R. v. CHUI HON WAH

IN THE COURT OF APPEAL

1995, No.438
(Criminal)

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. The applicant in this matter was convicted on one count of robbery. The count was particularized as follows - that he, together with a second person Lai Sing-fai on 6th May 1994, inside the male toilet of Pearl Theatre at Great George Street, Causeway Bay, Wan Chai, robbed Yu Sik-leung of a gent's gold Rolex wristwatch, a Hang Seng Bank gold card, a Chartered Bank gold card, a Chase Manhattan Bank visa card and $3,000 in cash. He pleaded not guilty to that charge and was, after trial before Judge Hawkes in the District Court, found guilty and sentenced to imprisonment for five years. He now seeks leave to appeal against his conviction.

2. On the night in question two men robbed a Mr. Yu, the victim, at knife point in the toilet of the Pearl Theatre. In the course of the robbery the victim was stabbed. He later identified the 1st defendant Lai Sing-fai but he made no identification of the applicant. The prosecution relied upon two cautioned statements which were made by the applicant. The applicant was arrested at his home and was cautioned at that time. He was later taken to a police station and the caution was post-recorded and put to him and he answered a number of questions. The cautioned statements were objected to at trial and the trial judge said, having heard evidence from the officers concerned and the applicant himself:

"The accused was taken to the Wong Tai Sin Police Station, then to Wanchai Police Station. At Wanchai Police Station, between 4.01 am and 6.05 am on the same morning, PW2 took a cautioned statement from the accused."

I interpolate here to say that the arrest had been made at 2.25 am on that same morning at the accused's home. The judge went on:

"The defence objected to the production of this statement on a number of grounds including assaults, threats and other improprieties.

Mr. Yeung, on behalf of the accused, also submitted that in any event, the court should exercise its discretion to exclude the statement on the grounds of unfairness."

3. Having heard evidence about the matter, the trial judge ruled as follows:

"It was a matter of credibility. The three police officers who gave evidence all impressed me as being truthful and on the whole reliable witnesses."

I pause here to make the following observation. When referring to this statement Mr. Grounds, who appears for the applicant today, submitted that the police officers were not regarded by the judge as being wholly reliable witnesses. We have to examine what the judge actually said. He said first that he was impressed by them as "being truthful" witnesses. He does, it is true, go on to say that he found them to be "on the whole reliable". What he meant by this is explained immediately thereafter as he then indicated that their evidence was in conflict as to who was in command at the time of the arrest. It was to this clash between the evidence of PW2 and PW3 that he was referring when stating that the police witnesses were "on the whole reliable". This is not, it might be thought, an area which bears in a direct way upon the real issues. The words of the judge are as follows:

"There was an apparent conflict between PW2 and PW3 as to who actually was in charge of the police operation which resulted in the arrest of the accused. It seems to me that it would be most likely that PW3 was in charge and that PW2's answer in this regard may have been the result of a misunderstanding of the questions asked. In any event, this conflict between their evidence did not alter my impression of PW2's credibility as a witness. Among other things, I was satisfied with the reasons PW2 gave for following the procedures that he did, for not correcting the wrong characters used by the accused, and for taking the statement at the time he did.

On the other hand, I was not impressed with the accused as a witness. Having seen and heard him give his evidence, I just did not believe his allegations of assault and other improprieties on the part of the police. Taking into account all the evidence relevant to the admissibility of his statement, I was satisfied beyond reasonable doubt that it was a voluntary statement. Also, notwithstanding the time and the circumstances of the taking of the statement, I was satisfied that there was no good reason for me to exercise my discretion to exclude the statement on the grounds of unfairness or oppression."

4. The applicant gave no evidence in the trial proper and was, in the outcome convicted.

5. There is in this appeal really only one ground. It is submitted that it was incumbent upon the judge clearly to set out the matters and circumstances which affected his mind when he decided "there was no good reason for me to exercise my discretion to exclude the statement on the grounds of unfairness or oppression." Mr. Grounds argues that the conviction must be quashed as the failure to give specific reasons deprives this court of the opportunity, which it must be given, to evaluate the propriety of the judge's exercise of discretion. The real thrust of the objection is a suggested failure by the judge specifically to consider and to rule upon the accused's evidence that at the time the statement was taken he felt "extremely tired, sleepy and frightened" and the submission that he was, in fact, oppressed by the circumstances of his arrest and incarceration in the police station. Particular emphasis is placed upon the questioning that took place between 4 a.m. and 6 a.m., a time when most people are at home asleep in their beds. It is submitted that these matters clearly raised the issue of oppression and that the trial judge failed properly to resolve that issue by saying that he "was not impressed with the accused as a witness" and "did not believe his allegations" against the police. It is further submitted that the final ruling by the judge that "there was no good reason to exclude" the statements "on the grounds of unfairness or oppression" took the matter no further as it was not made upon the basis of any findings of fact.

6. The trial judge recited and clearly had in mind the contention that the applicant had been oppressively and unfairly treated. He set out that one of the objections taken to the admission of the statements was the ground of unfairness. He recited the evidence of the applicant that he was "extremely tired, sleepy and frightened". That the judge was alive to the issue of oppression cannot be doubted as it was extensively canvassed in cross-examination and the police officer, when asked about it, denied that the applicant had given any indication of being oppressed. We note that his evidence was accepted by the trial judge.

7. The only question for this court is whether the judge failed properly to deal with the issue of oppression. Put in another way, given that he did not specifically reject the evidence of the applicant that he was extremely tired, sleepy and frightened, might it be that he did not give any real consideration to that matter? We have no hesitation in answering that question in the negative. The trial judge, when the whole of his statement of findings is read, clearly had in mind both the evidence of the applicant and of the police officers in this regard. Indeed he referred twice to the evidence of the applicant. There is, in our view, nothing to warrant any suggestion that he had failed properly to consider this matter. We are satisfied that what he said, in his final words :

"Also, notwithstanding the time and the circumstances of the taking of the statement, I was satisfied that there was no good reason for me to exercise my discretion to exclude the statement on the grounds of unfairness or oppression.",

is a clear indication that he had given proper consideration to this matter. His decision to convict is in no way either unsafe or unsatisfactory.

8. The application must be refused.