THE QUEEN v. LEE MAN LIU

HEADNOTE

The rejection of a post recorded confessional statement on the ground that it has not been positively proved that it was voluntary does not necessarily require that the oral admission, the subject of the post recording be also rejected. Its admissibility will depend upon the circumstances of each case.

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J U D G M E N T

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Power, J.A.:

1. This is the judgment of the Court.

2. The applicant faced two charges. The first, of robbery, alleged that he and YU Chun-keung on the 26th day of October 1990, at Cameron Road near Carnarvon Road, robbed WONG Yiu-choi of cash $440; the second, possession of an offensive weapon in a public place, alleged that on the same day at the staircase landing between 13th floor and 14th floor of Mansion Building, No.74-78 Nathan Road, without lawful authority or^, reasonable excuse, he had with him an offensive weapon, namely a knife. He was convicted after trial on both charges and was sentenced to imprisonment for three years on the former and to six months consecutive on the latter.

3. It was not in dispute at trial that, shortly after 4 a.m. on 26th October 1990, the victim, Mr. WONG Yiu-choi (PW1), a newspaper vendor, was engaged loading newspapers onto a van when two persons forced him into the van and robbed him of $440. In the course of the robbery, Mr. Wong sustained a cut wound to his thumb from a knife held by one of the robbers. Immediately after the robbery, the two men turned and ran towards Nathan Road. The victim, having raised the alarm, chased the men but lost sight of them.

4. Sergeant 3188 CHUNG Chi-ming (PW2) gave evidence that he and PC 2902 were patrolling with two other officers in Cameron Road and that at about 4.10 a.m., in consequence of a message, all four went to Mansion Building. He said that he and PC 2902 went in the lift to the 13th floor intending to go up to the top floor. He said that he saw the applicant on the staircase between the 13th and 14th floors holding a knife, that he took out his warrant card and shouted "Police" and that the applicant then dropped the knife. Thereafter the judge's Notes of Evidence are as follows:

"Q. What did you do then?

A. 2902 and I rushed up to him and grabbed him. He tried to move intending to get away. I pinned him to ground - took out my handcuffs and handcuffed him at the back. I then started to question him.

Q. What say?

A. I asked 'what are you doing here.' He immediately said 'Sir give me a chance.'

D1 The answer will be challenged.

Court Witness to leave the Court.

D1 Grounds for objection - force and oppression. At that time D1 was pushed' onto the ground and then handcuffed at the back. The officer was pulling his hair and back of his neck with his hand. Defendant questioned under those circumstance - whenever he delayed - he was hurried on by the officer to give answer - or an answer that was more acceptable to the police. Defendant was never cautioned - defendant denied giving the answer. The mind of the defendant was oppressed - his answer was not a voluntary one. In any event he didn't give an answer.

Court Please recall sergeant.

Crown After handcuffing, you questioned defendant?

A. Yes.

Q. Identify him?

[A. Sergeant points out D1.]

Q. How many questions asked of D1?

A. Three

Q. Did he give answers to all three?

A. Yes.

Q. He gave you one answer to each question?

A. Yes - he answered each question and gave me a lot of information.

Q. In course of questioning - use force on D1?

A. No - he was very co-operative.

Q. Did you tell him that he had given any wrong answer?

A. No.

Q. Did you tell him what to answer?

A. No.

Q. What was your first question?

A. I asked 'What are you doing here?' He replied 'Sir give me a chance.' I was very surprised by that answer so I continued my questioning. I asked him 'What is this knife used for?' He replied calmly 'I owe people about $10,000 and I am in difficulty so I went with people to rob. Give me a chance.I then asked 'Where have you just committed robbery? He replied 'Ah Keung and I went to a newspaper stand at Cameron Road with the knife to rob the proprietor. I took this knife from my home; I will co-operate with you - give me a chance.

Q.Then what happened?

A.I received further message from walkie talkie which was supplied to me by my team member. After that I declared D1's arrest telling him he was suspected to be involved in a robbery and I orally cautioned the defendant.

Q.What say?

A. I said 'I now arrest you because I have reason to suspect that you robbed a newspaper stand. I caution you - you are not obliged to say anything but whatever you say will be given in evidence. Do you understand?' He replied 'Understand.'

