R. v. MAK KWOK LAM and Another

IN THE COURT OF APPEAL

1994, No.609
(Criminal)

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J U D G M E N T

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Power, Ag. C.J. (giving the judgment of the Court):

1. The 1st applicant faced three counts: one of robbery, one of possession of a firearm or imitation firearm at the time of committing a robbery, one of possession of an arm and ammunition without a licence. The 2nd applicant faced only the third of those counts. They pleaded not guilty and were tried together before Deputy Judge Yeung and a jury, and found guilty. They now seek leave to appeal against those convictions.

2. The facts are simple. They were apprehended in a room in the Tung King Yat Sik Villa in Reclamation Street, Kowloon on 8th January 1994, and in the roof of that room was found a 7.62 mm calibre home made automatic pistol and five rounds of ammunition.

3. The 1st applicant was identified by a victim of a robbery that had ccurred some year before at the To Fa Villa when the victim CHEUNG Cheong-wah had been robbed of $1,200 cash. He identified the 1st applicant and said that he had had in his possession at the time of the robbery of what appeared to be a firearm.

4. The grounds of appeal which have been argued by Mr. Hatton today, who appeared at trial for the 1st applicant only, are parallel ones for each of the applicants. In the first ground it is urged that the trial judge was wrong in exercising his discretion to admit the evidence of, in the case of the 1st applicant, Police Sergeant 21173, and in the case of the 2nd applicant, of PC 47060, oral admissions made at the time of arrest. In the case of the 1st applicant the police sergeant said that he had said:

"Ah Sir the gun was brought back by Ah Ping. We intended to rob a goldsmith shop in Jordan Road, Shanghai Street and nevertheless."

In the case of the 2nd applicant, the PC said that he had said:

"Ah Sir the gun is not mine. It is Ah Ching's. Ah Ching got the gun because he intended to rob a goldsmith shop with Ah Tong and I. I tell you there are five bullets in the gun. Ah Ching said he wanted to find goldsmith shop in Shanghai Street to do. It is true that the gun does not belong to me. Ah Sir please believe me."

5. This ground is rather involved as it rests upon the submission that these two officers were not believed when they gave evidence about a written post recording of the submission, made later in the police station, and so should not have been believed in relation to the alleged oral admission. This submission relies heavily upon the decision of this court in The Queen v. Lee Man Liu (1992) 2 HKCR 41 at 42:

"Where the evidence of the taking of a post-recorded statement fails to establish beyond reasonable doubt that the statement was voluntary, the evidence of the statement-taker about earlier oral admissions recited in the post-recorded statement must necessarily be regarded as suspect and so rejected."

Sergeant 21173 gave evidence of an oral admission made by the 1st applicant at Tung King Villas in the early hours of 8th January 1994. At about noon on the same day at Kowloon West Headquarters he said that he made a post record of that which had earlier been said by the 1st applicant. DPC 47060 gave evidence of an oral admission from the 2nd applicant at about the same time at the same villa and said that later at Kowloon West Headquarters he made a post record of what had been said. Both the 1st and 2nd applicant had arrived at Kowloon West Headquarters about one hour earlier and had been handed over to officers of a Regional Crime Unit. allegations of serious misconduct were levelled against all of the police officers involved. The post-recorded statement and the statements taken by R.C.U. officers were held to be inadmissible. The interview by the R.C.U. officers was interrupted at about noon when the sergeant and the DPC took the post recorded statements. The two applicant were then returned to the custody of the R.C.U. officers.

6. The trial judge when he came to rule upon the admissibility of the statements stated as follows:

"The Court agree with defence suggestion there are significant suspicions on the prosecution evidence pertaining to the treatment of each of the three defendants after they had been brought back to the office of the Kowloon West Headquarters. The evidence pertaining to the taking of such defendant to the police station, and then the taking of the purported antecedent statement from him, which at a later stage evolved to a cautioned statement, and the evidence of the other officers relevant to such matters, in my view, are artificial and not convincing. The same can be said while taking the defendants back to various scene of the alleged crime."

The judge went on to say:

"Having considered the evidence of the prosecution as well as those of the defendant, I cannot conscientiously say that I have been satisfied to the required standard that when the three defendants wrote and/or put their signatures on the various documents after the arrival back at the Kowloon West Headquarters, they did it freely and voluntarily. In the circumstances, I feel obliged to exclude all such written confessions as evidence."

It is submitted on the force of Lee Man-liu that the judge found the evidence of the post-recorded statements unreliable and that the earlier oral admissions must, therefore, necessarily be regarded as suspect and rejected. There would be considerable force in this submission if the trial judge had ended his ruling at the point to which I have just taken it. He went on, however, to deal with the oral admission. He said:

"In that regard, I have also considered all the other evidence, and I have also considered the authority submitted by Counsel.

I reject any suggestion of improper conduct on the part of the police officers who were part of the arresting team of the 1st and 2nd defendants at the Tung King Yak Sik Villa. I am satisfied on the evidence beyond a reasonable doubt that those oral admission by both the 1st and the 2nd defendants had in fact been given by them freely and voluntarily, and that such oral admission should be put before the jury for their consideration."

