R. v. HUNG RICHARD

IN THE COURT OF APPEAL

1994, No. 294

(Criminal)

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J U D G M E N T

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Mortimer, J.A. (giving the judgment of the Court): This applicant was convicted after trial before Deputy Judge Thomas of one offence of robbery and one of theft committed on 9th May 1993. These offences were committed by this applicant and others. He was sentenced to 5½ years imprisonment on the robbery and 18 months imprisonment on the theft. He applies for leave to appeal against conviction.

The facts

2. The brief facts were these. D1, a female, made acquaintance with the victim and asked him to go to Cheung Chau with her to a holiday bungalow. When the two of them were there, three other accused including the applicant were let into the bungalow by the woman. Using a knife, those three threatened the victim, beat him, tied him up and took his property. There was some attempt to make it appear as though the female was also a victim although it was clear on all the evidence that she was an accomplice. The property included a Moneylink Card. The victim was forced to divulge his personal identification number and the applicant and the others withdrew money from the account on that number. Some of the proceeds were later given to the female accomplice. In fact, no report was made to the police immediately by the victim. But later this applicant contacted him asking for more money in return for a portable phone that had been taken. The matter was then reported to the police and soon after all the accused were arrested, including this applicant. This applicant made a confession statement and was identified on a parade by the victim.

The evidence

3. The evidence against this application was a written confession statement made on 19th May 1993 in which he admitted his part in the robbery, and secondly, that on 27th May the victim identified him on a formal identification parade as one of the robbers.

4. This applicant's defence was that his statement was not his. He was subjected, he said, to successive assaults and the interview was dictated to him. Further, he said, the identification parade was irregular and unreliable, in that he was conspicuously different from the other actors on the parade. He made complaints to the authorities about this immediately afterwards. All those matters were before the judge.

The application

5. Mr Tse, on his behalf, presents one point to the Court upon which the whole of the application depends. It is this. In the course of the written statement, there appears in the record, first, the caution in which the English version reads:

"Do you want to say something? You are not obliged to say anything unless you wish to do so but whatever you say will be taken down in writing and may be given in evidence. Do you write yourself or I shall write for you while you speak?

I have something to say and I will write myself."

6. And then it was signed by the applicant. Then followed these words:

"I make this statement of my own free will. I know that I need to say anything unless I wish to do so (sic) but whatever I say may be given in evidence."

And then he signed again. There was therefore a passage which is meaningless. This matter was raised by counsel at the trial in the course of the voir dire and the officer who took the statement was cross-examined. He was cross-examined on the basis that he had given evidence that the statement was read out to the applicant and this was challenged by counsel because he did not spot this mistake. The cross-examination went in this way:

"Q. Isn't it correct that you just said that you read the statement back to the defendant?

A. Yes.

Q. And you didn't spot the mistake?

A. No. I did not.

Q. And you didn't spot this mistake in the second cautioned statement?

A. Probably it was due to the fact that the prescribed form of the declaration had one character missing, i.e. the word 'not'. I did not pay attention to the form when the declaration was handed over to me.

Q. The same mistake manifests itself in the third statement?

A. It was probably the case but I don't know now.

Q. So the declaration which you had must have been a defective one, right?

A. Not necessarily. It does not mean that the declaration itself was wrong in that it had a character missing or was defective. It may be that the defendant omitted the character. I don't know because I don't have the form with me.

Q. I put it to you that you did not in fact read the statement back to the statement.

A. I did."

7. In his ruling on the admissibility of that statement, the judge first gave no reasons. Later, however, he did give reasons. It is not necessary for me to rehearse those. It suffices to say that the judge in his reasons for verdict did not mention this point. He was satisfied that the statement was made voluntarily and that it was reliable. Mr Tse submits that the judge ought to have found that the officer was unreliable because of this error, because in reading the statement out he did not spot the mistake, and apparently did not spot it in other statements.

Conclusion

8. With the greatest respect to Mr Tse who has said everything he could have said to advance this point and to persuade the Court of its validity, there is no merit in it whatsoever. The judge no doubt took the same view of the matter at trial. It was an error that had been made - no doubt in the copying of a form of declaration by the applicant - in which a character was left out. It was a declaration which no doubt the police officer could have rehearsed without reading the declaration at all. The fact that he did not pick up this error is not a matter which was likely in any way to impress the judge; certainly not on the cross-examination that we have seen. In these circumstances there is no merit in this point and as it is the only matter which is advanced, the application must fail.

9. It should perhaps also be noted that the conviction of the applicant by no means depended solely upon this statement. The applicant was identified clearly on an identification parade. The judge considered that matter quite separately from the voluntary statement. The evidence against the applicant was overwhelming.

10. This application is without merit and it is refused.