R. v. Chan Ching Man

HCMA000112/1995

NO. 112 OF 1995
MAGISTRACY APPEAL

IN THE SUPREME COURT OF HONG KONG

(On Appeal from TMC 8828 of 1994)

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Coram: The Hon. Mr. Justice Barnett in Court

Date of hearing: 18 May 1995

Date of judgment: 25 May 1995

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J U D G M E N T

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1. The Appellant faced two charges of aiding an abetting the remaining in Hong Kong of an illegal immigrant contrary to Section 38 (1)(b) Immigration Ordinance Cap. 115 (the Ordinance). He also faced two alternative charges of employing a person not lawfully employable contrary to Section 17I(1) of the Ordinance. I will call the persons specified in all these charges "the immigrants". After trial, the Appellant was convicted of the first two offences and sentenced to 20 months' imprisonment on each charge, the sentences to run concurrently. Against conviction and sentence, he now appeals.

2. There were essentially two grounds of appeal. First, that there was no evidence that the immigrants were in fact illegal immigrants. Second, that the magistrate should not have admitted in evidence admissions made by the Appellant in breach of the Rules and Directions for the Questioning of Suspects and the Taking of Statements, promulgated by the Secretary for Security on 1st October 1992 (the Directions).

3. On 26th September 1994, two police officers were on patrol in the Castle Peak area. They saw three people moving things into a warehouse. When the police approached, two of the men who were the immigrants rushed into the warehouse. Feeling suspicious, the police officers approached them. One police officer (PW1) identified himself and asked the two men to show proof of identity. The men told him they did not have identity cards. When asked if they had illegally sneaked into Hong Kong and what they were doing, the two men pointed at a third man beside them, the Appellant, and said they were employed by him. At this, PW1 asked the Appellant if he knew that they were illegal immigrants. The Appellant replied "yes". Asked why he employed them if they were illegal immigrants, the Appellant said, "I feel pity for them so I provide meals for them. They think I was a good person so they stay here to work". At this, PW1 arrested the Appellant and cautioned him. The Appellant remained silent.

4. The other police officer (PW2) gave evidence to like effect.

5. The defence case put to PW1 and PW2 was in essence that neither the immigrants nor the Appellant had made any admissions to the police officers. PW1 and PW2, of course, denied that.

6. During the trial, the prosecutor submitted certificates pursuant to section 17I (4) of the Ordinance certifying that the immigrants were not lawfully employable. The magistrate asked counsel then representing the Appellant whether it was admitted. Counsel, according to an affidavit filed for the purpose of this appeal and which is not in dispute, replied in the affirmative because he was under the impression that the magistrate was asking him whether the defence would admit the status of the immigrants in relation to the alternative charges. No certificates were submitted under section 63A of the Ordinance as to the status of the immigrants in relation to the offences charged under section 38. Accordingly, at the close of the Crown case, counsel made a submission of no case to answer because there was no evidence as to the illegal status of the immigrants in relation to the section 38 offences.

7. It transpired that the magistrate and counsel had been at cross-purposes as to the scope of the admission made by counsel. The position having been clarified, the magistrate indicated that he would allow the Crown to re-open its case to prove the status of the immigrants in relation to the section 38 offences if status was not admitted.

8. Without taking instructions from the Appellant, counsel admitted the illegal status for the purpose of those offences. In making that admission, counsel took into account that the immigrants had already been convicted of offences of remaining unlawfully in Hong Kong and were serving custodial sentences. Further, they were also available to give evidence for the defence. Also, the magistrate had indicated that he would adjourn the case to enable the Crown to prove status, something which counsel knew the Crown would have no difficulty in doing because of the convictions of the immigrants. Counsel also took into account (very properly in my view) that to continue to challenge this issue would only delay the trial.

9. One of the immigrants gave evidence. He said that he and his colleague were simply asking the Appellant for directions. He said he had not been employed by any person. He denied ever having admitted that he was an illegal immigrant.

10. For the Appellant, Mr. Egan argued that there had been a material irregularity in relation to the admissions. He said that counsel should not admit any fact which goes to the root of the offence in question without express instructions. He pointed out that both counsel's affidavit, in which counsel said he was without instructions, and a further affidavit from the Appellant in which he said he had not given any instructions for counsel to admit any fact, were not challenged. Further, Mr. Egan said that a prudent magistrate, having regard to the confusion which had existed, should have ascertained from the Appellant whether he understood the nature of the admission being made on his behalf under Section 65C of the Criminal Procedure Ordinance and whether or not he had in fact agreed to make such an admission.

