The Queen v. Lai Kin Ming

CACC000380/1983

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Coram: Hon. McMullin, V,.-P., Li & Silke, JJ.A.

Date: 6 January 1984

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JUDGMENT

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McMullin, V.-P. :

1. Lai Kin-ming was-tried together with another person in the High Court upon an indictment containing two counts for' unlawful possession of drugs for the purpose of trafficking, contrary to s.7(1) of the Dangerous Drugs Ordinance, Cap. 134.

2. On the 13th of May, 1982, at about 2:30 p.m. in the afternoon, a party of Customs and Excise officers were carrying out surveillance duties on the 5th floor of premises known as 91 Dundas Street, Mongkok. The applicant was seen to emerge from the doorway of Flat 14 on that floor. He pushed back the metal grille which guarded that door, and as he was turning to close the wooden main door, the party in ambush approached him and he was arrested and taken back inside the flat. He was immediately searched by Customs Officer Kwok Chi-yan, and in his left trousers pocket was found a packet wrapped up in newspaper. When opened this was seen to contain a quantity of material which upon later examination turned out to be prepared opium. A smaller quantity of prepared opium was found in a plastic phial in another pocket. The total quantity was 291.9 grammes, the subject of the first count in the indictment

3. A Chinese woman, Wong Siu-chun, was found within the premises. It was not in dispute that she was the tenant of a room which, throughout the trial, was referred to as Room 'A', within those premises. When that room was searched, the raiding party discovered a variety of containers underneath her bed. These contained opium in various forms amounting in all to 6,890.3 grammes, the bulk being raw opium of which there was about 4 kilos.

4. These are the drugs specified in the second count in the indictment under which Lai Kin-ming and Wong Siu-chun were jointly charged. They were both arrested and subsequently made admissions while in custody Upon trial they were convicted as charged but the 2nd defendant has not appealed against her conviction

5. The 1st defendant, the present applicant, applies for leave to appeal against his conviction only upon the second count. By the conclusion of the prosecution case, the evidence against the applicant upon that count consisted, apart from his undisputed presence in the flat on the afternoon of the 13th May, solely of admissions made by him to the arresting officer, C.O. Kwok in the course of interrogation at Customs and Excise headquarters in the late hours of the same day. These admissions amount to a full confession to ownership and possession of all the drugs found in. Room A.

6. From the outset of the investigation, however, and right up to a fairly late stage in the trial, the case was being presented to the jury upon the basis that the presumptions of possession and knowledge provided in s. 47 of the Dangerous Drugs Ordinance were operative in the case of the applicant by virtue of a bunch of keys found upon his person when he was searched by C.O. Kwok immediately after arrest. Initially the investigating officers appeared to have been satisfied that two out of that bunch of seven keys fitted the lock in the door to Room A. It was only in the course of the trial when the lock from that door was made the subject of a demonstration that it was discovered that the keys, although fitting the lock, did not activate it. Opening the case to the jury, Counsel for the Crown had specifically referred to these keys as though they had been established as keys to the door of that room. Apart from the evidence demonstrating that that was not the case, Counsel on both sides stressed the fact in concluding addresses. One of the seven keys found in the applicant's possession did, however, open a, grille at the ground floor entrance through No. 91, Dundas Street. It was not suggested by the Crown that this fact was sufficient on its own to raise the s.47 presumptions.

7. Both defendants gave evidence. The applicant is admittedly a long time opium addict with many minor convictions for possession and consumption of the drug. He told the court that he is a public light bus driver who also deals in real estate. He said that he would consume a large quantity - some 15 taels - of opium every month and that this would cost him about $9,000. He identified a certain Mr. Cheung as his supplier. He said that on the 12th May he had met Cheung who told him that he, Cheung, was going away for a while and that it would be advisable for the applicant to lay in larger quantity of opium than usual. The applicant bought $4,800 worth from him on the spot and was told by Cheung that he could collect this from "Fourth Aunt's" place the following day. Fourth Aunt was the second defendant. According to the applicant, she had worked for him as a household servant during two short periods while his wife was ill. He was aware that she was used by Mr. Cheung to store drugs for him, and he had in fact been to her premises on two occasions prior to the 12th of May.

8. On that date Cheung gave him a key to the entrance grille to the building, and said that Fourth Aunt would know what to give him. He went there in the afternoon of the 13th and because the 2nd defendant was then busy cooking, he sat for a while in the sitting room. She then went into Room A and took from it a parcel which she gave him. This contained the prepared opium for which he had paid but it was too big to fit into his pocket, so he split it into two portions, which were later found by the Customs Officers on his person.

