HKSAR v. WONG SIU LUNG

IN THE COURT OF APPEAL

1996, No. 316

(Criminal)

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J U D G M E N T

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Mayo JA giving the judgment of the Court:

1. The applicant seeks leave to appeal against his conviction for robbery.

2. It was a taxi robbery. In the early hours of the morning of 18 August 1993 Mr Chan was driving his taxi. He was hailed by 5 men. He stopped the taxi and they got on board. He was instructed to go to the Shing Mun Reservoir. When he got there one of the men grabbed him by the neck and it was apparent that a robbery was taking place.

3. The men took all his takings which amounted to $950 and his portable telephone which was valued at $8,000. He was tied up. The men left the taxi and walked away in the vicinity of the reservoir.

4. Mr Chan succeeded in freeing himself. He drove the taxi forward and saw two men. He sought their assistance.

5. Mr Chan saw the robbers going into the bushes. Police assistance was sought over the taxi communication system. The police arrived shortly after this. Mr Chan indicated where he had seen the men going. A search was conducted by the police and the applicant and another man were found hiding in the bushes.

6. Mr Chan identified the applicant as one of the robbers. He accepted however that lighting conditions were poor - both in the taxi and at the scene of the arrest and HH Judge Surman the trial judge attached no weight to this identification. When the men were found Mr Chan's portable telephone was found nearby.

7. The police arrested the applicant. He appeared however to be having respiratory difficulties and arrangements were made for him to be taken to hospital.

8. Later in the day a police officer attended on the applicant and took a cautioned statement from him. In this statement the applicant confessed to the robbery.

9. The admissibility of this statement was contested at the hearing before Judge Surman. He was satisfied that the statement had been made freely and voluntarily.

10. Grounds 1 and 2 of the Perfected Grounds of Appeal were not pursued.

11. Grounds 3 and 4 can conveniently be dealt with together.

"3. The trial Judge should have acceded to the defence submission that there was no case to answer on the special issue. Instead, the Judge accepted that the defence had pointed out a significant omission in the Crown's case and then allowed an adjournment to permit the Crown to call the witness (too late) they had chosen not to call at the proper time. Since this was a retrial and since the defence had forewarned the Crown, there was no basis for this indulgence to be granted to the Crown. If a normal fit young man goes into a coma and is hospitalised shortly after being seized by the police and is interviewed whilst still an in-patient - medical evidence of "fitness to be interviewed" is an obvious and necessary part of the Crown's case.

4. The trial Judge failed to explain what he understood to be the cause or causes of the defendant's relapse into coma. The defence explanation was excessive police force."

12. As can be seen the main complaint which is made is that the judge was wrong in exercising his discretion to order that the doctor who treated the applicant after his admission to hospital should be called to give evidence.

13. This was a matter of some importance at the trial as the question of the admissibility of the applicant's cautioned statement was crucial to the outcome of the case as the applicant is alleged to have made a clear admission to the commission of the offence.

14. It is necessary to consider the context in which the judge came to make the order he did that the doctor should give evidence.

15. Mr Haynes for the applicant submits that the judge should not have made this order as the prosecution had closed its case on the admissibility of the cautioned statement.

16. We do not think that this is right. The judge advised the parties that in making a determination on this issue he would adopt what is generally known as the alternative procedure for the voire dire. At p52 of the transcript he described the procedure in this way.

"COURT: Right, thank you. Now, Mr HAYNES has objected to this. I've got the objections here. It'll be marked PP4, which is provisional exhibit 4. I shall deal with this - I'm putting this on the record now - I shall deal with this by way of the alternative procedure, and that is that you only - you must continue tomorrow. If you have any more questions to ask this officer, you must deal with him as far as the taking of the statement is concerned and on any other issue. You will only get one crack at him, right. Mr HAYNES will then cross-examine him as he wishes, and again will only get one crack at him.

MR HAYNES: Yes.

COURT: And then after that, you will call all your other witnesses if you have any and the - when you tell me that you've no more witnesses to call, then I shall hear from the defendant if he wishes to give evidence, exclusively on the cautioned statement.

MR HAYNES: Yes.

COURT: And any witnesses he wants to call exclusively on the cautioned statement. I shall then hear submissions from both of you about the admissibility of the statement. I shall then make a ruling and after I've made the ruling, I shall ask you to close your case and we go on from there. So I mention all that so that there's no misunderstanding about it. That's what's - that's my description of the alternative procedure. Okay. Good. Right, okay, well, we'll adjourn till half past 9 tomorrow if that's convenient, okay?"

17. The voire dire then proceeded in the usual manner. The prosecution called witnesses who gave evidence concerning the way in which the statement had been taken.

18. The police officer who took the statement gave evidence that he attended the Princess Margaret Hospital on the morning of the 18 August 1993 with a view to interviewing the applicant. He was unable to do so because when he attended on the applicant he appeared to be in a semi-conscious condition. He withdrew and later in the day made inquiries as to whether he would be permitted to interview the applicant. According to the police officer he was informed that this would be in order.

19. Mr Haynes objected that the officer's evidence to this effect was inadmissible as being hearsay evidence. We do not agree.

20. It is true that the witness said in evidence:

"Then the doctor approached the defendant and asked him several things and he said that he was fit to give a statement". (See p.50)

The judge was, however, aware that this was hearsay as he said:

".....what the doctor said is, of course, evidence that he said it but not evidence as to the truth of it because it's hearsay." (See p.151)

There was, we are satisfied, no question of any improperly admitted hearsay evidence.

