THE QUEEN v. NIRMAL KUMAR VYAS AND ANOTHER

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J U D G M E N T

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Silke, J.A.:

1. On the 19th September in open Court we announced the decision on these applications and stated that we would give our reasons later. This we now do.

2. Nirmal Kumar Vyas - and Ashok Kumar Sharma - "D2" - were charged in the District Court and convicted upon a joint charge of theft. They were each sentenced to imprisonment for two years.

3. They both now seek leave to appeal against their convictions.

4. It was the case for the Crown that Naresh Kumar Agarwala came to Hong Kong for the purpose of buying a consignment of gold which he intended to smuggle back to India. To this end he approached Mohammad Haroon Sheikh, (P.W.1) and negotiated with and through him the purchase of one hundred gold bars of ten taels each. The two accused were also in Hong Kong and knew Naresh.

5. The gold was collected at the premises of Mohammad Haroon Sheikh, having been packed there, taped into the back of a television set. This set was replaced in its carton and was brought, with the assistance of TUNG Siu-lung, who worked for Sheikh, to the room in Chung King Mansions where Naresh was staying. This was shortly before the 25th December 1983.

6. On the 25th December in the evening when Naresh and Dl had returned from a sight-seeing trip in Hong Kong the gold was missing, having been removed from the television set.

7. On the 26th December, report having been made to the police, Police Constable 11839 with others went to the flat in Chung Kin;; Mansions. There he saw on the bed three gold bars. He also saw, in its carton, the television set the back cover of which was placed on top of the set. He found screws both on the bed and on the telephone table.

8. Before the 25th December D1 had been in communication with Ramsaran Katyaly (P.W.4) - "Ramsaran". He had first asked Ramsaran to hold approximately HK$125,000 for safe keeping. There had been meetings between Ramsaran and D1 - one of which at least took place at Chung King Mansions.

9. On the 25th December, at about 9 o'clock in the evening,Ramsaran received a telephone call from Dl. As a result of which they met a little later. D1 informed Ramsaran that he wanted Ramsaran to go to Singapore to sell some gold for him and to return to Hong Kong with the money. When Ramsaran said that he could not go Dl offered him a ticket, his expenses and the sum of $10,000. This offer was refused.

10. D1 then asked Ramsaran to keep some gold for him. Ramsaran again refused and asked D1 why he himself did not sell the gold. D1's reply was that he did not want to show himself as he had no receipt for the gold. The quantity was a hundred pieces of ten taels each.

11. On the 27th December Ramsaran rang the Ambassador Hotel, Room 317. D1 was not there but a person who said he was Dl cousin answered the telephone and asked Ramsaran to meet him.

12. A meeting did take place and there was a discussion about gold. The cousin, who was identified as D2, said that D1 was not there but that he - D2- had the gold. He asked Ramsaran to keep it as he was to leave Hong Kong the  next day. Ramsaran again refused. He did however ask to be shown a piece of the gold and he was - a ten tael piece like the exhibits in Court, those exhibits being the three bars of gold found in the flat in Chung King Mansions.

13. Later that evening Ramsaran again met D2 who then informed him that D1 would come to talk to Ramsaran himself. Ramsaran was further told that D1 had said he was not to be given the gold. At about 9 o'clock that evening, Dl rang Ramsarah and warned him not to talk about the gold to anyone, stated that he was making his own arrangements, and said that if anybody asked about him or about his address Ramsaran was not to tell.

14. The two applicants were arrested late on the 27th December. Each of them made cautioned statements and at the trial a voir dire was held in respect of each set of statements. At its conclusion the trial judge refused to admit three of the statements made by D1 but did admit, as voluntary, an answer he made at the time that he was charged. Four statements of D2 were admitted - the first being made on the 28th December at 4 a.m., which was a negative statement as D2 said nothing; the second at 9:17 a.m. on the 28th December when, having been shown a copy of D1's statement, he made a statement and answered questions. The statement contained an admission that he was sorry he had "conducted" this stealing, that he was forced by his brother-in-law to do so and that he was to be married in January and had come to Hong Kong for shopping.

