R. v. CHAN LAP MAN, RAYMOND and Others

1995, No. 372
1995, No. 373
(Consolidated)

IN THE HIGH COURT OF HONG KONG

CRIMINAL JURISDICTION

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R U L I N G

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1. After my ruling on 29 August 1996, the prosecution provided the defence with the information relating to the participation in previous trials by the police officers against whom allegations are made in the defendants' grounds of objections in the instant case. As a result, a case, being High Court Criminal Case No. 105 of 1994 is disclosed, in which some of the officers here had given evidence on the voir dire regarding the admissibility of confessional statements of five defendants attempted to be adduced at that trial before the Honourable Mr Justice Saied. The defendants were charged with conspiracy to rob. After hearing evidence in the voir dire, the learned judge excluded the statements relating to four of the defendants, the third defendant having been acquitted during the voir dire; and as a result, all the defendants were acquitted. Counsel for all the defendants before me apply to be allowed to cross-examine the officers in this case as to their conduct and their evidence in that former trial and the outcome of that trial.

2. To consider whether I should allow the cross-examination sought, it is necessary to revisit the judgment of the Court of Appeal delivered by Lord Lane, the Lord Chief Justice in Edwards [1991] 93 Cr App R 48.

3. Having referred to the cases of Thorne (1978) 66 Cr App R 6 and Cooke (Gary) (1987) 84 Cr App R 286, the learned Lord Chief Justice concluded at p. 57 of the report as follows:

"The result of those two decisions seems to be this. The acquittal of a defendant in case A, where the prosecution case depended largely or entirely upon the evidence of a police officer, does not normally render that officer liable to cross-examination as to credit in case B. But where a police officer who has allegedly fabricated an admission in case B, has also given evidence of an admission in case A, where there was an acquittal by virtue of which his evidence is demonstrated to have been disbelieved, it is proper that the jury in case B should be made aware of that fact. However, where the acquittal in case A does not necessarily indicate that the jury disbelieved the officer, such cross-examination should not be allowed. In such a case the verdict of not guilty may mean no more than the jury entertained some doubt about the prosecution case, not necessarily that they believed any witness was lying."

4. After examining four cases which had no factual link with the case before their Lordships, namely,Parchment, Khan, Dandy and Jones, Lord Lane said at p. 59,

"Relevance, and therefore admissibility, is a matter of degree and has to be considered not by rule of thumb but against the background of each individual case. One of the considerations, we repeat, is the necessity of keeping the criminal process within proper bounds and avoiding the pursuit of side issues which are only of marginal relevance to the jury's decision. It will accordingly, as the judgment in Thorne made clear, be rare that the Judge in his discretion will allow cross-examination about the activities of a witness in other cases and the outcome of those cases. The reason is that an acquittal, save in exceptional circumstances, by no means necessarily means that the jury has disbelieved the police officer who has given evidence of the defendant's admissions. So far as Parchment and Khan are concerned, these two cases, in our judgment, fall fairly and squarely within the decision in Thorne. The fact that the Court of Appeal was not satisfied about aspects of the police evidence provides no proper foundation for the cross-examination of individual officers as to their veracity in general or the truthfulness of their evidence in the instant case. Such cross-examination would not properly have been permitted. Different considerations however apply to the other two cases, Dandy (supra) and Jones (supra). In our judgment, if the circumstances surrounding those two cases which we have described had been known to the defence, it would have been relevant and admissible to put to the officers in question that they had given evidence in the trials; that in each of the trials there was an issue as to whether alleged confessions had been fabricated and that the trials had ended in the way described. There was in each case a sufficient connection between the evidence given by the police officers and the eventual outcome of the trial to entitle the defence to cross-examine the officers concerned about these matters upon the question of their credibility in the instant case."

5. The ratio decidendi of Edwards seems to be that there must be a sufficient connection between the evidence given by the police officer in case A and the eventual outcome of that case to entitle the defence to cross-examine the officer concerned upon the question of his credibility in case B about his evidence in case A, the outcome of case A and his activities in case A, and the sufficient connection being that the eventual outcome of case A demonstrates that the police officer was disbelieved in his evidence in case A.

6. It is important to note in this connection that "the verdict of not guilty may mean no more than the jury entertained some doubt about the prosecution case, not necessarily that they believed any witness was lying ", "where the acquittal in case A does not necessarily indicate that the jury disbelieved the officer, such cross-examination should not be allowed", "the necessity of keeping the criminal process within proper bounds and avoiding the pursuit of side issues which are only of marginal relevance to the jury's decision", and that "an acquittal, save in exceptional circumstances, by no means necessarily means that the jury has disbelieved the police officer who has given evidence of the defendant's admissions".

7. I now turn to examine Saied J's ruling in HC Criminal Case No. 105 of 1994 in order to find out whether the acquittal of the five defendants there demonstrates that the evidence of police officers involved in that case had been disbelieved. On the first page of his ruling, the learned Judge commenced his ruling as follows:

" Had there been no controversy concerning the alleged breaches of the rules and directions for the questioning of suspects and the taking of statements which have been in force since October 1992, the various matters argued on behalf of D1, D2, D4 and D5 in an effort to disallow the various statements made by these defendants, being matters going to the weight of the evidence adduced by the Crown, would have been left for the jury to consider and deal with.

However, here common to all the remaining four defendants, D3 having been acquitted during the voir dire, are alleged breaches of those rules, particularly Rule I, Rule III(a) and (b) and Rule IV(d). It seems to me quite clear that the various statement takers have exhibited confusion about the proper application of those rules, proceeding to interrogate the suspect who had indicated clearly that he was willing to making a statement. ..."

