HKSAR v. Gurung, Sandip and Others

HCMA 535/2018

[2020] HKCFI 458

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 535 OF 2018

(ON APPEAL FROM TUEN MUN MAGISTRACY
CASE NO TMCC 3282 OF 2017)

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BETWEEN

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J U D G M E N T

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1.The 1^st, 2^nd and 3^rd appellants are respectively D1, D2 and D3 respectively. All three were charged jointly with amended Charge 1 (Inflicting grievous bodily harm contrary to section 19 of Cap 212), Charge 2 (Fighting in public place), and additional Charge 3 (Assault occasioning actual bodily harm).

2.After trial before a magistrate, all three were convicted of Charge 2 but acquitted of the said Charge 1 (“Charge 1”) and the said Charge 3 (“Charge 3”).

3.During the trial, all three were represented by the same counsel instructed by a firm of solicitors. After the acquittal, the solicitor in charge applied for costs on behalf of D1, D2 and D3 in respect of Charge 1 and Charge 3.

4.After hearing submissions, the magistrate refused the application.

5.D1, D2 and D3 each acting in person now appealed against the refusal of costs.

6.The respondent opposed.

Grounds of Appeal

7.On his Notice of appeal, D1 stated that his general grounds of appeal were the Magistrate’s order not to grant him cost (sic) in TMCC 3282/2017 was unfair and wrong.

8.On his Notice of appeal, D2 stated the same as that stated by D1 in the latter’s notice.

9.On his Notice of appeal, D3 stated the same as that stated by D1 in the latter’s notice.

Reasons for the acquittal of D1 to D3 on Charges 1 and 3

10.It is noted that the issue in respect of Charge1 and Charge 3 was identification.

11.It is a fact that none of the defendants gave or call evidence either during the special issue or the general issue.

12.The magistrate stated that he did not find any acceptable evidence from the factual witnesses that any of the 3 defendants “were seen to have” dealt any blow on either the victim of Charge 1 or the victim of Charge 3.

13.He then referred to the records of interview of respectively D2 and D3 which he had earlier ruled to be voluntarily made and admissible. The magistrate concluded that from the answers given in the respective records of interview, he could not rule out the possibility that D2 and D3 [though by their admissions present at the scene] were acting in self-defence in respect of Charge 1 and Charge 3. He added that those answers could not advance the prosecution case against D2 or D3.

14.In respect of D1, the magistrate had earlier ruled out his two records of interview although he had found them to be prima facie voluntary. The reason for the exclusion is that the prosecution could not call as a witness (an English/Nepalese interpreter) through whose assistance the two records of interview were taken. According to the magistrate, without hearing the interpreter, “the Court just could not be sure that the 2 records of interview … were voluntarily made by D1”. (my emphasis)

15.It is to be noted in passing that the objection to the admissibility/voluntariness of all the records of interview of all the defendants was framed on the basis that the records of interview were obtained by the use of threats, inducements and oppression, and that the answers attributed to the defendants were not given by them.

16.So in the case of D1, there was no other evidence against him in relation to Charge 1 and Charge 3 (though the magistrate did find a prima facie case against D1 on these charges on the basis of the factual witnesses’ evidence).

17.In the result, the magistrate ruled that the prosecution have failed to prove Charge 1 and Charge 3 to the required standard and he therefore acquitted all 3 defendants of those 2 charges.

Reasons for refusal of costs

18.The magistrate stated that he agreed with the prosecution that the defendants had brought suspicion upon themselves by giving those answers in their respective records of interview.

19.In respect of D2 and D3, the magistrate said that although he had considered that the answers given by D2 and D3 alone could not advance the prosecution case against their makers, he was of the view that D2 and D3 had, by those answers, admitted that they were present in the incident (relating to Charges 1 and 3) and “had used force against the […] males”. They had, according to the magistrate, brought suspicion upon themselves by giving those answers.

20.In respect of D1, the magistrate acknowledged that he had ruled that the 2 records of interview were (only) prima facie voluntarily made. Similar to the cases of D2 and D3, the magistrate said he was of the view that D1 had, by the answers given in one of the records (PP28A), admitted that he was present in the incident and had used force against the males. The magistrate concluded that by giving those answers D1 had brought suspicion upon himself.

21.There were other less important reasons for refusing costs relied on the magistrate such as he did not find the prosecution had unreasonably prolonged the trial by repetitive questioning or by seeking to adduce D1’s records of interview even in the knowledge that the missing interpreter was hard to find.

22.Moreover, the magistrate dismissed the claim made on behalf of the defendants that they had offered to plead guilty to Charge 1 and Charge 3 in return for a plea to Charge 2.

D1 to D3’s submissions

23.D1 submitted that because of the case, he had lost a lot of money and wasted a lot of time; he had even lost his employment because of conviction on Charge 2.

24.D2 and D3 simply adopted D1’s submissions.

The gist of the respondent’s submissions

25.Respondent adopted its written submissions save and except the last sentence of para 37 namely, “However there is no suggestion that he [the interpreter] did not turn up because he did not interpret properly.” which the respondent sought to delete.

26.The gist of the respondent’s submissions is as follows.

27.Citing Li Lai Yu, Jane v HKSAR, HCAL 40/2003, the respondent submitted that a court is entitled to examine the record of interview of a defendant in relation to whether he has brought suspicion on himself.

