HKSAR v. Fung Siu Chung

HCMA001159/1998

HCMA1159/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1159 OF 1998

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Coram : Deputy Judge Lugar-Mawson in Court

Dates of hearing : 13 January and 12 February 1999

Date of delivery of judgment : 12 February 1999

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J U D G M E N T

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1. The Appellant, Fung Siu Chung, appeared before Mr John Glass, Permanent Magistrate sitting at North Kowloon Magistracy on 27 October 1998 on a charge of theft, contrary to s.9 of the Theft Ordinance. It was alleged that on 15 August 1998, he had stolen two power drills from his employer. He was represented by Mr Simon Lam of counsel. The Appellant pleaded not guilty to the charge. Mr Glass convicted him after trial on 2 November 1998. On 16 November 1998, after considering reports, Mr Glass placed the Appellant on probation for 12 months. The Appellant now appeals against his conviction, but not his sentence.

2. Mr Lam, who also appears for the Appellant on this appeal, has argued three grounds of appeal, namely :

"1. The provision of further or more detailed reasons for the admission of the cautioned statement [exhibit P9] by the magistrate is not allowed.

2. The magistrate failed to properly direct himself and overlooked material evidence in relation to the cautioned statement [exhibit P9]. Had he done so, he would or should, have ruled that the prosecution had failed to establish that the oppression or fears, created by the threat that rendered the first part of the statement inadmissible had not continued to operate in relation to the rest of the statement.

3. The magistrate was biased and this rendered his findings unsafe."

At trial, the Appellant after receiving advice from Mr Lam, elected not to give evidence either in the voir dire or in the trial, neither did he call any witnesses.

3. The first ground of appeal arises in this way : at the time of conviction, Mr Glass gave quite lengthy oral reasons for his verdict, later once notice of appeal had been filed, he wrote a further document explaining at length, his reasons for admitting the cautioned statement. This, Mr Lam says, is improper. For authority, he relies on a comment by Macdougall JA in Attorney General v. Ng Sheung-chun [1993] 2 HKLR 156, at page 159.

4. In that case, a Deputy District Court judge prepared for the appeal seven pages of reasons for sentence in which he expanded on the oral reasons he had given at the time of sentencing and gave additional reasons. Macdougall JA commented that this is a practice the court "disapproved of". No more was said about it.

5. I do not agree with Mr Lam's argument. Unlike the detailed provisions in s.80 of the District Court Ordinance, which deal with the duties of a District Court judge at the time he delivers his verdict, there is no requirement that a magistrate delivers full oral reasons for his decision at the time of conviction. His only statutory duty in relation to summary proceedings is that given in s.19(2) of the Magistrates Ordinance, which provides :

"The magistrate, having heard what each party has to say and the witnesses and evidence so adduced, shall consider the whole matter and determine the same, and shall convict or make an order against the defendant or dismiss the complaint or information, as the case may be."

By virtue of s.93(a) of the Magistrates Ordinance, this provision also applies to indictable offences dealt with summarily by a magistrate.

6. Obviously it is better if a magistrate confines himself to just one set of reasons, for no other reason than that it avoids prolixity. But, it must not be forgotten that magistrates work under considerable pressure, dealing with many cases in one day. They do not have the luxury of time High Court and District Court judges have. Provided that the reasons in the additional document do no more than expand upon the oral reasons given at the time of verdict, and are not an attempt to change the basis of the decision, I see no good reason why this practice should be branded as improper. Mr Glass' additional document is a genuine expansion and I see nothing wrong in what he did. I note that in Ng Sheung-chun, Macdougall JA did no more than discourage the practice of supplemental reasons, he did not say that they are not allowed. There is nothing in Mr Lam's first ground of appeal.

7. The second ground of appeal arises in this way : in chief, Constable 49109, Ho Chi Chiu, who arrested the Appellant and who was PW2, said that he searched the Appellant in the street and found a screwdriver head and bits on him. He asked the Appellant why he carried a screwdriver in the street and whether it belonged to him, the Appellant said nothing. He asked the Appellant the question again. The Appellant said that they were on loan from a friend called Lai Ching Wah in order for him, the Appellant, to fix a ventilation fan at his home, he said this could be confirmed by calling his friend. Constable 49109 telephoned this man on a mobile phone and the Appellant's explanation was not confirmed. Constable 49109 continued to question the Appellant on the origin of the screwdriver. He again asked the Appellant to whom it belonged and what it was for, the Appellant said nothing. Constable 49109 asked yet again and the Appellant said the screwdriver was his. Then he said the Appellant told him that he intended to use it to "burgle" his boss' toolbox. Mr Lam objected to this admission as being involuntary. Constable 49109 continued his evidence in chief, saying :

"When the defendant admitted that he was going to burgle the toolbox of his boss I announced his arrest for the offence of going equipped for stealing, and cautioned him orally."

