HKSAR v. YU WAI KEUNG and Others

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.81
(Criminal)

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J U D G M E N T

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Stuart-Moore, J.A. (giving the judgment of the Court):

1. It is convenient to refer to the Applicants by the numbers which were allocated to them in the District Court. Yu Wai-keung (D1) was convicted on charges of attempted burglary, burglary and two conspiracies to burgle committed on successive days. Leung Yun-kai (D2) was convicted with D1 of the two offences of conspiracy. Ng Shu-kei (D3) was convicted with D1 of the burglary. All the convictions were recorded on 28th January 1997, following a contested trial before Judge Wilson. The Applicants now apply for leave to appeal against these convictions.

2. Mr. Kynoch has correctly stated that without the evidence of confessions by the three Applicants there was insufficient to convict any of them on any of the charges they faced. He has advanced two grounds of appeal which can be dealt with together.

3. Firstly, he submits that the judge erred in admitting into evidence the written admissions of these Applicants by failing to consider properly, or at all, the evidence concerning assaults which the Applicants claimed had caused them to make the admissions. In D2's case, there was additionally a failure, Mr. Kynoch submits, to consider the provision of medication to treat his drug withdrawal symptoms. Mr. Kynoch concludes by submitting, in his second ground, that the convictions are unsafe and unsatisfactory as there was insufficient evidence apart from the confessions on which to convict. Clearly the second ground depends for its success upon the outcome of ground 1 and it is therefore upon the first ground that we have focused our attention.

4. There is, in the circumstances, no need for any recital of the facts relating to any of the charges.

5. At the trial, submissions were made that the confession statements of all these Applicants were involuntary for the reasons given in the grounds of appeal. In D1's case, it was also alleged that after police arrested his wife, she was used as a means of extracting a confession to avoid charges of handling stolen goods being levelled against her. Only D1 gave evidence for the defence confined to the special issue, and he called Dr. Wong, the medical officer at Lai Chi Kok, in support of his allegations.

6. D1 in his evidence complained of having been assaulted by police at his home on 17th July. He also gave evidence that he saw D2, who had also been at his home, being beaten up. D1 gave evidence of being further assaulted at the Upper Level Police Station. He gave evidence of all the Applicants making complaints on 19th July to the magistrate at the Eastern Magistracy. He testified about having been examined by the doctor in Lai Chi Kok and of the injuries he received, and he gave evidence that he knew that D2 was a drug addict who was suffering from withdrawal symptoms at about the time that D2's statement would have been taken.

7. At the trial, the notes were made available to the court which had been made by the learned Magistrate on 19th July recording the complaints made to the lower court and, as Mr. Kynoch has candidly observed in his written skeleton, there was no complaint made by D2 to the magistrate about being denied methadone at least so far as the written record of the magistrate is concerned.

8. The ruling of the trial judge on this issue is to be found in the transcript at p.264, and he dealt in his ruling with each Applicant in turn. So far as D1 was concerned, he found that the evidence given by police, unlike the testimony of D1, was impressive. The judge was satisfied that the "very minor injuries", as he put it, which were noted at the reception centre, were unconnected to any violent behaviour on the part of police. Indeed he rejected the suggestion that there had been any such violence.

9. The allegations made on behalf of D2 were only supported by D1, and the trivial marks found on D3's body at the Reception Centre did not affect the judge's view that the allegations made on his behalf should be rejected.

10. We have said on countless occasions that the Court of Appeal is not a proper forum for the reconsideration of simple factual issues which have been fully ventilated in front of the trial judge. We have not been able to see or hear the witnesses who gave evidence. The trial judge, on the other hand, was able to do so and he made an assessment, which he was fully entitled to make, on the facts that were presented to him. These issues were simple and straightforward. The evidence was brief and the ruling adequately set out why the judge decided to admit the evidence. Nothing raised in this application has caused us to be concerned that any of the rulings given by the judge were in error when he admitted the statements in evidence.

11. There is no merit in any of these applications and they are dismissed.