we do not feel the Judge's comment to the jury was unjustified.

31. It is then said that even so the comment went too far with the suggestion that "you may feel that you can't believe anything of what he has told you now in evidence" (the emphasis is our own), for the Defendant had given evidence in respect of other aspects of the case With respect we do not agree. The Judge'.s comments at that stage were clearly limited to the disputed confession.

32. We turn now to the 4th Defendant who is separately represented by Mr. van Buuren, who as well did not appear in the case below.

33. His first ground of appeal is that "The learned trial judge erred in regard to his directions to the jury on the law relating to the five counts of handling stolen goods - (which however related to only four robberies) - in that he failed to direct the jury that if they found that the 4th Defendant had taken part in any of the robberies from which the stolen goods had come, they should in law acquit the 4th Defendant of the count that 'mirrored' that robbery." It is now conceded that the law does not go that far, that the two offences are not necessarily mutually exclusive. It is accepted instead that the law is correctly stated in Archobld⁽⁶⁾ -

"As is submitted in § 18-5, almost every handler of stolen goods will also commit the offence of theft: however, because of the proviso to section 22 (post § 18-147) that to be guilty of handling, a persons's handling must take place otherwise than in the course of the stealing, a person who handles goods during the course of the appropriation that makes them stolen goods cannot be convicted of an offence contrary to section 22, but if he handles them during the course of any subsequent appropriation then the proviso is no bar to a conviction under section 22."

34. Section 22 of the Theft Act 1968 is in terms identical to Section 24 of the Theft Ordinance Cap. 210.

35. Our attention is drawn however to the paragraph immediately preceding that we have just quoted where the learned editors of Archbold⁽⁶⁾ quote from R. v. Hale⁽⁷⁾ that -

"The act of appropriation does not suddenly cease. It is a continuous act and it is a matter for the jury to decide whether or not the act of appropriation has finished."

36. It is suggested that with regard to all four robberies there was some material before the jury from which they could have inferred that the Defendant took part. With regard to three of the robberies we would respectfully say that the suggestion is fanciful, but that does not apply to the robbery at Hunghom. The evidence of the 3rd Defendant was that the 4th Defendant was the organiser of that robbery and was indeed present outside the shop to give the final go ahead. However, thereafter he took no active part and it was not until after the actual robbers had completed their raid and made good their escape in a stolen car that the 4th Defendant was called, by means of his paging machine, to a restaurant in Jordan Road where taro of the thieves awaited him to hand over the gold ornaments which had been stolen. In the meantime the two had taken the two other thieves to the Hunghom Railway Station and then abandoned the car in a small roadway in Tsim Sha Tsui.

37. In reliance upon the dictum from Hale⁽⁷⁾ it is said that it should have been left to the jury to decide whether the 4th Defendant's appropriation in the restaurant was an appropriation still within "the course of stealing".

38. We respectfully accept as correct the law as expounded in Hale⁽⁷⁾,   but we find it impossible to accept that any jury could have so found on the facts we have just recounted. It visa simply not an issue in the case.

39. We may perhaps note in passing that evidence of the 4th Defendant's participation in that robbery came only from the 3rd Defendant. In his cautioned statement the 4th Defendant specifically denied it. By their acquittal of the 1st Defendant the jury appear to have been unwilling to accept uncorroborated evidence by the 3rd Defendant.

40. For grounds 2 and 2A it will perhaps help to set out Section 24(1) in full -

"        A person handles stolen goods if (otherwise than in the course of the stealing) knowing or believing them to be stolen goods he dishonestly receives the goods, or dishonestly undertakes or assists in their retention, removal, disposal or realization by or for the benefit of another person, or if he arranges to do so."

Precedents for indictments under the Theft Act are set out in Archbold ⁽⁸⁾ in the alternative. The Statement of Offence in each case is the same, "handling stolen goods", but the Particulars in one recite that the Defendant "dishonestly received certain stolen goods etc." while in the other that the Defendant "dishonestly undertook or assisted in the retention etc." of the same.

41. In the present instance the draftsman of the indictment chose not to follow either, but to allege instead that the Defendant "dishonestly handled a quantity of gold ornaments etc.".

