BETWEEN v HKSAR

HCMA000617/1998

HCMA 617/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 617 of 1998

(On appeal from Western Magistracy Case No. 8239 of 1997)

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Coram: Deputy Judge Wesley Wong in Court

Date of Hearing: 29 April 1999

Date of Judgment: 29 April 1999

Date of Handing Down Judgment : 10 May 1999

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J U D G M E N T

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1. The Appellant was charged and convicted on 2 counts of betting with a bookmaker.

2. The evidence is that ICAC officers went to a room in Kowloon Shangri-la Hotel to search as a result of information received. The 1st prosecution witness declared arrest of Defendant and showed him the search warrant. They then searched the room and used a video camera to record the search. Amongst the items seized were 3 pages of hotel notepaper containing handwriting which the Appellant admitted was his handwriting during the search.

3. The trial magistrate was satisfied and was sure that those 3 pieces of paper recorded bets made on horse races occurred that day.

4. At the trial the Appellant was not represented. The learned magistrate at p. 1 of his statement of finding stated

"At all appropriate times I advised the Defendant of his rights and I am satisfied that he understood my explanations."

5. There were 3 video tape recordings produced at the trial. The 1st video tape was the recording of the search at the hotel room. The 2nd tape was the 1st video tape interview of the Appellant in the ICAC office and the 3rd video tape recording was the second interview in the ICAC office.

6. The Appellant at the trial did not raise any issue as to the items seized in the search nor the statements made by him. He did not challenge the admissibility of the video or audio record of the search. He only challenged the admissibility of the 1st record of interview. He did not object to the admissibility of the 2nd interview.

7. A voire dire was held by the learned magistrate to try the issue of voluntariness of that video tape interview. He after evaluating the evidence was satisfied that the interview was made by the Appellant freely and voluntarily and admitted that in evidence.

8. After the prosecution's case and after his rights were explained the Appellant elected not to give evidence.

9. The learned magistrate having considered all the evidence found him guilty in respect of both changes.

10. The Perfected Grounds of Appeal are:-

"1. Charges 1 and 2 are duplicitous as they relate to the same incident involving the same persons.

Bundle 714 items 112-114

2. The Learned trial Magistrate erred in admitting into evidence statements by the Appellant recorded in P1 and P18 since

(a) the Learned trial Magistrate failed to exclude and failed to consider whether to exclude the statements in P1 as being unfairly obtained when the statements were made immediately after arrest without a prior caution and without the Appellant being informed that he was arrested for illegal gambling; and

(b) the statements by the Appellant in P18 were obtained as a result of statements by him in P1 which were inadmissible by virtue of paragraph(a).

Bundle 270 items 9-11

429 items 055

3. The convictions are unsafe and unsatisfactory."

11. As to Ground 1 for sure the charges were not duplicitous as a charge can only be duplicitous if it contained more than 1 offence in the same charge. The 1st charge alleged the Appellant did bet with Fat Kee and the 2nd charge with Ah Fai after the learned magistrate amended the charges in compliance with S. 27 of the Magistrate Ordinance Cap. 227. Counsel on being told as to duplicity amended the 1st ground by deleting the words "are duplicitous as they" so now it reads charges 1 and 2 relate to the same incident involving the same persons.

12. In respect of this the learned magistrate made the following finding:-

"... I was satisfied, from my own examination of those exhibits, so that I was sure, that the notes made as those exhibits recorded bets made on horse races that were occurring that day. The bets recorded on that paper matched exactly the bets recorded on the micro-cassette".

13. He made it quite clear that those exhibits recorded bets made on horse races not just one race. So, it was not in respect of the same incident in the sense that they were made at different times.

14. For those reasons Ground 1 must fail. In any event the learned magistrate imposed a sentence of 2 months imprisonment on each count to be served concurrently. So whether it was the same incident involving the same person will not affect sentence. There is no point of law involved on this ground. It only concerned the finding of fact by the learned magistrate.

15. As to the 2nd ground counsel submitted that the Appellant had made an issue in the case by objecting in voire dire that after arrest by saying "they did not tell me for what offence I had been arrested" (34P) that was repeated at (88N).

16. With respect that was not true. The ICAC officer had at (46O) said

"Q. Before you started the search did you explain to the accused the purpose of the search?

A. Yes.

Q. What did you say?

A. I had explained to him at first inside the hotel room when I first arrested him that we are investigating offences relating to briberies that some people are paying money to jockeys for rigging horse races.

COURT: Which line in the transcript is that?

A. The explanation was not on the video because the video only commenced - when I entered the room I arrested him, explaining to him the offence and the purpose of the search. And then afterwards we used the video recorder to record the search."

17. It was only after the search when the ICAC officers found the notes and later seizure of exhibits including the micro-cassette tape elsewhere when the ICAC officer could have sufficient evidence to caution the Appellant in respect of the these 2 charges.

18. During the trial proper no issue was taken by the Appellant. He did not challenge the admissibility of the video and audio record of the search. This is a fresh matter being raised in the appeal court. The learned magistrate was never told of such issue being raised at the trial.

19. It cannot be said that the Appellant was not aware of his rights. The learned magistrate had at all appropriate times advised him of his rights. His awareness of his own right is fully demonstrated by the fact that he had challenged the admissibility of his own statement during the 1st interview by an ICAC officer.

20. In any event the learned magistrate had considered all the evidence in the voire dire. By accepting that the Defendant had voluntarily made the statement, he had by necessary implication rejected the evidence of the Defendant in the voire dire. So even if he had made an issue it was rejected by the learned magistrate.

21. There is no allegation in this appeal that the Appellant was not properly advised of his rights as every magistrate should do when a defendant was not represented. After viewing the statement of finding and the notes of proceeding I do not see how the Appellant had been prejudiced.

22. For those reasons ground 2 must also fail.

23. The appeal is therefore dismissed.

Representation:

Mr. Joseph To, SGC of DPP for the HKSAR

Mr. Philip Ross instructed by DLA for the appellant NG Siu Chau