8. The learned Judge went on dealing with the police's breaches of the rules and directions, citing the judgment of Lord Lane in R. v. Quinn [1990] Cr L R 581 as to how to approach such breaches, and finding that the breaches were deliberate. He then referred to the conduct of DPC 19563 who admitted that the 3rd defendant had not said "I am willing to make a statement" as recorded in the record of interview of the 3rd defendant by the officer, and he opined that the conduct of this officer could not be overlooked when considering the issue of credibility of the police officers who were in the same team and the totality of the evidence. He proceeded to allude to the evidence given by Sergeant 1251 and Detective Sergeant Law and apparently disapproved of the over-zealous behaviour of them in the taking of statements from suspects. At the end, he concluded as follows:

"After giving anxious consideration to these matters, and there being real concerns about the general integrity and bona fides of the police officers who took these various statements and records of interview in clear breach of those rules, I rule that the principle of fairness demands that I exercise my discretion to exclude all those statements which have been challenged and I so rule."

9. From the ruling of the learned Judge, it can be seen that the 3rd defendant was acquitted during the voir dire because the Crown withdrew his statements from the court's consideration, in view of the admission made by DPC 19563 that the recorded sentence attributed to the 3rd defendant in the record of interview was in fact not uttered. In other words, DPC 19563 was discredited in his evidence regarding how the 3rd defendant came to give his statements. DPC 19563 may thus also be said as having fabricated the sentence in the 3rd defendant's record of interview. If it were the case of any one of the defendants before me that DPC 19563 was involved in any way in the taking of any of his statements, then clearly I should exercise my discretion to allow the officer to be cross-examined by that defendant on matters regarding the earlier case. However, in all the grounds of objections of the defendants in the instant case, no allegation has been made against DPC 19563, or for that matter, the other two officers mentioned in the ruling of Saied J.

10. Defence counsel have directed my attention to two matters, namely, (a) the police officers referred to in the defendants' grounds of objections in the former case as those who had used violence and threats are the same as a number of officers whose conduct is challenged before me; and (b) some of the activities, or the modus operandi, of the police officers as alleged by the defendants in the former case in their grounds of objections are strikingly similar to those alleged against the same officers in the instant case. They also submit that as Saied J referred to the conduct of DPC 19563 being relevant for considering the credibility of the police officers and as he said that there were real concerns about the general integrity and bona fides of the police officers, his exclusion of the statements in that case demonstrates that the police officers who were identified in those defendants' grounds of objections had been disbelieved.

11. On the other hand, Miss Millar for the prosecution argues that based on the passages I cited above in the ruling of Saied J, the learned Judge had in fact held that the statements of the defendants in the case before him had been voluntarily made and he excluded those statements purely on the ground of the breaches of the rules and directions, based on the principle of fairness. In any event, so she submits, the defendants in the instant case have failed to demonstrate that the evidence of the police officers concerned in that case had been disbelieved. She also submits that the similarity of the police officers' modus operandi in both cases is irrelevant.

12. It is true that Saied J did not express in his ruling that he disbelieved the police officers whose conduct was challenged in those defendants' grounds of objections. No express wording was used to make any finding as to their credibility. The explicit reason for the ruling was that there were clear breaches of the rules and directions which the learned Judge found to have been deliberate. He therefore exercised his discretion to exclude the statements, based on the principle of fairness.

13. Although I do not agree with Miss Millar that Saied J found the statements before him had been made voluntarily, I was almost persuaded by her other arguments not to allow the cross-examination, but for the following passages in the ruling. In the last paragraph of his ruling, the learned Judge registered real concerns about the general integrity and bona fides of the statement takers. At first sight, he might have related the integrity and bona fides of the statement takers to the breach of the rules, because he expressly referred to "the officers who took the various statements and records of interview in clear breach of those rules". However, I am of the view that the use by Saied J of the word "general" to qualify integrity and bona fides must mean that the real concerns about the integrity and bona fides of the officers were not limited to their breach of the rules. This by itself, however, does not appear to make it pellucid that Saied J disbelieved the evidence of the statement takers.

14. On the first page of his ruling, the learned Judge said:

"It seems to me quite clear that the various statement takers have exhibited confusion about the proper application of those rules, ..."

However, after referring to R. v. Quinn, he had this to say:

"Taking into account the clear distinction made by the rules in the taking of a statement and in the taking of a record of interview, and the fact that a particular form of caution is set out for cases where the police officer may be disposed to asking questions, and considering the conduct of the various police officers who took those statements and records of interview, I find it difficult to describe the breaches of the rules referred to as anything but deliberate."

The confusion about the proper application of the rules exhibited by the statement takers were eventually found to be deliberate breaches of the rules. The learned Judge had more than doubts that there was confusion; he expressly found the breaches to be deliberate, which must in all probabilities, have been contrary to the evidence of the officers concerned. His real concerns about the general integrity and bona fides of the statement takers should, I think, properly be read in conjunction with this clear finding of those officers deliberately flouting the rules. Although not without some hesitation, I am of the view, therefore, that the ruling as properly construed necessarily demonstrates that the evidence of the statement takers in that case was disbelieved by Saied J, and that the evidence not only related to their flouting of the rules, but also related to their general integrity and bona fides in the taking of the statements. I would add that the disbelief was only limited to the evidence of the statement takers, and not of any other officers who were in their team or teams in respect of whose credibility no express or implicit finding was made.

15. In the circumstances, I rule that a defendant before me is entitled to cross-examine the police officers who were statement takers in HC Criminal Case No. 105 of 1994, but not any other police officers, as to their activities in that case, the outcome of that case and their evidence in that case, insofar as allegations of impropriety have been made against them in the defendant's grounds of objection.