Q. Then what?

A. I then bought defendant to police station by police vehicle.

Q. What happened to knife?

A. PC2902 seized it as an exhibit.

Q. Was D1 taken to Tsimshatsui Police Station?

A. Yes, about 4.40.

Q. What happened there?

A. I made report to Duty Office - at 5 a.m. I took a cautioned statement from Defendant.

Q. A post-record?

A. Yes.

Q. Recorded in police note book?

A. Yes. I produce it - with translation. Page 100 - page 107.

Exhibit provision(sic) P.3"

This statement reads as follows:

"At exactly 5 a.m. on 26.10.90, in Room G05 of the Report Room of Tsim Sha Tsui Police Station, (I) said to male LI Man-lui in Punti dialect, 'LI Man-lui, I am P.C. 3188 CHUNG Chi-ming, now attached to the Task Force of Tsim Sha Tsui. Police Station. I now post-record from you the course and the dialogue of my arresting you at the earlier time for robbing a male WONG Yiu Choi of cash $440 Hong Kong. The robbery occurred about 4.10 a.m. today outside No. 9-11 Cameron Road, Tsim Sha Tsui. I have reasons to believe that after the robbery, you went into the Manson House at No.74-78 Nathan Road. When I arrived at the staircase between the 13th and 14th floor of Manson House, I saw you holding an 18-inch long beef knife in (your) right hand. I therefore revealed (my) identity and stopped you. At that time I asked you, 'What are you doing here?' At that time you replied, 'Ah Sir, give me a chance.' I again asked you, 'What is your knife for (?)' You replied, 'Ah Sir, I owed (homophone) others almost ten thousand dollars and had difficulties (in repaying), that's why (I) went with others to rob.' I again asked you, 'Where did you rob just now?' You replied, 'Just now Ah Keung and I took this knife to the newstand in Cameron Road and robbed the owner. I took the knife from home. I'll cooperate with you, give me a chance.' At this juncture, about 4.15 (a.m.) the same day, I said to you, 'I now arrest you for the offence of robbery because I have reasons to believe that at about ten past four just now, you robbed a newstand in Cameron Road. I now caution you. You are not obliged to say anything but whatever you say may be given in evidence. Do you understand (?)' After being cautioned, you said to me, 'I understand.' At 5.30 a.m. the same day, I read over the above statement from page 100 to page 104 to you, LI Man-lui, and (I) also gave (it) to you to read it yourself once. (I) also asked you if additions or deletions were necessary. I even said to you, (') I have questions to ask you to clarify the ambiguous points in the statement (you gave) just now. Are you willing to answer (?) However, I remind you, you are still under caution. You are not obliged to say anything but whatever you say may be given in evidence. Do you understand(?)

(Sd.) LI Man-lui. (')(I) understand. I am willing to answer your questions.(')

(Sd.) LI Man-lui. (Sd.) PC 3188 (illegible).

Question: Just now you said (you) and Ah Keung took a knife to rob. Do you know Ah Keung's full name?

                (Sd.) LI Man-lui. (Sd.) PC 3188 (illegible).

Answer: YU Chun-keung is Ah Keung's full name. (Sd.) LI Man-lui. (Sd.) PC 3188 (illegible).

Question 2: Just now you said (you) robbed the owner of a newstand in Cameron Road, what did you rob (him) of? (Sd.) LI Man-lui. (Sd.) PC 3188 (illegible).

Answer: I robbed the owner of the newstand of a few hundred dollars (approximately). The money is with YU Chun-keung. (Sd.) LI Man-lui. (Sd.) PC 3188 (illegible).

This statement was taken in Room G05 of the Report Room of Tsim Sha Tsui. Police Station between 5 and 5.50 a.m. on 26.10.90. It was then read over to male LI Man-lui. and he also read it himself and he was invited to make any corrections, deletions or additions he wished. he signed this statement in my presence.

(Sd.) LI Man-lui. (Sd.) PC 3188 (illegible) 05.55 hours, 26.10.90."

As can be seen from the foregoing, no objection was taken to the admission of the written statement. The only objection was to the oral admissions made at the scene of arrest. which, counsel indicated, the applicant was going to deny ever having made. The trial judge gave no indication as to the procedure which he intended to follow in relation to the objection to the oral admissions but did mark the written statement as a provisional exhibit. The trial then proceeded.

