HKSAR v. Ching Lei Hung

HCMA000727/1997

1997, NO. MA 727

IN THE HIGH COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL

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Coram: Hon Leong, J. in Court

Date of hearing: 4 November 1997

Date of judgment: 4 November 1997

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J U D G M E N T

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1. The appellant was convicted of nine charges of Employing a person not lawfully employable, contrary to s.171(1) of the Immigration Ordinance, Cap.115.

2. The appellant was arrested in a raid on his workshop by the police when nine illegal immigrants were found at the rear staircase of the workshop. The nine illegal immigrants were charged with remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong and they all pleaded guilty to the offence. The prosecution evidence against the appellant consisted of verbal admissions of employment made by the appellant during the raid to PW1, Station Sergeant Li Ka Wo, and a record of interview taken by the police officer who arrested the appellant in the raid. This was signed by the appellant.

3. The appellant told the Station Sergeant that he knew the group of illegal immigrant and they were his relatives from Hoi Fung, the mainland. He told the Station Sergeant that they helped him do gold beating work in the workshop and they also slept there.

4. The record of interview contained the appellant's admission that he was told by his relatives in mainland China that the illegal immigrants in the present case had sneaked into Hong Kong and they found their way to his workshop where he gave them work and allowed them to sleep because he took pity on them.

5. The appellant's case as put in cross-examination was that the Station Sergeant and other police officers went to his premises for a search during which a man appeared to have been assaulted in the next room. The appellant was taken into another room where the Station Sergeant threatened to assault him and told him to co-operate. On the verbal admission, his case as put was that he did not make the verbal admission at all.

6. At the trial, admissibility of this record of interview was challenged and the magistrate had proceeded to determine the issue of admissibility by alternative procedure. The record of interview was ruled admissible in evidence by the magistrate after he heard evidence on the special issue from both sides. On the general issue, the appellant elected not to give or call evidence. The magistrate on the evidence of the prosecution convicted the appellant.

7. The appellant now appeals on the ground that the magistrate had failed to deal with the verbal admission by the appellant to the Station Sergeant. The magistrate did not make any finding on whether the appellant had made such verbal admission and if made, whether it was voluntary or without oppression. The appellant also complained that if the magistrate had not considered the admissibility of the verbal admission, he could not have considered whether the record of interview, which was consequential on the verbal statement, was admissible. A further ground of appeal was that the record of interview was, in any case, inadmissible because of various breaches of the rules on questioning of suspects and taking of statements.

8. In his statement of findings, the magistrate said this :

" I had considered all the evidence and circumstances of the case. I had considered the content of the evidence together with the response and demeanour of each witness when giving evidence. Save for the admissibility of the Record of Interview, I make no finding of facts until the end of the hearing and after Defence Counsel's submissions. In dealing with the admissibility of the Record of Interview, I bore in mind that the burden was on the Prosecution to prove beyond all reasonable doubt that the statements therein were made by the Appellant voluntarily.

The Defence Witness on special issue testified that she arrived after the Record of Interview was made. She received complaint from the Appellant. After careful consideration, I found the evidence of the statement taker honest and reliable, and the evidence of the Defence Witness did not cast any doubt on it. Although the statement taker was in breach of the rules for interviewing suspects, I considered them to be minor in nature and this was not a proper case to exercise the discretion to rule out the Record of Interview. I rule it admissible as evidence."

9. Mr Haynes for the appellant relies on HKSAR v. Lee Ying Lun (Cri.App.No.633/96) where the Court of Appeal followed the Privy Council case of Thongjai & another v. The Queen (Privy Council Appeal No.20/97). Mayo JA in the course of his judgment, after referring to the Thongjai case said the following in relation to verbal admissions :

"... The Committee considered the circumstances when oral admissions could be admitted as evidence. What was clear was that when a defendant was alleging any improprieties on the part of the police at the time when the admissions were allegedly made this evidence could only be admitted if the judge was satisfied that the admission had been made voluntarily."

10. Later in the judgment, after referring to the "fairly comprehensive guide to the practice which should be adopted when it was necessary for a judge to determine whether or not an admission should be admitted as evidence" by Lord Bridge in Ajodha v. The State [1982] AC 204, His Lordship made it clear that "it is always the duty of a judge to satisfy himself that inadmissible evidence is not admitted" and the judge's responsibility "is not limited in this connection to the voire dire."

11. His Lordship continued in the following terms :

" No difficulty arises as a result of the applicant denying that he had ever made the statements. Reference is made to the distinction between total denial and a suggestion that if the statement was made that it was not voluntary in the introductory paragraph of R. v. Thongjai.

' The issue which arises on both of these appeals against conviction, which were heard together, is whether, when a defendant denies that he made an oral admission to the police but also alleges conduct by the police before or at the time of the alleged admission which might render the admission involuntary and inadmissible if it had been made, the trial judge should conduct a voire dire to determine the voluntariness of the alleged admission notwithstanding that the defendant denies that he made it.' "

12. It is clear that the appellant had raised in cross-examination the issue that he did not make the oral admission and if he had made it, at the time when it was allegedly made, force was used by the police to make him confess. The clear authority now is that in such circumstances it is incumbent on the magistrate to make a ruling on admissibility of the verbal admission. From his findings, the magistrate did not specifically deal with the verbal admission. Neither did he make any ruling as to the admissibility of the verbal admission. At the trial, similar to what happened in Lee Ying Lun, those representing the appellant did seek a ruling from the magistrate as to admissibility of the verbal admission.

13. That being the case, it is not necessary for me to go into the other grounds. The appellant must succeed on the first ground of his appeal. The appeal is allowed and the conviction quashed and sentences set aside.

Representation:

Mr Simon Tam, Government Counsel, for HKSAR/Respondent

Mr John Haynes, inst'd by M/s Pang, Tang, Wan, Choi, for Appellant