R. v. FOK KWOK SHING AND ANOTHER

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JUDGMENT  OF  THE  COURT

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Macdougall, J.A.:

1. The applicants were two of seven persons named as defendants in a charge sheet which contained, among others, seven charges of theft. The 1st applicant was convicted on the only charge on which he stood trial, namely, the 3rd charge. The 2nd applicant was convicted on the onlv two charges on which he stood trial, namely, the 3rd and 4th charges. All the other named defendants either pleaded guilty or were dealt with in separate trials in respect of the charges which related to them

2. On 27th August the applicant's applications for leave to appeal against conviction were granted by a majority of this court, but their appeals were unanimously dismissed. We now give our reasons.

3. The only prosecution evidence that the judge accepted which implicated the applicants in the commission of the respective offences was that of cautioned statements which they made to the police.

4. One Tse Kau ("Tse"), who was named as a co-accused on each of the two relevant charges but had pleaded guilty and had become a prosecution witness, testified that, although the 2nd applicant had been present, the only person involved with Tse in the commission of the theft which occurred on 2nd March 1991 and was the subject of the 3rd charge was the 1st applicant. This concerned the theft from a goods vehicle at Lai Cho Road, Kwai Chung, of 154 rolls of cloth, 40 cartons of cloth, eight cartons of bands, one carton of buttons, one carton of string, one carton of sewing machine parts and cards, one radio transceiver and one car cassette player.

5. Tse also testified that it was the 1st applicant, not the 2nd applicant, who was his accomplice in the commission of the theft alleged in the 4th charge. However, the judge rejected Tse's evidence in so far as it exculpated the 2nd applicant and inculpated the 1st applicant.

6. It was submitted on behalf of the 1st applicant that the judge erred in law by failing to direct himself that references in the applicant's own cautioned statements to his having committed offences other than those with which he was standing trial were irrelevant, and failed to indicate that he had ignored them not only when determining whether the statements had been given voluntarily but also when considering the weight to be attached to them.

7. Counsel further submitted that because the judge had taken care to make specific reference to the burden of proof on three occasions, to the danger of convicting on the evidence of an accomplice unless that evidence was corroborated, to the fact that the out of court statements of one accused are not evidence against his co-accused, and to the fact that the case of each accused must be considered separately, this court should assume that he failed to exclude the references to other offences from his mind when he determined the issue of voluntariness and, subsequently, that of weight,

8. There is no duty cast on a judge sitting alone to indicate in his Reasons for Verdict that he excluded from his consideration references in an accused's statement to offences other than those with which he was being tried. Indeed, in determining the admissibility of a cautioned statement a judge is not infrequently invited by defence counsel to conclude, from the way in which a statement is composed, that it was not given voluntarily. This involves a consideration of the entirety of the document. The reference to the otherwise irrelevant offences may well form part of the material which it is said should give rise to this conclusion.

9. Since there is no duty on a judge to record that when he arrived at his finding of guilt against a defendant he ignored admissions to other offences or, indeed, any other prejudicial material that is contained in a cautioned statement made by that defendant, it follows that his failure to record that fact cannot give rise to the inference that he was influenced by those admissions or other prejudicial material. The fact that the judge has specifically referred to other directions that he was under no obligation to state in his Reasons for Verdict that he had given himself, is likewise incapable of giving rise to the inference that counsel invites us draw.

10. We take this opportunity of stressing that it is unnecessary for judges sitting alone to make repeated references to the burden and standard of proof or to other matters of trite law. By doing so, they merely invite submissions such as that advanced by counsel before us at the hearing of this application.

11. The second ground relating to the 1st applicant was that the judge failed properly to consider whether the admissions made in his cautioned statements proved beyond reasonable doubt that he had committed the theft alleged in the 3rd charge or whether they might have related to another offence.

