THE QUEEN v. CHOI CHUN KEUNG

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JUDGMENT

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Li, J. A.:

1. The applicant was convicted of the offence of carrying imitation firearm with intent to commit an arrestable offence contrary to section 18(1) of the Firearms & Ammunition Ordinance. He now applies for leave to appeal against conviction. The only ground in support of his application is that "the trial judge, having found as a fact that the applicant made a confession statement in part because he was afraid, as a result of something said to him by a police officer, of being implicated in further offences, should have excluded such statement as being inadmissible."

2. The facts, for the purpose of this application, fall within a narrow compass. On the 20th of January, 1984 at about 13.55 hours a police party partrolling near the junction of King's Road and Tong Shui Road saw the applicant walking along King's Road in a suspicious manner. They stopped and searched him. They found he had a toy gun tucked under the top of his trousers. The applicant attempted to escape. He was subdued and arrested after a short struggle. On the spot he was cautioned and he remained silent.

3. He was brought back to North Point Police Station and was taken to the Charge Room where he was cautioned again by the arresting officer, DPC 22517 -CHOW Wing-hung. In reply he only wrote "I understand." No objection was taken to the admissibility of this statement at the trial. He remained in custody, of this Detective Constable who went through some documentation.

4. The applicant was then handed. over to another team of police officers attached to the District Crime Unit at about 4.30 p.m. He was interviewed by DPC 13457, LAM Shu-wing, who questioned him about his personal background. At about 5.15 p.m. he was escorted to his home at Kwun Tong for a search. The police party escorting him comprised Inspector Lee, DPCs 13457, 14131 and 11657. Nothing of significance was found in his home. He was taken back to the North Point Police Station starting off from Kwun Tong at about 7 p. m.

5. When the car carrying the officers and the applicant was on its return journey along King's Road. Inspector Lee told DPC 14131 to make a check on all the recent armed bank robberies and jewellery shop robberies in North Point when they got back to the Police Station. Suddenly the applicant said, "Ah Sir, let me tell you - I didn't want to rob a bank or jewellery shops today; I just wanted to rob the Sunbeam Theatre. I don't think it is very serious." He was at once stopped and cautioned by DPC 13457. Then the applicant said "I can take you to the theatre."

6. The car stopped at the Sunbeam Theatre and they all went into the manager's office where DPC 13457 post-recorded the conversation in the car in his note book. The post-entry was then read over to the applicant who also read it himself and then signed it, signifing the accuracy of that statement.

7. Upon arrival at North Point Police Station shortly after 8 p.m. DPC 13457 again asked the applicant a few questions to clarify matters mentioned. in the previous statement under caution and the applicant gave his answers.

8. At the trial the admissibility of both statements - the post-entry and the questions and answers - were strongly challenged on the grounds of violence and threats. A trial within a trial was conducted to determine the issue. No useful purpose is served to repeat the applicant's allegations in detail. Suffice it to say the applicant alleged that violence and threats were administered to him right from the moment and on the spot of his arrest till he made the first contested statement. Referring to the circumstances under which he made his statement, he said Inspector Lee threatened to frame him with all the bank and jewellery shops robberies in North Point and that DPC 13141 induced him to admit the offence by saying that an intent was not by itself an offence.

9. In the event the trial judge ruled that both statements were admissible as evidence. In his somewhat elaborate analysis he came to the conclusion that the statements were voluntary and rejected the defence evidence of assault, force, threat and inducement.

10. When he considered the "motive" of the applicant in the light of R. v. Rennie ⁽¹⁾ he said:

"I am sure and find as a fact that the defendant made the confession in the car partly because he thought there was no escape from it and partly to avoid the police implicating him with investigations into recent bank and jewellery shops robbery in North Point. The latter was not intended to be held out as a threat but turned out to have such a side effect of fear."

After citing a passage in Lord Lane's judgment in Rennie ⁽¹⁾ he said:

"Self-generated and prompted by something said by P.W.1 as they were notwithstanding, the statement is not rendered inadmissible as such in law."

11. Counsel for the applicant. concedes that the judge was entitled to his finding that there was no assault, force or intended threat and inducement. It is contended, however, that the judge misunderstood the case of Rennie ⁽¹⁾ and treated Lord Lane's dictum as laying down a principle of law. It is argued that once the judge came to the conclusion that the statement was prompted by something said by Inspector Lee he should then proceed to consider whether the statement was voluntary or, irrespective of Inspector Lee's intention, a fear was induced in the mind of the accused to make the statement as he did, thereby rendering the statement involuntary and therefore inadmissible.

12. In Rennie ⁽¹⁾ the ground of objection was that the appellant had confessed because words used by an interrogating police officer, who had a statement from the appellant's sister, led to the belief that, unless he admitted his guilt the officer would interview and perhaps arrest and charge other members of the appellant's family with the offence. In cross-examination on the voire dire the officer agreed that the appellant had confessed because he feared that the officer would bring the appellant's family into the offence. The judge did not accept that the police officer was right about the reason for the confession and the jury were directed to make up their minds about the confession.