5. During the cross-examination which followed, it was put to the officer that when he first saw him, the applicant was not holding the knife and that upon seeing him, he immediately grabbed him and pushed him against the wall and that this was the reason why he struggled. The sergeant denied this. It was also put that the applicant had said that he was chasing the robber and that the sergeant had accused him of being one of the robbers. This also was denied as were the suggestions that the sergeant pushed his face onto the ground before handcuffing him, placed his hand on his neck and that he pulled his hair. It was also put that the applicant did not make any of the incriminating replies. The sergeant denied this. No questions were put to the officer with regard to the written statement.

6. PC 1902 (PW3) gave evidence saying that after he and his colleague had handcuffed the applicant, he noticed some bloodstains on the handle of the knife and went to the 14th floor where he found some cardboard in which to wrap the knife. Under cross-examination, he said that his colleague had commenced to talk to the applicant as he left to go up to the 14th floor but that he was not clear as to what was said. He denied that the knife was on the floor when he first saw the applicant and denied that the applicant had said that he was chasing robbers. He denied that the applicant had been pushed to the floor lying face down and said that his colleague had not had his hand on the applicant's neck.

7. When the other two officers gave evidence as to the apprehension of the 2nd defendant, who was apprehended elsewhere in Mansion Building, Mr. Stephen Lau, his counsel, also objected to the answers which he was said to have made to questions asked by the officers at the scene of arrest alleging that violence had been used. He also stated that his client denied making any admissions. When the police officer gave evidence as to the taking of a cautioned statement at the police station, Mr. Lau said

"I have a further objection in respect of note book."

He stated this objection as follows:

"Defendant's case is that the statement was taken by the PC together with a sergeant - there was another plainclothes constable who said to the 2nd defendant that D2 was caught red-handed - no way he can fight the case - he should be careful not to say anything wrong."

Again there was no ruling as to the procedure which would be adopted when dealing with these objections and there is no indication on the record that the written statement of the 2nd defendant was tendered.

8. Although it is nowhere stated in terms it seems clear from what transpired thereafter that both counsel and the trial judge were proceeding upon the basis that a voir dire in the usual, not the alternative, form was being held in relation both to the oral admissions and the two written statements.

9. At the conclusion of the prosecution evidence, Mr. Wan submitted that there was no case to answer "on the admissibility issue".

"Mr. Wan: As far as PP3 is concerned I submit there is no case to answer on the admissibility issue; oppression/ force used by PW2 and PW3 weighed upon the mind of the defendant so that he might have felt that he had no option but to answer questions.'Where did you just rob' police should not have asked that question before issuing a caution. I say that when a police officer has reasonable suspicion he should caution a suspect.

Court:     In so far it is helpful I disagree with that proposition given the evidence that I have heard as to suspicion.

Mr. Wan:    I submit there is no case to answer on the voir dire - because oppression - defendant's mind was sapped - he did not have free choice as to whether or not to answer the question: the defendant did not feel that he could stay silent."

After further submissions, the record continues:

    "Counsel for D1

10. Court: I find that there is a case to answer on the subject of the admissibility of DI's statements."

It seems clear both from his objection as stated and from his submission that the impropriety upon which Mr. Wan was relying was the "oppression/force used by PW2 and PW3" at the scene of arrest. There was no complaint made as to any impropriety at the time of the taking of the written statement. The trial judge's ruling appears to have been intended to apply both to the oral admissions and to the written statement. The judge then ruled that before considering any submission from counsel for the 2nd defendant he would proceed to hear the evidence of the applicant on the issue of admissibility.

11. The applicant gave evidence saying that he was found by the police officers at Mansion Building and searched and that they then pressed him to the ground, handcuffed his hands to the back and grabbed the back of his neck. He said he was asked what he was doing and he said he was chasing after a person and that the police disbelieved this and asked him again but he did not say anything. He said he was asked his name and where he lived and that he made replies to these questions. He said he was again asked what he was doing and he once more repeated that he was chasing after a person. He said that his neck was grabbed hard and that was very painful and the question was repeated but that he did not make any reply and the police officer then said "No need to say anything - follow me back to the police station." He said that at the police station he did not wish to write that he was told to write "understand", that he understood that he had the right to remain silent and that the police officer had said - "Write what I tell you". He denied that the written statement was a record of what he had told the police officer at the scene.

