The Queen v. Kong Kwok Wah

HCMA000483/1990

IN THE SUPREME COURT OF HONG KONG

MAGISTRACY APPEAL 483/90

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BETWEEN

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Coram: Hon. Yang, C.J.

Date of Hearing: 24 October 1990

Date of Judgment: 29 October 1990

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JUDGMENT

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Hon. Yang, C.J.:

1. The appellant was convicted after trial by Mr. H.L. Brazier sitting at Tuen Mun Magistracy of (A), carrying on the business of a money lender without a licence, contrary to Sec. 7(1) (a) and Sec. 29(l) (a) of the Money Lenders Ordinance, Cap. 163, and (B), lending money at an excessive rate of interest, contrary to Sec. 24(1) of the same Ordinance. He was sentenced to imprisonment for three months on the (A) Charge and fined $5,000 on the (B) Charge. He now appeals against both conviction and sentence.

2. The evidence against the appellant came from two cautioned statements and two prosecution witnesses. The first prosecution witness (PW1) was one of the police officers who raided the appellant's premises at Leung Chi House, Leung King Estate, Tuen Mun at 5.40 a.m. on the 21st July 1989, and found there a Bank Teller's Card in the name of the loan victim Mr. Ho Yiu-fai (PW4) and a box containing 90,000 business cards offering loans. Those cards invited replies from those seeking loans to a pager number to a person with a name different from that of the appellant. The other prosecution witness was the loan victim Mr. Ho Yiu-fai who gave evidence as to how he came to borrow money after receiving a card with a pager number which had been placed in his letter box.

3. The first ground of appeal against conviction is that the learned magistrate erred in ruling that the two cautioned statements were admissible. I shall shortly come back to this ground.

4. The other ground of appeal is that the magistrate failed to properly consider the fundamental differences between the contents of the two cautioned statements on the one hand and the evidence of the prosecution witness on the other. Counsel for the appellant conceded that this was not a crucial point and made no submission on it. I see nothing in this ground and dismiss it.

5. The third ground is that the magistrate failed to deal with the major discrepancies between the two prosecution witnesses regarding the circumstances surrounding the arrest of the appellant and seizure of exhibits. My attention was drawn to a discrepancy between the evidence of PW1 and another police officer (PW2) as to who seized the exhibits. The magistrate was addressed by defence counsel on "contradictions". This is essentially a jury question. There is in my view nothing in this ground of appeal.

6. The last ground is simply that the earlier three grounds, whether taken individually or cumulatively, render the convictions unsafe and/or unsatisfactory. In the light of my judgment on the other three grounds, there is nothing of substance in this ground of appeal.

7. The main thrust of this appeal is that the magistrate was wrong in admitting the cautioned statements. Firstly, it is argued that the police officer who took the statement (PW1) asked certain questions which were not recorded and grouped the answers together and wrote them down as "a composite answer", or he asked a series of supplementary questions and then formulated an answer. Whilst this is not a desirable practice, this failure to adopt the usual procedure of recording each question and answer separately did not impinge upon the admissibility of the statements.

8. Secondly, the magistrate adopted the wrong standard of proof. During the voir dire, and in ruling that there was a case to answer as to the two cautioned statements, he said this:

"Now on question of admissibility:

Up to Crown to prove beyond reasonable doubt that inter alia, they were voluntarily given. At this stage however - and before defence has given evidence on this special issue - the standard of proof is balance of probability.

Now at this stage PW1 (for Crown) has given evidence that statements were voluntarily given; no inducements, threat or oppression. He has been cross-examined at length; there were perhaps unusual aspects but at no stage did he concede or admit anything amounting to inducements, threats or oppression.

Now defence has made allegations of both threats and inducements. But they are in the form, only of objections and allegations. The Court has heard absolutely no evidence to support; totally unable to judge the substance or veracity of allegations or likely effect on this defendant."

9. And in admitting the cautioned statements into evidence, the learned magistrate said:

"I remind myself that court have to be satisfied that cautioned statement voluntarily obtained and given beyond reasonable doubt.

I have heard the specific nature of threats and inducement; I have taken into account the physical and mental health of Defendant."

10. Finally in his Statement of Findings he made it clear that he found the prosecution had proved beyond reasonable doubt the cautioned statements had been voluntarily given.

11. Whilst it is unfortunate that the magistrate said he should have adopted as the standard of proof one of balance of probability at the stage of his ruling that the appellant had a case to answer at the voir dire, instead of the correct approach of determining whether the prosecution had made out a prima facie case that the statements were voluntary, in the circumstances the error did nothing to prejudice the defence. In any event, it does not seem that the magistrate used the expression "balance of probability" in the sense that he should balance the evidence of the prosecution and that of the defence and then determine which was the more probable. This course would be impossible, as the magistrate well understood, for he was aware that he had not heard the evidence of the defence and that "at this stage ... the only way to find no case to answer on admissibility" was to discredit PW1 by cross-examination. I cannot say the magistrate so misunderstood the standard of proof as to vitiate his ruling that the appellant had a case to answer as to the admissibility of the statements. When the learned magistrate came to rule that the statements were admissible, the correct standard of proof was adopted.

12. For the reasons stated above I dismiss the appeal against conviction.

13. On sentence, counsel for the appellant referred to The Queen v Yung Yiu-keung (1989) 1 HKLR 277 where Bewley, J. said this (at p. 280):

"It is, nevertheless, wrong in my opinion that a clerk should be sent to prison for a first offence against this section, when it has not been proved to be part of a pattern of such offences, when the rate charged is a long way short of the rates charged in some of the cases cited and when no threats or intimidation have been used to recover the money."

14. That case was considered by the magistrate and he drew the distinction between a "small front man" in a loan sharking organization with the appellant's "substantial sophisticated criminal operation with the appellant playing a, perhaps the, major role".

15. In the circumstances, I cannot say that the sentences are wrong in any way. The appeal against both sentences is also dismissed.

Representation:

Mr. A. Schapel for Crown/Respondent

Mr. Anthony Hatton (Ip & Willis) for Appellant