R. v. LEE YAN WING and Another

IN THE COURT OF APPEAL

1993, No. 176
(Criminal)

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J U D G M E N T

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Hon Yang, CJ:

1. The first applicant ("D2") was convicted after trial by Deputy Judge W Leung of four charges, namely, Charge 1 - Conspiracy to rob, Charge 3 - Possession of offensive weapon in a public place, and Charges 6 and 7 - Robbery. The second applicant ("D4") was convicted after trial of only one charge, namely Charge 5 - Robbery. D2 was sentenced to concurrent terms of four years' imprisonment on Charges 1, 6 and 7 and to two years concurrent on Charge 3. D4 was sentenced to be detained in a Training Centre. This is D2's application to appeal against conviction and D4's application to appeal against both conviction and sentence.

2. The evidence against D2 consisted of a paper cutter found on his person and eight cautioned statements admitted into evidence by the learned judge after holding the alternative procedure. The evidence against D4 consisted of one cautioned statement admitted after the alternative procedure.

3. Neither D2 nor D4 gave evidence on the general issue. No defence witnesses were called.

4. By his cautioned statement, D2 admitted that he and KOO Tsz-chun ("Koo") and others conspired on 30 April 1992 to rob the Kam Dor Po Amusement Game Centre at Yan Chau Street with paper cutters. When the police intercepted them at the game centre in question, D2 and the others attempted to leave but were stopped. He was found to have a paper cutter on him. A photograph of three similar paper cutters was shown to us. The blade could be slid in and out of the sheath and the cutter may be easily put in one's pocket. These facts form the subject matters of Charges 1 and 3 respectively.

5. By other cautioned statements, D2 also admitted that he, Koo and others on 18 April 1992 robbed a taxi driver in his taxi with knife near the Li Cheng UK Swimming Pool, and on 29 April 1992 they robbed a man at the Kam Pa Amusement Game Centre at Portland Street with knife and a screw driver. These facts form the subject matters of Charges 6 and 7 respectively.

6. D4 admitted under caution that on 13 April 1992 he, Koo and others committed a robbery at the Kam Pa Amusement Game Centre at Portland Street. D4 acted as a lookout.

7. D2's counsel advances three grounds of appeal. Firstly, the cautioned statement of D2 was obtained by inducement or threat, i.e., as a result of the statement taking officer's utterance to D2 that "You had better explain clearly to me why you brought that cutter, otherwise I would arrest you". Secondly, the judge erred in ruling that the paper cutter was an offensive weapon per se. Thirdly, as D2 had a clear record, the judge erred in not directing himself on the issue of good character.

8. Counsel for D4 submits six grounds of appeal. Firstly, the judge erred in failing to evaluate the evidence of the injuries suffered by D4 in the context of whether or not the cautioned statement was voluntary. Secondly, the judge erred in failing to evaluate the evidence that corrections in the written cautioned statement were not initialled by the statement taking officer or D4. The third ground is that the judge failed to appreciate that the prosecution has the burden of proving the voluntariness of a cautioned statement. The fourth ground is that, in considering the credibility of the police witness and D4 in the context of the police officer's alleged collection of D4's medicine from Cheung Sha Wan Police Station, the judge failed to make any finding of fact and thereby deprived D4 of the probable benefit of such a finding. Fifthly, the conviction was unsafe and unsatisfactory. Sixthly, the judge failed to consider D4's good character in the context of his credibility or propensity to act dishonestly.

9. In the course of the hearing before this Court, counsel for D4 made an application to call the doctor who examined D4 to give viva voce evidence. It was submitted that the doctor's medical certificate was admitted as a defence exhibit by consent, but it does not state whether or not the injuries found on D4 were consistent with the assaults allegedly inflicted upon him by the police. It was further argued that as it was for the prosecution to prove voluntariness, it was not incumbent upon the defence to establish assault. Counsel, however, conceded that the medical evidence now sought to be called was available at the trial. It was, in our view, entirely a matter for defence counsel whether, in his professional judgment, the doctor should be called at the trial. It was a judgment only he could make. We do not think the evidence which is now sought to be adduced on behalf of D4 is of very great assistance to us. In any event, the evidence being available in the Court below and there being no element of surprise, we refused the application.

