R. v. YU HON KEUNG

IN THE COURT OF APPEAL

1995, No.71
(Criminal)

____________

_______________

J U D G M E N T

_______________

Bokhary, J.A.:

1. On January 5 this year, before HH Judge Bailey in the District Court, this applicant, a man aged 40, was convicted on two charges of robbery.

2. He now seeks leave to appeal against conviction.

3. The first robbery was committed against a woman in a lift in a building in Fu Shin Estate on July 13, 1993; while the second robbery was committed against another woman in a lift in another building in that estate on the following day.

4. In each robbery , the victim was relieved of her property at knife point and then pushed out of the lift while the robbers escaped by descending in the lift.

5. It was the prosecution's case that it was the same two robbers each time, namely the applicant and one Kong Man-keung (who was not before the court at the applicant's trial).

6. Neither victim identified the applicant.

7. He was convicted on admissions, verbal and written, which the judge felt sure that he had made voluntarily and were true.

8. Before us, the judge's decision to admit those admissions and his reliance upon them are attacked in the course of an able argument advanced by Mr Wong on the applicant's behalf.

9. The circumstances were unusual.

10. At about 12:30 in the afternoon on August 19, 1993, a number of police officers arrived at the 18th floor lobby of Shin Kwan House in Fu Shin Estate, which happens to be the estate where the two robberies had occurred the month before, to investigate a report of someone having attempted to commit suicide by jumping off that building.

11. The officers included the three who later gave evidence at the trial: Police Constable 48392 Leung Chung-yin; Senior Sergeant Tam Kwok-yau; and Sergeant 16868 Yuen Wai-man. Since they are referred to as PW3, PW4 and PW5 respectively in the Reasons for Verdict and in the grounds of appeal, it will be convenient for us to refer to them similarly.

12. In the lift lobby mentioned earlier, the applicant was found sitting on the floor surrounded by firemen and ambulance-men. He declined the services of a doctor. Instead, he led PW3 and PW4 to his home in that building. He had been drinking and appeared depressed. Initially, he tried to prevent the two officers from seeing a piece of paper which had been lying on a table in his home. Eventually, however, he showed it to PW4 who had been trying to comfort him. It was a suicide note.

13. As to what then happened according to PW3, the judge said this:-

"PW3's evidence was that the Defendant said that some time ago he had committed robberies with "SZE Ngan-keung", SZE had been arrested and had requested the defendant to raise $1,500 cash bail and collect SZE's travel documents from his father's place; SZE's father had refused to give the Defendant these documents; SZE had said that if he could not be bailed out, he (SZE) would give evidence against the Defendant who did not want to go to jail and so, feeling depressed had attempted to kill himself. PW3 gave evidence of arresting and cautioning the Defendant for robbery and then returning with him to Tai Po Police Station where the cautioned statement (P2, P2A) was taken by PW3."

14. Looking at that statement, its contents, if voluntary and true, suffice to convict the applicant on both charges on his own admission: which is what the judge did.

15. Only one "perfected" ground of appeal has been filed. It contends that the judge "was wrong in ruling the oral admission made at the scene and the written statement made at police station (Ex. P2) to be admissible".

16. Then follows sub-para (a) which reads:-

"the learned trial Judge failed to take sufficient consideration that:-

(i) before the alleged oral admission, the Appellant had attempted to commit suicide. He was confused, emotional and was crying:

(ii) the Appellant did not respond to PW4's questions until PW3 had asked repeatedly and used comforting words; and

(iii) the Appellant smelt strongly of alcohol, apparently having consumed 8 bottles of beer a said by the Appellant, looked sad and his reactions were slow."

17. That goes to what the judge did or did not take into consideration. It seems to us, reading the judge's Reasons for Verdict as a whole, that he was fully aware of the unusual circumstances of the case and of how those circumstances might impact on the question of voluntariness. We do not think that he failed to give adequate consideration to any of the factors identified in that sub-paragraph.

18. Then follows the remainder of the ground of appeal, which is the form of a sub-paragraph (b); and we should read it in full:-

"Whereas there were material discrepancies between the evidence of PW3 and PW4 (Pages 31, 45, 46, 48, 49, 67 and 68), in particular, PW3 said that PW4 had said to the appellant to the effect of "tell me why you wanted to commit suicide. perhaps I can help you" while PW4 accepted he spoke to the appellant in a comforting manner to find out the reason for the suicide attempt but denied saying "perhaps I can help you", the learned trial Judge was wrong to hold that "he prefer the evidence of PW4 who is clearly an experienced officer' in that:-

(i) having found PW3 an honest witness, there was no cogent reason not to believe this part of his evidence;

(ii) he was wrong to hold a balancing exercise in "preferring" the evidence of PW4; and

(iii) he failed to consider this part of Appellant's evidence that 'he only made the oral admission after PW4 might be able to help."

19. Looking at the Reasons for Verdict, one sees the judge saying this: "Having seen PW3, PW4 and PW5 and the defendant give evidence, I had no hesitation accepting the evidence of PW3, PW4 and PW5 and finding that the oral admissions at the defendant's flat and his cautioned statement P2 were given voluntarily beyond reasonable doubt".

20. It seems to us that there is no room for saying that the judge left out of consideration any part of the evidence. And when it comes to his "preferring" the evidence of one of the officers over the evidence of the other one, although the expression "prefer" caused us some initial difficulty, we are at the end of the day satisfied that the judge was saying no more than that there were matters of detail on which he felt sure that one officer was accurate whereas the other officer was not.

21. On all material matters, the judge was satisfied, on a proper consideration of the whole of the evidence, that the admissions relied upon by the prosecution had been made voluntarily and were true.

22. In those circumstances, while it is possible to pick points on which the judge's reasons can be attacked, a fair reading of the reasons which he gave as a whole satisfies us, at the end of the day, that the attack cannot be brought home. So, with expression of thanks to Mr Wong for the care which he has brought to the preparation and presentation of his arguments, we feel obliged to refuse leave to appeal against conviction, which we do.