CHUNG TAN FONG v. R.

1992, No.24
(Criminal)

IN THE COURT OF APPEAL

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J U D G M E N T

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Nazareth, J.A.:

1. This is the judgment of the court.

2. The applicant was charged as the second of three defendants before Hooper J. and a jury, and convicted on 14th January 1992 on one count of conspiracy to rob and one count of possession of a pistol and eight rounds of ammunition. He was sentenced on each count to six years' imprisonment with two years of the first sentence to run consecutively to the second, making a total of eight years. He applied for leave to appeal out of time against both convictions. Having heard Mr Richard Wong who appeared for him, we refused his application without calling upon Mr A.A. Bruce for the respondent, and now give our reasons.

3. The facts can be quite shortly stated in the following way. In the early hours of the morning of 11th November 1990, a police patrol noticed a parked van with a person behind the driving wheel, who tried to drive off, but was prevented by the patrol. Various articles were found in the van of a sort that suggested they were intended to be used for the purpose of stealing. The person was arrested and in time became the 1st defendant.

4. During the course of the investigation, the police traced a call received on the 1st defendant's mobile phone which led to premises on the First Floor of 24 Hung Took Street, Tokwawan. At about 11:30 p.m. on that same day, the police, after seeking entry, forced the door of the premises when it was not immediately opened. They managed to apprehend the applicant as he ran to a side room and attempted to get hold of a travelling bag. In it the police found the pistol and ammunition that are the subject of the second count. They also found a woman sleeping in that room.

5. DPC6175 then arrested the applicant for conspiracy to rob and cautioned him. The applicant did not say anything. Inspector Chan asked the applicant why he had grabbed the travelling bag and he did not reply. The police then searched the premises and found inside another bedroom a rucksack containing six knives, two rolls of adhesive tape, white gloves and metal wires. Inspector Chan asked the applicant for an explanation of the additional items; the applicant did not reply.

6. However, in the course of the next few days the police obtained sixteen cautioned statements from the applicant, seven on the 12th, three on the 13th, three on the 14th, and three on the 16th November 1990. At the trial, a voir dire was held to determine the admissibility of the sixteen statements. Hooper J. ruled all but the first five statements to be inadmissible and excluded them, not upon the ground of brutality alleged by the applicant, but in the exercise of his discretion on other grounds. The applicant did not give evidence in the voir dire, but he did in his defence before the jury.

7. The applicant in his notice of appeal did not in any way question the judge's summing up to the jury and sought to appeal only against the admission of the five statements admitted. His amended perfected grounds of appeal specified five grounds in support of his contention that the learned judge was wrong in admitting the five statements. Mr Wong began his submission with the fifth ground, i.e. that :

"The learned trial judge was wrong in saying that there was no evidence to support the allegation of the appellant which in effect he had shifted the burden of proving the statements given involuntarily to the appellant" (sic)

8. Mr Wong referred to the opening paragraphs of the judge's ruling on the voir dire:

" Dealing with the matter of the 2nd defendant first, although allegations of police brutality and impropriety have been made by the 2nd defendant against a number of police officers both in respect of what happened at the scene of the arrest and also later in the Kwun Tong Police Station and amongst which police officers was Chief Inspector CHAU at the scene of the arrest, it also has been alleged that this assault took place in the presence of Superintendent Rees.

All these allegations have been refuted by the police officers concerned and there is no evidence to support them except the doctor's evidence which was inconclusive and the 3rd defendant's evidence as to what he said he was told by the 2nd defendant and what he says he saw.

The allegation of the 2nd defendant through his legal representative made at the magistrate's court on 13th November has not been repeated on oath in this court where the issue is being tried.

Having considered all the evidence and counsel's submissions I am satisfied the Crown had proved beyond a reasonable doubt that the statements were all voluntary in the sense that this word is used in this branch of the law. In other words they were not obtained as a result of fear or prejudice or hope or advantage excited or held out by a person in authority or by oppression."

Mr Wong submitted that the tenor of the first three paragraphs was to shift the burden of proving that the statements were given involuntarily onto the applicant. Having heard all Mr Wong had to say, we had no hesitation in rejecting his submission on the plain contents of the foregoing paragraphs in the context of the entire ruling.

9. We find it convenient to address the remaining four grounds, i.e. grounds (i) to (iv) together. They were, with reference to the judge, in the following terms :

" (i) he failed to take any or any sufficient consideration that the 2nd Appellant had complained to the Magistrate that the statements were obtained by violence by the police officers when he was first brought before the Magistrate Court on 13th November 1990;

(ii) he failed to take any sufficient consideration that if the complaint by the 2nd Appellant to the Magistrate on 13th November 1990 was to avoid the confessions, why did the 2nd Appellant continue to sign the statements on 13th, 14th and 16th November 1990;

(iii) he failed to take any sufficient consideration that the 2nd Appellant had complained to the Medical Officer at Lai Chi Kok Reception Centre that he was assaulted by the police officer and there was injury at the right wrist of the 2nd Appellant which supported the allegations of the 2nd Appellant;

(iv) he failed to take sufficient consideration of the discrepancies of the evidence of DPC6175 and Sgt 12740, in particular, their evidence as to what had happened when the 2nd Appellant was brought to the room where the statements were alleged to be given." (sic)

10. Mr Wong's submission on grounds (i) and (ii) was that after the applicant had made his first seven cautioned statements on the 12th November 1990, and before making the remaining nine statements, he was taken before a magistrate for remand and his legal representative made a complaint that he had been assaulted by the police. He contended that whether or not the applicant was assaulted, the mere fact of the complaint leads to the inference that he would not have made further statements in the nature of confessions thereafter, and that since no reference to the point appears in the judge's ruling on the voir dire, he must totally have overlooked the point. We would observe at this stage, only that the judge was not obliged to give any reasons for his ruling.

11. Proceeding to ground (iii), this was founded upon the medical officer's evidence of the applicant's "alleged assault by four non-uniformed persons on 11th November ... at the police station"; and also that he had "a linear healed abrasion mark" on the side of the little finger by his wrist. Mr Wong submitted that this was evidence of an injury sustained by the applicant consistent with being caused by the police pulling the chain of the handcuffs they placed on the applicant. He submitted that the judge was wrong in dismissing the evidence lightly. We are satisfied that the judge was quite right in observing that there was no evidence to support the allegations of police brutality and impropriety, and that the doctor's evidence was inconclusive.

12. Proceeding finally to ground (iv), this related to discrepancies of a very minor sort between the evidence of two of the police officers.

13. Reverting then generally to grounds (i) to (iv), all these were put to the judge. Having heard all Mr Wong had to say, we were not persuaded that they pointed to any error on the part of the judge or to any reason that would entitle us to interfere with his decision on the voir dire.

14. It followed, for those reasons, that the application had to be dismissed.