The Queen v. Lai Ming-kit

CACC001422/1983

Police seeking information in connection with prosecution of person other than defendant may not rely upon uncautioned statement at trial of defendant.  Wrong exercise of discretion to exclude evidence.

BETWEEN

THE QUEEN

and

LAI MING-KIT

Coram: Bewley, J. in Court

Date: 30th November, 1983

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J U D G M E N T

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1. The appellant was convicted on three charges of driving, or suffering the driving, of a private car for hire or reward, and on three related charges of using, or causing the use of, a motor vehicle without third party insurance. At the conclusion of the hearing I allowed the appeal and quashed the convictions. I now give my reasons.

2. On 6th July this year the police visited the Dae Dong Co. and seized three receipts issued by the appellant's firm, Kota Tour & Sightseeing Co. As these seemed to indicate that Kota had hired vehicles to Dae Dong - though no vehicle registration number is mentioned the police suspected an illegal "pak pai" business.

3. As part of their investigations into Dae Dong, the police visited the appellant's company on 19th July. They were looking for evidence against Dae Dong that would supplement the receipts found on 6th July. It was not intended at that stage that the appellant should be prosecuted, or even called as a witness in any proceedings. He was therefore not cautioned. He was questioned about the receipts and was cooperative.   He produced his records, which showed that, certain vehicles had been driven by either himself or his employee, on behalf of Dae Dong, on the dates stated in the receipts.

4. The appellant was taken to the police station to assist in enquiries. He was naturally suspected of being connected with the offences, but there was still no intention to charge him. A written statement was then taken from him on a witness statement form. This document contains admissions that amount to proof of these offences. The officer who took the statement then consulted his superior,  who instructed him to arrest and caution the appellant in respect of these charges. At first the appellant indicated that he wished the officer to record something further, but he then changed his mind.

5. There is no suggestion that the damaging statements were made involuntarily; nor indeed that they were obtained by a trick. Counsel for the appellant, who also appeared at the trial, submits, as he did then, that they were unfairly obtained, or rather that the use to which they were put was unfair, and that therefore the magistrate should have exercised his discretion to exclude them. The magistrate appears to have considered the matter carefully, but nevertheless decided that there was no valid reason to exclude the statements.

6. He took the view, however, that the three receipts, together with certain other admitted documents, namely the certificates of registration and insurance, plus a statement of account showing the amounts received by Kota from its clients, including Dae Dong, and the appellant's answers to the charges, in which he admits receiving a fee from Dae Dong for taking tourists sightseeing, constituted sufficient proof of the offences, in the absence of an explanation by the appellant, who in fact did not give evidence. Counsel for the Crown concedes on appeal that this is not so, since there is nothing in these documents to link the use of specific cars on the dates alleged.

7. The only evidence therefore is the oral and. written admissions made to the police by the appellant. The question is whether the magistrate exercised his discretion wrongly in refusing to exclude them.

8. With regard to admissions and confessions, a judge has a discretion to refuse to admit relevant admissible evidence on the. ground that it was obtained by improper or unfair means,  The Queen v. Sang⁽¹⁾ . In Attorney General v. Ip Chong-kwan ⁽²⁾ the Court of Appeal held that it should not interfere too readily with the exercise of a judge's discretion and should do so only, for example, where it is manifest that the discretion has been exercised unreasonably, or where the order will result in injustice.

9. When the appellant was cautioned, he realized for the first time that he himself had   become the target of the police enquiry. In fact Dae Dong was never prosecuted. It is significant that, although invited to say something further, he elected not to do so. It seems probable that, had he been cautioned when the police visited his firm on the 19th July, he would not have been so cooperative and would not have provided the information that linked the receipts to specific cars, nor would he have given the subsequent detailed witness statement.

10. It seems to me that, while no criticism can be levelled at the police for what they did, since they were directing their investigations into Dae Dong at the time, nevertheless it was unfair to use the information thus obtained in the subsequent prosecution of the appellant. When they found the receipts at Dae Dong, although they did not amount to proof of the offences, they did comprise evidence that caused the police to suspect that the appellant was involved with "pak pai" dealings. Therefore he should have been cautioned. This, of course. might have hindered the investigation and. it is perfectly understandable that the police chose not to do so, since they were not intending to prosecute him; but, once this decision was reversed, I think injustice is done if the prosecution is permitted to obtain a conviction upon evidence willingly provided by the appellant. I think, therefore,  that the magistrate should have excluded it.

(1)    1980 Appeal Cases 402

(2)    1978 Hong Kong Law Reports 141

Representation:

Mr. M. Jennings, Senior Crown Counsel for the Crown

Mr. Simon Westbrook (Samuel Soo & Co.) for the appellant