9. He denied having had anything to do with another packet of prepared opium which was found by the investigating officers on the top of a refrigerator in the sitting room immediately after their entry thereto.

10. The 2nd defendant also identified Mr. Cheung as the person who had left these things in her possession. She said that she was paid various sums of money for the service. She denied all knowledge of the nature of the contents of the various parted parcels thus left in her possession.

11. Two principal objections are made by Mr. Sanguinetti for the applicant under a single general ground of appeal which is to the effect that the verdicts of the jury were unsafe and unsatisfactory. To take the shorter and more straightforward point first, it is said that the Judge's directions to the jury on the question of the effect of the presumptions applicable in the case generally were such as to leave the jury under the impression that the applicant was fixed with the onus of proving, on the balance of probability, that the count two drugs were not in his possession. It is common ground that by the conclusion of the prosecution's case, no such onus had in fact shifted to the defendant. If that objection has substance, it clearly is one of such a serious nature as to require the intervention of this court.

12. This was pre-eminently a case in which it was highly desirable that the Judge should have dealt with the cases of the 1st and 2nd defendants separately when he came to consider the effect of the particular presumptions which affected them. So far as the applicant was concerned, this meant only the presumption as to trafficking in s.46. On the first count there was no dispute as to the finding of the smaller quantity of drugs in his actual physical possession. But possession and knowledge were the vital issues to be decided in respect of the second count in his regard. On that count the only presumptive hurdle which he faced was likewise the presumption as to trafficking. On that count the onus of proving knowledge and possession beyond reasonable doubt rested squarely with the prosecution. By contrast, the operation of all three presumptions affected the case of the 2nd defendant.

13. At an early stage in the Summing-up the Judge had correctly advised the jury as to the normal onus and standard in a criminal case and he had further warned then to consider the cases of the 1st and 2nd defendants separately. Unfortunately he did not follow this advice himself when he came to deal with the vital question of evidential onus. Having read to them the relevant parts of s.46 and s.47 relating to the presumptions, he pointed out that in the case of the 2nd defendant, once they were satisfied that she was the sole occupant of Room A, then it would be for her to establish that the drugs found therein were not in her possession, or that they were not for the purpose of unlawful trafficking. Immediately thereafter the directions go as follows :-

"There is a presumption of trafficking against the 1st accused because he admits having in his possession more than 3.78 grams and there is a presumption, until the contrary is proved, that he had that for trafficking.

Now once you find the presumptions apply it is then for the accused to prove to you, on the balance of probabilities, that they did not know the nature or the existence of those drugs, or that they had them for trafficking, and how do they do that? The law does not put on them the same high degree of proof which rests on the Crown which has to prove the guilt of the accused to the extent that you are sure and this is a very important distinction. In the case of matters which the accused have to prove, they have to prove it on a balance of; probabilities and those words mean exactly what they say. If an accused in respect of these matters can tip the scale fractionally in his favour, then that is ufficient. He has discharged the onus of proof on him. If the scale remains tilted slightly against him; then he would not have discharged the burden of proof. But what is more important - if you find that the scale remains exactly even, it doesn't tilt one way or the other, then the accused would not have discharged the burden of proving even on the balance of probabilities that they did not know, they did not have, they did not possess - that she did not possess because we are only concerned with the 2nd accused on the second charge - she did not possess these things with guilty knowledge, and in respect of the 1st accused that he did not have them for the trafficking.

Now these illustrations of the scale may or may not help you, but what you have to remember essentially is that the onus of disproving the presumptions is upon the balance of probabilities. Is it more probable than not that they did not know the nature of the drugs, that they did not have them for trafficking? If what an accused says or what has been said on his behalf has managed to persuade you that it is more likely than not that she did not know the nature or existence of the drugs or that the 1st accused did not have them for trafficking, then that accused must be acquitted."

14. Mr. Mason-Parker for the Crown concedes that these passages are somewhat confusing and unhappily expressed, but he maintains that the Judge has in the earlier passages clearly differentiated the cases of the 1st and 2nd defendants and that the loose and erratic terminology of what followed is more manifest upon the printed page as a source of confusion than it would have been in the ears of the jury as delivered by the Judge.

