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To Kai-sui And Others v The Queen

Judgment Cited authorities 4 Cited in Precedent Map Related
Vincent
Judgment Date20 June 1980
Year1980
Judgement NumberCACC1189/1979
Subject MatterCriminal Appeal
CourtCourt of Appeal (Hong Kong)
CACC001189/1979 TO KAI-SUI AND OTHERS v. THE QUEEN

CACC001189/1979
[ Confession - Judges' Rules - whether judges should formulate rules for guidance of police.
Confession by an accused - use to which may be put in respect of a co-accused.
Conspiracy - 'persons unknown' - failure of prosecution to name individual non indicted co-conspirators in the particulars of offence.]
IN THE COURT OF APPEAL 1979, No. 1189
(Criminal)
BETWEEN
TO Kai-sui Appellants
LAM Yuk-shing
CHAK Yun-kwong
WONG Hung-kai
AND
THE QUEEN Respondent

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Coram: Li, J.A., O'Connor & Power, JJ.

Date of Judgment: 20 June 1980

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JUDGMENT

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O'Connor, J.:

1. The four appellants were convicted of conspiracy to cause grievous harm. The particulars of offence read as follows:

' To Kai-sui, Lam Yuk-shing, Chak Yun-kwong and Wong Hung-kai, between the 18th day of May 1979 and the 5th day of June 1979, in this Colony, conspired together and with other persons unknown, to unlawfully and maliciously wound Lo Man-lan with intent to disfigure her'.

2. Lo Man-lan, a 20 year old girl gave evidence that she had been the girl friend of the first appellant but she had broken off the relationship in January 1979. On the evening of 5th June 1979 she was standing at the Star Ferry with her new boy friend, waiting for a bus when a person came from behind and slashed the right side of her face. She suffered a 10 centimetre long vertical wound. The other evidence in the case related to the making of statements by the appellants to police officers. The statement of each appellant was admitted into evidence by the learned trial judge after he had held a voir dire on which the first and second appellants but not the third or fourth, gave evidence. By agreement the evidence in the voir dire was treated as evidence in the trial. There was no other evidence. The only evidence incriminating each appellant was his own statement to the police.

3. The Summary of Evidence, provided by the Crown prior to the trial disclosed that the Crown intended to call as witnesses two men Ho Yuk-lun and Chu Ming-san who were expected to give evidence that the first appellant had asked Ho Yuk-lun to find someone to injure Lo Man-lan in revenge for her having refused to marry him and having insulted him. The summary disclosed that these witnesses were expected to prove that Ho Yuk-lun recruited Chu Ming-san who recruited the second appellant and it was agreed that for a payment, they would arrange for the girl's face to be slashed. At the commencement of the hearing Crown Counsel announced that he was unable to call either Ho Yuk-lun or Chu Ming-san. No reason was asked for or given and the trial judge in his judgment comments that speculation as to the reason was pointless and that he would decide the case on the evidence before him. We are of opinion that on the facts set out in the Summary of Evidence those two proposed witnesses were co-conspirators and ought to have been named in the particulars of offence. No point has been taken in the court below, or before us on their absence from the particulars or from the witness box. Their proposed evidence was summarised in the Summary of Evidence, which to some extent gives to an accused person the type of information given in depositions when a trial is on indictment. We find no embarrassment or prejudice caused to the appellants by the absence of these two men's names from the particulars of offence, and their own absence from the witness box.

4. The appellants were all represented by Counsel at the trial, but only the first appellant is represented before us.

5. The first ground of appeal of the first appellant is that the trial judge -

' wrongly exercised his discretion in admitting into evidence the cautioned statement of the 1st Appellant (namely Exhibit P3) by holding the same to be a voluntary statement, in that, inter alia there was evidence that: .......'

and it goes on to set out a number of alleged breaches of the Judges' Rules. In so far as the wording of this ground of appeal appears to indicate that the finding of a statement to be voluntary and admissible is a discretionary matter, it is incorrect. A decision as to whether a statement is voluntary and admissible in law is in no way dependent upon any discretionary power of the trial judge. If it is voluntary it is admissible. It is only after it has been held voluntary and admissible that any discretionary power to exclude it from evidence can arise. There is no discretion to admit into evidence a statement which is not voluntary. The learned trial judge in his in many ways excellent judgment, demonstrated on this matter a full knowledge of the law and mastery of the facts. Where we find valid points for criticism, they are on matters which are minor and of no substantial significance when viewed against the judgment as a whole.