D2's Grounds of Appeal

10. Ground 1: Whether cautioned statements were obtained by threat or inducement.

The statement taking officer was DPC 14392. In his evidence in chief he said, upon searching D2, he found on the latter's person a paper cutter in the region of the abdomen. He asked D2 what the purpose of the cutter was but received no answer. He asked D2 why the cutter was kept in such a position and D2 said, "Nothing". The officer then asked D2 to explain clearly to him the purpose of this paper cutter, or he would arrest him. D2 then made a statement and was arrested. Under cross-examination, the following questions and answers were exchanged: -

"Q. Put: He remained silent the second time when you asked why he had a paper-cutter?

A. Yes.

Q. You asked what would you use paper-cutter for and he remained silent for the third time ?

A. Yes.

Q. Before you told D2 to explain the paper-cutter, D2 never told you any useful information, either by remaining silent or by evading your question ?

A. Yes.

Q. D2 only started to confess after you told him he had better explain otherwise you would arrest him ?

A. Yes."

11. It was argued on behalf of the defence in the Court below that the words "he had better explain" amounted to an inducement, and the words "otherwise you would arrest him" amounted to a threat. The judge did not resolve the difference between the version given by the officer in chief and that given under cross- examination. He simply ruled that in the circumstances the police officer was justified "to ascertain first the explanation before he decided whether to arrest D2 or not". The judge appears to have adopted that version of the officer's utterance as given by that officer under cross-examination: see above. He found that the officer's statement was neither an inducement nor a threat.

12. Counsel for D2 stressed before us that D2 had the right to remain silent, and the words uttered by the detective police constable were tantamount to saying that it would be the worse for D2 if he did not tell, which words would amount to a threat. Counsel accepted that, whilst the police constable was entitled to ask D2 the purpose of having the paper cutter, it was the way the police officer put the question which caused concern.

13. It will be noted that when DPC 14392 made the statement complained of to D2, he had not as yet decided to make the arrest. It was after D2 had said they were about to commit a robbery that he was cautioned by the detective officer. The cautioned statements were made later at the Police Station. Clearly, the circumstances in which the paper cutter was found on D2, and his initial refusals to answer the detective constable's questions, entitled the officer to make enquiries and to ascertain whether a lawful authority or reasonable excuse for the possession of the paper cutter might be offered. As counsel for the applicant contends, the question here is whether the words actually used by the officer amounted to an inducement or threat.

14. Counsel for the Crown further argues that what DPC 14392 said to D2 could not have amounted to a threat that continued to operate and taint the subsequent numerous caution statements. If the threat was telling D2 that he would be arrested, it dissipated when he was arrested. Consequently, the later cautioned statements were not and could not have been made under any apprehension of a threat of arrest.

15. With great respect to counsel there seems to be an element of artificiality in this line of reasoning. If indeed the detective constable's words amounted to a threat or inducement, it would not be erased, as by the operation of some mechanism, so that the mind became at once calm and collected enough for a voluntary statement to ensue. This is not how reality works.

16. In the light of what the Privy Council said in AG v. SHAM Chun [1986] HKLR 1043, at p.1047 I, the direct threat of arrest (for possession of an offensive weapon in a public place) made by the police officer (in asking D2 for an explanation of the paper cutter) rendered involuntary and, therefore, inadmissible his answer that he was looking for an opportunity to rob. Arrest involves more than the declaration thereof. It involves the taking into custody and detention for some time, whether short or long. Had the judge recognised all of that and then gone on to hold that the threat had dissipated before the making of the admissions made in the Police Station, such a conclusion reached by the judge who has seen and heard the witnesses might well have been one which we would have been slow to disturb. But the judge did not go through that process of reasoning. And it would not be safe or satisfactory for us, without having seen or heard the witnesses, now to embark upon that process of reasoning for ourselves. In a comparable situation in R v. LAW Sheng-huen [1989] 1 HKLR 116, at p.122 E - G, the Privy Council regarded it significant that the defendant there had not been told before he made his further admissions that his earlier ones were inadmissible. Nor had D2 here been told anything of the kind.

17. What the police officer was entitled to do was to ask D2 why he was carrying the paper cutter and, in particular, why he was carrying it hidden between his trousers and underpants. Unfortunately, acting in good faith but wrongly, he reinforced his inquiry with a direct threat of arrest.

18. For the foregoing reasons, the convictions on conspiracy to rob (Charge 1) and the robberies (Charges 5 and 6) are unsafe and unsatisfactory and must be quashed.

Ground 2: Whether the paper cutter was an offensive weapon per se.

19. It was argued on behalf of D2 that, if the paper cutter was an item which one is not surprised to find on another, then it is not an offensive weapon.

