HKSAR v. YIK KAM HUNG

CACC 8/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 8 OF 1999

(ON APPEAL FROM DCCC 674 OF 1998)

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J U D G M E N T

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Leong, J.A. (giving the judgment of the Court):

1. The applicant Yik Kam-hung was jointly charged with five other defendants with theft. He was D3 in this charge. The charge (the 4th charge in the charge sheet) alleged that the applicant together with D1, D2, D4, D5 and D6 on or about 23rd January 1998 at Hong Kong Bank China Building in Hong Kong stole a chose in action, namely a debt in the sum of $1,152,934.52 owed by Hong Kong Bank to Harmony Securities Limited, the property of Harmony Securities Limited. The applicant was also charged with resisting arrest (the 5th charge). This charge alleged that he resisted PC47693 outside Alexandra House, Des Voeux Road in the execution of his duty. The applicant was convicted of both charges in the District Court by H.H. Judge Chow who sentenced him to the Training Centre for both offences. He now seeks leave to appeal against conviction.

2. What happened was this. On 23rd January 1998, PC 47693 and other police officer were on plain clothes duty near China Building and they saw the applicant with other persons acting suspiciously. Later they saw them go up the escalator to the Hong Kong Bank in China Building. After several minutes, they saw the applicant come down from the escalator with these other persons. The applicant was holding a black briefcase. The police officers then followed them and when they reached Alexander House, PC 47693 intercepted the applicant and declared he was a police officer and wanted to search him. The applicant threw down the case and fled. PC 47693 chased after him. When PC 47693 reached the applicant, the applicant turned around and push him away. There was a struggle as a result and both fell to the ground. Eventually the applicant was subdued. When PC 47693 asked the applicant to whom the briefcase belonged, the applicant replied that he took it away when he was in the bank because nobody was guarding it. The briefcase was found to contain cash $850,000.

3. The origin of that sum of money in the briefcase came about in this way. According to D6 who gave evidence for the prosecution, in the morning of 23rd January 1998 he opened an account in the Hong Kong Bank, in Tung Choi Street, Kowloon. In the afternoon, he presented two cheques totalling the sum involved in the theft charge to the Queen's Road office of the Hong Kong Bank for payment into the account he opened in the morning and he withdrew from that account $850,000. He put the money in a briefcase and passed it to the applicant. Later that afternoon, he withdrew another $302,800 from that account. The bank staffs confirmed there were these bank transactions on that day. Harmony Securities Limited confirmed that the two cheques which D6 had presented for payment were part of 20 cheques stolen from the company early in January, that year and the sums in these cheques were debited from their account but they were not authorised for payment to D6.

4. The prosecution case includes a record of interview of the applicant. The applicant made certain admissions at this interview. This gist of these admissions is this. A person called Ah Wu told the applicant that someone who had stolen some cheques wanted somebody to accompany him to cash the stolen cheques. As a result of an arrangement by Ah Wu, the applicant and other persons accompanied D6, to the Hong Kong Bank, China Building to withdraw the money. D6 withdrew $850,000 and put it in a briefcase. D6 then handed the briefcase to the applicant to keep and told him it contained that sum. The applicant knew the money was cashed from cheques which belonged to a securities company.

5. The record of interview came about in this way. After the applicant was arrested, he was taken to Waterfront Police station where he was interviewed by DSPC10383. The applicant requested to see his lawyer first. After his lawyer a Mr. Wong arrived, the applicant indicated to the interviewing officer that he was not willing to answer any question. The next day the applicant was taken to the Central Police station for interview. At that interview, the applicant made the admissions. According to the interviewing officer, DPC45734, the applicant was willing to answer questions and his answers were written down by the officer at the applicant's request. Prior to the interview, the officer had asked the applicant if he needed a lawyer because the officer knew that the applicant had a lawyer the day before. However, the applicant said it was not necessary. All the officers including the sergeant and Inspector Simpson who were involved in the handling of the applicant after he was taken to Central Police Station from Waterfront Police Station testified that nothing untoward happened to the applicant before or during the interview and none of them had heard that the applicant requested his lawyer to be present at the interview.

6. The applicant gave evidence that he asked for a lawyer to be present at the interview at Central Police Station but he was assaulted by the sergeant. He was told to write down on the statement that he was willing to answer question and when he hesitated to do so, he was slapped. He did not ask the interviewing officer to write down answers for him and in fact, he said, he did not volunteer any information to the officer. After he was released on bail, he was examined by a doctor in a hospital and later on he complained to the CAPO that he had been assaulted by the police.

7. The Judge after he analysed the evidence of the police officers in detail accepted the prosecution evidence on how the interview was conducted. He found that the injuries the applicant had suffered were injuries sustained by him in the course of his arrest when he resisted. He rejected the evidence of the applicant on the issue of admissibility of the record of interview. He found the appraiser's medical report did not assist the applicant because it stated that the abrasion wound over the applicant's knee was consistent with his falling on the ground during the arrest. The tenderness in his chest was also consistent with his fall. The Judge had no doubt that the record of interview was voluntary. The Judge rejected also the evidence of the lawyer Mr. Wong who gave evidence for the applicant that he had been given an assurance by the police that he would be contacted if the applicant was interviewed again.

8. The applicant did not give evidence on the primary issue.

9. The only ground of appeal which the applicant put down in his notice of appeal is that he did not commit the offence. Today the applicant raises a further ground that the admissions he made were involuntary. They were made under oppression because his request for the presence of his lawyer at his interview was refused. He questions why when his lawyer was present he would not answer any question whereas a short time later in Central Police Station in the absence of his lawyer, he would be willing to answer question if he was not forced to do so. What the applicant has submitted this morning is a repetition of his evidence before the Judge. These had been considered by the Judge when he ruled the statement admissible. His complaints on assessment to the magistrate, to the medical officer and also to CAPO, had all been considered by the Judge when he found the statement voluntary.

10. This is a finding of fact supported by ample evidence.

11. The Judge's conclusion that the applicant had assisted D6 to commit the theft of the chose factors involving the two cheques, and that the applicant had resisted police officer PC 47693 in the execution of his duties is supported by the evidence he accepted. The convictions cannot be faulted. The applicant was rightly convicted.

12. In closing, if I may add that the Reasons for Verdict take up some 69 pages of transcript. While I appreciate that this is a case involving a number of defendants, the way in which the case has been dealt with presents some difficulties in ascertaining and correlating all the facts and issues involved. If anything can be said, it would be of benefit to an appellate court to have Reasons for Verdict correlated in a more comprehensible manner so that the real issues can be readily considered. The application for leave to appeal against conviction is dismissed.