CHAN HO SANG and Another v. R.

IN THE COURT OF APPEAL

1993, No. 147
(Criminal)

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J U D G M E N T

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Litton, J.A.:

1. There are two applicants before us, Chan Ho-sang the first defendant at trial and Poon Chi-hung, the fourth defendant. They were both 17 years old when convicted. They were tried in the District Court before His Honour Deputy Judge Leung and sentenced on the 13 April 1993 to training in a Training Centre. There were originally four defendants before the judge but the second and third defendants pleaded guilty. They were charged with robbery which occurred on 3 June 1992 in Shatin when they were in a taxi and robbed a taxi driver of the sum of $340.

2. The facts proved by the prosecution were these. At about 12.30 a.m. the four youths boarded a taxi in Mongkok. One sat in front and three behind. The taxi driver was told to go to Shatin by a specific route. After about 20 minutes when the taxi was near the Water Treatment Works at Shatin one of the youths at the back produced a knife, held to the driver's neck and told him to stop saying "Keep silent, robbery". The driver's neck and fingers were cut and he bled. He was robbed of $340. He was told to get off his taxi and the four youths took the taxi and drove off.

3. The taxi stopped a short distance away and the youths were seen by plainclothes policemen to walk quickly away from the taxi. The police thought they were acting suspiciously, told them to stop. One of the youth said "Policeman, run away" and they dispersed when chased.

First applicant

4. The first applicant was caught after a brief struggle. He was holding $340 in his left hand. As to what then happened this is what the judge found: After the police officer had revealed his identity, he asked the first applicant why he kept on running. The first applicant said "It got nothing to do with me. It was they who told me to do it". The first applicant said that the money in hi hands was given to him by Ah Wah. He then asked the police officer for a chance. The police officer asked the first applicant what he meant by that whereupon the first applicant said "Robbing a taxi". The first applicant was then cautioned and after that he repeated that it had nothing to do with him; it was Ah Wah who told him to do it; and he went on to say "Ah Sir, let me help you arrest Ah Wah. I got his telephone number". The officer asked the first applicant about the telephone number and he said "6941135". He was then arrested. The applicant was first taken to the taxi which was searched, and a knife and a box which could have been used as a sheath were found on the rear seat. A bloodstained towel was also found on the front seat and the first applicant was taken back to the police station.

5. There the first applicant gave his home number. The police telephoned that number, located the first applicant's mother who then arrived at the police station.

6. So far what I have recited are unchallenged facts. The facts of the case were straight-forward and the police evidence, accepted by the judge, was overwhelming.

Self-induced intoxication

7. The first applicant's defence was self-induced intoxication. He said that for about two months prior to the robbery he had been taking pills called "little house" which induced intoxication, and that early on that evening at a video game centre he had taken about 20 such pills.

8. Plainly the prosecution was in no position to negative the suggested drug-taking habit. The question before the judge was quite simply whether on all the evidence the prosecution had proved beyond reasonable doubt the specific intent necessary to establish the crime of robbery. This had to be inferred from the circumstances surrounding the arrest and immediately after the arrest when the first applicant was at the police station.

9. The first applicant's mother gave evidence to the effect that he was unconscious when she arrived at the police station. But this evidence was contradicted to some extent by the first applicant himself who said this in evidence:

" In police station, I saw my mother. I cried. I can't remember what happened in police station. I recovered fully at one stage in police station but I was never completely clear-headed there.

When I felt pain in police station, I was not fully conscious at that time. I knew what happened to a certain extent."

10. If upon these facts the judge had found that the specific intent to rob was proved against the first applicant, it is difficult to see how he could have been faulted. The judge after a long complicated excursion through the evidence concluded as follows:

"Having considered the evidence as a whole, I reject the evidence of D1 that he was high on drug to such an extent that he did not know what he was doing while he was among the four young men who robbed the taxi driver. I am satisfied beyond reasonable doubt on evidence before me that D1 did know what he was doing when he and other three young men robbed the taxi driver. I accept the evidence of the police and am satisfied beyond reasonable doubt that D1 did make the verbal confession when he was caught by PC 13060 and that D1 refused to sign the post record when his mother told him not to sign on the police statement".

11. The question before us quite simply is whether such finding can be faulted on this appeal. In essence two grounds have been put forward.

12. The first is that there was a material irregularity at the trial by virtue of both the number of questions and the manner in which the first applicant was questioned by the judge. It is Mr. McCoy's contention that "a reasonable observer at the back of the court would have concluded that the judge had descended into the arena reserved exclusively for the trial lawyers for the parties".

13. The judge asked 40 questions. They were directed essentially to the first applicant's assertion of his drug-taking habit. Perhaps some or even all of these questions might have been better left to the prosecutor. But if relevant questions which ought to have been put by the prosecutor were not put, then it was the duty of the judge to put those questions himself; remembering at all times that he must preserve his impartiality. It is not necessary to go into each specific question on this appeal. Some of them could have been better formulated but on the whole we have come to the conclusion that the judge's intervention did not amount to "descending into the arena" and this ground of appeal must fail.

14. The other ground is to this effect: that the judge erred in rejecting the bulk of Dr. Robert S.K. Wong's evidence. Dr. Wong had been called as a witness for the defence. Dr. Wong is a general practitioner and with impressive medical qualifications but he never examined the first applicant. He had never in any way rendered medical services to the first applicant before this matter arose. He could therefore express no opinion on the condition of the first applicant on the day in question. All that he was able to do was to give general views as to the effect of the drug called "little house" or "Lendormin", of which he had some experience as a general practitioner. But as regards the effect of abuse of that drug, or an over-dose, he had no experience. Such opinion evidence from Dr. Wong therefore could only have been of the utmost marginal relevance, and we cannot see how the judge erred in placing no reliance upon it. We see no merits in the grounds of appeal put forward on behalf of the first applicant and the application for leave to appeal must be refused.

Second applicant

15. As regards the second applicant, POON Chi-hung, he was arrested shortly after the robbery and the evidence against him consisted of a written statement he made at the Tin Sum Police Station on the morning of 5 June 1992, Exhibit P6. The statement was a lengthy one, and could constitute a confession by him to participation in the robbery, although, as he said in that statement, he did so with reluctance.

16. The only issue before the judge was whether (1) on all the evidence he was satisfied that Exhibit P6 was made voluntarily and (2) whether he could properly rely upon that piece of evidence alone to convict. The statement was written in the second applicant's own hand and his father POON Pak-cheung was present when the statement was made.

17. On the question of weight to be attached to that statement, the point raised on appeal by Mr. Haldane on behalf of the second applicant is that the statement is incomplete and can be shown to be incomplete because of omissions, admitted as such by the officer who took the statement. The omissions are (1) that the police had offered the applicant a pen and this was not recorded and (2) that the applicant had volunteered to write the statement himself, and this was not recorded. The judge categorised these omissions as "more apparent than real". We agree.

18. Complaint is also made that the judge should have relied upon the testimony of the father regarding the making of the statement. The applicant's contention is that the statement was written down by him at the dictation of the police. The judge placed no reliance upon the father's testimony and Mr. Haldane complains of this. When the father was cross-examined he was asked:

"Q: Were you there to see the interview was conducted fairly?

A: Right.

Q. When policeman dictated the answers, did you object?

A: No. I didn't say anything because I did not know whether it was true or not."

19. There were similar passages in the record. In our judgment the judge was perfectly entitled to place no reliance upon the testimony of the father. there are other grounds of appeal raising so-called issues which were not issues at all. It is unnecessary to deal with them. The application of the second applicant must likewise be dismissed.