15. In the course of his answers to the questions put to him, he admitted that he had taken the gold from Chung King Mansions to his hotel, the Ambassador. He went on that he had been told by his brother-in-law to get a brief case which he had bought. The two last statements concerned his willingness to bring the police to the shop at which he bought that brief case and his indicating that shop to them. When he indicated the shop he added that he used the brief case to keep the gold and that he had dropped the brief case with the gold inside a taxi.

16. Mr. Keane, Q.C., with him Mr. Westbrook, who appeared for the applicants in this Court, advanced six grounds of appeal with a seventh being the roll-up ground of unsafe and unsatisfactory. Of those grounds we are concerned with two - the first relating to the admission of Dl's statement in answer to charge and the second to the admission of D2's set.

17. Mr. Keane has also attacked the generality of the case and the soundness of the evidence for the prosecution. He complains that the Agarwala brothers referred to in the trial, were never called as witnesses. That because of this there was no direct evidence before the Court as to who owned or possessed the gold, that it had been stolen or what had happened to it after its delivery to Chung King Mansions.

18. In conjunction with this he says that the Crown opened its case - the summary of facts which were before the trial judge had been adopted by Counsel then appearing for the Crown as his opening - on the basis of evidence which they could not lead. He submits that Sheikh and Ramsaran should have been treated as accomplices and that the Judge should have given himself the customary warning. In respect of Ramsaran he says that no weight should have been placed upon his evidence because of the nature of the man.

19. We do not think there to be substance in those grounds. There was ample evidence, bearing in mind the confessional statements of both of t he applicants, which indicated a stealing of gold. That' the Crown opened too high and that their evidence did not support that opening is not a matter of moment. The trial judge was fully aware of the nature of the witness, Ramsaran, who was a self-confessed smuggler to India of gold and watches and other matters. There was no evidence to suggest that either Sheikh or Ramsaran were connected in any way with the theft which was the charge the trial judge was considering.

20. We shall deal separately with the attacks upon the statements. As to D1 Mr. Keane complains that it was taken in between two statements which had been ruled inadmissible.   The trial judge had rejected allegations of assault but he had not been satisfied that the methods adopted by an Inspector Ma, who was the taker of the statements, were proper.

21. There was a very lengthy ruling given at the end of the voir dire. We have said before and repeat now that there should be an economy of reasons in the giving of such a ruling.

22. The Judge said:

"Inspector Ma's evidence was unsatisfactory in many ways, and I cannot accept that Exhibit PP7 and 8 were made in the manner he says they were made. As I cannot accept his evidence on this, I cannot be satisfied as to the voluntary nature of those statements."

23. The statement to answer to charge made by Dl was in answer to the charge put to him by Detective Senior Inspector Kwok. An Hindi interpreter, Abdui Rehman, was used.

24. Mr. Keane attacks on two grounds. One: that the improprieties of which Inspector Ma was guilty had not been expunged at the time that the answer to charge was given and two: that the interpreter used was so manifestly incompetent at his job that it could well be that Dl did not understand the charge which was put to him.

25. There was no evidence to show that D1 had been in any way suffering under intimidation at the time that he made the statement he did. He wrote it himself in English. The mere fact that it comes in point of time between the inadmissible P7 and the equally inadmissible P8 does not, of itself, suggest that this statement was an involuntary one. It is clear from the manner in which Abdui Rehman gave his evidence at the trial, it being necessary to use a Hindi interpreter to interpret for him, that he was not the best choice for the duty he fulfilled. But there can be little doubt that D1 was fully aware that he was in the police station in connection with the theft of the gold and that which he himself wrote indicates quite clearly he was under no misapprehension as to the nature of the charge being put to him. He said this:

"I want to tell this job was done by me. Mr. Ashok was (deletion) knowing this is my gold and in my instruction he company to me, so it is required please charge on me only because he was very innocent, he didn't know anything about this."

26. We do not think that there to be anything wrong in the admission by the trial judge of this statement as a voluntary one.

27. We are however somewhat more concerned about the statements admitted in respect of D2. Our concern is within a narrow compass. There were many allegations of impropriety, which included assaults, leveled against the police. The Judge rejected these and with that rejection `there can be no quarrel.