15. We cannot agree. It must be remembered that the Judge was at this point addressing the jury against a background which included the allegation that they would have assistance from the presumptions as to possession and knowledge in respect of the applicant's case on the second count by virtue of his possession of certain keys. Although this was utlimately corrected in the course of the trial, the evidence on the matter which came between this allegation and its final retraction was itself of a somewhat confusing nature. C.O. Kwok was initially quite firmly of the view that the keys did operate the lock, although he later admitted that he was not sure of this. The demonstration in court, in the course of the evidence of another Customs Officer who had removed either the whole or part of the lock of the relevant lock, was not altogether easy to understand, although the general effect of it is that the two keys fitted the lock but did not actually operate it.

16. The Judge did not refer the jury specifically to this part of the evidence. He did not refer to the key which operated the entrance grille to the building which, although not relied upon by the prosecution for presumptive purposes, was clearly a link of an important kind between the applicant and the building. The prosecution had never resiled from its position that there was joint possession between the 1st and 2nd defendants of the bulk of the dangerous drugs and there was in that regard an unfortunate misdirection on fact (the subject of paragraph A(I) of the Grounds of Appeal) to the effect that when asked by Kwok whether he lived in the building, the Applicant remained silent. That was not so. The evidence shows that he replied at once that he did not live in the building, a short time after that he remained silent when he was asked what he was doing there

17. These are no doubt peripheral considerations but they are all contingent upon the important matter of the presumptions and it was in all the circumstances particularly desirable that the Judge should have warned the jury expressly that on the Crown's own case the presumptions of knowledge and of possession did not arise against the applicant.

18. There was no such direction, and the directions which have been recited above lumping together,as they did ,the two charges, the separate cases of the 1st and 2nd defendants, and the presumptive provisions generally, fall together in such a concentrated and confused sequence of admonitions, that they may well have left the jury with the wrong impression of how they should approach the case of the applicant on the second charge We think therefore that there were non-directions and misdirections which require us to interfere with the verdict

19. Mr. Mason-Parker asked us to say that even if we were to come to that conclusion, we would be justified, in applying the proviso since the, jury obviously accepted the record of the applicant's admissions as substantially true and since these include admissions both to possession and trafficking. Without that evidence, he says, the jury could not have convicted the applicant at all. On the other hand, he says, if they accepted that evidence as the truth, it mattered not what they thought about the presumptions or whether they understood what they had been told concerning them. That is an adroit and common-sensical submission and well in keeping with the general tenor of an able address. With some reluctance however we feel we cannot accede to it. Although what Mr. Mason-Parker says is very likely true, we cannot assume that the jury convicted solely upon the admissions. If, the connection between the applicant and the building, coupled With any misapprehension they may have held concerning the onus placed upon him by such connexion, played any part in their final decision then it would not be proper to apply the proviso (see Kwan Ping-bong v. The Queen [1979] A.C. 609).

20. Had this been the only point in the appeal, we would undoubtedly have ordered a re-trial But the second major point urged upon us by Mr. Sanguinetti would, if it succeeds, make any re-trial impossible because what is said is that the admissions by the applicant to C.O. Kwok - which unquestionably form the whole basis of the prosecution case against him - should not have been admitted in evidence at all. It is said that these admissions were the fruit of oppressive conduct and furthermore were taken in breach of an important common law principle. If we were compelled to say that the Judge had wrongly exercised his discretion in failing to exclude these admissions, what remains is of such a tenuous and doubtful character in relation to the second count offence that we do not think we would be justified in ordering a re-trial.

21. The admissions with which we are concerned are contained in the document which was produced in the court below and became Exhibit 2A. It was admitted in evidence after objection on the part of the defence and after the usual investigation upon a trial within the trial.': It consists of a brief preamble followed by 41 questions and answers-and it concludes with a kind of declaration signed by the applicant in which it is stated that the questions and answers have been read over to him in punti and that he has read through it and that it is correct Thereafter the following appears:

"According to the above inquiry statement. I Customs Officer 7911 Kwok Tze-yan have reason(s) to believe you Lai Kin-ming have contravened Hong Kong Dangerous Drugs Ordinance, i.e. possession of dangerous drugs for the purpose of unlawful trafficking, and you will be prosecuted. Now I caution you. You are not obliged to say anything unless you wish to do so, but whatever you say will be taken down in writing by me and given in evidence in futures Do you understand?

