HKSAR v. YAU LAI KIT

CACC77/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 77 OF 2005

(ON APPEAL FROM DCCC 1231 OF 2004)

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J U D G M E N T

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Lunn J (giving the judgment of the Court) :

1. The appellant, who appears in person, appeals by leave of Yeung JA against his conviction by His Honour Judge Whaley in the District Court of a single charge of attempted robbery, contrary to section 10 of the Theft Ordinance, Cap.210 and section 159 of the Crimes Ordinance, Cap.200.

THE PROSECUTION CASE

2. The prosecution case is that on the evening of 10 October 2004 the appellant attempted to rob Miss Sae Chan Malee, a prostitute, in her domestic premises.  The appellant had been permitted to enter the premises by Miss Sae, having presented himself at the door to the premises as a customer seeking her sexual services.  The appellant and Miss Sae made their way to a bedroom in the premises.  In another bedroom of the premises was a male friend of Miss Sae, Mr Leung Yiu Bun.  He knew that she was a prostitute and was aware that she was now entertaining a male customer.

3. Whilst the appellant went to the toilet Miss Sae prepared the bed and undressed so that she was naked.  The appellant emerged from the toilet naked from the waist upwards and embraced her from behind, putting her neck into an armlock with his left arm.  Then he placed the blade of a pocket-knife at her neck and demanded money.  In face of her denials of possession of any money the appellant demanded her mobile telephone and then searched drawers in the room.  She cried out and begged to be let go.

4. In the nearby bedroom Mr Leung heard her entreaties, armed himself with a piece of wood and waited for the appellant to emerge.  When the appellant emerged a few minutes later Mr Leung grabbed hold of him, pushed him back into the bedroom and required him to squat down.  Miss Sae called the police.  In response, about 10 minutes later PC 2378 arrived at the premises to find the appellant kneeling down.  He testified that in response to being arrested for robbery and after the words of caution had been administered the appellant said :

“Ah Sir, only because I have no money to buy meals that I came out to ‘chor’.  I did not interfere with the woman.”

The admissibility

5. The admissibility of the written record that the officer made subsequently in his police notebook of that oral statement, which the appellant signed, and a video-recorded interview of the appellant conducted by DPC 20073 and Sergeant 12830 were challenged and the subject of a voire dire.  In the result, the judge admitted into evidence both the notebook entry and the video tape of the record of interview of the appellant.  In the video-recorded interview of the appellant, he responded to a request that he clarify his oral statement on arrest by saying :

“That is to say, I came out to commit robbery because I have no money.”

Later, in the record of interview he asserted that whilst he had not met her before he had asked Miss Sae to lend him money.  She started shouting for help and he said : “Its robbery!”  The appellant said that at the time he went to the premises he had only 50 cents on him.

THE DEFENCE CASE

6. The appellant testified in the voire dire and in the general issue.  In the voire dire PC 46135 denied the allegations put to him in cross-examination on behalf of the appellant that he had assaulted the appellant in the room in which the video-recorded interview of the appellant was conducted subsequently or that he remained in the room behind the door during the interview.  DPC 20073 and Sergeant 12830, who conducted the video-recorded interview of the appellant, denied there were any improprieties in the conduct of that interview.  The appellant testified in terms similar to his subsequent testimony on the general issue in respect of his presence at the premises, namely that he was there seeking sexual services from the alleged victim but that he became disinterested after hearing the voice of a man in an adjoining room and that when he tried to leave without payment Mr Leung removed $500 from his wallet and demanded a further $2,000 from his family.  His inability to raise the money had led to the allegation of robbery and the police had been called.  This was the account that he had given to police.

7. At the police station a police officer told him that the female had now resiled from the allegation of robbery and now contended that the appellant had been present seeking to borrow money.  He had been tricked into signing the notebook after he had been told that it contained that version of events.  He denied having seen or written on two pages of the three pages of the notebook entry.

8. Prior to the video-recorded interview PC 46135 had assaulted him kicking his knee in response to a repetition of the appellant’s account for his presence at the premises.  Then, he had been told the allegation was only that he had been there to borrow money, that he should co-operate but if he did not he would be framed with another robbery that had occurred in that area earlier.  He agreed to co-operate and then participated in the video-recorded interview, during which interview PC 46135 remained hidden in the room looking at him in a “stern way”.

9. In cross-examination, the judge acceded to an application by the prosecution pursuant to section 54 of the Criminal Procedure Ordinance and permitted the prosecution to question the appellant in respect of his previous criminal convictions, which included robberies in 1995 and 2001.  In respect of the latter, he had been sentenced to three years’ imprisonment.

10. The prosecution was permitted to recall DPC 2378, who testified that the appellant had written the final declaration and signed at the end of the notebook entry.