21. Mr. Haynes had, however, made it plain at the outset that he was objecting to the admission of the statement. When the Crown announced "We have no further witnesses" (see p.148), Mr. Haynes rose saying

"Yes, Your Honour, there is one matter of law that arise before that. I would be grateful of any guidance Your Honour can give me because I am not completely familiar with the procedure. But it seems to me that it would be my duty, would it not, if I felt that a .... a step that ought to have been taken by the Crown before any evidence is called by the defence, has not been taken, I would then be entitled, would I, to make a submission of no case, as it were, on the voluntariness of the cautioned statement, I think, reserving my right, as it were, to call the defendant if that legal point failed?"

The court then indicated that it would allow Mr. Haynes to make such a submission. Mr. Haynes' submission was shortly put that the court could only be satisfied that the applicant was in a fit state to make a statement if the attending doctor was called. This submission should have been rejected in limine. The court could quite properly have made its decision upon the basis of the evidence before it. D.P.C. 46763, who took the statement, had given evidence that the condition of the applicant was normal when he took the statement, that he had no difficulty communicating with him and that the applicant had no difficulty in writing out his statement. He stated further that at no time during the interview did he say that he was not feeling well or that he needed a rest.

22. In cross-examination he denied that the applicant had ever said to him that he was not feeling well and that did not want to talk. The following exchange then occurred:

"Q. And I suggest that he first of all said to you that he wasn't feeling well and didn't want to talk to you.

A. No.

Q. And I suggest that, however, he did say he had no record and then you said to him, 'Well, if you have no record and you admit the robbery, the judge will only give you probation'.

A. No.

Q. And you said that, 'On the other hand, if you refuse to admit it ...' you already had plenty of evidence and he would get a very heavy sentence.

A. No.

Q. And I suggest that he kept saying to you that he'd taken no part in the robbery.

A. No.

Q. I suggest there followed a conversation by way of a sort of argument in which he insisted on denying it and you insisted on trying to persuade him that he should cooperate and then he would get some advantage.

A. No.

Q. And you said to him, 'Look, if you cooperate, when you leave hospital you'll get bail, but if you don't cooperate you won't get bail'.

A. I did not say that.

Q. And you said it was hopeless to deny it for him because you police had the evidence.

A. No.

Q. Then you took out a statement of Lau - I keep forgetting this boy's name - Lau Yan-fui, and actually handed it to the defendant to read it.

A. I did not do that.

Q. And that after he had read that, you and your police colleague continued to put verbal pressure on the defendant to admit.

A. No.

Q. And he eventually said, reluctantly he would make a statement, but it would be a denial.

A. Disagree.

Q. And you said, well, you weren't going to record any denial.

A. No.

Q. And you also said, since his friend had already made admissions, and you police had the evidence, no one would believe his denial.

A. I did not say that.

Court: Can you stop just for a moment, please.

Q. And I suggest that you said -- repeated frequently, that if he got on and made a sensible admission there would be no need for him to go to jail.

A. No.

Q. And I suggest that this preliminary discussion, none of which is recorded, took about half an hour or so.

A. Disagree.

Q. And he then agreed to cooperate and you then wrote the statement up to the word 'understand', which you asked him to write upon it.

A. Disagree."

There is no suggestion anywhere in the cross-examination that the applicant was not able fully to participate in the conversation with the police officer. Nowhere in the cross-examination, which occupies more than 20 pages of the transcript, was it put to the police officer that the applicant was not in a fit state to be questioned. The only reference to health was, as is set out above, the suggestion, which was denied, that the applicant had said that he was not feeling well and did not want to talk. Indeed the cross-examination, as it progressed, appeared to be based upon a full and detailed memory by the applicant of all that had occurred. There was clear evidence before the court to establish prima facie that the applicant was in a proper condition to be interviewed. The judge, after some 20 pages of exchange between bench and bar, said that he felt he "should exercise my discretion and the doctor should be called." He went on to say "I am not prepared to stop the statement at this stage". Although it is not entirely clear he seems to be indicating that he was of the view that there was evidence sufficient prima facie to establish that the applicant was in a proper condition to be questioned by the police but that to ensure that the applicant was not disadvantaged he felt that the doctor should be called to give evidence. That this must have been so seems clear as the judge shortly thereafter said:

"I am perfectly satisfied in my own mind that I should either go ahead, in other words not accept your submission, or that I should have the doctor. I don't see at this stage that I should say that the statement should be put on one side."

He was here clearly saying that he was satisfied that the evidence before him established prima facie that the statement was admissible but that he was, to ensure that no injustice was done, prepared to hear the evidence of the doctor. In the outcome Dr. Chiu Ying-wah was called, and said that when he was asked on the afternoon of 18th August 1993 whether the applicant could be interviewed he had written down "fit for statement". When pressed about this he said: "I had written down it was 3 or 4 statements only (sic) and I had written down my comment on the page at that time. The patient is ... was fully conscious, alert and orientated." In all the circumstances, we see no impropriety of any sort in the judge's allowing the doctor to be called. He could, and in our view should, have ruled at the outset that there was clear prima facie evidence to establish the admissibility of the statement.

23. These grounds of appeal are without merit.

24. Reference was also made to various discrepancies which were not resolved by the judge.

25. It is necessary to consider this case in its overall context. Once the statement was admitted as evidence there was an overwhelmingly strong case against the applicant. It was not necessary for the judge to attempt to resolve all the discrepancies which were referred to.

26. We do not consider that this conviction was in any way unsafe or unsatisfactory and this application is dismissed.