R. v. Yau Pui Tak, Petrus
Read the full judgment text of HCMA 777/1996 on BabelCite. This High Court CFI judgment was delivered on 24 September 1995.
1. This is an appeal against conviction.
Cited by 1 case · Cites 1 case
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HCMA000777/1996 IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction) MAGISTRACY APPEAL NO. 777 OF 1996 ---------------
--------------- Coram : Hon Stock, J. in Court Dates of hearing : 29 August and 24 September 1996 Date of judgment : 24 September 1995 ------------------------ J U D G M E N T ------------------------ 1. This is an appeal against conviction. 2. The appellant was a Senior Inspector of Police. From 1991 to November 1993 he was posted to the Border District. One of his functions was to receive from junior officers expired warrant cards and to issue them with new ones. There existed then, as no doubt now, clear and strict rules designed to ensure the safe keeping of current cards, and the destruction of old. There is obvious security justification for this. In the course of 1993, the appellant issued a number of such cards and received old ones in return. Memoranda were signed by this officer that he had destroyed the old cards. He had not done so. He kept them. He had no authority to do that, and when he was arrested in 1995, cards were found in his desk, in his car and in a handbag at home. He was charged with theft of all these cards. 3. Then there was found in his pocket on arrest an identity card belonging to another. That other was a civilian who had lost his card in 1991 when he was at a police station reporting a robbery. The appellant allegedly said to the police, first, that he kept it because it made him feel funny whenever he looked at it, but resiled from that explanation and said that he was connected with several business ventures over the years which was a breach of discipline, and to hide his involvement he would use another's name for business registration purposes. He was charged with theft of this card, and with possession of a card belonging to another. 4. On his arrest, there were found in his desk at work some fireworks. He is alleged to have said in an interview that he had picked them up from a bin, and that they were intended for the amusement of his son. For possession of these fireworks, he was charged with storage of dangerous goods, namely fireworks, otherwise than under and in accordance with a licence. 5. He was arrested by a Chief Inspector Wong on 15th August 1995. A search was conducted and the various items were found. He begged the officer for a chance, according to his evidence, saying that they were fellow officers and should not push the case too hard. 6. There were a number of statements made by the appellant, or rather a number of records of interviews. Objection was taken to the admissibility of these and of oral admissions upon arrest. A schedule of interviews was agreed, which gave the times at which the various interviews were conducted, from 15th August 1995 to 21st August 1995. The appellant was interviewed in relation to matters additional to those that form the charges against him. There were also a number of visits to his home for the purpose of conducting a search. In the course of cross-examination of Chief Inspector Wong, who arrested him and who had conducted the interviews, a number of allegations were put. They included the following : It was said that he was pressed to co-operate with an ICAC investigation, in which event the present charges would be dropped; that he was threatened with assault; that the arrest of a younger brother had been threatened and, indeed, had been carried out; that the officers pressed too hard in the conduct of the interviews; that he had been fatigued; that there was shouting and banging on the table; that it was threatened that allegations against him would be published in the press; that he was promised the lifting of his interdiction in return for co-operation; that he was never told of his right to see a lawyer; and that he was refused permission to feed his dogs. 7. The second prosecution witness was Superintendent Tudor. He was the Formation Commander at the Border District at the material time. He gave evidence that the appellant occupied the room at that station from May 1995; and had since then been the only occupant. Police regulations about handling of warrant cards were amended in 1992. The appellant had never previously been the subject of disciplinary proceedings. When arrested by Chief Inspector Wong, this officer said to the appellant that he should tell the truth - this comment by him was the subject of submissions, but not the subject of any cross-examination. 8. Then there was the testimony of Senior Inspector Chan who conducted the search in the office. He corroborated the first witness' testimony about the appellant's response that the fireworks were not important and please not to seize them. He was the officer in charge of the case against the brother. He said that the case was, at the date of this trial, pending legal advice. 9. There followed a submission of no case to answer on the voire dire. It appears to have been made in connection with the admissibility of the statements only, although there is some hint in the record that it went beyond that; and in an attack on the credibility of the investigating officers, suggested that no reasonable tribunal, properly directing itself, could properly convict. 