General issue

11. In the general issue, the appellant testified that whilst he was present at the premises about to obtain sexual services from Miss Sae as a prostitute he heard a male voice in the next room and became disinterested in sexual activity.  When he made to leave the bedroom Miss Sae demanded payment, since she had already undressed so that she was naked.  In the course of an ensuing argument between them they struggled with one another and his pocket-knife fell out of his pocket and onto the floor, from where he retrieved it.  In doing so, he held it in his hand.  However, the knife blade remained folded away.  He put it back in his pocket.  As he pushed Miss Sae away a male rushed into the room pointing a piece of wood at his forehead and abusing him for not paying for sexual services.  The male took hold of his wallet and passed it to Miss Sae, who removed a $500 note.  The male demanded that he raise more money from his family or be hit.  Miss Sae urged the man not to continue discussing the matter but to report to the police that the appellant had come there to rob with a knife.

12. The appellant said that he had given the police officers who attended the scene a similar account of the events in rejection of the allegation made against him of robbery.

REASONS FOR VERDICT

13. In his Reasons for Verdict the judge dealt firstly with the evidence that had been received in the voire dire.  In the course of cross-examination of the appellant by the prosecution he had acceded to an application made by the prosecution, pursuant to section 54 of the Criminal Procedure Ordinance, on the grounds that serious imputations had been made on the character of the prosecution witnesses and permitted the prosecution to question the appellant in respect of his criminal record.  The relevant part of section 54 (f)(ii) is in these terms :

“(f)  a person charged and called as a witness in pursuance of this section shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character, unless —

…

(ii)   … or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution; …”

14. The judge stated that he was satisfied beyond reasonable doubt that the police officers, called as witnesses to the making of the post record of the appellant’s oral statement and in respect of the making of the video recording of the interview, had told the truth to the court and that the events took place as testified by them.  In consequence, he stated that he was satisfied that the appellant had voluntarily participated in the making of both the post-record in the notebook and the video-recorded interview and he admitted both into evidence.

15. In respect of the general issue, the judge found Miss Sae and Mr Leung to have given their evidence well concluding that they had given :

“… a coherent and consistent account of the whole course of events that occurred at the premises.” [Page 16I of the bundle.]

16. Of the appellant’s accounts of his intention and purpose of going to the premises and what transpired there, as set out in the appellant’s oral statement on arrest, in the video-recorded interview and in evidence the judge found that they were :

“… riddled with contradictions and conflicts.” [Page 15 O of the bundle.]

17. In the result the judge concluded :

“The irresistible conclusion that emerges from all of the evidence, in my view, is that the defendant did go to the premises with only $.50 in his pocket, and he went there to attempt to rob PW1, as testified by her.” [Page 16P-R of the bundle.]

GROUNDS OF APPEAL AGAINST CONVICTION

18. In his Grounds of Appeal against Conviction the appellant contends by Ground 1 that the judge erred in admitting into evidence the video-recorded interview conducted of the appellant.  By Ground 2, it is submitted that the judge erred in accepting the evidence of PW1, Miss Sae, as truthful in light of her failure to disclose that she had been convicted of criminal offences and her reluctance to admit that matter until confronted with evidence to the contrary.  By Ground 3, it is submitted that the judge erred in permitting the prosecution to cross-examine the appellant on his criminal convictions.

19. Grounds 1 and 3 overlap to some extent, since the permission granted to the prosecution to cross-examine the appellant on his previous criminal convictions and the cross-examination of the appellant in that respect occurred in the voire dire.  Accordingly, if the judge’s exercise of his discretion to permit cross-examination of the appellant in respect of his previous criminal convictions was in error that may vitiate his decision to admit into evidence the notebook record and the video-recorded record of interview of the appellant.

Ground 1

20. In support of Ground 1 the appellant adverts to references in the Reasons for Verdict to his own evidence in the voire dire that after assaulting him PC 46135 urged him to say in the prospective video-recorded interview that he went to the premises to borrow money saying of that : “It’s a very small thing.”

21. Further, the appellant points to his own evidence that PC 46135 had threatened him that if he did not co-operate he would be framed with another robbery that had occurred recently in the same area.

Finally, the appellant points yet again to his own evidence, together with allegations put in cross-examination of that police office, that PC 46135 remained in the room in which the video recorded interview was taking place looking at the appellant “in a stern way.”

22. As Miss Lai, for the respondent, points out in the respondent’s most helpful “Written Submissions” the two officers who conducted the video-recorded interview of the appellant and PC 46135, against whom the allegations were directed in particular, all gave evidence in the voire dire.  Furthermore, she submits that the judge’s Reasons for Verdict make it clear the judge was very much alive to the very issues raised by the appellant in the trial and now repeated before this court.  In particular, she draws the attention of this court to the passages in the Reasons for Verdict in which the judge deals specifically with the evidence of those three police officers and their denials of improprieties, after which review the judge determined that the appellant had freely and voluntarily participated in the video-recorded interview and in signing the notebook entry. 

Ground 3

23. In support of Ground 3, the appellant contends that it was unfair of the judge to permit evidence to be adduced of the appellant’s previous criminal convictions.  The appellant asserts that, in consequence, the judge was prejudiced against him.

