THE QUEEN v. CHAN HO SHING

IN THE COURT OF APPEAL

1986, No. 565
( Criminal)

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J U D G M E N T

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Silke, J.A.:

1. At the conclusion of the hearing we refused the applications for leave to appeal against conviction and sentence and stated that we would give our reasons later. This we now do.

2. The Applicant, Chan Ho Shing, the 2nd Defendant at trial, was convicted before Judge Sharwood of two offences of burglary. He had been jointly charged with his co-defendant, Chan Ka Shu - "D1” - on charges 1 and 6 on a 10-charge Indictment. The rest of the charges concerned D1 alone and he had pleaded guilty prior to the Applicant's trial and was dealt with by another judge.

3. He seeks leave to appeal against both his conviction and his sentence.

4. The case for the prosecution was based upon a cautioned statement made by the Applicant after his arrest on the 13th of June. There was further evidence of visits to the locations mentioned in the charge; on charge 1 to a building at Kai Chun Lau, Cho Yiu Estate and, on charge 6 to a building at No. 222, Tai Kok Tsui Road, called the Yaumati Ferry Staff Quarters.

5. After proceedings concerning the admissibility of the cautioned statement, that statement was rejected. The first ground of appeal relates to the method used by the judge in his consideration of the admissibility which Mr. Cheng Huan, who appears for the Applicant, contends led to the Applicant's being misled as to the courses open to him.

6. In his Reasons for Verdict, the judge stated that he had adopted what is known as the "alternative" procedure, the procedure sanctioned by Ho Yiu Fai & Others v. The Queen[1]. It was there held that when the question of admissibility of a statement is at issue, the judge sitting without a jury must ensure -

"(1) that the defence is not left with the impression that the right of cross-examination is limited to the issue of admissibility;

(2) that the accused is heard on the issue of admissibility if he so wishes; and

(3) that a ruling on the admissibility is made at or before the close of the case for the prosecution.”

It is not suggested that there was any breach of items (1) or (2). But Mr. Cheng Huan submits that the record shows there to have been a breach of item (3). This is based on a passage in the transcript, after the evidence of the Crown's final witness was heard, which reads:

“Case for Prosecution.

Mr. Tong - Submits no case.

Defendant elects to give evidence on limited issue of admissibility of PP1."

7. The transcript continues with the record of the evidence given by the Applicant. At the end of that evidence, the trial judge ruled that the statement was excluded. The Applicant then elected to remain silent on the general issue and no witnesses were called.

8. On the face of the record, there appears to have been a slip by this experienced judge. It may be that he had in mind The Queen v. Wong Yun Fat[2] which dealt with the voir dire in the presence of a jury.

9. We note the words of Huggins, J. (as he then was) when in Leung Siu Ng v. The Queen[3] commenting upon the procedure sanctioned by Ho Yiu Fai¹:

“Since statements to the police so often in this territory constitute the major part of the evidence against the prisoner there is much to be said for maintaining in their regard the usual method of inquiry upon voir dire, time wasting and frustrating though it may be. ……”

But if the alternate procedure is used by a judge sitting alone then Ho Yiu Fai¹ is to be followed . Mr. Cheng Huan contends that this failure to observe the third condition of Ho Yiu Fai¹ was a material irregularity and argues that the Applicant suffered injustice for he would be under the justifiable, and reasonable, impression that the case against him was so weak that he needed not give evidence on the general issue. Had the correct procedure been followed and if the trial judge had, having heard the Applicant, ruled on admissibility at the close of the prosecution case, then here the statement having been rejected, the Applicant might have elected to give evidence on the general issue.

10. As we have said, there appears, on the face of the record, to have been an irregularity. But the Applicant was in no way denied his right to give evidence on the narrow issue. After the ruling excluding the statement was made he clearly had the opportunity to give evidence also upon the general issue. He could have been under no illusion that the case then depended upon the evidence given by other police witnesses of that which occurred during the visits to the scenes concerned in the two counts which involved him. And their evidence did not concern directly the excluded cautioned statement. No miscarriage of justice was occasioned by the apparent irregular procedure.

11. The other main ground of appeal concerned the reliance the judge placed upon that which Mr. Cheng Huan describes as "the verbals". It is his contention that the trial judge should have gone on to consider separately the admissibility of those verbals and submits that .the Crown had not established them as being voluntary. It is his further contention that the voluntary nature of them was a matter for suspicion and that even if they were admissible, very little weight should have been attached to them because of the general circumstances leading up to their being made.

12. Mr. Cheng Huan concedes, as he must, that there was no direct challenge to their voluntary nature at .the trial but despite this he contends that it was necessary for the judge to consider this which, on the face of the record, he did not.

13. He cites in support Lee Fat v. The Queen[4] "the scintilla" case. There it was held (1) that if an accused person expressly states that .he does not object to the admission of a confession, the court requires only a scintilla of evidence to satisfy itself that the confession was voluntary.

14. In the circumstances here there was, in our view, that necessary scintilla of evidence. One or the witnesses was asked whether any threats or inducements had been offered to the Applicant at the two places to which he replied “No”. What happened at each was that the Applicant had indicated premises which he thought to have been burgled. Each of the buildings consisted of a number of rooms. He had indicated that he was acting as a lookout and he could not be certain which particular room had been burgled. It was suggested to the witnesses in cross-examination that he did not point out any unit at all. This suggestion was not accepted. One of the witnesses in cross-examination, Detective Sergeant 9602, when asked:

“Did defendant do anything at Yaumati Ferry?"

He replied:

"He tried to recognises doors, and he walked along, and tried to point out and we checked and find out and in some places, no burglary was committed, but he pointed out 316 and there was a burglary there."

15. Having stated in his Reasons for Verdict that he rejected the cautioned statement because of a number of answers by the statement taker which appeared to him to be improvisations for which he thought there might be an innocent explanation, the judge went on:

“…… I simply could not be sure that the statement had been made in the manner arid circumstances described by PW1.

D2 was an awful liar, and his account was pitiful to behold.

I certainly did not exclude the statement because of any doubts raised by his evidence.”

He considered all of the evidence relating to the site visits and came to his conclusion that he was sure that the Applicant had gone with the police to these premises and that he had told the police that he had taken part in burglaries at the premises specified in the charges.

16. We take the view that the trial judge was perfectly entitled to come to the conclusions he did in the light the manner in which the trial was conducted and on the evidence produced before him. Had the voluntary nature of those verbals been seriously contested then we have no doubt that he would have given that contention the consideration it deserved. But it was not. Nothing that Mr. Cheng Huan had submitted to us has given us cause to intervene.

17. The application for leave to appeal against conviction is refused.

Sentence

18. There was imposed upon the Applicant 2½ years' imprisonment on each of the charges to run concurrently. Mr. Cheng Huan, we think quite rightly, has not pressed this application with any strength. There was nothing wrong in the sentences, passed, if anything they were on the lenient side. That Applicant had previous convictions, one of which in 1984 was for robbery.

19. The application for leave to appeal against sentence is also refused.

[1]  [1970] H.K.L.R. 415

[2]  Criminal Appeal No. 490 of 1984 (unreported) Criminal Appeal No. 570 of 1974 (unreported)

[3]  Criminal Appeal No. 570 of 1974 (unreported)

[4]  [1969] H.K.L.R. 349