10. The magistrate ruled that there was a case to answer. 11. The appellant gave very lengthy evidence on the issue of admissibility. Amongst the matters which he addressed, he said that he told Chief Inspector Wong that he had just obtained or received the identity card the day before and was going to hand it in. He had said that the firecrackers did not belong to him. He admitted that he asked the officer not to push the case too hard. He had made some false admissions, he said, because there was no choice. He wanted to keep the officer happy; matters could always be rebutted on another day. He alleged that at his home he was assaulted, and he developed the allegation that he was at certain material times very tired, although in relation to one stage, he said that he was physically though not mentally tired. He was so tired when Exhibit P7 was written, that he was in a state of semi-consciousness. P7 was the statement about the identity card found on him. He said that his hair was pulled because he was not sitting properly. He had about 15 minutes sleep before the statement was made. The officer said that he would recommend withdrawal of the warrant card and firecracker charges. He, the appellant, did not consider this to be a very serious matter. There was a threat to reveal the case to the press. 12. The second record of interview, referred to as P8, concerned the warrant cards. The thrust of the appellant's comments in the course of this interview was a denial of dishonesty and assertion that he merely collected them and did not destroy them because he did not want to destroy photographs of friends. For reasons which will become apparent, it is important to note hat the accuracy of this record was not challenged. The appellant's evidence was that the officer was quite amiable at the time of this interview and accepted his explanation. He was also very tired when P8 was written. 13. There were numerous other allegations including one that he thought he was going to be used as a prosecution witness, to give evidence against a Sergeant on a conspiracy case which was pending and about which he had been interviewed as a suspect. Also a suggestion that he was told that if the cases were cleared and disposed of, Chief Inspector Wong would recommend the lifting of his interdiction. It was alleged that at various stages, no caution had been administered. 14. There were then lengthy submissions on the voire dire and a number of authorities put before the court. The defence drew to the attention of the court the appellant's previous good character; the alleged breaches of the Secretary for Security's Rules arising from the failure to caution at certain stages; the question of fatigue; and much pressed was the contention that one of the original records of interview was missing, concrete support it was said that the appellant was telling the truth when he said that the officer tore up a statement in rage. Both sides addressed the magistrate about the fact that she had a residual discretion to exclude evidence of inculpatory statements. 15. The magistrate delivered a ruling on the voire dire. She correctly addressed the standard and burden of proof. She appears to have addressed all issues as well as the exercise of her residual discretion. She was, she said, particularly impressed by the evidence of the prosecution witnesses. She ruled all statements admissible. 16. Before the appellant gave evidence, he dispensed with the services of those representing him, saying that he no longer wish to expend money on legal representation. He then gave evidence himself on the general issue. 17. As for the identity card offence, his defence was that he had been the previous day in Shenzhen to ensure that relatives had moved out of a house which he owns, for he wanted to let the house. One of the men there, a man called Yeung asked him to help him to come to Hong Kong, and in the course of this conversation showed the appellant a stolen identity card. The appellant says that he confiscated it. It was his intention to return it to the immigration authorities in Hong Kong, but he was arrested the very next day. When he came through immigration on the way back from Shenzhen, he forgot all about it. 18. The firecrackers, he said, were in his desk without his knowledge. He had taken over the office from someone else only a few months before, and there were still items there not belonging to him. What he had told the officers about the fireworks in his statement was all untrue. He had said what he did to keep Chief Inspector Wong happy. 19. As for the warrant cards, they had belonged to good friends in the Force; he did not want to tear their pictures; it would cause them bad luck. He intended in the distant future, when he left the Force, to destroy the cards. Why it would not then equally bring them bad luck, he did not say. Implicit was the contention that he had not been dishonest. 20. The appellant then called on his behalf a Mr Li, who lives in Mainland China. He corroborated the appellant's story about how the appellant came to be in possession of the identity card. A psychiatrist was then called by the appellant, but it suffices to say that his evidence was not relevant to the issues which the magistrate had to decide. 