Case Detail

CACC000434/1990

Headnote

Criminal Procedure (Representation) Rules Cap. 221 to be observed: ad misericordiam plea rejected on application for leave to appeal against sentence out of time.

IN THE COURT OF APPEAL	1990, No. 434
	(Criminal)

BETWEEN
	THE QUEEN

	AND

	WONG SHAN

-----------------------

Coram: Silke, V.-P., Macdougall, J.A. & Barnett, J.

Date of Hearing: 10 March 1992

Date of Judgment: 10 March 1992

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J U D G M E N T

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Silke, V.-P.:

1. This is the judgment of the court.

2. The applicant, Wong Shan, was convicted on 28th August 1990 together with another person of conspiracy to defraud. The conspiracy seemed to have been what has now become the routine "Renminbi scam". He sought leave to appeal against that conviction and his application was refused on 17th September 1991. The Reasons for that refusal were handed down on 25th September 1991.

3. At the time of conviction he received a sentence of 3 years imprisonment. He did not see fit to make any application in respect of that sentence within the time limit provided. On 12th October 1991 he swore an affidavit, which was filed in this court on 14th October 1991, grounding an application seeking leave to appeal against sentence out of time. The basis of that application was that he had received messages from his family saying that his father's health condition was degenerating seriously, that he was the only person who could take care of and financially support his father and that he desired to fulfil his filial duty to see his father for the last time. Attached were a number of photostats of medical reports relating to the condition of his father's health.

4. The matter was set down for hearing today and, somewhat to the surprise of the court, the applicant this morning had the benefit of being represented by Miss Chan on the instruction of J. Fang & Co. No Notice to Act had been filed. The attention generally of solicitors is drawn to the Criminal Procedure (Representation) Rules which appear in Cap. 221 at page H1 which in its rule 2 reads:

"2. A solicitor who accepts instructions to represent a party other than the Crown in any proceedings in the criminal jurisdiction of the Court of Appeal or the High Court shall forthwith give notice of his appointment to the Registrar in accordance with the form in the Schedule." (Emphasis supplied)

Those rules were not observed. We have however received an undertaking through counsel that the solicitors will, forthwith, file a Notice to Act.

5. Again Miss Chan takes the ad misericordiam point. She does not suggest that the sentence itself was in any way wrong or excessive. She has referred us to three cases. The first: R. v. Roe [1982] Crim L R 57 where the English Court of Appeal, for a 18 year old who had received after a plea of guilty to assault with intent to rob a sentence of 3 years imprisonment, reduced that sentence, though it thought that to be undoubtedly right in principle for an offence of that gravity. This reduction was the result of a report from the prison on the manner in which the applicant had conducted himself during the period of the sentence which he had served up to then. There is, however, attached to that report a Commentary which has trenchantly criticised the action taken by the court referring to the possibility of this type of interference with sentence creating "inexplicable disparities, weakening the authority of the Court of Appeal and seriously interfering with its functioning".

6. Miss Chan has also referred us to a passage in the Principles of Sentencing 2nd Edition by D.A. Thomas where, at page 212, Mr. Thomas speaks of the general principle that hardship to wife and family of a convict cannot be one of the factors which would affect what would otherwise be the right sentence. Mr. Thomas went on to suggest that there were three recognisable exceptions to that general principle, though none is automatically applied. Family hardship, he said, may be a ground for mitigation of the sentence where the particular circumstances of the family are such that the degree of hardship is exceptional, and considerably more severe than the deprivation suffered by a family in normal circumstances as a result of imprisonment. In the footnote there is mention of a case entitled Renker which was decided on 29th June 1976 and carried a reference 2266/A/76. There the court while it held the sentence to be a perfectly fair and proper sentence for burglary - what that sentence was, and how much had been served, we do not know - reduced it to enable the appellant to spend time with son dying of leukaemia.

7. She has also referred us to R. v. Thomas [1983] Crim L R 493, but that is not a matter which particularly assists us.

8. It must be borne in mind that this application is an application for leave to appeal against sentence out of time. In viewing such application a court certainly will look to the merits of the appeal and the grounds of appeal lest by refusing leave it excludes a matter which should lie for consideration of the court.