22. I understand. Lai Kin-ming 13-5-82 CO 7911 sgd.

23. 13-5-82

24. Do you Lai Kin-ming have anything to say?

25. Nothing to say. (sgd.) Lai Kin-ming 13-5-82

26. What is apparent at once is that this is not a "statement" at all in the ordinary sense in which that term is used in respect of alleged voluntary confessions made by accused persons after arrest. It is in fact a straightforward record of an interrogation preceded by a form of caution.

27. After his arrest, the applicant was in the custody of C.O. Kwok for some nine hours. After the drugs had been taken from Room A and displayed before him in the sitting room, he was taken to his own premises in Nathan Road where further investigations were carried out without much result. Eventually he was taken to Customs and Excise headquarters where Inspector Fong joined C.O. Kwok prior to the interrogation. This took place in Room 904B into which the applicant was taken by his escort some time shortly after 6 p.m. on the 13th May. According to the prosecution evidence, he was then given a drink of water and a meal which was shared by the two officers in his presence. The interrogation which began at 8:15 p.m. is prefaced by the following words:

"I am Customs Officer Kwok Tze-yan No. 7911 of Customs & Excise Service, currently attached to Investigation Bureau At about 1420 hrs. on 13 May 1982, (I) and a party of plainclothes Customs officials found out a batch of suspected dangerous drugs in Room 14, 91 Dundas Street, 5/F, Mongkok. Now I inquire of you Lai Kin-ming about the said cases Before inquiry, I remind you Lai Kin-ming thatyou are still under caution, i.e. You are not obliged to say anything or answer any of my questions, but whatever you say will be taker down by me in writing and may be giver in evidence in futures "Do you Lai Kinming understand all the above?"

28. After this appears the defendant's signature and the words "I understand" in his own writing. According to the prosecution, from then onwards until the conclusion of the whole process at 10 minutes to midnight, the three men remained in Room 904 apart from a brief interruption when the applicant, was taken from Room 904 to another room where the 2nd defendant was being similarly interrogated, apparently for purposes of identification. This occurred after the recording of the 39th question and answer According to C.O. Kwok, some 10 minutes later, at about 9:00 p.m., a return visit was made by the 2nd defendant and her escorts for the same purpose to Room 904.

29. When the issue as to voluntariness was joined, Counsel for the Applicant based his objection on three allegations. These were, firstly, that prior to making answers to questions, the applicant had been threatened with a beating; secondly, a couple of pellets of opium which, according to the applicant, had been found in a jacket in his home premises were placed upon the table near him and his co-operation had been expedited by the offer of permitting him to consume these, he then being in a condition of discomfort through withdrawal as a result of not having, had his usual ration of opium for the day; lastly, it was said that he had been assured that making or signing such a statement would not be, a matter of much importance.

30. As the voir dire progressed, however, it became evident that the applicant's contention was that the questions and answers in Exhibit P2A had been all recorded by C.O. Kwok in his presence in Room 904B, and that after this document was completed, it was presented to him and he was asked to sign his name after each individual answer which he did. This contention was maintained somewhat more clearly when the applicant was giving evidence on the general issue in connection with the, same matter. There is, as one would expect, a certain amount of hedging and circumlocution and misunderstanding in the cross-examination, but we cannot agree with Mr. Mason-Parker that there was any major discrepancy between these two sequences of evidence. In general, what the applicant was saying was that the substance, of the questions and answers from 1 - 18, together with 24 and 37, correctly reflected answers to questions which had been put to him earlier in-the, day's proceedings either at Dundas Street or the Nathan Road premises, or when he first arrived in Room 904B. The answers to the remaining questions which included all the incriminating answers, he said were fabrications on the part of C.O. Kwok. But all of the questions and answers, both those he acknowledged as correct and those which he repudiated entirely, had been written by Kwok while he sat by and waited, the whole being presented to him upon its conclusion for his several signatures..

31. All of this was denied by Inspector Fong and C. 0. Kwok who said that the answers had been made to questions put to the defendant in the course of the proceedings which they both clearly regarded as being the simple taking of a statement from the applicant, although even on their own version of the facts, it clearly was a form of interrogation. It must be added that the applicant did not deny that in the course of this peculiar procedure which he alleged, he was asked a few questions by C.O. Kwok, but the substance of his evidence is that this had little to do with the production of the document which was eventually presented to him for his signatures.