In response to the caution, the Appellant said :

"Sir, now that I am caught, even though I do not want to be caught, please let me go."

This was at 10:50 a.m.

8. The Appellant was taken back to Shek Kip Mei Police Station, arriving there at 10:55 a.m. There he was searched. The search, according to Constable 49109, took place five to ten minutes after the conversation in the street. Constable 49109 said that after the search the Appellant said to him :

"Ah Sir, now that I am caught, even though I do not want to be, I will speak the truth."

Constable 49109 reminded the Appellant that he was still under caution and repeated the words of the caution. In reply the Appellant, who according to Constable 49109 was very calm, said that he had already "burgled" his boss' toolbox earlier that morning. Constable 49109 asked the Appellant at what time he had done that, and where had he placed the tools? The Appellant said he had done it at about 7:00 a.m. and the tools were hidden in a den. Constable 49109 asked him where the den was, the Appellant said he did not know the name of the street or the number, but he could lead the police to it. The Appellant then led the police to the den and the stolen items were found.

9. Later at 12:40 p.m., Constable 49109 took a post-recorded cautioned statement from the Appellant. The defence objected to the admission of this statement.

10. In cross-examination, Constable 49109 agreed that he had made an entry in his own statement after the event, which read :

"Now hence I asked you, Fung Shiu-chung again once again, how this screwdriver was obtained and for what purpose? However he did not say anything thus I said to him, 'If you do not tell me the origin of this screwdriver I will arrest you.'"

In re-examination he said that this was done as a precautionary measure, because if the Appellant did not give an answer he would be unable to continue his investigation into the origin of the screwdriver. This evidence had not been referred to in examination in chief.

11. Mr Glass did not accept the Appellant's allegations regarding the number of police officers who arrived at the place of arrest and of their assaulting the Appellant in order to obtain an admission as to the origin of the screwdriver.

12. At trial, Mr Lam criticised Constable 49109 for failing to disclose his threat of arrest earlier in his cross-examination. Mr Glass was satisfied that there was nothing in this criticism. He was of the view, from the line of questions in cross-examination at that stage of the trial, that Constable 49109 was being challenged upon alleged assaults upon the Appellant and when asked whether he had threatened the Appellant?, he took that to refer to an assault or threat of assault and answered "I did not threaten the Appellant." Constable 49109 immediately confirmed that he had made the threat of arrest when the relevant part of his statement was put to him in cross-examination. Mr Glass, in his Statement of Findings, considered these answers in relation to the question of whether they affected Constable 49109's overall credibility very carefully. He found that they did not, he was satisfied that Constable 49109 was telling the truth and was reliable in his evidence.

13. Mr Glass also considered whether the threat of arrest, which Constable 49109 in cross-examination admitted making, was a threat at all. He regarded it as a warning, giving the Appellant a last opportunity to offer an explanation in order to avoid arrest. Mr Glass, however, accepted that this warning could have caused the Appellant to abandon his right to silence, which he had exercised up to the making of the threat of arrest, and found this sufficient to cast a doubt on the voluntariness of the Appellant's statement that he intended to use the screwdriver to burgle his boss' toolbox which followed it. He therefore refused to allow the oral admission in the street to be admitted into evidence and the written cautioned statement made in the police station was edited to remove references to it.

14. Mr Lam argued at trial that the effect of the threat continued throughout the journey to the police station and was present in the Appellant's mind while he was being searched. Therefore, when the Appellant made the further oral admission which resulted in the police locating the stolen property, he was still under the influence of the threat of arrest made in the street. Mr Lam also argued that because the Appellant had not had the benefit of legal advice after the threat was made, the threat could not be said to have dissipated from his mind. He also argued that the admissions in the police station were not natural responses in the circumstances spoken of by Constable 49109.

15. Mr Glass did not accept these arguments, he found that the threat of arrest had already been executed when the Appellant was arrested and that therefore the threat no longer existed. He also found that the gap of time between the making of the threat of arrest and the uttering of the oral admission in the police station was sufficient to dissipate any fear in the Appellant's mind that the threat may have created. In support of those findings, he relied upon Constable 49109's evidence that the Appellant was very calm at the time he made the second oral admission. He was satisfied that the prosecution had proved beyond reasonable doubt that the effect of the threat had passed by the time the Appellant made that admission. He was also satisfied, for the same reason, that the effect of the threat had passed by the time the two written caution statements were made.

16. Before me, in a long and very skillfully argued written submission, Mr Lam essentially repeats the arguments he advanced to Mr Glass and supports his arguments by reference to many previous appellate decisions.