21. Both sides made lengthy submissions. The magistrate delivered her findings on 5th June 1996. There appears in the bundle the record of what she then said. For reasons which will shortly become apparent, what she stated there is important, even though it is in the main the same as recorded in the Statement of Findings which was prepared for the purpose of this appeal. They differ in two important respects. First, in the 5th June verdict, the magistrate deals in some detail with the identity card offences, in respect of which she found the appellant not guilty. That is the reason she did not aver to those charges and to the evidence of the witness from Mainland China in her Statement of Findings. However, what she found in relation to those two charges, that is, the identity card charges, is of particular significance. She found that the witness Mr Li was a witness of truth and that he was telling the truth about how the appellant came to be in possession of the identity card. "This being so," she said, "I accept the defendant's story as to how he came to be in possession of the card and of his intention to surrender the card on his return." Accordingly, she acquitted him of Charges A and B. 22. The second aspect which is not touched upon in her reasons for verdict then recorded were the cautioned statements. They are referred to in the Statement of Findings. She there said :
As I say, there is no reference to these statements in the reasons for verdict delivered on 5th June. The point which now comes to the fore is this : P7 which was admitted in evidence was the statement which dealt with the identity card. It contains no mention of the obtaining of the card from Shenzhen. Chief Inspector Wong said that no such mention was made by the appellant. P7 very clearly implies that he, the appellant, had this card for a long time and just kept it, for possible use for the purpose of registering business names. It was a card usually kept in a telephone book. If the defence witness and the appellant were telling the truth about how he came by this card, namely, only the previous day, then there is something amiss about the circumstances in which he came to make the record of interview P7. And if there is, it does not tally with the magistrate's finding that PW1 was a truthful witness, nor with the finding that the statements were voluntary. The matter is as straight forward as that. The magistrate does not seem to have addressed the question how the two findings could be consistent. Having determined that the evidence of Li was in fact truthful, the magistrate ought then to have reconsidered the admissibility of the confession statements, not to say the question of their weight. 23. The question is how, if at all, this affects the findings of guilt which the magistrate made in respect of the remaining charges? 24. It seems to me clear that it does not affect the finding of guilt of the warrant card offences, for that finding does not arise from the evidence of PW1, nor does the magistrate make any such suggestion in her Statement of Findings. What is more, there is no admission of guilt in the statement dealing with the warrant cards, and the magistrate does not rely on the statement. In her Statement of Findings, she refers to the agreed facts and the appellant's evidence. The agreed facts, to which I have made no prior reference, established that it was the appellant's job to issue new cards and to destroy the old; set out the requisite procedures; the fact that the appellant had reported that the cards were destroyed when they were not; and the fact that all the cards named in the charges were found in the appellant's possession in August 1995, about two years after they should have been destroyed. She quite rightly concluded that it was proved that he had no authority to retain the cards; that he knew that; and that there can be no other conclusion but that the story he gave in evidence was false; and that his retention of the cards was dishonest. That finding is not undermined by the matters to which I have referred. 25. It is different, however, when one comes to the fireworks offence, for that does depend to a significant degree upon an admission allegedly made by the appellant, which is P9, and this statement is referred to and relied on in the Statement of Findings. It seems to me therefore, that this conviction, namely the conviction for the fireworks offence, cannot stand, and the appeal is allowed to that extent and that conviction is quashed, and the sentence for that offence is set aside. 26. The fact that the warrant card convictions were not impugned by the error or inconsistency to which I have referred, does not conclude the appeal in relation to those charges, for I must also, of course, consider submissions presented by Mr Yau, who appeared in person for the purpose of this appeal. He presented succinct and clear written submissions, and has conducted his case with courtesy. He suggests that the cards did not belong to anyone once they were to be destroyed. I do not agree. In the time before destruction, the officer whose task it is to receive them in exchange for the new ones, is entrusted with them on behalf of the Government. He is in possession of them to one end only - that they should be destroyed. If he then decides not to destroy them, but to keep them for a purpose of his own, he is assuming the right of the owner to deal with the cards as he thinks fit. The only remaining question is whether he does so dishonestly. The magistrate was, in my judgment, entitled to say that he did. The account he gave for retaining them was, by any sense, an extraordinary account, and it is not surprising that the magistrate