HKSAR v. LAW WAN SANG AND ANOTHER

CACC 257/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 257 OF 1999

(ON APPEAL FROM HCCC NO. 263 & 360 OF 1998 )

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J U D G M E N T

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Wong, J.A. (giving the judgment of the Court) :

Introduction

1. The applicants who were respectively D1 and D2 at the trial were jointly indicted in an indictment that contained one count of burglary and one count of robbery. They were convicted of robbery but acquitted of burglary after a trial before Deputy Judge Gill and a jury in the Court of First Instance. Each was sentenced to a term of imprisonment for 7 years. They now seek leave to appeal against their convictions. Originally D1 also applied for leave to appeal against sentence but he abandoned the application by a notice to this Court dated 9 September 1999.

2. The particulars of offence of the robbery are these :

"LAW Wan-sang and SIU Yun-fuk, on the 4th day of June, 1998, in stone hut at No. 8, Area 1, Pak Tin Village, Shatin, New Territories, in Hong Kong, robbed FONG Man-hing of cash of about $2,533.60 Hong Kong currency, 1 pair of gold-ear-rings, 2 gold finger-rings, 1 gold necklace, 1 'Titoni' watch, 1 knapsack, 38 red paper packets, 1 piece of paper and 5 packs of cigarettes."

Prosecution Case

3. The prosecution case was that the victim, Madam FONG Man-hing, a 70 year-old lady, who lived with her husband in the two storeys house, was in the house after her husband had gone out for shopping. Their two-year-old granddaughter was sleeping upstairs. At about 10:30 a.m., she heard noise coming from outside the door to the upstairs balcony. She thought that the noise was coming from her dogs and went to the door to find out. She did not see the dogs but instead was met by two men each carrying a knife. One of them came forward and grabbed her round the neck. He held the knife to her chest. She was very frightened. Then one of them removed from her person her ear-rings and necklace. The other one held her by the wrist and they stood facing each other whilst her first assailant ransacked the premises from the first floor to the ground floor. The men left after the search.

4. Madam FONG telephoned one of her sons-in-law for help. The police were called. Shortly afterwards, the husband returned home and the police also arrived. Apart from the ear-rings and the necklace that were taken from her, Madam FONG found the other items set out in the particulars of offence to have been removed from her home. She attended an identification parade a few days later and picked out LAW Wan-sang, D1 as one of the two men who had been guarding her while the other man was ransacking the premises.

5. D1 was arrested at about 1230 hours in the afternoon of 4 June when PC LAW Sai-kwong, one of the team members from Tin Sun Police Station deployed to investigate the robbery, spotted two men squatting outside a hut, apparently counting coins. One appeared to answer the description of one of the suspects. He managed to arrest the man who had stood up quickly and made as if he was to run away. This man was D1. The ground was slippery from recent rain, and D1 fell down and hit his head hard on the ground. D1 had on him in a waist bag three packets of Viceroy cigarettes and about $1,000 in cash. In the immediate vicinity were Laisee packets, a knapsack and other various items which Madam FONG and her husband later identified to be their property. D1's head was bleeding and had to be taken to hospital for examination and treatment.

6. D2 was arrested on 12 August by PC CHAN Man-kin who was on border patrol in the early hours of that day when he discovered D2 hiding in long grass on the Hong Kong side of a border fence not far from Lok Ma Chau. He was taken to Lok Ma Chau Police Station and on the next day he was handed over to Tin Sum Police Station for further enquiries. D2 was interviewed by PC KONG Cheuk-yin in Tin Sum Police Station on 13 and 15 August which resulted in the four records of interview, P21-24 inclusive. The admissibility of these documents was vigorously contested and were admitted into evidence after a voir dire.

D1's case

7. Both applicants elected to give evidence in the witness box and called medical evidence regarding their injuries. D1's case was that on 3 June, D2 asked him for a loan of $2,000 to $3,000 to set up a hawking stall. He asked D2 to go with him to the house of Madam FONG to collect a debt which was due by Madam FONG to Man Fei, a friend of his, and after collecting the debt he could ask for permission from Man Fei to lend him the money. They went together to Madam FONG's house the next day as Madam FONG did not have enough cash she gave him her jewellery. Madam FONG asked him what would she say to her husband if he found out the disappearance of her jewellery and D1 told him that she could make up a story that there had been a robbery. The doctor who examined him found a wound on the partietal area of the skull which was consistent with having been struck by a hard object.

D2's case

8. D2 denied going to Madam FONG's house with D1. He said that he had borrowed $20,000 from Man Fei. On 2 June, he met Man Fei by chance and Man Fei asked him to repay the loan. Later there was a meeting between him and Man Fei in the presence of D1 and a man called Ah Hung. As he did not have money to pay, Man Fei took his mobile phone, a telephone directory, keys and his home visitor's permit as security. He was returning home after work on the night of 11 August. He was stopped and arrested by the police. He was bitten by a police dog and kicked by a police constable. After he was taken to Lok Ma Chau Police Station he was further assaulted by the police. D2 was medically examined on 13 August by Dr. TANG Chi-on who gave evidence that D2 made a complaint to him that he had been bitten by a police dog 2 or 3 days before. The doctor found two wounds which were consistent with the complaint.