42. At one stage such an indictment may have been defective. This appears from the cases of Sloggett⁽⁹⁾ , Marshall ⁽¹⁰⁾ and Alt ⁽¹¹⁾ However the later cases of Will is and Syme^(12), Pitchely⁽¹³⁾ and Deakin ⁽¹⁴⁾ took a more liberal approach which was accepted later in Nicklin⁽¹⁵⁾-

"It is conceded by both counsel that the effect of those cases - (those to which we have just referred) - is this. An indictment which alleges an offence of handling simpliciter unparticularised, is not a defective indictment, although that was so stated in one case, and convictions of a particular type of handling can be upheld where allowing the charge in that generalised form has led to no injustice or confusion; but the better practice is to particularise the form of handling for which the defendant is blamed. If the prosecution were to consider and provide for all possible forms of handling within subsection (1) of section 22 of the Theft Act, some 18 counts might be necessary. That would be absurd but the prosecution ought, generally speaking, to nail its colours to the mast of a particular form of handling. If there is any uncertainty about which form of handling, two counts will generally cover every form: one count for the first limb, dishonestly receiving, and a second for the second limb, dishonestly undertaking or assisting in the retention, removal, disposal or realisation, with arrangement to do those things if need be. The second count, covering all those alternatives, would not be bad for duplicity and might be advisable. It is quite clear that in many cases a second count would be advisable but a second count alleging only one or two of the alternatives set out in the section, perhaps assisting in the retention or removal, something of that kind."

43. In R. v. Bloxham⁽¹⁶⁾ the House of Lords was called upon to answer the question -

"        Does a bona fide purchaser for value commit an offence of dishonestly undertaking the disposal or realisation of stolen property for the benefit of another if when he sells the goods on he knows or believes them to be stolen?"

There the defendant had purchased a car, not knowing it to have been stolen, by paying so much on account, with the balance to be paid on the receipt of registration documents which were in fact never produced. About 11 months later he sold the car to a person who was willing to purchase the same without documents, but realising by then that the car was in fact stolen and that he was acting dishonestly. Their Lordships answered the question in the affirmative for the reasons set out in the speech of Lord Bridge of Harwich, with whom the rest of their Lordships agreed. Those reasons have no present relevance, but at page 113 there appears this paragraph-

"         It is, I think, now well settled that this subsection creates two distinct offences, but no more than two. The first is equivalent to the old offence of receiving under section 33 of the Larceny Act 1916. The second is a new offence designed to remedy defects in the old law and can be committed in any of the various ways indicated by the words from undertakes to the end of the subsection. It follows that the new offence may and should be charged in a single count embodying in the particulars as much of the relevant language of the subsection, including alternatives, as may be appropriate to the circumstances of the particular case, and that such a count will not be bad for duplicity. It was so held by Geoffrey Lane J. delivering the judgment of the Court of Appeal in Reg. v. Willis [1972] 1 W.L.R. 1605, and approved by the Court of Appeal in Reg. v. Deakin [1972] 1 W.L.R. 1618. So far as I am aware, this practice has been generally followed ever since."

44. Taken literally the first two sentences of this paragraph would appear to overrule the line of cases, culminating in Deakin ⁽¹⁴⁾ and approved in Nicklin⁽¹⁵⁾ to which we have just referred, for an indictment which charged in one count two distinct offences would inevitably be bad for duplicity. However it is not easy to accept that their Lordships intended such a result, without expressly saying so, in a paragraph which is basically no more than an introduction to a completely different point. No reference had been made to Nicklin⁽¹⁵⁾ in the argument, but their Lordships do appear to approve of Willie ⁽12). In the Weekly Law Report of that case ⁽¹⁷⁾, the reference given by Lord Bridge, the headnote reads

"Held, dismissing the appeal, that, although it was both advisable and desirable that the prosecution should particularize in a count of handling stolen goods under section 22 of the Theft Act 1968 the form of handling alleged, there was no obligation on the prosecution to do so ....."

In these circumstances we respectfully think that their Lordships did not intend to make any change.

45. The prosecution certainly did not, as Nicklin⁽¹⁵⁾ suggests it should, nail its colours to any particular mast. But the Judge did, that of undertaking or assisting in the realisation of the stolen goods. It is true that he failed to direct the jury that the Defendant's conduct had to be by or for the benefit of another person", but, accepting the truth of the 4th Defendant's confession, as they must have done, the jury could not have failed to find that in each case it was.

