The Queen v. Lam Po-kam and Others

DCCC000005/1980

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CRIMINAL JURISDICTION

CASE NO. 5 OF 1980

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Coram: H.H. Judge Caird in Court.

Date of Judgment: 20th August, 1980.

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RULING ON VOIR DIRE RE A3, A4 and A5

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1. I am to rule upon the admissibility of three statements taken from the defendants. I have already ruled upon a verbal statement given by TING Chi-fong, the 5th defendant, to Chief Inspector Vilskerts and held this to be inadmissible, promising to give reasons later which reasons shall be given during the course of this ruling. Finally there is conversation between Chief Inspector Vilskerts, and CHEUNG Wai-wah and LEE Kam-hung on the other hand in respect of which I must also make a ruling.

2. At first blush it appears trite law that the admissibility in evidence of any statement or any oral answer given by that person to a police officer against his interest must be proven by the Crown to be voluntary, in the sense that this has not been obtained from him by fear of prejudice or hope of advantage exercised or held out by a person in authority, or by oppression.

3. In coming to the views that I have I am considering the evidence led or tendered by the Crown after a submission of no case to answer upon the voir dire and am not at this stage concerned with anything other than evidence from police officers, and for the purpose of this ruling only, conclude there have been substantially telling the truth. However where conflicts or mistakes may appear from the police officer's evidence, these must be resolved in favour of the accused person concerned. I must at this stage also thank all counsel for the authorities which they had presented to me, some of which I have solicited from the bench.

OPPRESSION

4. The best explanation of this term is to be found in a note to Martin Priestly made in 1965,⁽¹⁾ where Sachs J as he then was, said in the absence of any definition, prior to that note

".... this word .... imports something which tends to sap and has sapped that free will which must exist before a confession is voluntary .....".

5. The position is a little complicated in Hong Kong. In that the use of the word 'oppression' appeared for the first time in the Judge's Rules of 1964. Following a decision of Lord Parker Callis v Gunn.⁽²⁾ Whereas in Hong Kong the judges have not formally adopted the 1964 Judge's Rules and that with respect I adopt the views expressed in R. v TAO Ki-siu.⁽³⁾ Where it was there held that rules or for the guidance of police officers are the responsibility of the Commissioner of Police, not of the judges.

6. I have no doubt that the Court should exercise its discretion and as I have done so on several occasions to exclude any statement where the Crown is unable to satisfy the Court that the statement was obtained without oppression. If authority is needed to support this then is Callis against Gunn previously referred to and R. v LI Wai-fat.⁽⁴⁾

EVIDENCE

7. Now to consider the evidence concerning the 3rd and 4th accused. The offence with which they were charged was robbery occurring on the 10th of December last at about 11.20 a.m. of a quantity of furs from the James Fong Fur Company. The two were arrested at about 8 p.m. on the 11th of December. Following an earlier raid which commenced at 6 p.m. It is clear from the evidence, and this has been conceded by the Crown that both accused were in a room together when the 4th accused, just after his arrest, LEE Kam-hung asked for permission to call a lawyer. Chief Inspector Lee, the senior officer present, refused this request.

8. This has been subjected to considerable criticism by Mr. Young. Despite what Mr. Young has urged upon me I consider Chief Inspector Lee's attitude to have been reasonable.

9. Detective Inspector Blackburn and party arrived at about 8.10 p.m. Evidence was given that Detective Sergeant WONG Tat-hung 10619 administered a verbal caution, this is not disputed by Mr. Young. The accused said nothing in reply (page 20 of notes) and in fact the sergeant said that he heard the request for solicitor permission to telephone and (also page 20). The accused were taken back to Island Headquarters at Victoria Barracks where they were kept waiting without food, water, or ciagrettes until 1.30 p.m. when at their request they saw Chief Inspector Vilskerts. They attended before the Chief Inspector who testified that he had been too busy handling other important work to attend to the direction of inquiries concerning these two accused. At the meeting with Chief Inspector Vilskerts, it appears that the 3rd accused CHEUNG proposed that one of the two accused should plead guilty and that the other should be released.

10. Further conversation then transpired from this emerged the wish of both accused to have the 3rd accused's wife released as an alternative to one of these two accused. Mr. Vilskerts quite properly refused to accede to this request as a Police Officer has no authority to do so, such authority can only emanate from the Attorney General or his delegate. Mr. Vilskerts asked if the accused wished to make a statement and said as on after-thought that it "if so it may be used in Court." It is properly referred to by Mr. Young as being a somewhat informal statement on the part of Mr. Vilskerts.

