HO YIU FAI AND OTHERS v. THE QUEEN

bjbj% IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 828 OF 1969 ----------------- BETWEEN (1) HO YIU FAI Appellants (2) KONG TO MING (3) CHAN CHOK SHING (4) TSOI KAM KOU THE QUEEN Coram: Full Court (Briggs, Mills-Owens & Pickering, JJ). ----------------- JUDGMENT ----------------- The four appellants together with another person were charged with various acts of robbery with aggravation. The trial was spread over various dates between 29th September 1969 and 29th October 1969. The first appellant was convicted of three acts of robbery with aggravation and the other three appellants of one act of robbery with aggravation each. The fifth person was acquitted. The first, third and fourth appellants were sentenced to be detained in a Training Centre; the second appellant was sentenced to three years' imprisonment. The first, third and fourth appellants appeal against their conviction, the second appellant appeals against his sentence. The fourth appellant originally also appealed against his sentence but this has not been pursued. One ground of appeal is common to the appeals against conviction of the first, third and fourth appellants. These appellants allege that the trial judge held what in Hong Kong is called a Voire Dire during the course of the trial, to decide whether or not to admit certain written statements allegedly made by the appellants: and that he wrongfully took into account evidence given during the Voire Dire when convicting the appellants. Without that evidence, it is claimed, the convictions cannot stand. When, during the course of a trial with a jury the Crown seeks to put a statement made by an accused person in evidence the Judge decides whether it is admissible. And if it is then admitted the jury decide what weight should be given to it. When deciding the issue of admissibility the Judge hears evidence from the prosecution. And the accused person may give evidence himself and call witnesses. When the trial is a trial with a jury this issue is tried in their absence. If the Judge admits the statement the jury are recalled and the evidence as to the manner in which the statement was taken is given again, in order to assist the jury to decide what weight to give to the statement. At this stage the accused need not go into the witness box if he does not wish to do so. When summing up to the jury the Judge will not refer to any of the evidence heard in the absence of the jury. If the statement is not admitted into evidence the jury will not hear the evidence as to the method in which the statement was made. Proceedings in the absence of the jury are a trial within a trial. They are separate and distinct from the trial itself; only the issue of admissibility is dealt with. If the accused gives evidence on this issue the jury do not hear him. All this is, of course, well-known. The appellants' case is that when a statement is in issue the admissibility of which is contested this procedure must be adopted even in a trial without a jury: the issue of admissibility must be separately decided: when that has been done if the statement is admitted in evidence, the prosecution must recall the witnesses called in the voire dire on the general issue. This will include the witnesses who gave evidence as to the circumstances in which the statement was taken. For this proposition the appellants rely upon Section 59 of the Criminal Procedure Ordinance as read in conjunction with Section 34 of the District Court Ordinance. Section 59 of the Criminal Procedure Ordinance reads as follows:- " 59. If on a trial by jury of a person accused of an offence, a statement alleged to have been made by such accused person is admitted in evidence, all evidence relating to the circumstances in which the alleged statement was made shall be admissible for the purpose of enabling the jury to decide upon the weight (if any) to be given to the statement; and, if any such evidence has been taken in the absence of the jury before the admission of the statement, the Crown and such accused person shall have the right to have any such evidence retaken in the presence of the jury." The relevant portion of Section 34 of the District Court Ordinance reads as follows:- " 34(1) Subject to the provisions of this Ordinance and as may be prescribed, the procedure and practice for the time being in force in the Supreme Court in relation to criminal proceedings therein shall, so far as the same may be applicable, be followed as nearly as may be in criminal proceedings in the Court; and where it is necessary for the purpose of rendering such procedure and practice conveniently applicable, the expressions "indictment" and "count" shall be understood to refer to "charge sheet" and "charge" respectively. (2) Notwithstanding the provisions of subsection (1), none of the provisions of the Criminal Procedure Ordinance in Part I of the Second Schedule particularized shall be applied to proceedings in the Court. (3) The special provisions contained in Part II of the Second Schedule touching the procedure and practice of the Court in the exercise of its criminal jurisdiction shall be applied to criminal proceedings in the court where the circumstances of such proceedings require their application. (4) Where any provision of the Criminal Procedure Ordinance is applicable to criminal proceedings in the Court, such provision shall be read with such verbal alterations and modifications not affecting its substance as are necessary to render it conveniently applicable; and in particular, and without prejudice to the generality of the aforesaid, - any such provision relating to a "jury" or a "verdict of a jury" shall be understood to refer to a judge and the functions of a judge as a judge of fact; and" The Second Schedule to the Ordinance does not include Section 59 of the Criminal Procedure Ordinance, so that section is one which applies to the District Court with the modifications referred