R. v. CHUNG WAI YIP

IN THE COURT OF APPEAL

1995, No. 733
(Criminal)

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J U D G M E N T

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

1. The applicant seeks leave to appeal against his conviction for an offence under Section 17 of the Offences against the Person Ordinance, Cap. 212. The application was not made within the prescribed time limit. An explanation has been forthcoming for this. The solicitor originally acting for the applicant has lodged an affidavit which indicated that his firm had informed the applicant that they would attend to the application to appeal and he had failed to do so. Although this is not very satisfactory we consider that we should hear the application.

2. The appeal centres around alleged irregularities concerning the inculpatory statement made by the applicant after his arrest. It is alleged that the police officers who took the statement were guilty of a number of improprieties including an allegation that the officers subjected the applicant to assaults. It was also suggested that Deputy Judge Lung the trial judge had been wrong to make a finding that the injuries complained of by the applicant had not been caused by the police officers as this was not consistent with the medical evidence which was before the court.

3. It is difficult to see how the judge found himself able to come to this conclusion. He suggested in his Reasons for Verdict that if the assaults had been as severe as had been alleged the injuries sustained would have been far more extensive. There was no expert evidence to support this conclusion. The doctor's opinion was rather to the contrary. It was his opinion that the assaults had not been insignificant. The judge said "I found that the Medical Report not only could not support the defendant's allegation but contradicted the defendant's evidence."

4. This is simply not right. The Medical Report did partly support the applicant's allegations and certainly did not contradict them.

5. There were other aspects concerning these allegations which are slightly disturbing. The judge inferred that the injuries had been self inflicted. We do not think he was right in doing so. There was evidence which indicated that the police had kept the applicant separate from his brother who had also been brought back to the police station. The reason given for this was that the police were anxious that there should be no interference with evidence which may be available. There was no evidence that anyone else would have access to the applicant to inflict the injuries at his request. It is also unlikely that the injuries would have been self inflicted. One of the areas of the body which was allegedly affected was the applicant's back. According to the medical evidence had the injuries been self inflicted it is unlikely that they would have been caused to this part of his anatomy.

6. Over and above all of this is the fact that the applicant did at a very early stage make a complaint to his legal adviser that he had been subjected to police brutality. The medical examination which was then undertaken was in our view consistent with the complaints which had been made. It is also germane to add that as this complaint was made quite shortly after the statement had been made it would be rather remarkable that the applicant should attempt to retract from his alleged admission so soon after the confession had been forthcoming.

7. One of the other main reasons given by the judge for rejecting the applicant's testimony was that he failed to inform members of his family of the alleged assaults. It is perhaps not surprising that the applicant did not do this. At the time when he had an opportunity of making these complaints he was in the presence of the very police officers against whom he was making the allegations. His reluctance to make a complaint to members of his family who may not have been able to do very much about it is not very surprising.

8. As we have indicated the applicant's complaints of oppression were supported by medical evidence. Also he made a complaint at the first feasible opportunity. As against this there was simply the denials in evidence of the police officers concerned.

9. The judge accepted the importance of the admission of the said statement as evidence. The identification evidence was of a somewhat tenuous nature having regard to the fact that the two identifying witnesses relied upon did already know the applicant.

10. The attack had occurred at the podium near Block 19 of the Shek Pik Estate in the early hours of the morning of 10 November 1994. The victim together with his friends were talking together when they were approached by two hooded men wielding beef knives. The men had previously been sighted by two of the people in the group. A savage attack then ensued and immediately thereafter the men escaped.

11. As we have said the judge gave detailed reasons why he had been satisfied that there had been no oppression and that even though there had been some breaches of the judge's rules the statement should be admitted as evidence.

12. For the reasons we have given we consider that there must be a lurking doubt as to whether there was oppression when the inculpatory statement was made. As there was insufficient evidence to support a conviction without the statement this conviction is unsafe and unsatisfactory. The application is allowed. Treating it as the appeal we quash this conviction.