20. In The Queen v. LEUNG Chi-hung (1983) Crim. App. No. 1412 (unreported), Huggins, VP, had this to say about a pocket knife (at p.3) : -

" Obviously a thing is not 'suitable' only for the purpose for which it was manufactured. The melon knife in Chan Fuk- shing v R. (supra) was manufactured for cutting melons but was obviously suitable and, when carried in a public place, probably intended for cutting heads: it was not necessary to prove that the defendant in fact intended to use it as an offensive weapon. It is difficult to decide what precise line of demarcation was intended by the Legislature, but we think that any article which the average person might reasonably carry about him every day would not be 'suitable' for use as an offensive weapon, even if capable of such use. The piece of stone in Harrison v Thornton (1979) 68 Cr. App. Rep. 28 was held to be an offensive weapon 'since, when the defendant picked it up, he intended to use it for causing injury to the person of Borg'. We think it would be unnecessary in Hong Kong to prove a comparable intent, because the piece of stone would not only be capable of causing injury but would not be a thing which the average person would normally carry and no injustice would be done if the carrier were required to justify his possession.

We do not say that the test we have suggested will necessarily be sufficient to cover all future cases, but it seems to us that the knife carried by this Appellant was not such that it fell within the statutory definition of an 'offensive weapon' unless an intent to use it as an offensive weapon was proved."

21. A paper cutter of the type we saw in the photograph is not, in our view, an implement, which one "would normally carry" on his person, though undoubtedly it has its legitimate function. In our judgment, the implement clearly falls within the definition of "offensive weapon" in Sec. 2 of the Public Order Ordinance, Cap. 245.

22. There is nothing in this second ground of appeal.

Ground 3: D2's good character.

23. D2 did not give evidence on the general issue, or on the issue of admissibility of his cautioned statements. We were informed by counsel for D2 that, during the hearing on the issue of admissibility and voluntariness, it was agreed that D2 had a clear record. The judge made no reference to his good character in his Reasons for Verdict. It is contended that he should have dealt with the evidence. The evidence of D2's clear record was adduced for the limited purpose of determining whether or not the

cautioned statements taken from him were voluntary and therefore admissible. The alternative procedure adopted by the judge was directed to the same limited purpose. There is here no difference between evidence given by an accused on the voir dire as to his good character and that given in the alternative procedure. As counsel for the Crown said, such alternative procedure is not a vehicle by which the applicant can raise his good character on the general issue. There is simply no authority for saying that the evidence of D2's clear record may be used to his advantage on the trial proper.

In our judgment, D2's good character only went to his credibility on the limited issue of admissibility of the cautioned statements.

This ground also fails.

D4's Grounds of Appeal

24. Ground 1: D4's injuries in the context of voluntariness of his cautioned statement.

The admissibility of D4's cautioned statement was challenged on the ground that he had been severely assaulted by the police. He was also threatened with further assaults if he continued to deny the robbery. It was suggested that he was assaulted with fist and elbow on the back by several police officers, and that DPC 14498 jumped up to hit him with the elbow on his back several times.

25. In giving evidence, D4 said he had a clear record and he described the threats and assaults by police officers. He said the statement was dictated to him and he was not invited to initial the correctness and alterations he made when writing the statement on dictation. The contents of the statement were not read back to him.

26. He was arrested on 1 July 1992, wrote the cautioned statement on the following day and granted bail on 3 July 1992. As he felt a pain in his back he went to see a doctor immediately. The doctor found certain injuries on his back, which were specified in a medical certificate produced by consent to the Court and described by the judge - in our view accurately - as three spots of redness of skin on the back of D4's chest wall. The doctor advised him to make a report to the police which he did. The medical certificate did not state whether the injuries were consistent with the blows described by D4. The judge found the three spots not to be consistent with the assaults described by D4.

27. It was submitted on behalf of D4 that once it had been proved that some injury was present, the prosecution was obliged to call evidence that would dispel the possibility of an assault. The D4 had overcome, by the agreed medical certificate, any evidential burden of introducing grounds for suspecting violence had occurred. Though he might have called medical evidence himself, he was not at risk of the consequence of failing to do so. Lastly, it was submitted that the judge was not qualified to come to his conclusion on the injuries without further medical evidence. In our view, the judge considered all the evidence, including the medical evidence, and made the finding he did. It was a finding which any person with common sense might make and calls for neither medical knowledge or experience.