46. It is suggested that nevertheless there was confusion and injustice, because, for example, the evidence of the 3rd Defendant established a receiving equivalent to the old offence. Alternatively the same could be derived, with the help of Section 26 by which references to stolen goods include the moneys into which they have been converted, from the Defendant's own confession in relation to the same robbery for he had admitted the receipt of $8,000 from the $50,000 for which the goods were sold. There are also two more less clear instances in the confession from which it might perhaps be thought that the 4th Defendant touched other stolen goods or their proceeds.

47. However ore confess ourselves unable to see how in the circumstances any confusion or injustice could possibly have arisen. The jury were at no time instructed as to the old offence or as to the provisions of Section 26. The crucial question for them was the truth of the Defendant's confession. Likewise the defence cannot have been confused. It was known from the very beginning what evidence needed to be met.

48. Ground 3 of the 4th Defendant complains that there was insufficient evidence to establish guilt on the 13th count. The relevant part of the confession is at page 160 of the Bundle In effect two objections are raised. Firstly that the date is given only by reference to the lunar calendar and secondly that the statement speaks only of a robbery in Tai Kok Tsui.

49. It is accepted that "the 29th day of the 12th month of last lunar year", to which the 4th Defendant referred, was in fact the 31st January 1984. That disposes of the first objection. As to the second, the indictment alleges that the stolen gold belonged to one Chan Pui Loi. That gentleman said in evidence that he was the owner of the Dor Hei Goldsmith Shop at 24 Pine Court, Ground Floor, but did not mention in which district that was to be found. He testified that his shop was robbed on the 31st January.

50. The indictment for the actual robbery puts the Dor Hei Goldsmith Shop in Mongkok, but we have to observe that an indictment does not constitute evidence. The 4th Defendant in his statement assumes that the gold he handled was stolen from the Dor Hei in Tai Kok Tsui and there is nothing in the other evidence to suggest that it might have come from somewhere else. In our view, if the jury were satisfied of the truth of the Defendant's confession, there was sufficient evidence to convict.

51. Ground 4 relates to the 3rd Defendant's evidence that the 4th Defendant organised the robbery at Hunghom and is based on the premise that it is never permissible to lead evidence which indicates that an accused person is guilty of an offence other than that with which he is then charged. As such it is clearly misconceived. Further argument however is advanced that its probative value was so far outweighed by its prejudicial effect that the Judge in his discretion ought to have excluded it. The prejudicial effect is said to be that the jury would have been led to think that the 4th Defendant also masterminded the three further robberies which were connected with the other handling charges. We think that highly unlikely. On the other hand the evidence was of good probative value, in that it established that the 4th Defendant well knew that the goods were stolen. No judge would have excluded it.

52. Ground 5 takes objection to the following passage from the summing up-

"        The prosecution rely mainly on the accused's own very frank admissions in his cautioned statements to 1327, and these are that he arranged for a buyer for the stolen property in the first and the fourth robberies, that he was trying to find a buyer in respect of, the loot from the second robbery, and that he got commission in respect of the proceeds from the 4th robbery.

 

        They also rely on the fact that, when he was arrested by the police, that he was so relieved that they accepted his denials of taking part in the robbery, that he cooperated with the police and, of course, made a complete a clean breast of his involvement as handler."

53. In particular it is said that he usurped the function of the jury by his use of the adjective "frank" to describe the admissions and the expression "the fact that" in regard to what was only a prosecution suggestion.

54. We would with respect suggest.that the Judge's choice of the latter expression was perhaps unfortunate,but we are satisfied that in the context the jury must have realized that he was doing no more than repeating the prosecution gloss upon the police evidence which, we feel bound to add, was in this respect uncontradicted. As to the adjective "frank", that is just what on their face the admissions appear to be.

55. Ground 6 alleges the occurrence of material irregularities during the trial of the voir dire. The first is the Judge's refusal to allow cross examination of the police officers as to what particular evidence or information was in their possession to justify the arrest of the Defendant. If there were little or none counsel would then be able to suggest to the Judge a strong motive for misconduct on the part of the police.

