HKSAR v. LEE CHI HO

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.501
(Criminal)

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J U D G M E N T

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Stuart-Moore, J.A. (giving the judgment of the Court):

1. On 8th August 1997, the Applicant (D2 at trial) was convicted of robbery and received a sentence of 4 years' imprisonment following a trial before Bokhary J. and a jury in the High Court. He now seeks leave to appeal against conviction. At an earlier stage, D1 indicated his abandonment of a similar application.

2. The indictment contained three counts. The jury acquitted the Applicant on counts 1 and 3 but convicted on count 2, which alleged that on 16th August 1996, he and D1 had robbed Fan Yuen-fai (the victim) inside lift 11 at Tin Cheung House, Tin Ping Estate, Sheung Shui, New Territories, of an identity card, a student card, an ETC card, a bunch of keys, an MTR student travel card and $85.

3. The allegation made by the prosecution on this count was that the victim was returning home from work at about 4:10 a.m. on 16th August 1996 and had just entered the lift to his flat when he was kicked in the stomach. This caused him to fall to the floor where he was subjected to more violence before being robbed of his wallet and contents. The victim refused to provide the PIN number for his ETC card and he was then wounded with a knife and thrown out of the lift.

4. This allegation of wounding was the subject of count 3 on which the Applicant was acquitted. The victim did not identify the Applicant or D1 at identification parades held within a fortnight from the date of the offence.

5. The only evidence of complicity in this robbery came from the statements which the Applicant allegedly made after his arrest which contained a number of admissions. These admissions were denied by the Applicant when he gave evidence on the voir dire and in the trial itself. He said in effect that the admission to the robbery had been invented by the police and that the police had resorted to serious improprieties during the course of the investigation. Similar points had been made on behalf of D1 at the trial, and only D1's three statements were signed. The two written statements made by the Applicant were unsigned because of a hand injury he had received. In this respect, the Applicant was admitted to hospital following an incident immediately after the alleged robbery where the Applicant had been chopped with a knife. Police first saw him in hospital shortly before 8 a.m. on 16th August 1996. They found in his jeans pocket the MTR student travel card belonging to the victim of the robbery. The Applicant allegedly said that that had been given to him by D1 just before he was chopped.

6. After this meeting with the police, the Applicant then went to have surgery for his wound and on 19th August 1996, he was once again seen by the police when he was considered fit to be interviewed. The Applicant said that he did not know who was responsible for chopping him or why it had been done. He went on to say that he had been chopped after robbing a young boy. He then allegedly confessed to committing the robbery with D1 and finding out, whilst it was in progress, that the victim was a follower of "Kwok Chai". The victim, he said, had fought back. The Applicant then described how he had accidentally cut the victim. After that, the victim was pushed out of the lift but many of his possessions had fallen onto the floor of the lift. The Applicant picked up the MTR card. At that point in the interview there was a break. He had a meal. After the meal the questioning continued. The allegation made by the prosecution was that when this happened, the rest of the interview was carried out in the presence of the Applicant's father when further admissions were made.

7. The admissibility of the contents of the interviews was challenged by the defence on behalf of the Applicant and it is the judge's decision to permit the introduction of those interviews that leads to the first ground of appeal in this application. This is that:

"The judge wrongly admitted the oral evidence of the interviews on 19th of August 1996 (Exhibits P7 and P8), or alternatively, at the end of the prosecution's case, the judge failed to reconsider, or insufficiently reconsidered the issue and withdrew the said oral evidence of the interviews from the jury. In this respect, the judge failed to consider or insufficiently considered the evidence of DPC 10114, whose evidence was only available in the trial proper."

8. The judge's original ruling in respect of this Applicant and D1 is to be found in the appeal bundle at pages 671 to 677. This was unusually detailed ruling, and it reflects an accurate and fair appraisal of the evidence given on both sides in the voir dire. In particular, the trial judge found that the Applicant and his father were unreliable witnesses in contrast to the reliable and honest witnesses called by the prosecution. It would have been surprising, therefore, if the judge had not permitted the prosecution to produce evidence of these interviews.

9. During the trial, a further witness was called who gave evidence touching upon the matters which had been considered in the voir dire before the trial began. It was this officer who is referred to in the grounds of appeal, namely DPC 10114.

10. The main thrust of Mr. Chan's submission, on behalf of the Applicant, is that the trial judge failed to reconsider the submission as to the admissibility of the interviews in the light of this new evidence, and he puts it in this way. The Applicant had completed his second interview under caution at 9:20 p.m., which is the time which is recorded on the face of the document. At almost the same time, DPC 10114 began to take a 2-page witness statement from the Applicant's father which the officer said was completed by 9:40 p.m. On the evidence, the officer had 17 minutes for the statement to be completed, including a reading through of the statement and the signing of it by the Applicant's father. Mr. Chan submits that on any view it would be extremely unlikely, indeed impossible, that such a task could be completed in so short a time, and he further submits that this lends support to the version of events put forward by the defence that the Applicant's father's statement was prepared in advance by police, who then obtained his signatures on it when he may have been unaware of what it was he was signing. The importance of the father's statement is that it purports to confirm that his son had made his statement freely and under no threat or inducement, and that he had witnessed the statement being made except the first few pages, which he had then seen his son read over and confirm. The defence case was always that if the taking of any statement was suspect, then all the statements were tainted.

11. At the end of the prosecution's case, Mr. Chan, who also appeared for the Applicant at the trial, invited Bokhary J. to reconsider her earlier decision made at the completion of the voir dire. Mr. Chan, to his credit, then made a concise submission in which he did not repeat everything that he had already said at the voir dire, but adopted what he had said and went on to argue that the evidence of DPC 10114 lent weight to his earlier submissions. Prosecuting counsel replied in terms that the additional evidence had made no difference to the situation. This was a view with which the judge agreed. She made a short ruling at page 723M, where she said:

"I've considered the submissions. I am satisfied that the 2nd accused was fit to make the statement at the time in question and that the statement had been made freely and voluntarily and without any oppression by the 2nd accused. And I also find that the officers' evidence, I am still of the same mind that their evidence is honest and reliable. So I do not accede to the 2nd accused's counsel's application to take those two statements away from the jury."

12. In our judgment, the judge was perfectly at liberty to take this view although we accept that simply on the timing of the father's statement, the prosecution had to face up to a difficulty. The judge was in a position to make a proper assessment of the evidence which she had both seen and heard. There can be no justification for any interference with her judgment by this court. The judge was not required to give reasons why her original assessment was unshaken. Accordingly, we find that there is no substance in this ground.

13. The second ground of appeal has very sensibly been abandoned.

14. Leave, therefore, must be refused and this application is dismissed.