CACC000210/1982
| IN THE COURT OF APPEAL | 1982 No.210 |
| (Criminal) |
BETWEEN: | | |
| A.1 LEE Yat-Lung [D.1] | Appellants |
| A.2 WONG Luen-hung [D.3] | |
| A.3 CHIU Yan-biu [D.4] | |
| AND | |
| THE QUEEN | Respondent |
Coram: Roberts, C.J., Li & Silke, JJ.A.
Date: 20 October 1982
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JUDGMENT
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[Holding of voir dire generally a matter for discretion of defence counsel - challenging record of trial judge.]
Roberts, C-J
Preliminary
1. The four defendants were charged in the District Court with one or more of a total of six charges of burglary and four of handling stolen, goods.
2. D.l was convicted on three charges of handling stolen goods and sentenced to a total of four years' imprisonment.
3. D.2 was acquitted.
4. D.3 was convicted on five charges of burglary and one of handling stolen goods and sentenced to a total of seven years' imprisonment.
5. D.4 was convicted on one charge of burglary and sentenced to 4½ years' imprisonment.
6. D.1 was granted leave by a single judge to appeal against conviction.
7. D.3 was refused leave to appeal against conviction and sentence by a single judge and renewed his application.
8. D.4 was refused leave to appeal against conviction by a single judge and renewed his application.
First Defendant
9. At the outset of the hearing, before us, counsel for the crown indicated that he was unable to support the conviction of D.1.
10. During the trial, counsel appearing for D.1 did not challenge the voluntary nature of a statement made by D.1 to a police officer. It was therefore admitted in evidence by the judge without any voir dire.
11. When D.1 gave evidence, however, he challenged the accuracy of this statement, denying that various passages in it had been said by him or asserting that what he did say to the officer had not been accurately recorded by the latter.
12. The judge commented as follows in his reasons for verdict -
"D.1's Counsel had a bounden duty to object to the statement when it was admitted in evidence for if such objection had been made then, there would have been a resultant voir dire when the circumstances of the taking of this statement could have been properly investigated. As it is I am left to decide what weight I should attach to it without the advantage of having heard evidence of the circumstances in which it was taken and ruled on its admissibility or otherwise."
13. We do not think that this criticism of counsel is justified. It is for defence counsel to decide whether the interests of his client would be best served by -
| (a) | objecting to the admission of the defendant's statement and asking for this issue to be determined on a voir dire; or |
| (b) | raising no objection to its admission but seeking to persuade the judge (or the jury, as the case may be), that it was made in such circumstances that little or no weight should be given to it. |
14. This misconception by the judge as to the duty of counsel would not have been fatal to the conviction of D.1, had it not been for the fact that the judge appears to have been influenced, when assessing the credibility of D.1, by the fact that his statement to the police was admitted without objection.
15. The relevant paragraph in his reasons for verdict reads -
"After carefully considering the matter, reminding m self that the statement was admitted without objection I find, at the end of the day, that I just do not believe the defendant's confused objections to the statement he made."
16. It was for these reasons that the Crown very properly did not seek to uphold the conviction of D.1. We therefore allowed his appeal and quashed his conviction on all three charges.
Third Defendant
17. Shortly before the date appointed for the hearing of this appeal, counsel for D.3 identified what he, thought were errors or omissions from the record of the trial.
18. He therefore followed what is, in our view, the correct procedure by submitting to the trial judge a list of the errors or omissions which he thought were to be found in the record.
19. Although he did not in terms invite the judge's comments on these matters, as we think he should have done, the judge very helpfully did comment by letter, at extremely short notice, in order that his views should be available to counsel and the court on the first day of the hearing of the appeal.
20. It was clear from the judge's -letter that, although his recollection accorded with that ofD3's counsel in some respects, in other matters it conflicted.
21. We were therefore faced with a disagreement between counsel and the trial judge as to whether or not the record fairly and accurately represented what had happened at the trial. (It should be noted that counsel who appeared for the Crown was unable to remember what had occurred).
22. Where the official record of a trial consists of a handwritten note kept by the judge, it is inevitable that there will, from time to time, be mistakes and omissions, as there are equally likely to be in any note kept by counsel. What, therefore, is this court to do when counsel challenges the record provided by the judge?
23. Unless the dispute is itself to be the subject of a trial, at which evidence is to be given by counsel and the judge, which would surely be inappropriate, there seems to us to be no alternative, as a general rule in case of conflict of this kind, but that the version of the trial judge, who is responsible for maintaining the proper record of the proceedings, should be accepted, save only where the judge's record, or his reply to the variations put to him by counsel, suggests that his version of what happened is so inherently improbable that we should not accept it.
24. We therefore informed counsel for D.3 that we felt obliged to adopt the judge's record and the comments which he had tendered on the submissions made to him by counsel.
25. Counsel for D.3 thereupon conceded, after we had granted him an adjournment to consider the matter, that on the basis of the unvaried record there were no grounds of appeal that he could properly put forward.
26. We therefore refused the application of D.3 for leave to appeal against conviction.
Third Defendant's sentence
27. D.3 was sentenced on the five burglary charges of which he was found guilty, to 5 years, 3 years,3 years, 4 years and 5 years respectively; these sentences to run concurrently. On the seventh charge of handling stolen goods, he was sentenced to two years' imprisonment, to run consecutively to the sentences imposed on the burglary charges.
28. The offence of handling stolen goods took place on the 22nd June. It involved the handling of various items of clothing and a cash register which were stolen from the May Boutique on the same day and were the subject of the sixth charge, on which D.4 was convicted.
29. In his statement to the police, D.4 asserted that the burglary, which is the subject of the sixth charge, was committed by him and D.3 together.
30. Had D.3 been charged with the burglary of the premises from which the goods contained in the seventh charge came, it seems likely that the judge would have imposed a sentence to run concurrently with the other burglary charges.
31. We did not therefore think that it was right to impose a consecutive sentence for the handling of stolen goods.
32. We therefore varied the sentences imposed on him to the extent of ordering that the two years' imprisonment imposed on the seventh charge should run concurrently with the sentences on the burglary charges, so that his total sentence will be five years' imprisonment instead of seven.
Fourth Defendant
33. The sole evidence against D.4 consisted of a statement made by him to a police officer on the 21st July, 1981. D.4 gave no evidence, except on the voir dire, and called no witnesses on his behalf.
34. His only ground of appeal was that the judge, when deciding on the admissibility of his statement, after this had been challenged by him in a voir dire, did not give sufficient weight to discrepancies in the evidence of the police witnesses concerned. He drew our attention to a number of these which, he argued, were of such importance that the judge should not have believed the police witnesses.
35. D.4 complained at the trial that his statement had been obtained from him by a physical assault by a detective constable and threats by a detective sergeant and the same detective constable.
36. The judge disbelieved the allegations of threats and ill-treatment put forward by D.4 and accepted the evidence of the police officers that nothing improper had occurred.
37. The discrepancies to which D.4 drew our attention were of a minor nature and were drawn to the judge's attention by DA's counsel in his submissions to the judge, immediately before he ruled on the admissibility of the statement made by D.4.
38. No other grounds were advanced by D.4 and we therefore refused his application for leave to appeal against conviction.
Representation:
D. O’R. Mayne, Q.C., Y.M. Yung (H.C. Yeung & Co.) for A.1.
K. Ramanathan (D.L.A.) for A.2
A.3 Appellant in person.