HKSAR v. Fan Koon Hung

CACC000020A/1998

CACC 20/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 20 OF 1998

(ON APPEAL FROM HCCC 204 OF 1997)

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Coram: Hon Nazareth V-P, Stuart Moore V-P and Wong JA in Court

Date of Hearing: 7 December 1999

Date of Decision: 7 December 1999

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D E C I S I O N

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Nazareth V-P (giving the decision of the Court) :

1. This is an application for certification under s.32(2) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) that the following three questions involve points of law of great and general importance:

"(1) whether after a voir dire a trial judge who refuses to admit into evidence written post records of certain verbal admissions should allow oral evidence of those same admissions to be given by the same witness whose 'writings' he has refused to admit, without stating his reasons for so doing;

(2) whether a trial judge should admit oral evidence of verbal admissions allegedly made at the scene of arrest where he is not satisfied that the normal procedural safe guards (sic) and practices have been properly carried out and/or observed by the police who claim to have heard the 'verbals'.

(3) whether a trial judge giving a ruling on a voir dire which has included allegations of serious police misconduct at the time of arrest should specifically state that he has considered his general discretion to exclude (as well as matters of voluntariness) before deciding to admit the verbals whilst excluding the written records of them."

2. The background is that the applicant was convicted of two counts of trafficking in dangerous drugs and one count of resisting arrest. The circumstances were unremarkable. The applicant was stopped by police on a staircase in a housing estate block. He pushed the constable attempting to apprehend him, and in attempting to flee fell down the stairs into the lobby and injured himself. He was then arrested. Part of the drugs were being carried by him and the remainder were found later in his room.

3. The prosecution case included evidence that the applicant made oral admissions at the time of arrest in the lobby and later in his room when the second lot of drugs was found. Later that morning, the police made post-recordings of those oral admissions at a police station, and later still, that evening, interviewed the applicant in the custodial ward of a hospital where he was being treated for injuries sustained in his fall. The prosecution sought to adduce evidence of the oral admissions, of the post-recording made in the morning at the police station (Exhibit PP33) and the post-recording in the evening at the custodial ward (Exhibit PP34). After a voir dire the judge ruled all the written recordings inadmissible but admitted evidence of the oral admissions. His ruling was in the following terms:

"I am not satisfied that the two documents, Exhibits PP33 and PP34, which are the so-called post recording made in the morning of 11 April of this year at Ho Man Tin Police Station and the record of interview made in the evening of 11 April at the defendant's bedside in the Queen Elizabeth Hospital Custodial Ward were made by the defendant voluntarily. They will therefore be excluded from evidence at the defendant's trial.

However, as to the oral admissions allegedly made by the defendant in the Ground Floor lobby of Block 8, Ho Man Tin Estate, Kowloon, and in Flat 321 of Block 8 of that estate, I have, in arriving at my decision, had regard to the exposition of the law on these matters set out in the case of Thongjai and Anor v R [1997]2 HKC 109, and R v Chu Chi-kwong [1995] HKCLR 327.

The question of whether these admissions were said by the defendant is one for the jury and not I. I am satisfied from the evidence which I have heard in the voir dire proceedings that, if they were said, the defendant said them voluntarily. The prosecution may, therefore, lead evidence of their being said before the jury."

It has to be added that the police officer to whom the oral admissions were made was also the arresting officer and the officer who made the written recordings later.

4. Mr Haynes, who also appeared for the applicant at the hearing of the appeal, took as his main point his submission that the "verbals" and the written recordings were part of the same episode and should therefore have stood or fallen together. But he also relied upon certain facts that went only to the written post-recordings. These were concerned with the denial of legal and medical assistance at the police station and the custodial ward of the hospital. In particular, he pointed out that the applicant's solicitor arrived at the police station at 9.30 am but was not given access to the applicant until 11.30 am and that meanwhile the written interview was conducted. Furthermore, that the solicitor asked to be called if the applicant was to be questioned and left his telephone number. But nevertheless, about 7.50 pm the police recorded the interview with the defendant in the custodial ward of the Queen Elizabeth Hospital without notifying him.

5. There were also allegations of assault at the time of the arrest. It is against that background that the three points of law for which certification is sought should be considered.

6. We return then to Mr Haynes's submissions before us. Essentially the same matter is advanced with respect to all three points, i.e. the failure of the judge to give reasons in dealing with breaches of procedure. Mr Haynes's submission in relation to the first point is that having refused to admit the written recordings of the very admissions of which he allowed oral evidence, the judge should have stated his reasons. He contends, as he does in relation to the other two points, that the courts have increasingly stressed the desirability of giving reasons, as indeed they have. However, as Mr A.A. Bruce SC points out, the law on the matter is settled and clear. It does not require reasons for so doing. But Mr Haynes says that he should have an opportunity of persuading the Court of Final Appeal to rule to that effect. In that respect, so far as this Court is concerned, the position is indeed settled.

7. There were in this case very good reasons for the judge to have excluded the written recordings for the simple reason that the solicitor was excluded in circumstances where quite clearly he should have been afforded access. Clearly in relation to even that alone, the judge had good reason for excluding the written recordings, reasons that plainly did not go to the oral admissions. Therefore, it must have been at least upon that basis that he excluded the written recordings, a point that has even more significance in relation to the third point to which we shall come.

8. As to the second point, the normal procedural safeguards that Mr Haynes submits should have been carried out, are that the applicant should have been cautioned on the spot and also that what he said should have been recorded at the scene. We cannot see that this could be the subject of a point of law of great, general and public importance. The law here, too, is well settled. In the circumstances, here the matter turned on the facts.

9. Turning to the third point, and this is one that Mr Haynes particularly relies upon, we have already given reasons why certification is not warranted, and touched upon the desirability of reasons being given. As we have observed, the position in law is clear; there is no absolute requirement for reasons to be given. There were, as we have said, undoubtedly good reasons for the exclusion of the written records and not the oral statements. It is clear that the judge must have exercised his discretion at least upon that basis. It was not necessary for him in the circumstances to have expressly given his reasons.

10. Generally, as Mr Bruce pointed out, and we accept, the points of law for which certification is now sought were not raised in the appeal, and they are not points of great and general importance.

11. In the result, we decline to certify them and refuse the application.

Representation:

Mr A.A. Bruce SC, SADPP and Mr Vincent Wong, SGC for Director of Public Prosecutions

Mr John Haynes (M/s Chong, Leung & Co) for the Applicant