Li Wai-fat and Others v. The Queen
Read the full judgment text of CACC 355/1977 on BabelCite. This Court of Appeal judgment.
1. The four appellants, at that time police officers, were convicted of conspiracy to accept, without lawful authority or reasonable excuse, advantages in the form of periodic sums of money from members of the public as an inducement to or reward for or otherwise on account of their abstaining from performing acts in their capacity as public servants, namely, as police officers taking action in respect of possible offences. They now appeal against their convictions and the first and third appell
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CACC000355/1977
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----------------- Coram: Pickering, J.A., Cons & Zimmern, JJ. Date of Judgment: 30th September, 1977. ----------------- JUDGMENT ----------------- Pickering, J.A.: 1. The four appellants, at that time police officers, were convicted of conspiracy to accept, without lawful authority or reasonable excuse, advantages in the form of periodic sums of money from members of the public as an inducement to or reward for or otherwise on account of their abstaining from performing acts in their capacity as public servants, namely, as police officers taking action in respect of possible offences. They now appeal against their convictions and the first and third appellants appeal also against sentences of two and a half years' imprisonment. 2. It is common ground that all the convictions rested upon statements made by the appellants to officers of the Independent Commission Against Corruption and it is the admission into evidence of those statements which is attacked in this appeal. 3. It is unnecessary to relate the facts of the alleged conspiracy in detail but sufficient to record that it was the contention of the prosecution that the moneys the object of the conspiracy were to come from illegal off-course book-makers at the race course and from the proprietors and managers of gambling and vice establishments. The factual situation which concerns us on this appeal is that which obtained in respect of each appellant between the time of his arrest and his subsequent release on bail. Mr. Bernacchi, for the appellants, has explored that situation in regard to each appellant in minute detail as to times, places, and the individuals concerned in the various interviews and confrontations which took place. 4. I will not here reproduce that minutiae of the detention of each of the appellants but state simply that each was kept at the offices of the Independent Commission for a period in excess of 30 hours and in the case of the third and fourth appellants for between 47 and 48 hours; each was confined in a windowless cell and had his personal property, including his watch, taken from him. In parenthesis, we are told that the practice of depriving an arrested person of his watch has been discontinued. During their detention the second and fourth appellants were each interviewed three times by officers of the Independent Commission, the first appellant six times and the third four in addition to, in the case of the fourth appellant, two welfare visits which Mr. Bernacchi categorised as anything but welfare. On some occasions the appellants were left for long intervals of time in their cells in between interviews, a process which Mr. Bernacchi describes as subtle torture and which Mr. Adams, for the Crown, categorises "if it be torture," as self-induced. 5. Mr. Bernacchi relied in part upon the strictures of Jones D.J. in The Queen v. Tang Pang-Yin(1). In that case however there had been a suppression by the Crown of an exculpatory statement made by the accused, an unexplained inordinate length of time to take a relatively short statement, a change from earlier exculpation to inculpation after the accused's solicitor had left the offices of the Independent Commission and clear lies upon two matters by a witness who was an officer of the Commission. None of those factors apply here. 6. We have made a very careful examination of the treatment of these four appellants both individually and collectively. We find we are unable to accept the comparison with the Spanish Inquisition, or the Star Chamber so colourfully made by council in his attack upon the Commission. The matter is one of balance and it was very well put by Lord Cooper in Lawrie v. Muir(2) where he said: -
7. Judges who are faced with balancing the requirements of investigating officers against the rights of the investigated have a difficult task to perform. 8. In Reg. v. Clarke(3) Mcgonigal, J., said: -
9. We think these considerations apposite in the circumstances of the present case. 10. Defence counsel invited us to contrast a number of cases in which statements had been held to be inadmissible. The value of such contrast is not very great and has to be tested against the dictum of the House of Lords in Director of Public Prosecutions v. Ping Lin(4) where it was said that on appeal against the judge's decision to admit a confession as having been made voluntarily, the court should not disturb the judge's findings merely because of difficulties in reconciling them with different findings of facts, on apparently similar evidence, in other reported cases, but should only do so if satisfied that the judge had made a completely wrong assessment of the evidence or had failed to apply the correct principle. We have considered the trial judge's very lengthy and careful ruling on the admissibility of the statements and we have examined minutely the submissions of defence counsel but, stripping away all hyperbole, are unable to say either that the judge made a completely wrong assessment of the evidence or failed to apply the correct principle. We are satisfied that these experienced police officers, who both well knew their right to remain silent and were also reminded of that right, made their statements voluntarily and were not subjected to treatment such as to sap their free will or cause it to crumble. 11. The applications to appeal against conviction are dismissed. 12. There remains the complaint of defence counsel that the appellants, arrested pursuant to section 10(1) of the Independent Commission Against Corruption Ordinance, Cap. 204 and detained for the purpose of further inquiries under section 10A(2)(a), were not brought before a magistrate as soon as practicable in accordance with section 10A(6) which reads:-
13. We are unable to agree with the learned judge in the court below - as likewise Mr. Adams, for the Crown, found himself unable to agree - that this is not a mandatory provision but we do agree with him that "a confession made by an accused after it was practicable to take him before a magistrate will not by virtue of the mere fact of delay thereby be rendered inadmissible". Such delay will, however, as the learned judge commented, fall to be considered by the court in the context of "oppression" when determining voluntariness. 14. In the present instance we do not consider the failure to comply with section 10A(6) affected the voluntary nature of the statements: but officers of the Independent Commission may well reflect that if they break the law in any respect they are answerable like any other citizen and future failure to comply with the terms of section 10A(6) may well render them liable to criticism and to possible actions before the courts at the instance of the persons detained. Such failure will inevitably be weighed in the balance by the courts when there arises the issue of the voluntariness of any statement obtained during the course of such failure. 15. As to the applications of the first and third appellants to appeal against sentence, we have considered carefully the submissions of Mr. Shuen but do not consider that we would be justified in interfering with the sentences of two and a half years imprisonment. The conspiracy was started deliberately with full knowledge of its potentialities and was brought to an end for practical, not moral, reasons. The two applications to appeal against sentence are also dismissed. Representation: B. Bernacchi, Q.C. & K. Shuen (H.M. So & Co.) for all appellants. N.E.W. Adams for Crown/respondent. (1) V.D.C. 107/77 (2) 1950 S.C. (J.) 19 (3) (1973) N.R.I. 45 at 53 (4) (1975) 3 All E.R. 175 |