9. We have listened to that which Miss Chan has said to us and noted the points she has made and seen, although they are not properly before us - Mr. Bruce taking no point on this - certain recent medical reports in relation to the father. There is no indication of the father's life expectancy though he is a 65 year old man with liver cancer.

10. We also bore in mind the period of the sentence of 3 years which leaves, subject to behaviour, something like 4 1/2 months now to run. There was nothing wrong or in any way excessive in the actual sentence passed; if anything it was a lenient one for this type of conspiracy which is becoming prevalent, but, leaving that aside and having given consideration to the arguments adduced to us today, we are not persuaded that this is a case in which we should give leave out of time on the basis of an ad misericordiam plea. Therefore, we would refuse the application for leave to appeal out of time against sentence.

(William Silke)	(Neil Macdougall)	(N.J. Barnett)
Vice President	Justice of Appeal	Judge of the High Court

Representation:

Miss Christal Chan (J. Fang & Co.) for Applicant

A.A..Bruce, Esq. for Crown/Respondent

CACC000434A/1990

Cautioned statement - admissibility of.

Long period of interrogation without caution whilst accused in custody - whether oppressive.

Cautioned statement following immediately after interrogation - whether oppression continued to operate in relation to the cautioned statement.

IN THE COURT OF APPEAL

1990, No. 434
(Criminal)

BETWEEN

	THE QUEEN
	AND
	YEUNG Kin-chung (D1)
	WONG Shan (D2)

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Coram: Hon. Yang, C.J., Hon. Nazareth, J. & Hon. Wong, J.

Date of Hearing: 17 September 1991

Date of Judgment: 17 September 1991

Date of Handing Down of Reasons: 25 September 1991

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JUDGMENT

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Hon: Yang, C.J.:

1. This is the judgment of the Court.

2. The two applicants were convicted after trial by Deputy District Judge Candy of conspiracy to defraud. D1 (Yeung) now seeks leave to appeal against conviction and sentence, and D2 (Wong) against conviction only. They were both sentenced to three years' imprisonment.

3. The particulars of offence relied on by the prosecution are that between the 1st and the 25th of October 1989, Dl and D2, together with a person unknown, conspired to defraud one Mr. Yu Kam-fuk of RMB$520,000 by falsely representing to Mr. Yu that the sum of HK$750,000 was credited to Mr. Yu's bank account with the Chase Manhattan Bank on the 25th October 1989.

4. The prosecution evidence came mainly from the victim Mr. Yu and Dl's and D2's cautioned statements. The Crown however fairly conceded before this Court that Mr. Yu's evidence, if unsupported by the cautioned statements, would not be sufficient for the prosecution case to go before the jury.

5. The admissibility of both cautioned statements was disputed on the grounds of assaults, threats and inducement. After a voir dire, the learned trial judge took time for deliberation and delivered a reasoned ruling admitting the statements as being voluntary.

6. Referring to the medical evidence in respect of D1 in his ruling the judge gave it no weight and went on to say: "D1 alleges that he was severely beaten and at one stage given 50 - 60 punches all in the same area of his body. Such a beating would produce much more severe injuries than those noted on D1" both at the United Christian Hospital and Lai Chi Kok Prison. He was satisfied beyond reasonable doubt that Dl was not subjected to any assault, threat or inducement, and there was no oppression. Having noted that Dl was in custody for some hours and was not cautioned until after 5 p.m., he ruled that these were not matters which would render it unfair to Dl for his statement to be admitted. He was also satisfied that D2 was not subjected to threats, assault or inducement.

7. D1 was apprehended at 12 noon on 10th November. At 4 p.m. questioning of Dl commenced. It lasted about an hour, with 19 questions asked. At about 5 p.m. Dl said he was now willing to confess. He was then cautioned for the first time. At 5.03 p.m. a cautioned statement was taken from him. The taking of statement concluded at 7.04 p.m.

8. In the statement D1 made a full confession and described how he and his confederates set about to defraud Mr. Yu. He said that his role was that he "only found male surnamed Yu and introduced him to Lee Wai-kuen for the trading of Renminbi". The judge found that Dl's confession corroborated the evidence of Mr. Yu as to how the fraudulent transaction had taken place. He found as a fact that D1 knew the scheme was to defraud some person of Renminbi currency and he knew the details of how the plan would be executed before he in turn introduced Mr. Yu as the victim. He was also satisfied, on the evidence, that Dl accompanied Mr. Yu and took possession of the RMB$520,000.