28. There is nothing in the judgment to indicate that the judge might have misunderstood that it was for the Crown to prove voluntariness.

Ground 2: Corrections and alterations made by D4 in his cautioned statement were not initialled by him.

29. The judge found that the deletions and alterations were made in the course of writing, the statement was written in bad grammar and the deletions and alterations were made in line with the style of the author, who had little skills in writing or did not have a good writing ability.

30. The argument advanced on behalf of D4 before us was that the judge failed to take account of normal police practice. The Courts are accustomed to seeing the initialling of errors. Such absences of initialling should at least have attracted the judge's attention and caused him to resolve any apparent contradictions.

31. It was further contended that, while it is quite possible for errors to occur a small number of times in a short composition, human experience suggests that what is claimed by the prosecution to have happened is unlikely. What the judge supposes - wrongly, so the argument goes - is a poorly educated individual who makes numerous mistakes, but is sufficiently alert and educated to realise these errors as he proceeds and that he makes the necessary corrections.

32. The judge was aware of the absence of initials to the corrections. We are satisfied that the judge was entitled to come to the conclusion that the statement taken from D4 was voluntary.

Ground 3: The burden is on the prosecution to prove the voluntariness of a cautioned statement.

33. The complaint here is that the judge's approach was faulty, and all the evidence with respect to D4's case was not considered.

34. There is nothing to show that the judge might have misunderstood or overlooked the requisite burden of proof upon the Crown.

Ground 4: The evidence of DPC 14498's collection of D4's medicine from the Sham Shui Po Police Station.

35. The police officer's evidence was that, after he had taken D4 to Cheung Sha Wan Police Station, he went back to Sham Shui Po Police Station to fetch D4's medicine. D4 denied he had any medicine. The judge did not resolve this conflict but said this point only went to credibility.

36. There is nothing to suggest that this is anything other than a point on credibility. The judge, having considered all the evidence, decided that the evidence of the detective constable represented the truth. We cannot say he erred in arriving at this view.

Ground 5: The conviction was unsafe and unsatisfactory.

37. The gist of the argument here is that, in the light of all the other grounds of appeal, the conviction was unsafe and unsatisfactory.

38. Having considered all the other grounds of appeal, we do not think there is any merit in this ground of appeal.

Ground 6: D4's good character.

39. It was D4's complaint that he, having asserted his clear record in his evidence on the issue of admissibility and voluntariness, the judge erred in omitting to consider such evidence as to how it should be dealt with. It was argued that the law requires at the very least that, in a case where credibility of witnesses is so much in issue, good character be dealt with and given some weight as evidence. It was argued that it was incumbent upon the judge, when he decided to give reasons for his ruling, to have directed himself in relation to character. That such a direction should have made it clear that character went to credibility and whether the accused was likely to be telling the truth in his evidence upon the voir dire.

As in the case of D2, the evidence of D4's good character came out during the alternative procedure.

We might add that there is no authority for the proposition that the judge must deal with it when considering the general issue. The evidence goes to neither credibility or propensity on the general issue. Our observations on D2's good character are equally applicable here.

Conclusion

40. We allow the applications for leave to appeal against convictions and treat the hearing of the applications as hearing of the appeals. We allow D2's appeal in respect of Counts 1, 6 and 7 and dismiss his appeal as regards Count 3.

41. We dismiss D4's appeal as regards Count 5.

42. As to D2, therefore, convictions as regards Counts 1, 6 and 7 quashed and sentences set aside.

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43. The first applicant, i.e., D2, having succeeded in his appeal against conviction in respect of Counts 1, 6 and 7, now seeks leave out of time to appeal against his sentence on the count of possession of an offensive weapon. The argument advanced on his behalf is that this is not the worst case of this type. The applicant was only 18 years of age at the time of the offence and he has a very supportive mother. It is further argued that, in the light of his success in his appeal against three of the four counts, the sentence on the possession of offensive weapon, one of two years, is, in all the circumstances, too heavy. The convictions on the other three counts having been quashed, we must regard the remaining offence as one of simple possession of an offensive weapon in a public place. He has already served seven months in custody, which is one month short the actual period he would have served had the sentence been a sentence of one year. We are of the view that the best course is for us to reduce the sentence and to permit his release today. We therefore extend time, treat his application as an appeal against sentence and allow the appeal. His sentence is reduced to a term so as to enable his release today.

44. The second applicant, i.e., D4, has nothing to say about his application for leave to appeal against sentence. We therefore dismiss that application.