28.In relation to D2 and D3, after examining the relevant answers as contained in their respective records of interview, the respondent submitted that since their records of interview had been ruled voluntary, it was open to the magistrate to refuse costs on the basis of the answers.

29.In the case of D1, again the respondent had examined the answers given in a record of interview (PP28A). The respondent submitted that based on the answers, it was again open to the magistrate to refuse costs.

30.However, the respondent acknowledged that there was an additional issue in relation to D1 – that his two records of interview were only ruled prima facie voluntarily made but not beyond reasonable doubt and hence excluded.

31.In this connection, the respondent relied again on Li Lai Yu, Jane, which considered two apparently conflicting cases namely, HKSAR v Wong Pak Nin [2000] HKLRD 74 and Cheung Bik Kwong v Attorney General & Anor [1999] 2 HKC 870. The respondent referred in particular to paras 22 and 23 of Jane, where Chu J, as Chu JA then was, said,

“22. …Where the cautioned statement has been ruled inadmissible, it is both relevant and important to consider the reasons leading to the ruling.

23. … it must be permissible, in some circumstances, for the trial magistrate or judge to have regard to the answers given in a cautioned statement, despite that the statement is ruled to be inadmissible. As submitted by Mr Lee [for the HKSAR], while it would not be proper to take into account the contents of a cautioned statement that has been excluded by reason of force, inducement, threat or oppression, it should be permissible to refer to a cautioned statement that is excluded on procedural or technical grounds or grounds that do not call into doubt the genesis and reliability of the contents in the statement.”

32.The respondent submitted that the reason the record(s) of interview was/were ruled inadmissible was the inability of the prosecution to call the relevant interpreter (as a witness) who interpreted for D1; and therefore the magistrate did not decide on any other allegation.

33.The respondent also referred to Direction 6 of the “Rules and Directions for the questioning of suspects and the taking of statements” which, among other things, directed that whenever possible all interviews should be conducted in the mother tongue of the suspect unless he chooses, or consents, to use another language in which he is obviously proficient.

34.In other words, the respondent seemed to be suggesting that the cautioned statement(s) was/were excluded on accuracy issue which comes under procedural or technical grounds.

My considerations

35.I will deal with D2 and D3 first because that is simpler. Neither of them has sought to challenge the magistrate’s ruling in the special issue or his finding that by their answers in the respective records of interview, they had brought suspicion upon themselves. I can see no valid grounds of appeal nor valid submissions proffered by either of them against the propriety of the refusal order. I myself see the refusal order as entirely proper.

36.As regards D1, again D1 has never sought to challenge any ruling the magistrate made in the special issue or that by the answers made in the record of interview (PP28A), he (D1) has brought suspicion upon himself.

37.In my judgment, everything in D1’s appeal hinges on whether the magistrate was correct in referring to the record of interview (PP28A) that had been excluded though he found it to have been prima facie voluntarily made.

38.The respondent is right that one has to examine the reasons for the exclusion.

39.I understand the respondent to be saying that the magistrate may refer to the record of interview because it had only been excluded on grounds relating to accuracy of interpretation and therefore on procedural or technical grounds (quaere: does this also come within the category of “genesis and reliability of the contents” per para 23 of Jane?).

40.However, a reading of the “Statement of Grounds of Decision on Costs” reveals that the magistrate excluded the records of interview on the ground of voluntariness (see para 23: “… Without hearing this interpreter, the Court just could not be sure that the 2 records of interview which were made with the assistance of this particular interpreter were voluntarily made by D1”) and not for example on ground of accuracy of the interpretation. This is despite the fact that the magistrate had found the interviewing officer (PW15) and the English/Cantonese interpreter (PW16), the only other persons present during D1’s interviews, honest and reliable witnesses; and he accepted and gave weight to their evidence (para 22 of the Statement of Grounds).

41.Apparently, the magistrate gave his reasons for so concluding about PW15 and PW16 (and a host of other PWs) as finding their evidence clear, reasonable, consistent and not shaken under cross-examination; that there was not any inherent impossibility; that when their evidence was compared, he could not detect any material inconsistencies; that he did not think the submissions advanced by the defence could undermine their credibility or reliability or create any doubt in the prosecution case on the special issue.

42.Yet, the magistrate could not be sure – that means he had a doubt – about voluntariness, for reasons best known to himself. And voluntariness, in the context of this case, related to the defence allegations of threats, inducements and oppression.

43.In light of the foregoing and of the appeal papers before me, and with respect to the Senior Public Prosecutor, I cannot agree that the magistrate ruled the record(s) of interview inadmissible on the basis simply of the prosecution’s inability to call an interpreter who interpreted, a basis wholly unrelated to the defence allegation(s).

44.As such, and with respect to the magistrate, I am of the view that the magistrate should not have relied on the excluded record of interview of D1 (PP28A) to rule that D1 had brought suspicion upon himself. There is no other basis on which the magistrate could so rule.

Conclusions

45.For the above reasons, I adjudge that D1’s appeal against refusal of costs is allowed; the magistrate’s order of refusal is set aside. I order that D1 is to have his costs of trial in respect of Charge 1 and Charge 3 only; amount to be taxed if not agreed.

46.For the above reasons, I adjudge that each of D2’s and D3’s appeals against refusal of costs is dismissed. I confirm the order of refusal made in respect of D2 and D3.

Mr Prakash L. Daryanani, SPP of the Department of Justice, for the Respondent.

1^st Appellant appeared in person.

2^nd Appellant appeared in person.

3^rd Appellant appeared in person.