12. Mr. Wan addressed the court on the issue of admissibility. The thrust of his submission was that the court should not have been satisfied that the oral admissions, if made were voluntary and that even if the court were satisfied that they were voluntary, it should exercise its discretion to exclude them because the questions were in breach of the Judge's Rules. The judge made the following ruling:

"I rule that the statements objected to by both the 1st and 2nd defendant were voluntary and therefore admissible. I see no reason to exercise my discretion to exclude them. I will give my reasons in detail at a later stage."

The applicant was then called to give evidence on the general issue. He said that he chased a man who he suspected of being a robber into Mansion Building, that he "pounced" on the man who dropped the knife which he was carrying but that the man then escaped and that the police immediately thereafter appeared. He was asked:

"Q. P.W.2 says you made admissions - did you?

A. Absolutely not."

In examination-in-chief he made no mention of the written statement Exh.PP3. He was not cross-examined thereon. In his last answer in examination-in-chief he said that he had complained to PW2 and PW3. In re-examination he was asked:

"Q   What do you mean 'complaint' to P.W.2 and P.W.3?

A. I was told that a post record would be made about robbery earlier on. I then told them that I was not the person. I just gave assistance in the chase. I then told him I wish to see his superior to lodge a complaint. Then the second witness gave me a punch - said 'Young lad - don't try to play tricks now you have been arrested - no use for you to deny.' He said write whatever I tell you to write or else there will be a lot for you to suffer. Before my hand was released to write I was given a punch in the chest - he said, 'You have to cooperate with us - you have no choice.' So in those circumstances I was very frightened - I did not know what to do - so it occurred to me that for the time being I try to be cooperative and lodge complaint later."

This was the first time that there was any suggestion of force and threats at the time of the taking of the written statement.

In his reasons for Verdict the trial judge said:

"I ruled that the questions and answers were admissable. I was entirely satisfied that the evidence of PW2 as to this and as to other matters was truthful. He was an impressive witness as was his colleague PW3. I accepted, in its entirety, the police account and rejected that of D1 who gave evidence after I had ruled that there was a case to answer on this issue. I was satisfied beyond a reasonable doubt that the answers to the questions were given voluntarily at the scene. I rejected the argument advanced that whenever a person is apprehended by a person in authority - whatever the circumstances - then there must be doubt even without evidence on the subject from the arrested person as to whether admissions that follow are voluntary. In all the particular circumstances of this case as related to me I was satisfied as to voluntariness."

As to the evidence of the applicant he said in the final paragraph of his reasons:

"Both defendants gave evidence both on the admissibility question and on the general issue. I had time to observe them and to listen to what they had to say - I dial not believe either of them. Each gave an account which I regard as wholly unbelievable in the face of the other evidence which I heard. Even without the admissions made by both defendants to the robbery, I am satisfied on all the other evidence beyond a reasonable doubt that they are both guilty of charge 1 and that D1 is also guilty of charge 2."

13. Before turning to the Grounds of Appeal, we feel it appropriate to comment upon the course which the trial followed. The objections to the admissibility of the oral admissions were, in our view, not properly taken. The matter was not one in which the applicant was saying that he felt compelled to make the oral admissions because of the use of threats or force. He categorically denied ever having made any such admissions. The issue there was simply one of credibility.

14. The written admissions contained in Ex.PP3 would, on the other hand, have properly been the subject of voir dire proceedings. There was, however, no formal objection to that statement and no grounds were specified. Further in the voir dire proceedings, the applicant gave no evidence of any threats or force at the time of the taking of the notebook statement. The only complaint of the applicant was that he was told to write. It seems clear, however, that both counsel and the judge proceeded upon the basis that the objection was to both the oral admission and to the written statement and that the objection was as was stated with regard to the oral admissions.