disbelieved him. 27. There remains one matter only that caused me some concern, and that is the absence in the magistrate's Statement of Findings of any express reference to the appellant's previous good character. The appellant is aged 40 years and is a man without previous convictions. The fact that he was a man of previous good character was self-evident from his status as a police inspector. The fact of good character was mentioned in submissions which related to the admissibility of the statements and was a fact touched upon, albeit obliquely, when the appellant, at the stage at which he was unrepresented, wanted to call medical evidence about his character and propensity for dishonesty, or rather the lack of it. In her Statement of Findings, the magistrate has mentioned twice the fact that the appellant was a Senior Inspector of Police, but does not address in terms the fact of his previous good character or absence of convictions and its relevance to the issue of dishonesty which is at the heart of the prosecution case, and the issue to be determined in relation to the appellant's story. 28. I adjourned to consider this point alone. The Crown relied on a recent decision from the Court of Appeal, R. v. Fok Tin Yau [1995] 2 HKC 450, and I wished to consider its impact in relation to facts such as those which arose in this case and also to consider some cases there referred to. In Fok Tin Yau, there was delivered a judgment in which the court said that henceforth when a judge sat alone and evidence of good character was given at the trial, but the judge made no mention of that in the reasons for verdict, the court would assume that he was aware of it and gave it the weight he thought it deserved; and this assumption would be made unless "there be some express or implied indication otherwise." (see page 456). That was a case of wounding. The Court referred to a judgment of Mortimer, J. (as he then was) in Chan Wu Nam, Crim. App.274 of 1992, in which the Court of Appeal emphasised the vital importance in that case of credibility, and thought it incumbent, in the face of those facts, and the importance of that issue, it being the sole issue in the case, that the judge be seen to have given himself an appropriate direction. "But the case was not", said the Court of Appeal in Fok Tin Yau, "authority for the proposition that whenever credibility was in issue, the judge was to set out the manner in which he considered the accused's good character." The court referred also to the case of Wong Chi Wei [1994] 1 HKCLR 94 where the Court of Appeal emphasised that in the case before it, the credibility of persons other than the defendant were the key issues. It was not necessary in each case that the judge expressly state the manner in which he has approached the question of credibility. In some cases it would carry more relevance than in others. The example given was a man of mature years and very good character accused of rape; an offence so out of accord with that background as to be a matter of key significance. 29. If a judge is not expected to state each time how he has dealt with the issue of good character when it arises, then logic dictates that a magistrate need not do so either. So, too, one can assume, in the absence of contrary indication, that the matter has been addressed. It is difficult to believe that there is any magistrate who is not acutely sensitive to the importance and relevance of good character. Nevertheless, I do not read Fok Tin Yau as saying that there needs never to be a reference to the issue. There is no hint of a dissent from the approach adopted by the court in Chan Wu Nam, in the context of the facts of that particular case. I think that there will still be cases where it will be important for a tribunal to be seen to address the issue. 30. In this case, it is true that honesty and credibility of the officer was important, and that the appellant is aged 40 years. His defence was varied in its import as far as it concerned this tranche of alleged offences. It was clearly implied by his evidence that in retaining these cards, he was not being dishonest. Indeed, he said in his closing submissions that he did not have the requisite mens rea. He thought it bad luck to destroy or cut the photographs. He had not used any for any unlawful purpose. He was not sure that he would agree that the cards belonged to the Police Force. He thought ownership had been relinquished and that he could destroy them at some later date, even though I note he signed memoranda to the effect that they had been destroyed. He also said at one stage that he had forgotten about it. 31. A study of the record of this lengthy case shows that at the end of the voire dire there was, in the course of submissions, and when the appellant was represented, express reference to his good character. The court's attention was drawn to his age, his job and the lack of previous convictions. In her ruling, the magistrate said she had given thorough consideration to the submissions made by counsel. When the appellant gave evidence, he stated that he was aged 40 years and that he was an interdicted Senior Inspector of Police. That, in itself, was an implied assertion of previous good character. The magistrate must have had well in mind the character of the appellant. 