28. However, late in the day, an allegation of assault was made against a police officer who had not up to then given evidence. The question of identification of this officer arose. He had been described as a stout, of medium height with glasses.

29. In the course of the trial D2 was shown a series of thirteen photographs. From these he picked out the photograph of Chief Inspector Chan. It was agreed by Counsel, under the provisions of section 65C of the Criminal Procedure Ordinance, that D2 had pointed out the photograph of Chief Inspector Chan and that he had said this was the person who had assaulted him. It was not of course admitted that such an assault had taken place.

30. At the time of trial Chief Inspector Chan was on a study course in England and was therefore unavailable to give evidence. The Crown did not seek an adjournment. They did seek, and were given leave, to call evidence in rebuttal.

31. The absence of Chief Inspector Chan could have been remedied by other credible evidence given that that evidence was sufficient to close the gap. [LEUNG Wing-ning⁽¹⁾]

32. D2's evidence as to the allegations was that on arrival at the police station, and when passing through the door, his hair was caught by the "stout man". That while he was being interrogated and assaulted by other police officers the "stout man" came back. The "stout man" had a conversation with other members of the police force and he then took D2 by himself into a room. He questioned him and forced him to sit upon the floor. He was given many blows in that room by the "stout man". He was hit, he said, in such a manner that be received no bruises. He could feel the pain inside. At this point D2 had made no confessional statement.

33. Some time later the "stout man" returned and gave him a copy of Dl's cautioned statement. D2 denied that he had anything to do with the gold but he was told by the "stout man" that he would be allowed to go if he gave a statement similar to Dl's and also that he must give a statement similar to D1's. Inspector Kwok, who also took D2's statements, came into the room - there was conversation between himself and the "stout man" - and D2 then made the main statement.

34. All of that evidence, with one exception, was covered by other evidence.  That not directly covered was D2's allegation of being pulled into a room and beaten inside that room while alone with Chief Inspector Chan.

35. The trial judge was aware that D2 had identified Chief Inspector Chan's photograph as the assaulter and he also had the LEUNG Wing-ning principle in mind. He said:

"In a case of this trial the prosecution could not be expected to bring the Chief Inspector back from England, and so they had to discharge the onus on them, by calling other evidence."

He accepted that while all of the officers called directly or in rebuttal denied any assault on D2 by Chief Inspector Chan the Chief Inspector had been responsible for taking D2 from Tsimshatsui to Kowloon Police Headquarters and he commented:

"So it can be rightly said that the CIP did have the opportunity to assault A2 at Tsimshatsui.''

D2's evidence had clearly identified Chief Inspector Chan the "stout man".

36. The trial judge disbelieved all of D2's allegations. Having so found he went on:

The direct evidence as to the hair-pulling was as we have already set out. In cross-examination it was put to Senior Sergeant 1458:

That question and answer is ambivalent and the question itself was somewhat unfortunately phrased in the light of the rest of the evidence. We would hesitate to say that this was sufficient of itself to fill the gap.

37. The trial judge then considered the D2's evidence as to the activities of the "stout man". He compared the evidence as to the build and height of the other police witnesses with their evidence of the physical conformation of Chief Inspector Chan. He made the following finding:

38. This finding is to ignore the agreed identification by D2 of Inspector Chan as the man who assaulted him and his equation of that man with the "stout man". We do not think that this finding can be justified.

39. The effect is that the trial judge removed from himself the consideration of the real issue - the gap. It may well be, had he properly directed himself upon the facts, that he would have come to the conclusion that there was sufficient evidence to cover it. On the other hand, it may equally well be that he would have concluded such gap to have been left unfilled.

40. In these circumstances, we do not think that the conviction of D2, based as it was mainly upon the confessional statement - for without that statement the rest of the evidence, while suspicious, would not have been sufficient for a finding of guilt - can stand.

41. The application for leave to appeal against his conviction by Dl was refused. The application for leave to appeal against his conviction by D2 was granted. We treated the hearing of the application as the hearing of the appeal and allowed the appeal and quashed the conviction.

(1)     [1981] H.K.L.R. 96