15. The proper course would have been for the judge to indicate that no voir dire issue arose with regard to the oral admissions, as they were being denied, but that a voir dire issue would arise should objection be taken to the written statement. The approach, as we understand it, that has been adopted in Hong Kong where objection is taken to post recorded statements, in circumstances such as this, is for the voir dire to be held as to the written statement and in those proceedings to canvass the circumstances of both the alleged oral admissions and of their post recording Post recorded statements are almost invariably made by the officer to whom the oral admissions were made. If the evidence of that officer fails to establish beyond reasonable doubt that the statement was voluntary, his evidence as to the oral admissions must necessarily then be regarded as suspect and so rejected. There clearly can be circumstances in which, although a post recorded statement is rejected, it will not automatically follow that the earlier oral admissions must also be rejected e.g. where evidence as to the admissions comes from a credible source unconnected with the taking of the rejected post recording. Both logic and common sense dictate that suspected impropriety in the taking of a post record would be no ground for rejecting oral admission if the court was left in no doubt that those admissions were freely volunteered at the time of arrest.

16. Mr. Chandler, for the applicant, submits on the authority of R. v. LEE Fat [1969] HKLR 349, that there was no evidence sufficient to satisfy the court that the written statement was voluntary (Ground 3) and that the trial judge "erred in admitting into evidence answers given by the applicant to the arresting police officer" as it was not proved that the "answers to questions put to him were voluntary" (Ground 4). As we have already indicated voluntariness was not an issue as regards the oral admissions. Mr. Chandler refers to the passage in R. v. Lee Fat, at p.352, which reads:

"There is no doubt that if an accused person expressly states that he does not object to the admission of a confession the judges require only a scintilla of evidence to satisfy them that the confession was voluntary'. If, therefore, an objection is taken founded upon a story which is disbelieved is the judge entitled to find upon a like scintilla of evidence that the confession was voluntary. We think the answer must depend upon the facts of the particular case. Where there is nothing more on the record (nothing, that is, other than the rejected story of the accused) which tends to show that the confession was. not voluntary the judge would be entitled (though not bound) to act upon the slightest evidence which could satisfy him beyond reasonable doubt that the confession was voluntary. However, where there is other evidence tending to show that the statement was not voluntary we think it is incumbent on the judge to consider it, whether it is expressly relied upon by the defence or not."

Mr. Chandler concedes that the objection taken was founded upon a story which was disbelieved but submits that there was not the required "scintilla of evidence" to establish that the confession was voluntary. That there was no such evidence as to the circumstances of the taking of the written statement is correct. This was, of course, a consequence of there having been no express objection, as there should have been, to that statement. As there was no objection the police officer simply identified and tendered it saying nothing as to the circumstances of its taking. Given the evidence of the police officer, which the judge accepted, that the admissions in the written statement had been made orally in terms by the applicant a short time before, and that he warned the applicant at the scene, we think it very arguable that this would be sufficient to provide the "scintilla of evidence" required to establish that the written statement was voluntary. (See R. v. Leung Lai-por and others [1978] HKLR 202 at 210.) We feel constrained, however, with considerable reluctance, to hold, given the absence of evidence as to what occurred at the time of the taking of the written statement, there was lacking the "scintilla of evidence" upon which the court could act so as to be satisfied beyond reasonable doubt of its voluntariness.

17. We emphasize, when so doing, that this is not a matter in which there is a finding by the judge that the evidence produced by the prosecution as to the taking of the statement failed to establish that it was voluntary. The judge was, therefore, wrong in admitting the statement.

18. It is the submission of Mr. Chandler, this being so, that the judge was bound to reject the oral admissions.

19. We do not agree. He was satisfied throughout as to the truthfulness of the police officer. The oral admissions were in no way tainted by a rejection of a written statement which called into question the credit of Sergeant 3188. The judge would, we are satisfied, even if he had rejected the written statement, have been entitled to accept and act upon the oral admissions.

20. Mr. Chandler goes on to submit that, given the evidence of the applicant, which came in his re-examination, that he had been assaulted and threatened, the judge should have reopened the voir dire and that his failure to do so is fatal.

21. We are unable to agree. The trial judge rejected the evidence of the applicant. He was satisfied that it was "wholly unbelievable". The allegations having been rejected there was nothing which required the trial judge to reopen the voir dire of his own volition. Had the trial judge used this rejection to supply "the scintilla of evidence" which might have proved the written statement voluntary he would, it is true, have been in error. He did not, however, do so and, anyway, we have now held, for the reason given, that the written statement should have been rejected.