17. The law relating to the admission of a defendant's confession in evidence against him is simple. The fundamental thing of which a court must be satisfied before it can receive and consider an admission or confession is that the accused made it voluntarily. The concept of voluntariness in this context was defined by Lord Sumner in Ibrahim v. R [1914] AC 559 at p.609 as follows :

"It has long been established as a positive rule of English Criminal Law, that no statement by an accused is admissible against him unless it is shown by the prosecution to have been a voluntary statement in the sense that this has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority."

The word "exercised" is believed to be a misprint, Lord Hailsham L.C. in DPP v. Ping Lin [1976] AC 575 opined that the word used by Lord Sumner was, most likely, 'excited'.

18. The formulation of the rule has been approved by the House of Lords in Commission of Customs & Exercise v. Harz & Power [1967] 1 AC 760 and in DPP v. Ping Lin (above). It has been consistently adopted and applied in Hong Kong. In fact inLam Yip Ying [1984] HKLR 419 Lord Sumner's formulation in Ibrahim was described by Sir Denys Robert C.J. as "The classic test of the voluntary nature of a confession."

19. If a threat or promise is made to a defendant, or if there are circumstances of oppression that render an admission inadmissible, a second or subsequent admission can only be admitted as voluntary, if the prosecution are able to satisfy the court beyond reasonable doubt that the effect of the original threat, inducement, or act of oppression had dissipated at the time the defendant made the second admission. This was recognised in England by the then Courts Martial Appeal Court in Smith [1959] 43 Cr App R 121, where Parker LCJ said at p.128 :

"... the principle to be deduced from the cases is really this : that if the threat or promise under which the first statement was made still persists when the second statement is made, then it is inadmissible. Only if the time limit between the two statements, the circumstances existing at the time and the caution are such that it can be said that the original threat or inducement has been dissipated can the second statement be admitted as a voluntary statement."

20. It was also recognised by the Judicial Committee of the Privy Council in Law Shing-huen [1989] 1 HKLR 116, paragraph 1 of the headnote of the report reads :

"Where one statement was made in circumstances involving oppression and that statement was followed by a second statement the prosecution had to establish, beyond reasonable doubt, that the oppression from the first statement, by the time the second statement was taken, had been dissipated."

21. In Law Shing-huen, the trial judge had failed to direct himself properly on this issue and this failure led to the Judicial Committee allowing the appeal. In this case, Mr Glass was aware of the issue and directed himself correctly on how he should deal with it. Mr Lam's real complaint is that Mr Glass erred in finding that the effect of the threat of arrest on the defendant dissipated so quickly. As I have said, the Appellant was arrested at 10:50 a.m., he gave his second oral admission within, at the most, 30 minutes after arrest. This is a finding of fact and the person appointed to resolve that issue is the trial magistrate. From his Statement of Findings, it is quite clear that Mr Glass understood the evidence given and properly directed himself in relation to the question of the admission made at the police station. He had the advantage, which I do not have, of having heard and seen Constable 49109 give evidence. As I have said, the Appellant chose not to give, or call evidence.

22. The gap of time between the threat and the second admission is admittedly very short, but so far as I can see, none of the authorities cited to me, nor any that I have found myself, lay down, as a matter of law, that 30 minutes is too short a period of time for the effect of a threat, inducement or oppression to dissipate. In every case this must be a question of fact and it is not for me to substitute any view I may have on this for Mr Glass', provided I am satisfied - as I am - that he properly directed himself in relation to this issue. Mr Lam's second ground of appeal fails.

23. As to the third ground of appeal - that Mr Glass was biased : Mr Lam's argument here, essentially is no more than a rehearsal of the second ground of appeal, coupled with a complaint that Mr Glass should not have found Constable 49109 a credible witness, particularly in view of the fact that the making of the threat of arrest was only brought out in cross-examination.

24. As I have already said, facts are for the Magistrate. There is nothing in his Statement of Findings that indicates that Mr Glass' approach to the evidence or the case was in any way wrong. It is not for me to substitute any view I may have on reading the appeal bundle for his view on the credibility of any witness. Bias is a serious allegation to lay against any magistrate or judge. Magistrates have to decide whether or not witnesses are credible and they have to make decisions on the facts they find proved. Of necessity, in some cases, their decision is adverse to the defendant and they have to convict him of the offence charged against him. That is their job, they are not showing bias when they do so. The third ground of appeal fails.

25. I am, therefore, satisfied that Mr Glass' conviction of the Appellant is unassailable on appeal and the Appellant's appeal against conviction is dismissed.

Representation:

Ms Denise Chan, SGC, for the Respondent (HKSAR) on 13.1.99

Ms Agnes Chan, SGC, for the Respondent (HKSAR) on 12.2.99

Mr Simon H.W. Lam, inst'd by M/s William Sin & So, for the Appellant (on both dates)