11. Mr. Egan acknowledged that the point he was making is highly technical. He said, however, that the legal system itself is based on technicalities which must be observed. He said that I should take this opportunity to remind counsel that they must not admit a fact without instructions from their client. It would also be an opportunity to remind prosecuting authorities that if statutory provision enables them to prove certain matters by way of certificate, such provision should be scrupulously observed.

12. I have not found this point easy. It is plain that if counsel admits a fact which he has been expressly told not to admit, or which is inconsistent with his instructions or the case which he has to advance, such an admission cannot stand. The issue, as I see it, and as Mr. Pang for the Crown put it, is whether or not counsel has a degree of flexibility to conduct the case as he sees fit so as to allow him to admit a fact if he thinks, in all the circumstances, it is right to do so. In the present case, Mr. Pang said, the status of the immigrants was not one of the real issues. The admission made by counsel was not inconsistent with the defence which he was advancing. Further, Mr. Pang suggested that counsel also has a duty to the court to ensure the efficient disposal of cases in the interest of other users of the court.

13. I am satisfied that Mr. Pang is right. Counsel must have some degree of flexibility in their conduct of the case. Where a fact is not really in issue, not inconsistent with the case being put forward and easily capable of proof, it seems to me that counsel is entitled to exercise his judgment in such circumstances as to the appropriate course to adopt without reference to his client. One consideration which he should weigh in making such a decision is the delay which might be occasioned by a non-admission and the consequent waste of court time against any possible benefit which might accrue to his client by pressing the point.

14. I find, therefore, that counsel at the trial of the Appellant acted properly. The admission was properly made. There is nothing in this ground of appeal.

15. Turning to the second ground, Mr. Egan said that after speaking to the immigrants, PW1 plainly had sufficient evidence to give rise to a reasonable suspicion that the Appellant had committed an offence or offences. In accordance with the Directions, therefore, PW1 should not have questioned the Appellant but rather immediately have arrested and cautioned him.

16. Mr. Egan accepted that police officers very often do exactly as PW1 did. That, he said, is no excuse for continual breach of the Directions. He said that since it has been thought proper to promulgate such a Direction it should generally be followed. He suggested that perhaps the time has come for the courts to make it plain that unless the Directions are generally observed, any admissions obtained by the police should be ruled inadmissible.

17. It is accepted that the Directions are not rules of law. They provide a frame work within which police officers work when carrying out investigations. Provided police officers keep within the frame work, evidence and particularly admissions which they have obtained will generally be admissible. Breach of the Directions does not, however, necessarily render evidence or admissions inadmissible. Such breaches simply mean that it will be more difficult for the prosecution to establish the admissibility of the evidence.

18. When considering an inculpatory statement a court is primarily concerned with whether or not the statement was made voluntarily. If satisfied that the statement was voluntary, a court will generally admit the statement unless there is some reason for the court to exercise its residual discretion and exclude the statement. In testing the voluntary nature of the statement, the court will have regard to any breaches of the Directions occuring in relation to the statement.

19. At the end of the day, what is required is that the police or other investigating authorities act fairly towards a person who is being questioned or investigated so that he is not disadvantaged in any way. The court, therefore, in deciding whether to exercise its discretion to exclude relevant evidence, must look at all the circumstances and decide whether or not a person has been treated fairly, notwithstanding any breach of the Directions.

20. In the present case, the issue was whether or not the immigrants and the Appellant had made the admissions which the police alleged. Other than the question of fabrication, there seems to have been no suggestion of impropriety on the part of PW1 and PW2. There was nothing to suggest that, on the facts found by the magistrate, the police acted in anyway unfairly towards the Appellant. What is, in the circumstances of this case, no more than a technical breach of the Directions does not in any way undermine that.

21. It is easy to criticize the conduct of a police constable from a distance. It is altogether a different matter for a police constable, in circumstances which are never easy, to decide whether he can legitimately ask a person questions or whether he should immediately arrest and caution him. It is often a very delicate decision. Unless the circumstances demonstrate that the decision was wholly unreasonable, which in this case they do not, an admission obtained as a result of a fair approach to a person should not generally be rendered inadmissible.

22. Accordingly, I find there to be no substance in this ground of appeal. The appeal against conviction is, therefore, dismissed. I will hear counsel on the question of sentence.

Representation:

Mr. Derek Pang APCC (Ag), Crown Prosecutor.

Mr. Kevin Egan instructed by Raymond Chan, Kenneth Yuen & Co. for Appellant.