HKSAR v. Wong Chuck Pan

FAMC No 17 of 2018

[2018] HKCFA 54

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 17 OF 2018 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMA NO 523 OF 2016)

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REASONS FOR DETERMINATION

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Mr Justice Cheung PJ:

1.At the conclusion of the hearing, we dismissed this application for leave to appeal based on the substantial and grave injustice ground.  We now give our reasons.

2.The applicant was convicted of (1) driving without a driving licence; (2) driving an unlicensed vehicle; (3) using a motor vehicle without third party insurance; and (4) driving while disqualified.  At trial, the main issue was whether the applicant was the driver of the vehicle concerned.  The prosecution relied on the applicant’s confessions recorded in the arresting officer (PW1)’s notebook as evidence that he had driven the vehicle as charged.  The applicant, who gave evidence, denied that he had made any confessions at all.  He claimed that he had been slapped on the face twice by PW1 who also threatened to plant dangerous drugs on him.  He said he and his father signed on the notebook at the police station without reading the content.  He said he signed out of fear because he had been assaulted by PW1. He refused to write a declaration that the content was a correct record because he did not make the confessions.  After leaving the police station on bail, the applicant complained to his father about the assault and threat and he was examined at hospital for injuries.  The medical report stated that he attended the hospital “for injuries allegedly sustained in an assault”, but did not say who the assailant was.

3.The deputy magistrate adopted the alternative procedure to determine the voluntariness of the alleged confessions.  In rejecting the applicant’s story, the deputy magistrate commented on the applicant’s failure to complain earlier to his father on the phone or in the police station about the police assault and threat, and his failure to complain to the treating doctor regarding the assault by the police. 

4.The applicant argues that the deputy magistrate’s comments infringed his right to silence: HKSAR v Lee Fuk Hing (2004) 7 HKCFAR 600.

5.This argument overlooks the distinction drawn by this court in HKSAR v Lam Sze Nga (2006) 9 HKCFAR 190, as further explained by the Court of Appeal in HKSAR v Lam Sze Nga [2007] 2 HKLRD 75 (retrial).  That is, the distinction between a case where it is common ground that the accused has remained silent and the issue is the consequence of his having done so, and the case where whether the accused has, or has in effect, said nothing is a live issue at trial.  In the former case, the accused’s right to silence is engaged and it is inappropriate in Hong Kong to use his silence against him in any way.  In the latter case, the prior question of whether the accused has availed himself of the right to silence is in issue.  It is proper, for the purpose of resolving that issue and that issue only, to permit cross-examination on the accused’s lack of complaint or immediate complaint about the threat (and so forth), and for it to be commented on when resolving the issue. 

6.These principles apply equally to a trial before a judge or magistrate sitting alone as they do to a trial before a judge sitting with a jury.  They apply equally regardless of whether one is at the admissibility stage or at the trial of the general issues.  In both cases, the relevant issue remains the same.  The applicant’s submissions to the contrary are not reasonably arguable.

7.In the present case, the issue was whether the confessions were made voluntarily, or whether they came or might have come into being in circumstances as suggested by the applicant.  There can be no reasonably arguable criticisms on the deputy magistrate’s comments regarding the applicant’s failure to make immediate complaints, when seeking to resolve that issue under the alternative procedure.

8.The applicant also complains about some other evidential matters.

9.It is clear that the deputy magistrate made his findings based on the evidence as a whole.  The matters complained of only went to weight.  There was no reasonably arguable departure from accepted norms.

10.For these reasons, leave to appeal was refused.

Mr Wong Man Kit SC and Mr Marco SP Tse, instructed by So, Lung & Associates, for the applicant

Ms Alice Chan, SADPP and Mr Pierre Lui, SPP, of the Department of Justice, for the respondent