22. We turn now to Mr. Chandler's first ground which complains that:

"The learned trial judge erred in finding that the applicant's guilt in respect of the robbery charge was established extrinsic of his admissions":

23. This arises out of the passage at the end of the final paragraph of the Reasons for Verdict which states:

"Even without the admissions made by both defendants to the robbery, I am satisfied on all the other evidence beyond a reasonable doubt that they are both guilty of charge 1 and that D1 is also guilty of charge 2."

What this ground really raises is whether, if the evidence as to the oral admissions was not properly before the court, there was evidence upon which the judge could have properly convicted. In the light of our finding that the oral admissions were properly before the court, this raises an hypothetical question which we consider we can properly decline to answer.

In his second ground, Mr. Chandler submits that:

"It was incumbent upon him (the trial judge) to particularize in his reasons for verdict the evidence upon which he relied in convicting the applicant."

Implicit in this ground is the argument that, the trial judge having failed to particularize the evidence upon which he would have relied in convicting the applicant had the oral admissions not been before the court, his failure renders the conviction unsafe and unsatisfactory. We cannot agree. Had the judge been relying upon the "other evidence" when proceeding to convict he should, the authorities are clear, have indicated the matters upon which he was relying. He was, however, not so relying but proceeded to his finding of guilt on the basis of the admissions and he was in such circumstances not required to particularize the "other evidence".

24. Mr. Chandler complains, in his fifth ground, that the trial judge

"erred in declining to exercise his discretion to exclude from evidence answers given by the Applicant to the arresting police officer Sergeant 3188 Chung Chi-ming at the time of his apprehension. The arresting officer was entitled to question the applicant without caution in respect of possession of an offensive weapon. It was improper for that officer, without prior caution, to question the applicant in relation to the offence of robbery."

Mr. Chandler submits that the third question asked by the sergeant "Where have you just committed robbery?" (to which the reply was "Ah Keung and I went to a newspaper stand at Cameron Road with a knife to rob the proprietor. I took this knife from my home; I will co-operate with you - give me a chance.") was in breach of the Judges Rules of 1912 as the applicant was being asked a question without caution after having been taken into custody. Nothing has been put before us which indicates that the judge was in any way wrong in refusing to exercise his discretion. It is clear that the three questions followed one another in rapid succession and that the third question was a direct result of the answer given to the second. To require the arresting officer to pause, given the sequence of the answers and the heat of the moment, and give a caution would be to expect too much. If there were a breach of the Judges Rules it was certainly not one such as to require that which was said to be rejected.

    Ground 6, having been abandoned, the final submission of Mr. Chandler was that there was a "material irregularity in the trial in that the learned trial judge permitted the applicant to be cross-examined upon a document P3 not properly proven in evidence". (Ground 7) We have, of course, ruled that the document should not have been admitted. We find some difficulty, nonetheless, in understanding this ground given the Notes of Evidence. It is true that the applicant was cross-examined in the voir dire proceedings about the making of the written statement. Ex. PP3. This was proper cross-examination as those proceedings were being held to determine whether or not that exhibit should be admitted. When he gave evidence in the trial he was asked no questions in cross-examination in relation to that statement. The only mention of it came in the question asked of him in re-examination by his own counsel. It seems to us that this ground, as formulated, is unsustainable as the applicant was not cross-examined in the trial upon the written statement. What could perhaps be argued in this regard is that the conviction is unsafe and unsatisfactory as the trial judge in convicting may have made use not only of the oral admissions, which were properly before him, but also of the written statement which was not. The reality of the matter was, however, as the record clearly shows, that the real emphasis throughout the trial was upon the oral admissions. We are satisfied that the trial judge was not materially influenced in his assessment of the evidence as to the making of the oral admissions and in his rejection of the evidence of the applicant by the contents of Ex.PP3. In the circumstances, we give leave to appeal, we treat the hearing of the application as the hearing of the appeal and, being satisfied that, although the written statement was wrongly admitted, there was no miscarriage of justice we dismiss the appeal.