32. It will be readily apparent that there were therefore open to defence counsel two quite contradictory lines of attack upon the "statement". One was that it was in large measure a fabrication unconnected with questioning at the time of writing which the applicant was compelled to sign. The other was that it was the result of an improper interrogation which had nevertheless been recorded in the manner alleged by the prosecution witnesses. Perhaps it is because the evidence of the applicant on the voir dire did not make his position as clear as it later became when the matter was ventilated before the jury that defence counsel, addressing the court at the close of the voir dire, took the  line, primarily that there had been an improper interrogation. His principal objection therefore was that although Inspector C.O, Kwok had said that he had invited the applicant to make a statement, the applicant had not been allowed to make a statement but had instead been interrogated. This, Counsel said, was a breach of the former "Judge's rules" which, although they cannot be said to "apply" in Hong Kong, have nevertheless been honoured in these courts insofar as they are useful for preserving the integrity of the principle that a confessional statement must be shown to be voluntary before it becomes admissible in evidence.

33. Mr. Mullick, Defence Counsel in the court below, had in mind Rule 3 of the old "Judge's Rules" and he referred to the fact that it has long been settled (indeed as long ago as 1930 when the Home Office issued a circular on the matter) that Rule 3 was never intended to encourage or authorize the questioning or cross-examination of a person in custody after he has been cautioned on the subject of a crime for which he is in custody.

34. More importantly, though less prominently, Counsel relied also upon the common law principle which is one of the several basic principles lying behind the English Judge's Rules both in their original and in their newer (1964) formulation. This is the principle that: "When a police officer who is making enquiries of any person about an offence, has enough evidence to prefer a charge against that person for the offence, he should, without delay, cause that person to be charged or informed that he may be prosecuted for the offence.'' He did not argue oppression as a separate category of objection to be considered by the Judge.

35. No doubt it was because the argument had been dealt with in this way that the Judge in his ruling concentrated principally upon the allegation that there was a breach of the "Judge's Rules". He had not been addressed upon the allegation of pure fabrication nor upon the subject of oppressions He found that he was ''not persuaded that the statement was in breach of the "Judge's Rules"" and he said that, even if he had been, he would not have exercised his discretion to exclude it. He evidently dismissed the allegation that there had been a threat of beating, or inducement by offer of opium. He was quite entitled to take that view and we see no reason to question it. He was however wrong to say that there had not been a breach of Rule 3 of the Judge's Rules. Nevertheless, it is now trite law that such a breach would not on its own be sufficient to invalidate the admission of the "statement".

36. We are now, however, asked to look at the whole matter afresh in the light of three distinct allegations: a) that the "'statement" was a pure fabrication on the part of C.O. Kwok; b) alternatively, that the circumstances under which the "statement" was taken amounted to oppression, sufficient on its own to have rendered the admissions made by the applicant involuntary; c) that the breach of the common law principle either of itself or taken together with other elements indicating oppression should have ruled the "statement" out. It may be said that the features to which Counsel has drawn our attention as indicating pre-fabrication of the "statement" are enlisted also in support of the suggestion that there was oppression generally, even assuming that the interview was conducted as the Customs Officers alleged. The third, and more generalised, objection sub-tends the others.

37. In support of these objections, it is said, firstly; that some of the contents of the "statement" are contradicted by the evidence. Mr. Sanguinetti points out that in answer 39 the applicant explained the presence of a packet of prepared opium on top of the refrigerator which stood a few feet inside the doorway of the flat by saying that upon perceiving the Customs officers, he had tossed it backwards into the room where it had come to rest neatly in that positions. None of the surveillance party were able to say that they had observed any such movement or even that he had been holding anything in his hand.

38. Then Counsel points to various answers in which - echoing the tenor of the questions related to them - the applicant' is said to have referred to the drugs found in Room A as "opium paste" (i.e. prepared opium) whereas, subsequent expert examination showed that the' bulk of the drugs found:in that room were raw opium. It is said that the applicant, a long time opium addict, would not have been likely to confuse these two substances and would therefore not have confused the drugs displayed before him in the sitting room with prepared opium. It is said that C.O. Kwok was aware that what he had seized from the person of the applicant was in fact prepared opium and that in recording the "statement", he simply assumed that the remainder of the drugs were of the same character.

39. To this Counsel adds the criticism that a number of the answers contained formulistic phrases of the kind more familiar upon the lips of officers of the disciplined services than could be expected from the mouth of an ordinary layman.