11. The two accused were then taken away from the room, the sole police officer present had been Mr. Vilskerts, and were separately formally cautioned and the evidence was that each elected to make a statement I would indicate that at this stage in respect of the 4th accused LEE that there was an apparent breach of the Judge's Rules in that there was no reference to the possibility of the statement being used in Court.

12. In respect of this breach I would not propose to exercise any discretion to exclude the statement. Of course such discretion can only arise if the statement has previously been held to be voluntary, but I do not consider this to be a major breach. The position is well summarized in R. v Rogers.⁽¹⁾

"... the question is not whether there has been a literal or technical breach but whether the spirit of the rules is being complied with. In our opinion it is not always answered by going no further than a subjective test. Bearing in mind that the jurisdiction is discretionary and that the ultimate question is fairness in the particular circumstances of the case, we would not attempt any exhaustive proposition. ...... the prosecution should not normally be allowed to give evidence of admissions obtained by police interrogation without a caution and at a stage when the police already had ample evidence to lay before a jury."

Request to see a solicitor

13. I must now draw distinction between the statement made to Chief Inspector Vilskerts and the subsequent statements made under caution. In the Judges' Rules 1964 or rather the administer of direction attaching to this, it is clearly stated that an accused person should at any stage during investigation "be able to communicate and to consult privately with a solicitor. This is so even if he is in custody, provided that such a case no unreasonable delay or hindrance is caused to the process of investigation or the administration of justice by his doing so." Arising out of these 3 cases of interest, R. v B.P. Elliot⁽¹⁾ a Judgement of Kilner Brown J. Where in the discretion of the judge the statement was admitted. An earlier decision of MacKenna J in R. v Allen⁽²⁾ where it was held that there was a legal right in a person in custody to see his lawyer and His Lordship concluded that there was no doubt that by refusing permission to see a solicitor, this was unfair. It appeared in any circumstances where an accused person was deprived to that right the learned judge would hold any statement subsequently obtained to be inadmissible.

14. The position was finally resulted in the case of Lemsatef.⁽³⁾

Where the Court of Appeal held there is a discretion vesting in the Court to exclude any statement obtained where the authorities (in that case customs authority) have refused permission for an accused person or suspect, to see a solicitor.

15. In my view the right to see a solicitor is something vested in every person whether or not one is looking at the 1964 Judges' Rules and consequent administrative directions, or at the law which had obtained prior to these rules coming into force. The matter is more than of passing importance, and the public interest has to be balanced against a private right. The caution as worded amounts to advice to be given to accused persons or rather suspect informing them they need not made a statement and further advice that any statement given may be used in evidence. It is clear that a solicitor may give advice, the same advice as given in the caution expressed in considerably stronger terms then any police officer could be expected to adopt. Again this advice from the solicitor may arise from to knowledge, privileged knowledge and information which he would have, relating to an accused's status as to whether he is guilty or innocent.

16. I do not subscribe to the views those in the United States who have ruled that the right which has to be read over includes stating to the accused that he has a right to have an Attorney present and give advice including the right to have the State or Federal Government to provide such Attorney if the accused person has not the means to do so himself.

17. I turn now to the statement MFI P4(a) & (b) of the 3rd accused and the statement of the 4th accused MFI P5(a) & (b). I am concerded with a number of facts which are importance but first deal with the preceding conversation:

Irrespective of any other discretion which I may have or in respect of the question of oppression, I would hold that the discussion with Mr. Vilskerts is inadmissible.

18. I turn now to the formal statements taken after a proper caution in respect of the 3rd accused with the caution containing an important omission in respect of the 4th accused. There is argument from Mr. Young that the damage has already been done as a result of the discussion with Mr. Vilskerts. And on the question of oppression, I have concluded that the Crown would be unable to persuade me beyond reasonable doubt that there was no oppression present. This due to the combination of the factors discussed above and including the view I have taken adopting Mr. Young's submission that the damage had already been done.

19. In addition I would propose if the Crown had established that oppression were not present, to hold that the statements would be inadmissible. This in exercise of my discretion arising out of the failure of the police to allow the accused to commuicate with a solicitor. The circumstances, and I do not criticize Mr. Vilskerts for not proceeding with the investigation and for keeping the accused in the police station, are such that such that they may operate unfairly against both these accused. And again I have a discretion to exclude confession obtain in any circumstances where unfairness may have pertained. The case of the R. v Sang⁽¹⁾ by implication makes this clear. Accordingly both these statements are ruled inadmissible.

5th accused

20. A police party arrived at Granville Road at approximately 12.30 on the 12th of December and the accused TING Chi-fong was arrested at about 1.20 p.m. They arrived at CID Headquarters at 2.35 Room No. 14 on the 1st floor and questioning started at 2.40 p.m. He led them to Jaffe Road at 4.00 p.m. and they went back to CID Headquarters at 5.00 p.m. Questioning resuming at 4.55 and was interrupted by the arrival of a solicitor at 4.58 p.m. who departed at 5.07.