to in Section 34(4) (a) of the District Court Ordinance. It is obvious at once that the last part of Section 59, the part following the semi colon, cannot apply to a trial without a jury. It refers to evidence given in the absence of the jury. If for "jury" we read "judge" in accordance with Section 34(4) (a) of the District Court Ordinance, it can have no meaning. No evidence is given in a trial without a jury in the absence of the judge. Section 59 does not state that there shall be a voire dire. It was introduced into the law to avoid the result of a decision of the Full Court, Lau Hoi & another v. R. (1949) 32 H.K.L.R. 49. All the section does is to restate the doctrine of English law that in a trial with a jury though evidence has been given of the circumstances in which a statement was made before the judge in the jury's absence on the issue of the admissibility of the statement, this does not prevent the jury from considering the same evidence for the purpose of deciding what weight should be given to the statement. Though to hold a voire dire in the District Court is a common practice in Hong Kong there is no authority stating that it is mandatory to do so. In the present case we do not think that the voire dire procedure was followed. The appellants say that there was a trial within a trial but if the record is read as a whole it will we think be clear that that is not so. It was sought to put in evidence some forty-two separate statements made or alleged to have been made by the appellants. As each police witness reached the point when he was about to read out a statement, he was stopped and the Judge recorded "issue of admissibility arises". He did not stop the trial proper at that stage and, as it were, commence a new trial. He merely noted that the issue of admissibility arose so far as that statement was concerned and proceeded with the general issue namely, the innocence or guilt of the appellants. It is true that all the police witnesses were called one after another but their evidence covered matters other than the circumstances in which the statements were taken. And the solicitors who appeared for the appellants cross-examined on those other matters. In due course the appellants gave evidence on the issue of admissibility, and were cross-examined. Submissions were made and answered by the Crown and the judge made a ruling. He rejected all the statements and the trial continued. The appellants having been put on their defence then gave evidence on the general issue. The evidence of the police witnesses as to the circumstances in which the statements were taken was not repeated. It is true that on at least one occasion the trial judge used the expression 'voire dire'. But despite this it is in our view quite clear from the record that he did not hold what is generally considered to be a voire dire, that is to say there was no separate and distinct proceeding concerned solely with the question of the admissibility of the statements or any one of them. The trial judge did address his mind to the question of the admissibility of the statements. And that that was apparent to those appearing for the appellants is clear from the tenor of their cross-examination of the witnesses called. He also gave the appellants the opportunity to give evidence on this issue themselves which they did. In our view that is as far as a judge sitting without a jury has to go. The appellants' case is that if voire dire proceedings are held it is not open to a judge, whether sitting with a jury or not to make use of any evidence called upon the voire dire when deciding the general issue. And in support of this contention Chitambala Ndilda etc. v. R. (1961) R. & N.L.R. 166 and Li Kim Hung v. R. 1969 H.K.L.R. 84 were relied upon. When the judge is sitting with a jury this must be so because the jury will not have heard the evidence on the voire dire. The position is different where the trial is by a judge alone. It makes no difference whether the judge in such a case holds a voire dire or deals with the question of admissibility in the manner adopted in the present case. But what the judge must do is to ensure that the accused or his legal representative is not left with the impression that his right of cross-examination is limited to the issue of admissibility. According to the two cases cited above, what the judge sitting alone must not do is to rely upon any evidence given by the accused himself on the issue of admissibility of a statement when reaching his conclusion on the general issue. In each of these two cases there was a trial without a jury. In each case the accused gave evidence when the question of admissibility of a statement made by him was in issue. In each case the trial judge in convicting the accused relied on evidence he, the accused himself, had given on the voire dire. This was held to be wrong in that to rely on such evidence interferes with the right of an accused person to remain silent in the face of evidence called by the prosecution on the general issue. These cases are not authority for saying that the trial judge sitting alone cannot make use of evidence other than that of the accused when deciding the main issue, and they are not therefore directly in point in this appeal. There are three main requirements which must be clearly kept in view by a judge when sitting without a jury especially when an accused person is unrepresented which it is as well to state, - (1) to ensure that the defence is not left with the wrong impression as we have stated above; (2) to ensure that the accused is heard on the issue of admissibility if he so wishes and (3) to ensure that a ruling on the admissibility is made at or before the close of the case for the prosecution so that the accused may be aware of the strength of the case against him. In the present case, the trial judge did not rely upon the evidence given by the appellants themselves on the issue of admissibility when deciding