56. We see no reason why questions designed to elicit specific details of the evidence or information should be allowed, for that would lead only to endless discussion as to its sufficiency. But a comment of the kind envisaged, if justified, would be a fair comment to make eventually to the Judge. In order to establish a base for that comment, counsel should be allowed to ask questions in a general form. As however it is a matter that goes only to credibility counsel would of course be bound by the answer that he received. In the present instance no harm can have been done by the refusal, for the Judge would have been well aware that there was little evidence in the case other than the cautioned statement.

57. The second irregularity is said to consist in counsel for the Crown's objection that the 4th Defendant, when giving evidence, was dealing at length with matters that were not contentious, and that the Judge approved the interruption with the words "I don't really know where all this is getting us".

58. The incident occurred in the 4th Defendant's examination in chief, although examination is hardly a fitting description. We find the Defendant being allowed to ramble on for page after page of the transcript with little or no effort at control. The interruption was more than justified.

59. Thirdly complaint is taken to the Judge's having rejected what defence counsel intended to be his final question: "Was any of the content of that statement that you emote, written voluntarily or not?" The Judge thought that to be a question for him alone.

60. It has been held that police officers may not be asked that question and presumably the same would apply to a defendant, although in each case the answer is unlikely to add-much to the evidence which will have gone before. Be that as it may, in the present instance the Judge's words appear to us more of a comment than a rejection, and the question was in fact put immediately afterwards, although in different words.

61. The final objection is taken to a whole series of questions put by counsel for the Crown in cross examination with regard to the instructions that the Defendant had, or perhaps had not, given to his legal advisers.

62. We understand that cross-examination of this kind is by no means uncommon. Frequently as it did in this instance, it must add considerably to the length of the proceedings. In our view it is not justified. A defendant's communications with his legal advisers are privileged and he should not be asked questions which can only be satisfactorily answered by waiving that privilege. An apparent deviation from instructions is a fit subject for comment, but that should be sufficient. However in the present instance no objection was taken at the time and taking the 4th Defendant's evidence in its entirety we do not think that part of the cross-examination can have influenced the Judge's decision.

63. Ground 7 arises from an incident during the course of the voir dire. It was suggested that during a short adjournment while the 3rd Defendant was in the course of giving evidence he was approached by the 4th Defendant who used words that could be construed as intending to interfere with the 3rd Defendant's evidence. This was brought immediately to the notice of the Judge on the resumption. The 4th Defendant's counsel, having taken instructions, denied the allegations but in view of the fact that his client was still on bail and realizing the effect that conduct of that kind might have upon his position, counsel suggested to the Judge that rather than spend time in hearing evidence as to what had actually occurred the Judge should simply warn his client against anything of that nature in the future. The Judge accepted the suggestion and gave a perfectly fair warning in which he made clear to the 4th Defendant that he was not going to inquire into the incident itself.

64. It is now suggested that even so justice may not appear to have been done in that it might be thought that the incident nevertheless influenced the Judge unfavourably towards the Defendant. In our view no reasonable person could take that view.

65. The final ground of the 4th Defendant's appeal is not easy to understand and seems to suggest that where the misconduct of the police in relation to a cautioned statement is said to be by way of improper inducement, rather than by way of threats or violence, the normal rule that a judge is under no obligation to give reasons for admitting or rejecting the statement does not apply. No authority has been produced to support the suggestion and we are unable to discern any rational principle on which it can be based. We accordingly find no merit in it.

66. For these reasons all applications for leave to appeal against conviction are dismissed. We would be pleased to hear counsel with regard to those relating to sentence.

(1)    [1966] H.K.L.R. 246

(2)    [1971] 55 Cr.App. R. 244 at 250

(3)   R. v. McCarthy [1967] 1 Q.B. 68 at 73G

(4)    [1981] V.R. 360

(5)    [1979] H.K.L.R. 550

(6)    42nd Edition, para. 18-12, page 1218

(7)    [1976] 68 Cr. App. R. 415 at 418

(8)    Para. 18-148 page 1283

(9)    [1971] 55 Cr. App. R. 532

(10)   [1972] 56 Cr. App. R. 263

(11)    [1972] 56 Cr. App. R. 457

(12)    [1975] 57 Cr. App. R. 1

(13)    [1973] 57 Cr.App.R. 30

(14)    [1972] 56 Cr.App.R. 841

(15)    [1977] 64 Cr.App.R. 205 at 208

(16)    [1983] 1 A.C. 109

(17)    [T972] 1 W.L.R. 1605