THE QUEEN v. FUNG WAI CHIU (D1) AND ANOTHER

CACC000417/1985

No.417/85 (Criminal)

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Criminal Appeal No.417 of 1985

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BETWEEN

	THE QUEEN	Respondent
	and
	FUNG WAI CHIU (D1)	1st Appellant
	KWOK YIN TAT (D3)	2nd Appellant

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Coram: Hon. Li, V-P, Kempster, J.A. & Hunter, J.

Date of Hearing: 8th November 1985

Date of Delivery of Judgment: 8th November 1985

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JUDGMENT

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1. Both appellants in this case were convicted on 13th September last of conspiracy to rob, contrary to Common Law. The cases against both of the defendants were largely founded on confessions which were alleged by the prosecution to have been made voluntarily by both of them. In the case of the 1st appellant he made no less than six statements over a period of two days from 19th to 21st June. In the case of the 2nd appellant, he made two statements both on 22nd June. Long voire dires were conducted by the trial Judge, in which he heard the evidence of the police officers who took these statements and evidence from both the appellants. The Judge concluded in the light of that evidence that all the statements had been made voluntarily.

       

2. As far as the 1st appellant is concerned the only point which counsel has felt able to argue is a point which related to the credibility of the police officer who took the first of the statements. It is quite obvious that that point was made in the court below and rejected by the trial Judge because he believed that officer's evidence. Nothing more need be said about the 1st appellant's application.

       

3. The 2nd defendant's first statement started off in his own hand-writing, and started to spell out an innocent explanation of his movements on the critical night in question. There was then a pause in the statement which is continued in the hand-writing of the police officer. The police officer recorded this, "Ah Sir, I have thought it over, I would rather tell you the fact". The statement then goes on to give a detailed account of the events of the night in question which implicated this defendant in the conspiracy charge. It is said that the trial Judge did not have sufficient regard to this peculiarity of the above statement. But in his reasons for verdict one finds this: 'I find also that I can give weight to the statement made under caution by the 3rd defendant. I take Mr Wong's point that there is a denial in the hand of the defendant followed by omissions written in hand of the arresting officer. Notwithstanding Mr Wong's cogent argument I believe the evidence of that officer as to the manner of the taking of the statement. I did not believe the 3rd defendant, when he gave evidence in the voire dire?' The trial Judge was the person entrusted with finding the facts in this case. There in no way or no basis on which this court can interfere with that factual conclusion. In these circumstances the applications for leave to appeal against conviction must be refused.

       

4. I should add that since, in the view of this court, these appeals are totally without merit, we direct that there should be 30 days loss of time.

( D.S. Hunter ) Judge of the High Court

Representation:

Stephen Chow (M/s Philip S.W. Wong & Co.) for Applicants

G.J.X. McCoy, C.C. for Respondent