13. When the case was before the Court of Appeal counsel for the appellant contended that the confession should never have been before the jury at all since, in the face of the police officer's evidence as to the motive behind the confession and the content of the conversation before it, the judge could not properly have held that the confession was voluntary.

14. This argument did not find favour in the Court of Appeal. Giving the judgment of the Court Lord Lane said at page 69(C):

"The question whether the confession had been shown to be voluntary raised an issue of fact. The evidence material to this issue consisted of (i) the evidence of the officer as to what was said and done at the interview, both by himself and by the appellant, (ii) the evidence of the appellant on the same matters, and (iii) the evidence of the appellant as to his motives for making the confession. But the specula-tions of the officer as to the motives of the appellant were not admissible in evidence. The drawing of inferences from the course of events at the interview was a matter for the judge, not the witness. It is true that in this particular instance the opinion of the officer was elicited without objection, but that does not mean that a decision on the issue was to be taken out of the hands of the judge."

It was in this context that Lord Lane made the following observations at letter (F):

"In some cases the hope may be self-generated. If so, it is irrelevant, even if it provides the dominant motive for making the confession. In such a case the confession will not have been obtained by anything said or done by a person in authority. More commonly the presence of such a hope will, in part at least, owe its origin to something said or done by such a person. There can be few prisoners who are being firmly but fairly questioned in a police station to whom it does not occur that they might be able to bring both their interrogation and their detention to an earlier end by confession."

And at page 70(D):

".... The answer will not be found from any refined analysis of concept of causation nor from too detailed attention to any particular phrase in Lord Sumner's formulation. Although the question is for the judge, he should approach it much as would a jury, were it for them. In other words, he should understand the principle and the spirit behind it, and apply his common sense; and, we would add, he should remind himself that 'voluntary' in ordinary parlance means 'of one's own free will.' "

15. Returing to the application before us the trial judge in the court below found as a fact that, however unintentional, by Inspector Lee's words uttered to DPC 14131 turned out to have a side-effect of fear on the applicant. An order by Inspector Lee to his subordinate to check all the robberies committed on banks and jewellery shops in North Point area might or might not have the effect of causing fear in the mind of the applicant. The judge found as a fact that it had instilled fear in the applicant. If that was so, one would Pose a rhetorical question "How could the statement be free and voluntary if it was prompted by fear?" We do not understand Lord Lane in Rennie's case ⁽¹⁾ to have held that even if a confession was caused by fear it must, as a matter of law, be regarded as voluntary and therefore admissible in evidence. On the contrary, his Lordship referred to the law as laid. down by Lord Sumner in Ibrahim v. The King ⁽²⁾. Such words bear repeating. Lord Sumner said:

"....  no statement by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority."

16. Lord Morris of Borth-Y-Gest in DPP v. Ping Lin ⁽³⁾ said that such words were clear. At page 177 he said:

"The guidance given by Lord Sumner's word's is in my view clear. From them the sense and the spirit of the rule can be. readily comprehended. Particular words are merely the instruments chosen to convey meaning. For this purpose words are but servants. If by their use a clear meaning has been conveyed then their purpose has been achieved."

Later at letter (S) he said:

"In my view it is not necessary, before a statement is held to be inadmissible because not shown to have been voluntary, that it should be thought or held that there was impropriety in the conduct of the person to whom the statement was made. Where there was or whether there was not, what has to be considered is whether a statement is shown to have been voluntary rather than one brought about in one of the ways referred to ...."

And at page 178(G):

"The test is simply whether the Crown have proved that a statement made by an accused was voluntary in the sense that it was not obtained from him either because some person in authority 'exercised' fear or prejudice or held out hope of advantage. Stated otherwise, was it as a result of something said or done by a person in authority that an accused was caused or led to make a statement? Did he make it because he was caused to fear that he would be prejudiced if he did not or because he was caused to hope that he would have advantage if he did? The prosecution must show that the statement did not owe its origin to such a cause."

17. In view of the authorities we are of the opinion that the question of voluntariness is a question of fact and not one of law. In order to determine the issue the trial judge must consider all the relevant evidence in the instant case, the evidence of the police officers and the evidence of the accused. No principle of law can convert a statement prompted by fear - if fear is found as a matter of fact - into a voluntary statement.

18. In the present case the trial judge found as a fact that the statements were made in fear which was self-generated as well as prompted by what was said by Inspector Lee. It could not be voluntary and should not be admissible. The finding of fact in the present case was quite different from the finding of the trial judge in Rennie's case ⁽¹⁾. To that extent, the two cases are different. We also observe that in the present case once the statement is excluded there was no evidence to prove the intent of the applicant. For this reason the application for leave to appeal against conviction is granted. The hearing of the application is treated as the hearing of the appeal proper. The appeal is allowed, conviction is quashed and the sentence is set aside.

(1)    (1982) 1 W.L.R. 64

(2)    (1914) A.C. 599

(3)    (1975) 3 A.E.R. 175