32. Having reserved my decision for the purpose of considering the manner in which the magistrate had dealt with the question of character, and the state of the authorities in that regard, I stumbled upon a part of the record which necessitated a further hearing, or at least an opportunity to the parties to address me further. After all the evidence, the appellant addressed the magistrate at length. He was, it should be remembered, unrepresented at that stage. In the course of his submissions, he referred to the fact that the first prosecution witness and the prosecutor had attacked his integrity. He emphasised the fact that he had been a police officer for 20 years - although that was to illustrate his point that the fact that he had an illegally obtained identity card with him would not cause him to panic; and that explained why he still had it on him when arrested. He said in support of this point that he had received a Commissioner of Police's commendation. He also intimated that he wished to call his doctor to give evidence about his character and, indeed, the doctor was called. 33. At the close of the appellant's submissions to the magistrate, there followed this exchange between counsel for the prosecution and the appellant and the court :
That was a little difficult, for anyone not familiar with the cited case, to follow. I was not familiar with it and accordingly read it. Lee Yan-wing was a decision of the Court of Appeal, and one ground of appeal was that the judge did not, in his reasons for verdict, make reference to the defendant's good character and that he should have done so. That was a case in which the defendant had not given evidence on the issue of admissibility of cautioned statements, but during the hearing on the issue of admissibility, it was agreed that he was a person of a clear record. The defendant in that case also gave no evidence on the general issue. The Court of Appeal agreed with counsel for the Crown that in the particular circumstances described in that case, where the alternative procedure was used, there was no authority for saying that the evidence of good character may be used to the appellant's advantage on the trial proper. "In our judgment," said the Court of Appeal, "the Defendant's good character only went to his credibility on the limited issue of the cautioned statements." 34. The exchange in the court below, which I have recited, led me to a preliminary view that it constituted, or might have constituted, some implied or express indication of the sort contemplated by the Court in Fok Tin Yau; that the court had indeed not given to the appellant's character the proper consideration that was required. So I notified the parties of my concern to give an opportunity for either to address me if so desired. That is why we have congregated here today. 35. Mr Leung for the Crown informs me today, having spoken to the prosecutor, that I have misunderstood the purport of the exchange. It is evident from the record that in the course of his closing submissions, the appellant attempted to adduce fresh matters and frequently referred to issues relevant to the admissibility of the statements which had not been put forward on the general issue. So the prosecutor reminded the magistrate that matters not adduced in the general issue need not be considered on the general issue by her. In any event, the question of admissibility had already been determined. 36. The appellant apparently misunderstood the purport of the submission by the prosecutor because a copy of the authority of Lee Yan Wing was handed to him, and he assumed the issue was about character, and that is why he made the comment which we see recorded at page 375. The fact that everyone recognised that the appellant was of good character and that that was evidence adduced on the general issue to which the magistrate was entitled to have regard, is clear from a passage to which Mr Leung drew my attention today, at p.333, where there is a formal admission by the Crown that the appellant has a clear record. 37. As I have said, the magistrate must have had well in mind this appellant's good character for the various reasons which I have given, and also because there was a formal admission. I do not think that her failure, in this case, to mention expressly in her Statement of Findings the fact that he was a person of good character, is fatal to the conviction. I think it unrealistic in this case, and in these circumstances, to expect an express reference where the magistrate has, on several occasions, referred to the fact that the appellant was a Senior Inspector of Police. The fact that she was aware of the high standard of conduct that one would normally expect from a person of his calling and rank, is evident from a passage in the Statement of Findings which refers to the fact that his explanation was hardly one which one would expect from a Senior Police Inspector. 38. Mr Yau today says that he asked the magistrate's court to receive a copy of his latest promotion report, but this was denied. This does not appear on the record, and if it was a matter of importance to Mr Yau, I would have expected him to raise it before now in the course of this appeal. But in any event, it would only have served to confirm his previous good character - a matter of which the magistrate was aware. 39. In all these circumstances, there is no basis for upsetting the conviction in respect of the warrant card offences, and the appeal against those convictions is dismissed. Representation: Mr David Leung, C.C., for Crown Mr Yau Petrus, Appellant, in person
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