We are satisfied that in that latter passage the judge, mindful as he must have been of the authority to which he had been referred, was indicating that he did not consider that the officers to whom oral admissions were made, had, at any time, acted improperly. We note the argument that, as he rejected the signed acknowledgements of the oral admissions, he must have had doubts as to the credibility of the two officers involved. We find nothing in this. He would have had no option but to reject the post-recorded statements if he considered, as he clearly did, that improprieties had occurred in the period prior to that signing. However, the applicants had been in the custody of the R.C.U. officers for much of that period and the judge makes it plain that he does not consider that there was any improper conduct on the part of the two police officers to whom the post-recorded statements were given. In the circumstances we are satisfied that there is nothing in this first ground.

7. We turn to the second ground which was that the learned judge wrongly exercised his discretion when he refused the application of counsel for both defendants for a separate trial in respect of counts 1 and 2. We do not intend to dwell upon this ground. There was clearly a nexus between the two offences. It was a matter of discretion for the trial judge. The judge was satisfied that they should be tried together. He gave proper directions to ensure that there was no prejudice occasioned by that trial.

8. When arguing the third ground Mr. Hatton seemed to be suggesting that the judge when ruling upon the Crown's application to be allowed to cross-examine the applicants upon their previous convictions should have taken into account his finding in the voir dire that the credibility of the two police witnesses was "dubious". As we are satisfied that the judge never made any such finding this argument need not be considered. It was also argued that the judge's decision to allow the Crown's application to cross-examine the applicants upon their previous convictions on the basis that he had lost their shield by reason of their counsel's cross-examination of the two police witnesses was, in any event, wrong. The observations made by the trial judge, and no issue has been taken as to the correctness thereof, on the cross-examination of the Crown witnesses made it plain that there was a severe and concerted attack upon their characters. That being so, given that he had material upon which he could properly exercise his discretion, whether or not to do so was a matter for him. There is no ground which would warrant us interfering with that decision.

9. We turn now to ground 4. It is rather involved. It reads as follows:

"The Learned Judge, despite agreement (or understanding) between Counsel for the Crown and the Defence that there should be no evidence adduced by the Crown on the grounds of prejudice and irrelevancy as to drug abuse by the First and Second Defendants in the room where they had been arrested, wrongly granted the Crown's application, at the conclusion of the First Defendant's examination in chief and cross examination by the Second Defendant's Counsel to cross examine the First and Second Defendants upon drug abuse in the said room where the Defendants had been arrested."

It is suggested that allowing such cross-examination prejudiced the trial of both applicants. We were concerned at the suggestion that there was a breach of an agreement between Crown Counsel and defence counsel. Before us, however, it has not been established that there was any such agreement. It is Mr. Hatton's recollection that there was such an agreement but this is disputed by the Crown. In the circumstances we are left not knowing what did transpire between counsel. That being the case, we considered whether the matter required the adjournment of this appeal to allow further material to be placed before the court. We were quite satisfied it did not. The matter raised in this ground could and should have been resolved at trial. If there was an agreement and if it was breached, that should have been brought to the attention of the trial judge. Depending upon how the matter was resolved witnesses could have been recalled, proper directions could have been given to the jury and the trial could have proceeded. We are satisfied that this is not a matter which can properly be raised before this court. In any event we do not consider that there was any real prejudice occasioned to the applicants by what occurred.

10. The fifth ground of appeal was not argued.

11. The sixth ground stated that the trial judge had wrongly refused the application that the jury be discharged as a result of his ruling in relation to ground 4. The suggested "agreement" was never raised at trial. What was suggested was that the defence had been given "a false and misleading impression" by the way the Crown had conducted its case. The judge rightly, in our view, held that the trial should proceed and that the first applicant who was then under cross-examination could, if counsel thought fit so to do, be re-examined on the matter. There was no application to recall any of the Crown witnesses.

12. The seventh ground contends that the judge wrongly directed the jury in his summing up that there was no evidence one way or the other as to whether the sergeant and the PC had made written records of the alleged oral admissions by the defendants. This is a novel ground. What occurred was each of the witnesses, when being asked as to the exact terms of those admissions, drew his notebook from his pocket. The trial judge very properly indicated to them that they could not refresh their memory as to any admissions unless it was necessary for them to do so. We found it difficult to see where this indication was going. There was, as the judge said, no evidence as to whether anything was written in the notebooks. Mr. Hatton argues that any sensible juror seeing the notebooks being taken out must immediately have concluded that they contained a written version of the statement. Even if that were so no juror could have concluded that, and this was the matter of real importance, it was signed. The judge had further told the jurors not to speculate or guess. Even if they disobeyed this direction, and we do not accept that they did, they could have guessed no more than that the notebooks might contain a written version. We find it difficult to see how this could have worked any real prejudice to the applicants. Mr. Hatton, however, develops this argument further by saying that the Crown are required to take all necessary action to ensure that their witness act properly and that the failure to instruct the witness not to produce their notebooks was a failure by the Crown properly to conduct the prosecution which renders the verdicts unsafe and unsatisfactory. We do not agree.

13. The application for leave to appeal against convictions are refused.