6. There is no doubt that in the investigation of this case there were a number of breaches of the Judges' Rules. Counsel for the first appellant pressed us with the view that the breaches were such as, viewed cumulatively, amounted to oppression. He referred us to the well known passage in the note to Priestley's case set out at (1967) 51 Cr. App. R.1. He suggested that the breaches were such was were calculated to cause the appellant's will to crumble and result in his making an involuntary statement. It is worth noting that the defence case at the trial was that the first appellant was assaulted, threatened and induced to make a statement but that he eventually signed his name a number of times to documents, the contents of which he did not know, as a result of beatings, threats and inducements and because he was told the contents were trivial. He said in evidence that the only fact in the statement which came from him was that he knew the girl victim, and that all the remainder was made up by the officer. The trial judge found as a fact that these allegations were untrue. There has been no real contest before us as to the validity of those findings. So before us the ground on which the confessional evidence is impugned is that it was obtained by oppression largely resulting from non observance of the Judges' Rules. It is we think proper for us to bear in mind that on first appellant's case as presented at the trial his will did not crumble as a result of oppression, nor did he make any statement as a result of his will crumbling, what happened was that as a result of assaults, threats and inducements he signed his name to what he thought were trivial documents.

7. However that is not an end of the matter. We have considered the breaches of the Judges' Rules which are disclosed in the evidence and whether they are such as might amount to oppression and to a failure by the Crown to have established the voluntariness of the statement. We do not consider it necessary to particularize the circumstances in which the statement was obtained or the individual breaches of the Rules. When considering the manner in which the judge dealt with this matter, we have kept in mind the following passage in Director of Public Prosecutions v. Ping Sin(1):-

' The Court of Appeal should not disturb the judge's findings merely because of difficulties in reconciling them with different findings of fact, on apparently similar evidence, in other reported cases, but only if it is completely satisfied that the judge made a wrong assessment of the evidence before him or failed to apply the correct principle - always remembering that usually the trial judge has better opportunities of assessing the evidence than those enjoyed by an appellate tribunal'.

8. In the case of R. v. Li Wai-fat(2) that passage was miscited as 'is satisfied that the judge made a completely wrong assessment'.

9. The judge at one point in his judgment considered the possible sources from which details in the statement attributed to first appellant could have come. He set out the sources as being either the first appellant or else vivid police imagination. He dismissed police imagination and concluded the source must have been the first appellant. The evidence, however, shows that the police had other sources of information from which such details might have been obtained. The most obvious possibility was Ho Yuk-lun who was in custody and who had commenced making a statement, the contents of which were not in evidence, before the taking of the statement from first appellant. We have considered this error of the trial judge in the context of all the evidence and of his judgment as a whole. We are satisfied that if he had not made this error, his conclusion as to voluntariness and reliability of the statement would have been the same and that that conclusion would not have been unsafe or unsatisfactory.

10. The judge having found the statement voluntary and admissible gave express consideration to whether he ought to exclude it in exercise of his discretionary power. He decided he ought not to so exclude it. We do not consider that exercise of discretion to be wrong.

11. The breaches of the Judges' Rules that occurred in this case are of a type not uncommon in Hong Kong. The rules applicable in Hong Kong are those that were drawn up in England in 1912 and 1918 as guidance for police forces in England. In Hong Kong, as in England, these Rules are rules to be observed by the police, not by the judges. Not uncommonly statements are admitted in evidence despite breaches of the Rules which are, it must be emphasized, not rules as to the admissibility of evidence. We consider it unfortunate that they were ever called "Judges' Rules". To a layman the impression may arise that there are rules...

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