24. In her submissions, Miss Lai submits that it is apparent from the Reasons for Verdict that the procedures adopted by the judge in respect of this matter were entirely proper.  She draws the attention of the court to the judge’s reference at paragraph 47 to the fact that the application was based on the assertion by the prosecution that :

“the defence involved serious imputations on the character of the prosecution witnesses.”

Also, she draws the court’s attention to the statement of the judge of the limited purpose for which such evidence may be used, namely :

“… the only reason it was admitted was to shed some light on the character of the defendant in an attempt to assist the court to evaluate the serious imputations and allegations that he had made against various prosecution witnesses.  Apart from that, this evidence has no relevance whatsoever to the central issue in this case — whether or not the defendant did attempt to rob PW1....”  [Page 11 of the bundle, paragraph 51 of the Reasons for Verdict].

Ms Lai, in her written submissions, has referred to the judgment of the Court of Appeal of English and Wales in R. v. Powell [1982] Cr.App.R. 165.  In that case the Court of Appeal adopted with approval the analysis of identical legislation in the United Kingdom of Ackner LJ, as he was then, in R. v. Burke [1982] Cr.App.R. 156 at 161.

Ground 3

25. In support of Ground 3 the appellant asserts that Miss Sae hid her criminal convictions from the court, which convictions were only revealed when she was confronted with evidence of them.  In all those circumstances, it is submitted that the judge erred in accepting her as a credible witness.

26. In her submissions Miss Lai draws the court’s attention to paragraph 88 of the judge’s Reason for Verdict, in which he adverts specifically to the reluctant admission by the witness that she had a previous conviction for “shoplifting”.  He noted that :

“… even when she admitted it, she alleged that it was, in fact, her son who had stolen the goods and she had taken the blame for it.”

Of those circumstances the judge said at paragraph 89 :

“However, neither this fact nor the other minor previous conviction on her record alter my view that her evidence as to the events that transpired at the premises, supported as it was by PW2’s evidence, is credible and reliable.”

CONCLUSION

Grounds 1 and 3

27. It is apparent from the judge’s description of the cross-examination of the prosecution witnesses and the appellant’s own testimony, set out in the Reasons for Verdict, that the conduct of the defence in the voire dire did involve serious imputations and allegations against the police officers of violence, together with threatening and oppressive behaviour towards the appellant prior to the conduct of the video-recorded interview.  In those circumstances, the judge acted within his discretion in permitting the prosecution to ask questions of the appellant about his criminal convictions.

28. Of the ambit of the cross-examination, the judge noted that the appellant admitted that in September 2001 he had been convicted of a robbery in which the victim had been tied up and adhesive tape put on her mouth.  In respect of the other convictions admitted by the appellant, the judge did no more than recite the offences concerned, the date of conviction and the age of the appellant at the time of that conviction.  We are satisfied that the nature of the cross-examination of the appellant falls squarely within the relevant propositions stated and set out in the judgment of the Court of Appeal of England and Wales delivered by Gage J in R. v. McLeod [1995] 1 Cr.App.R. 591 at pages 604F-605E.  Of the principles to be applied, Gage J there cited with approval the following :

“For the general principles upon which the discretion should be exercised we cannot improve upon the analysis contained in the judgment of Ackner L.J. in Burke (1986) 82 Cr.App.R. 156, as supplemented by the observations of Neil L.J. in Owen (1986) 83 Cr.App.R. 100, 104, 105, to which we have referred.…”

In respect of the appropriateness of cross-examination in that particular case of a defendant in respect of details of a previous conviction, which included reference to a person being locked up in a cupboard during a robbery, he said this : (605G)

“…it merely showed that this offence was somewhat more ruthless than may normally be the case in a robbery where by definition violence, or the threat of violence is used.”

Clearly, such considerations are relevant to the details obtained in respect of the robbery committed by the appellant for which he was convicted in 2001.  In that case, there were aggravating features in the commission of the offence.

29. It is clear, from the passage quoted earlier from paragraph 51 of the Reasons for Verdict, that the judge approached the relevance of the evidence of the appellant’s previous criminal convictions correctly.  It was relevant only to the credibility of the appellant not to his propensity to commit the crime.  Accordingly, there is no merit in Ground 3 of the Grounds of Appeal Against Conviction.

30. All of the matters advanced in support of the submission that the judge erred in admitting the record of interview into evidence at the trial were matters advanced before the judge at trial.  We are satisfied that in admitting that evidence the judge was acting within his discretion to admit the evidence and that there is no merit in this ground of appeal.

Ground 2

31. It is clear from the passages cited earlier in the judgment from the Reasons for Verdict that, having taken note of Miss Sae’s reluctance to admit her previous criminal conviction in respect of the offence of shoplifting and having noted the excuses and explanations she proffered, nevertheless the judge found her to be a credible witness whose testimony he accepted.  We are satisfied that he was entitled to do so.  Accordingly there is no merit in this ground of appeal either.

32. In the result, the appellant’s appeal against conviction is dismissed.