the general issue though he did rely upon evidence given by the police witnesses. In our view, in the circumstances of the trial, no exception can be taken to this. We do not think that this ground of appeal can succeed and we turn to the appellants' other grounds of appeal which, in the case of the first, third and fourth appellants, rest largely upon the question of the identity of the stolen property. Dealing first with the case of the 3rd appellant, his conviction, which was on the 5th charge, cannot stand. In the court below there was confusion between the two watches Exhs. 4 and 6 and this confusion there went unnoticed. Not so by Mr. Jackson-Lipkin for the 3rd appellant, who pointed out to us that in the District Court the wrong watch was presented to the pawnbroker for identification and was solemnly identified by him. He was shown Exh. 4 whereas the police evidence (P.W.s 17 & 18) was that it was Exh. 6 which had been recovered from that particular pawnbroker. Moreover throughout the proceedings no pawnbroker or mahjong school employee claimed to have had the watch Exh. 6, the subject of the charge, pledged with him. This undoubted confusion between exhibits renders the conviction suspect in the extreme and the 3rd appellant is granted leave to appeal and his appeal allowed. To avoid repetition we would mention here that all appellants are granted leave to appeal. The 1st appellant was convicted on the 2nd, 3rd and 4th charges. As to the 2nd charge we are completely satisfied that the watch was stolen and subsequently identified by the owner by reference to a speck of white paint upon it and we cannot accept the submission that the chain of identification was incomplete. The mahjong school employee on being requested by the first accused to give the watch back to him, took a watch off his wrist and handed it to a police officer P.W.18 in the presence of P.W.17 who testified in regard to many exhibits including that watch, that "all these things have been kept in police custody until now". The watch was produced in Court and identified by the owner positively. It is true that the police witnesses identified the watch produced in Court as being merely "similar" to that handed over by the mahjong school employee but in the case of a mass-produced object this is understandable. The judge was in no doubt that the watch produced in Court was that obtained by the police at the mahjong school and we see no reason to question that conclusion. The 1st appellant's appeal against conviction on the 2nd charge is dismissed. In regard to this appellant's appeal on the 3rd charge there was a conflict of evidence. The watch was said to have been stolen on the 24th of the month but there was evidence from P.W.13 that it had been pawned with him on the 10th of that same month. If the conviction rested on the theft of the watch only it would be unsafe to allow it to stand. But the conviction relates also to the pen set and we are of the view that for reasons similar to those which we have advanced in regard to the conviction on the 2nd charge, the judge was entirely justified in regarding the chain of identification of those stolen objects as complete. Accordingly the 1st appellant's appeal against his conviction on the 3rd charge is dismissed. Similarly in regard to the conviction of the 1st accused on the 4th charge we are perfectly satisfied that the learned judge properly regarded the chain of identification of the Rolex watch as complete and the appeal against conviction on this charge is dismissed. Mr. Arculli argued the 4th accused's appeal against conviction on the 1st charge on similar grounds but again we are perfectly satisfied that the chain of identification of the watch produced in Court was complete. The mahjong school employee identified the 4th accused as the person who pledged the watch with him and, shown a watch which P.W. 17 said had been kept in police custody since its recovery from the witness and which P.W. 20 said he himself had kept since then, remarked "that looks like it". P.W.s 17 and 20 both described the watch as "similar" to that recovered at the mahjong school. Again we consider both descriptions apt for a mass-produced product. There was a conflict of evidence whether the 4th accused ever left the police station on the 5th August 1969, the date on which he was said by the police to have taken them to the mahjong school to recover the watch. The learned judge saw no reason why the mahjong school employee should have said that happened unless in truth it did happen. The judge accepted the visit to the mahjong school as a fact and was entirely satisfied with the chain of identification of the watch. We see no reason to interfere with his conclusion and the 4th appellant's appeal against conviction on the 1st charge is dismissed. The 2nd appellant, who was convicted on the 3rd charge, was sentenced to 3 years' imprisonment and appeals against sentence only. It is true that he has previously had a clear record but this was a ruthless attack by ruthless people in which the victim was rendered unconscious before being robbed. Moreover crimes of violence of this type are all too frequent in Hong Kong today. Those who perpetrate them need not expect undue leniency from the Courts. There was nothing wrong with the sentence of 3 years' imprisonment and the 2nd appellant's appeal against sentence is dismissed. (G.G. Briggs) (R.H. Mills-Owens) (W.F. Pickering) President Puisne Judge Puisne Judge 6th July, 1970. Representation: Charles Ching assigned for the 1st appellant. 2nd Appellant in person. Jackson-Lipkin assigned for the 3rd appellant. R. Arculli (Peter Mo & Co.) for the appellant. Astin c.c. for the Crown. PAGE - PAGE - &`#$ CACC000828/1969 HO YIU FAI AND OTHERS v. THE QUEEN Judiciary Hong Kong SAR Normal.dot setup Microsoft Word 9.0 Judiciary Hong Kong SAR CACC000828/1969 HO YIU FAI AND OTHERS v. THE QUEEN Title Microsoft Word Document MSWordDoc Word.Document.8