CHU CHI KWONG v. R.

IN THE COURT OF APPEAL

1993, No.514
(Criminal)

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J U D G M E N T

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Mortimer, J.A.: On 26th August 1993 in the District Court the applicant was convicted of an offence of trafficking in a mixture containing over 23 grammes of heroin and three other associated offences by H.H. Judge B. Kwan. On 14th September 1993 he was sentenced to a total of 5 1/2 years imprisonment. Inter alla the prosecution evidence consisted of an oral admission made to a police officer (PW4) on his arrest after caution. The admission was "I sell the white powders to others at a very low price".

2. The applicant denied making the admission and gave evidence that when the drugs were found on him, the police officer asked him of their origin. The applicant said he did not reply and that,

"PW4 said, 'Are you incapable of speech?' and punched my waist and chest. I never said to PW4 the drugs were for sale cheaply to others."

In her reasons for judgment, the judge accepted the evidence of PW4 that the admission had been made and rejected the applicant's evidence in the following passages:

"I found PW4 to be an honest and reliable witness. I accepted his evidence."

And

"I found that the Defendant was a wholly unreliable witness."

She made no specific finding on the alleged punches.

3. The applicant now seeks leave to argue grounds of appeal which can be summarised as follows:

1. That counsel ought to have asked the judge to rule on the admissibility of the oral confession but failed to do so;

2 That there was evidence on which the judge could have ruled the confession inadmissible on the basis that the Crown had not satisfied her beyond reasonable doubt that it had been made voluntarily;

3 That counsel failed to challenge the voluntariness of the confession because he may have been misled by earlier decisions of this Court which erroneously give the impression that if an accused denies an oral confession, it is not open to him to challenge its admissibility on a voir dire or otherwise. Counsel referred to passages in R. v. Lee Man Liu [1992]2 HKCR 41 and R. v. Cheung Hon Yeung [1992] 132 (Crim.) (unreported);

4 That in any event as the admissibility of inadmissible evidence cannot be consented to or conceded the judge ought to have considered its admissibility proprio motu.

4. It is abundantly clear from the judge's reasons for verdict that she rejected the Allegations of violence : These could not have founded a basis for excluding this confession and no other basis was suggested. Counsel appearing at trial for the applicant must have taken the view that no purpose could have been served by holding a voir dire.

5. In any event, having heard the whole of the evidence, the judge concluded that the confession was made and she implicitly decided that it was admissible. It is not a District Court judge's duty to make findings upon every issue of fact - especially issues relevant to admissibility - not raised by counsel. Nevertheless, if this judge had concluded on all the evidence that she was not sure that the oral confession had been made voluntarily, she would have said so and would have excluded it from her consideration.

6. This is more than sufficient to determine this application. There are no arguable grounds advanced and leave to appeal is refused.

7. We do not follow Counsel's suggestion that there is misunderstanding at the Bar and on the Bench whether the admissibility of an oral confession denied by the accused can be challenged as not being voluntarily on a voir dire. The relevant principles are trite:

1 There is no difference in principle between the admissibility of oral confessions and written confessions.

2 In each case in order to be admissible the prosecution must show beyond reasonable doubt that the confession was made voluntarily.

3 Where an accused denies making a confession, it will be impossible for him to show on his evidence that the confession alleged was not made voluntarily. He cannot give evidence that any confession was improperly induced.

4 The burden, however, is on the Crown to show that the confession alleged was voluntary. It is always open to an accused to ask the judge to rule on the admissibility of a confession either in a voir dire or during the trial. In his discretion he will consider such relevant evidence as is put before him on the issue.