D1's Grounds of Appeal

9. D1 was legally represented at the trial but he is not represented before us. He set out his grounds of appeal in a lengthy written statement in which he repeated that he went to the house to collect a debt from Madam FONG on behalf of Man Fei and there was no robbery. He said that Madam FONG was telling lies to cover up that she had borrowed money from a loanshark. He repeated those allegations before us and also handed up two further written statements which we have read and considered. D1 gave evidence before the jury and it was plain that the jury rejected his evidence and accepted the evidence of Madam FONG. There is no substance in what he wrote and said before us. We are in no doubt that there was ample evidence to support his conviction.

D2's Grounds of Appeal

10. Two grounds were advanced in the Perfected Grounds of Appeal by Mr H.Y. WONG on behalf of D2 :

Ground 1

Ground 1(1) reads :

"The learned Deputy Judge erred in law in admitting the four records of interview taken by DPC 16410 at Tin Sum Police Station, namely Exhibits 21, 22, 23 and 24 as being voluntary. Having ruled the two records of interview taken by PC 51881 at 0550 hours on 12.8.98 and by DPC 19873 at 1353 hours on 12.8.98 inadmissible, the learned Deputy Judge should have also ruled the four subsequent records of interview at Tin Sum Police Station inadmissible. Given the Appellant's allegations that he was bitten by a police dog before he was taken to Lok Ma Chau Police Station and was assaulted by police officers including PC 51881 and DPC 19873 at Lok Ma Chau Police Station, the prosecution has failed to prove that the effect of the assault on 12.8.98 had already lapsed when Exhibits 21 to 24 were taken on the two subsequent days."

The two statements which the judge ruled inadmissible were taken in Lok Ma Chau Police Station by different officers some 27 hours before. P21 was not taken in Tin Sum Police Station until 1712 hours on 13 August. The judge conducted a thorough voir dire during which police officers involving in the arrest and interviews were subjected to lengthy and searching cross-examination on the question of voluntariness. He was satisfied beyond reasonable doubt at the end of the voir dire that the records of interview were voluntary before he admitted them into evidence. It is clear that the judge must have found that by the time P21-P24 were taken, any involuntary circumstances which might have existed at the time of the taking of the first two records of interview at Lok Ma Chau Police Station had dissipated. In R v Smitth [1959] 2 Q.B. 35, Lord Parker C.J. said at p. 41:

"This court, however, is of the clear opinion that the second statement was admissible. No doubt the opening reference to what it was said he had said to the regimental sergeant-major put the appellant in a difficulty. No doubt it was introduced by Sergeant Ellis in the hope that thereby he might get a continued confession; but it is clear that the effect of any original inducement or threat under which the first statement was made had been dissipated. Quite apart from the fact that the caution was given and given twice, some nine hours had elapsed and the whole circumstances had changed.... The effect of the threat or the inducement was spent."

Before the taking of each of the four records of interview, DPC 16410 cautioned D2.

Ground 1(2) is framed in these terms:

"Without the records of interview, there is no other evidence against the Appellant to connect him with the robbery charge."

It is unnecessary to deal with this subground in any detail. The law is and always has been that a voluntary confession alone is good and sufficient evidence to found a conviction. In the present case, there was also the evidence of D1 that D2 went with him to Madam FONG's house despite D2's denial.

11. The jury was fully entitled to take this evidence into account when they considered the case of D2. There is no substance to this ground and it fails.

Ground 2

12. Ground 2 is again divided into two parts. It will be more convenient to deal with them together.

2(1) reads as follows :

"During the trial, the prosecution has failed to call DPC 19873 who has given evidence in the voir dire when specific allegations had been made against him that he was involved in the assault on the Appellant at the Lok Ma Chau Police Station. The Appellant also gave evidence repeating the allegations against DPC 19873 at the main trial. By failing to call DPC 19873 at the main trial, the jury were deprived of the opportunity to fully assess the evidence.

2(2) is to this effect :

"This is all the more significant since the jury must have doubts as to the apparent admissions by the Appellant in respect of the burglary charge in exhibit 22 and exhibit 24 otherwise the jury would not have acquitted the Appellant on the burglary charge."

Again there is no merit in this ground which can be disposed of very quickly. In our view, the prosecution was justified not to call DPC 19873. To do otherwise might run the risk of introducing prejudicial and inadmissible evidence against D2 and this would not be to his advantage. After all, it was open to D2 to ask the prosecution to tender this officer for cross-examination or to call the officer as his own witness. It is apparent D2 did neither.

Ground 2(2) does not improve the case of D2 in the slightest degree. There is no inconsistency in the jury's verdicts. While the admissibility of a confession is a matter for the judge, it is the jury who always decide what weight they would attach to a confession placed before them after the judge has ruled in favour of admissibility. The reason why the jury acquitted D2 on the burglary charge is obvious because the victims in that charge were not able to identify the two umbrellas in court. These were allegedly stolen in the burglary. This is an important factor which makes a difference between the burglary and the robbery charges. In the robbery charge, there was also the additional evidence of D1 which put D 2 at the scene of crime in the material time.

13. This grounds also fails.

14. There is nothing in the evidence or in the summing-up to cause us any concern. We are not persuaded that the convictions of both applicants are either unsafe or unsatisfactory. Their applications are dismissed.