9. On D2's statement and Mr. Yu's evidence the judge also found D2 guilty.

10. Three grounds of appeal are advanced on Dl's behalf. Firstly the judge erred in admitting his statement because the statement arose from the culmination of a period of police interrogation of D1 when he was in police custody and had not previously been cautioned. In addition the record of the interrogation prior to caution was not before the judge. The second ground of D1's appeal is that the judge in his ruling on admissibility of the statement failed to consider (i) the matters outlined in the first ground of appeal, (ii) the medical evidence, and (iii) he erred in drawing the conclusions that the allegations of assault would produce much more severe injuries than those described in the medical evidence. The last ground of appeal is that the conviction was unsafe and unsatisfactory, and there were material irregularities.

11. D2, in his home-made grounds of appeal, says that the evidence of the prosecution witness was full of contradictions thereby showing that those witnesses were lying. He then argues there was no evidence connecting him with the offence. Thirdly, his cautioned statement was made as a result of threats and assault. And lastly the judge was biased against him. However he has nothing to add to those grounds of appeal, and he gives no particulars. Having perused the Reasons for verdict and examined the evidence, we find nothing in his appeal that causes us concern. We therefore dismiss his application.

12. Coming to D1's first ground of appeal our attention has been drawn to R v Poon Chi-kwong [1968] HKLR 345, where it is clearly recognised that the questioning of a person whilst in custody without caution is a breach of Rule 3 of the Judges' Rules. A very helpful authority is The Queen v Law Shing-huen [1989] 1. HKLR 116 where Lord Ackner, in dealing with a cautioned statement which followed an earlier one made in circumstances involving oppression, held that the prosecution had to establish, beyond reasonable doubt, that the oppression from the first statement, by the time the second statement was taken, had been dissipated (at p. 122 C-G).

13. Clearly in the present case the interrogation of Dl without a prior caution was against Rule 3 of the Judges Rules. Beyond saying that that period of interrogation was not unfair, the judge did not appear to have addressed his mind specifically to the possibility of oppression. It could well be that if the judge had properly directed himself and considered the question of oppression, he might have dome to the conclusion that there was none, but we cannot be sure. If the circumstances in which the interrogation had been conducted amounted to oppression, the fact that the cautioned statement followed immediately upon the interrogation, and that though the cautioned statement was taken by another police officer yet in the presence of the interrogating officer, could well lead to the conclusion that the cautioned statement is tainted by the interrogation - a fortiori, the recording officer having immediately after administering the caution repeated D1's actual words of admission, adding that he had some questions to clarify those words.

14. We are left with an uneasy feeling that the interrogation might have been oppressive and if it was, the oppression might have continued to operate in relation to the cautioned statement.

15. In this connection, we think it necessary to state our views on the use the record of the interrogation was made. Upon the request of defence a copy of the record was given to the police officer who conducted the interrogation whilst he was giving evidence. Defence counsel had the document translated to him by his clerk during an adjournment, from Chinese into English. The judge did not see it and thought it was irrelevant. It was not produced as an exhibit. What happened in the court below was a departure from the general principle of practice, that all evidentiary matter which was available and relied upon as probative, should be adduced as evidence.

16. We now come to the second ground of appeal. The first medical report was dated the 14th November 1989, i.e., some three and half days after the taking of the cautioned statement, and it showed a number of bruises and scratches on Dl consistent with "hard impact and friction". The second medical report, produced by the defence, was dated 5th December 1989, showed bruising over the front of his body.

17. In our judgment, whilst the trial judge might have reasons for arriving at the conclusion that D1 had been exaggerating, he did not explain why there could not have been assaults of a lesser severity than that described by the accused, in which case the voluntariness of the cautioned statement must be called into question.

18. For the reasons given above the application is allowed. We treat the hearing of the application as the hearing of the appeal and allow the appeal. The conviction is accordingly quashed.

T.L. Yang
Chief Justice

Representation:

Mr. Robert Buchanan (David Tsang & Co.) for Dl Wong Shan, D2, applicant in person

Mr. Holmes for Crown/respondent

THE QUEEN v. YEUNG KIN CHUNG AND ANOTHER

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