Ng Tak Yin v. The Queen

HCMA001003/1987

IN THE HIGH COURT OF HONG KONG

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 1003 OF 1987

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BETWEEN

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Coram: de Basto, J.

Dates of hearing: 19th January, 1988, 10th February, 1988 and 28th March, 1988.

Date of Judgment: 7th April, 1988.

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J U D G M E N T

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1. The appellant, a serving woman police constable, was charged that on the 16th of September 1987 at Kai Kai Villa, No. 458 Shanghai Street, Kowloon she stole $700 from Jampee Jaikhioe. She was convicted and sentenced to 6 months' imprisonment.

2. On the 7th of April, 1988 I allowed the appeal and said I would give my reasons later. This I now do.

3. In very broad outline, on the 16th of September 1987 two police officers went to the Kai Kai Apartment House in Shanghai Street to check whether it was a vice establishment. On arrival one of the officers, PC46227 posed as a customer and was taken into a room and a Thai woman, Jampee Jaikhioe ("Jampee") was brought in. After they had taken a bath, the officer revealed his identity, took' away Jampee's underwear and told her to sit on the bed.

4. Later, Inspector Wu and other members of his team conducted a vice raid. Another Thai woman, Supaporm Bootsart was brought into the room where Jampee and PC46227 were in. The appellant, who was in plain clothes, was instructed to go into the room and conduct a search. Jampee handed the appellant a small purse containing $1,700 -, all in $100 notes. Jampee testified she saw the appellant take out the money, count $700 which she put into her right pocket and she put the remaining $1,000.-back into Jampee's purse whereupon Jampee counted the money, found some missing and she "grumbled". During the search PC46227 (who was called by the defence) was standing outside the room door which was half open. As Jampee was complaining loudly the police went into the room to see what was happening and she said something in Thai which was not understood by the police officers. A Chinese man LEE Tsoi-wing ("LEE") was brought into the room as an interpreter.

5. The Inspector, the Sergeant and LEE then went into a vacant room where LEE said that if the police forgot about arresting the Thai women, the money incident would also be forgotten. The Inspector then told LEE to go to the sitting room and then he and the Sergeant brought the appellant into that same room.

6. The Inspector asked the appellant to produce all the money on her, and she produced $730.- from her right pocket, $700 in $100 notes - this was not in dispute. When asked by the Inspector why she had so much money the appellant replies she intended to buy a birthday present for her father.

7. Mr. HOO for the appellant referred to numerous extracts from the evidence which he said, in effect, indicated significant discrepancies in the evidence of the prosecution evidence. Mr H00 helpfully produced a schedule indicating the various passages on which he relied to support his, first ground of appeal which was that the learned magistrate erred in finding that the discrepancies were not vital or serious and that they did not affect the central issue of the case. The Crown also helpfully produced a skeleton argument which dealt, inter alia, with the question of discrepancies. I will not rehearse the many discrepancies, apparent or real, to which I was referred as when I allowed the appeal I gave counsel for the Crown and.for the Appellant a schedule of the discrepancies which consisted of 23 typed pages. The original schedule is attached to this judgment.

8. The second ground of appeal related to the way the bank notes were found in the appellant's pocket. The appellant in her cautioned statement stated the seven $100 notes were neatly folded twice into a "tape" shape and five $10 notes were also folded twice into a "tape" shape but were separated from the seven $100 notes. Neither counsel nor I understood precisely what this meant and I do not prepare to say anything.further on this particular ground.

9. The third ground of appeal was that the learned magistrate erred in finding that the two Thai women did not have a purpose of their own in giving false or exaggerated evidence.

10. The Sergeant testified that as he and the Inspector could not understand what "they" Thai female had said, he asked LEE to go into the room to act as an interpreter.

11. The Inspector testified that he asked LEE to ask the two Thai women what they were saying. After the Thai woman had spoken to LEE, the Inspector told him not to translate what the woman had said and then he, the Sergeant and LEE went into a vacant room. The Inspector said that in that other room LEE suggested that if the police forgot about arresting the Thai women, "the money incident would also be forgotten."

12. LEE, who it must be remembered, was a prosecution witness, denied he was asked by the police to go into the room where the two Thai women were. He said he was asked to go in by "the" Thai female whom, he said, he had not known previously. Jampee also said she had not previously known LEE.

13. LEE was asked whether the police "went on raid of Thai girls in your vice operation ?" and he replied that that was only found out later. He was there saying, in effect, that at some stage he was the pimp of the two Thai women. LEE denied ever asking the police not to arrest the Thai women if he (LEE) forgot about the money. LEE said when he was talking about "the incident" with the Inspector and the Sergeant, it was he who was told by the police that if the money was returned, everyone would be released at the police station. That evidence is in serious conflict with the Inspector's evidence.

14. In his judgment the magistrate referred to some of the discrepancies in the prosecution evidence, in particular whether or not, Jampee had demanded the return of her underwear. The magistrate said that the "apparent" discrepancies were not significant. In my view, the discrepancy between the Inspector and LEE as to who suggested that if the money were returned the police would "forget" about arresting the two Thai women was a significant discrepancy. Another significant discrepancy is that of the evidence of the Sergeant and LEE as to who asked LEE to go into the room to at as an interpreter. This, taken with LEE's evidence that "later" he found out the Thai women were prostitutes working for him and that Jampee asked LEE, a man she said she had not previously known, to come into the room where only the two Thai women and the appellant were present had caused me some anxiety.

15. In LAW Kam-ming and the Queen, Cr.App. No. 607 of 1979, the Court of Appeal stated that a magistrate's Findings should illustrate the salient points in the case and demonstrate that the evidence has been evaluated and that significant inconsistencies and conflicts should be dealt with in such a manner as to indicate how these matters were "resolved".

16. In my view, there were a number of significant discrepancies which the learned magistratd did not resolve and which has caused me to have a lurking doubt. In the circumstances, I was of the view that the verdict was unsafe and unsatisfactory and I allowed the appeal, quashed the conviction and set aside the sentence.

Representation:

Mr J. Reading, Senior Crown Counsel for Crown.

Mr Alam H00 instructed by' Messrs. C.W. Leung & Co. for appellant.