The Queen v. Lam Kwok Wai

HCMA000165/1991

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 165 OF 1991

-----------------------------

BETWEEN

------------------------

Coram: Hon. Bewley J. in Court

Date of hearing: 7 May 1991

Date of delivery of judgment: 7 May 1991

-----------------

JUDGMENT

-----------------

1. The appellant was convicted by Mr Townsley at South Kowloon Magistracy of managing a vice establishment contrary to section 139 (b) of the Crimes Ordinance.

2. The evidence against him was contained in a cautioned statement which the magistrate admitted in evidence after objections to its voluntariness were overruled.

3. The relevant finding made by the magistrate in this regard was :

"After having evaluated the credibility of PW2 and the other police witnesses, I had no doubt that they were telling the truth of the matter, beyond any reasonable doubt."

4. He failed however to resolve a critical discrepancy in the evidence of the police officer, which went to the heart of the defence.

5. The defendant, in his evidence, which the magistrate disbelieved, said that before the cautioned statement was written he was taken into the toilet and there subjected to threats, assault and inducements.

6. The arresting officer PC20978, who took the cautioned statement, denied that he or anyone else had taken the appellant to the toilet prior to the commencement of the cautioned statement, although he said he had done so in the course of the statement. Sergeant 21174 said that the appellant was not taken to the toilet while he was present.  He left soon after the cautioned statement commenced.

7. On the other hand Inspector Ryder, who was in charge of the party, said :

"I cannot say who I directed at that time to make inquiries of D1. However, he was taken into a toilet or bathroom area. I don't remember if the door was closed or not. Squad officers took Dl in there. I don't remember precisely which ones, or how many. I don't remember how long D1 was in there.   I was not paying much attention to the time D1 was in there."

In re-examination he said:

"The reason D1 was taken into a bathroom or toilet was that the flat was very small. It was necessary to move D1 out of the living area to search it. That was why."

8. There were other discrepencies in the prosecution case but this was the most glaring.

9. It was incumbent on the magistrate to make a finding on the toilet issue before he could be sure that the appellant's evidence was untrue.

10. The appeal is allowed and the conviction quashed.

Representation:

Mr Patrick Li, Crown Counsel, for respondent.

Mr Andrew Macrae, instructed by Messrs J.N. Karbhari & Co., for appellant.