21. The accused was charged on the 13th of December and some six and half an hours after charging was interviewed by Chief Inspector Vilskerts. This was to recover furs and I believe that the Chief Inspector acted with the utmost proprietry in conducting this interview in endeavouring to recover the stolen property. The accused said he did not wish to answer any questions until he had a solicitor present. Nevertheless the questioning continued and some inculpatory material was obtained. The following factors are relevant:

22. I note that it is paradoxical that if the 5th accused had led Chief Inspector Vilskerts to the stolen furs then this evidence would have been admissible even if the earlier conversation were inadmissible.

Accused in Custody

23. It appears that in Hong Kong the Court of Appeal TAM Wing-kwai v R.⁽¹⁾ have held that there is no rule of law preventing police to continue questioning a suspect who has been brought before a Magistrate and accordingly must have been charged. But the finding of the Court of Appeal does not appear to have taken any cognisance of the earlier decision of R. v CHEUNG Chung-yat⁽²⁾ where the Court came to the conclusion that questioning should not be permitted after an accused person has been charged except in exceptional circumstances nor does the Court of Appeal decision appear to have considered the views or attitudes expressed in Archbold at paragraph 1389(a)

"It is only in exceptional cases that questions relating to the offence should be put to the accused person after he has been charged or informed that he may be prosecuted."

It is clear that he may be questioned about other offences⁽¹⁾ R. v Buchan.

24. I am in a slightly difficult position of not being able to hold that there any rules of law prohibiting the admission of the "verbal". However I consider I have a discretion in this matter that general discretion which by implication Sang(Supra) permits a Court to hold inadmissible any statement obtained by unfair means. In my discretion I would rule this conversation inadmissible for this reason alone i.e. the fact that he was questioned about an offence after having been charged with that offence.

25. In addition I would exercise my discretion to exclude this conversation by reason of the facts that the accused was not given any opportunity of having a solicitor present. In combination the reasonsing in regard to preceding ground for my excluding this evidence, become even more compelling.

26. In passing I would mention that evidence was led by the Crown relating to a conversation involving a form of plea bargaining between the accused and Chief Inspector Vilskerts. I appreciate that Crown Counsel found this to he necessary as it arouse out of questions put by Mr. Whitehead. I feel that the Court should not be appraised of any attempt at plea bargaining except in controlled situations as dealt with in R. v Turner⁽²⁾ Accordingly that conversation with Chief Inspector Vilskerts is declared to be inadmissible.

27. The Crown has sought to put in evidence a statement obtained by the 5th accused. We heard some evidence and then I was given an opportunity to peruse the statement. I formed the view after hearing argument from Mr. Conran that I am unable to accept that this statement is inculpatory in its totality. Any matters which Mr. Conran has pointed out to me as being inculpatory, I consider in the whole context of the statement do not in fact inculpate the accused. The general tenure of the statement being exculpatory.

28. Accordingly there is no need for the Crown to prove that this statement is voluntary. And any objection taken by the defence towards its admission because of the views I have formed, is not well founded R. v CHEUNG Chung-yat at page 269.

29. In my view the evidence does not establish knowledge on the part of the 5th accused that he had handled furs stolen from the James Fong Fur Company, knowledge in the sense that he knew or should have known that such furs had been stolen. The forensic chemist's evidence impressed me but it goes no further than establishing that the accused's clothing had come in contact with mink, fur and sable fur. The chemist was unable to tell us whether there were more than one mink and sable respectively, involved, and of course he does not have the equipment necessary to show a proper match of the fibres taken from the accused's clothings with samples taken from furs at James Fong Fur Company.

30. The Crown also faces difficulties if not the impossibility in proving that the furs leaving trace fibres on the accused's clothing were derived from any furs which were stolen.

31. Accused acquitted and discharged.

Representation:

(1) 51 Cr. A. R. P1.

(2) 1964 48 P36.

(3) Criminal Appeal Decision No. 1189 of 1979.

(4) Criminal Appeal Decision No. 355 of 1977.

(1) 1979 1 N Z L R P307 at P314

(1) 1977 Criminal Law Review page 551

(2) 1977 C.L.R. P163

(3) 1977 64 Cr.A.R. P242

(1) 1979 2 All E R 1222 H.L.

(1) 1976 H.K.L.R. P40

(2) 1970 H.K.L.R. P269 at 275

(1) 1964 1 W L R P 365

(2) 1970 Q B P32, 54 Cr A R P352