12. With regard to these statements the judge said:

"D3 signed three cautioned statements (exhibited as P6, P7 and P8). The first statement was made on the 2nd July from 12.58 until 3.15 p.m. The second statement was made early that evening. In it D3 simply said that he felt tired and didn't want to say anything. The third statement was made the next morning from 11.02 to 1.20 p.m. Taken together, the first and third statements give a full account of how D3 committed the offence detailed in the 3rd charge. I am satisfied so that I am sure from the area, the date, the type of goods stolen and certain other uncontentious matters that D3's statement do relate to the 3rd charge."

13. Counsel submitted that the particulars given by the applicant in his first statement that the offence took place in late February 1991 at a road near the hillside at Lai King Estate and involved the theft of 100 odd rolls of white cloth from a goods vehicle, did not match those stated in the 3rd charge to which we have already referred.

14. The applicant admitted that Tse had told him that they were going to steal a goods vehicle on board of which there was a large quantity of cloth that could be sold for "a few ten-thousand dollars" and that, when Tse prised open the rear compartment of the goods vehicle with a screwdriver, he, the applicant, saw 100 odd rolls of cloth inside. The applicant then stood watch while Tse started the engine. They drove off to another location where Tse negotiated a price with another man for the cloth. While he did so the applicant kept watch to ensure that their presence was not detected. Tse then drove the applicant home and, on the following day, told him that the cloth had been sold for $60,000 odd and gave him $20,000 as his share.

15. It is not surprising therefore that the applicant was unable to tell the police the precise quantity of cloth that was on board the goods vehicle or the exact nature and quantity of the other goods that were also present. Plainly, it was the cloth that was the focal point of the thieves attention. We think, however, that the judge was entitled to conclude from the combination of factors, namely, the nature of the goods stolen, including not only the very large quantity of cloth, but also the boxes of buttons and bands that the applicant admitted having seen on the goods vehicle, the location from which the vehicle had been broken into and driven away and the approximate date on which the applicant said that the theft had been committed, that the theft to which he was referring was that alleged in the 3rd charge. Bearing in mind that the applicant made these statements four months after the theft had been committed, we do not consider that the difference between the date specified in the charge, namely 2nd March, and the applicant's admission that the theft "should be late February" was of sufficient materiality to prevent the judge from concluding that the offence described by the applicant was the offence charged.

16. With regard to the 2nd applicant, counsel submitted that the judge, having stated that "it would be foolhardy to attempt to delve into the polluted murk of Tse Kau's evidence to try and separate truth from lies and I do not intend to do so" then proceeded to do precisely that and found that Tse's evidence in so far as it related to the 2nd applicant was not capable of belief.

17. This, it is said, indicates that the judge wrongly failed to consider whether Tse might have been telling the truth about the 2nd applicant.

18. We do not think that there is any force in this contention. Before stating the passage we have just quoted, the judge devoted four pages of his Reasons for Verdict to Tse's testimony in so far as it related to the applicants and the circumstances of the two thefts. He concluded that Tse had been "patently discredited as a witness" and that no reliance could be placed on his testimony. Then, after the passage of which complaint is made, the judge went on to say, "as against [the 1st applicant] I have taken no note whatsoever of Tse Kau's evidence. I have discounted it in its entirety."Not surprisingly counsel makes no complaint of this.

19. The judge then turned to Tse's evidence in respect of the 2nd applicant. Having noted that common experience has shown'that, in giving evidence, accomplices may have purposes of their own to serve that are not limited to exculpating themselves, he said:

"I have carefully considered all the relevant circumstances and I am satisfied so that I am sure that in respect of Tse Kau's evidence as it relates to [the 2nd applicant], I can take no more note of it that I can of his evidence against [the 1st applicant]. None of it was capable of belief. In respect of [the 2nd applicant] too, I have therefore discounted it in its entirety."

20. We are entirely satisfied that the passage on which counsel relies is not capable of supporting the contention that the judge wrongly failed to consider whether Tse might have been telling the truth about the 2nd applicant. Plainly the judge did consider this aspect of Tse's testimony.

21. We therefore dismissed both appeals.