40. Taking these objections in turn we note that the officers concerned did not say that there had been no movement by the applicant immediately before his arrest, but merely that they had not seen any such thing. As for the use of the term opium paste, this point was not pursued in the court below and we have before us no evidence to show that there is a distinctive difference between the two forms of opium which could be readily apparent upon a scrutiny such as was afforded to the applicant when the drugs were displayed in the sitting room. The use of phrases in some of the answers such as, for example, body search by your Customs Officials in the sitting room of flat 14" (Question and Answer 10); and "I bought from a male ... in the morning yesterday, i.e. 12th of May 1982" do lend some colour to the idea that the answers were at least not the ipsissima verba of the applicant himself.

41. A very much more formidable objection from this angle of attack is given by some remarkable answers by C.O. Kwok as to the timing of the whole episode involved in the taking of this "statement". What makes these answers more remarkable still is that they emerged only in re-examination when Counsel for the Crown was endeavouring to tidy up what he regarded as a very small point. In answer to him and-subsequently to the court - C.O. Kwok made it perfectly clear that he was saying that although the interview had lasted for something over 3½ hours, the recording of the questions 1 - 40 followed by the signature appended to each by the applicant had ended at about 9:05 p. m., i.e., 40 minutes after the commencement of the interview. When he was asked what had happened during the remaining 2¾ hours, he said that that period had been occupied by his reading back the whole statement to the defendant, followed by the defendant reading it himself and signing at the end - a palpable absurdity as Mr. Mason-Parker concedes.

42. While all of this may not amount to any very cogent evidence of prefabrication after the manner described oreword by the applicant, it did undoubtedly lend strong support to the suggestion of irregular and oppressive conduct, suggesting as it did, the possibility that the 40 minutes' period to which the witness ascribed the whole process might have been occupied by cross-examination producing the answers which were subsequently recorded in the form in which they now appear in Exhibit 2A. And, in any event, it supports the contention that we cannot be sure that C.O. Kwok has given a trustworthy account of how the :document was produced. Had this suggestion of pre-fabrication and/or oppression been: more clearly drawn to the Judge's attention prior to his ruling on the statements, it might have been that he would have been moved at that stage to reconsider the whole question. It is clear, at all events, that he was not invited to do so. That notwithstanding, we are entitled now to consider whether the statement should in all the circumstances have been excluded. We cannot, however, find in the evidence sufficient to support the charge of fabrication. The other objections remain.

43. It is clear that from the outset of the interview in Room 904B, the purpose of C.O. Kwok was to obtain by a process of question and answer from the lips of the applicant himself, confirmation of the abundant evidence he already had in his possession associating him with the drugs found within the premises. Indeed C.O. Kook himself virtually admitted as much in cross-examination. He contended however that he had invited the applicant to make a statement and that the applicant, had said that he was willing to do so and that he wished the Customs Officer to record it for him. He agreed that he had never recorded this and he gave unsatisfactory answers as to why that was so. The form of the preamble in Exhibit P2A is itself revealing.

"I am Customs Officer Kwok Tze-yan No. 7911 of Customs & Excise Service, currently attached to Investigation Bureau. At about 1420 hrs. on 13 May 1982, (1) and a party of plainclothes Customs officials found out a batch of suspected dangerous drugs in Room 14, 91 Dundas Street, 5/F, Mongkok. Now I inquire of you Jai Kin-wing about the said case. Before inquiry, I remind you Lai Kin-ming that you are still under caution, i.e. "You are not obliged to say anything or answer any of my questions, but whatever you say will-be taken down by me in writing and may be given in evidence in future."

44. This stands in significant contrast to the passage - cited earlier - with which the document concludes. Clearly an inquisition is intended. No warning of prosecution. In addition we note that whereas in the voir dire C.O. Kwok said that he had asked the applicant, prior to recording the preamble, whether the applicant wished him to record his answers, on the general issue he said that this, had been paid after the preamble was recorded. A small point but one touching credibility and tending also to show, if the latter answer is correct, that the form which the interrogation would take had already been decided before the applicant was asked whether he wished it to be recorded in that way.

45. The applicant had, at that time, been some nine hours in the custody of C.O. Kwok. He had by then neither been charged with any offence nor informed that-he was to be prosecuted for any offence. Yet it is plain, even from some C.O Kwok's own answers in crossexamination, that he was aware that he had good evidence upon which the applicant could have been charged. At that stage it had not yet been established that the keys found in his possession did not include keys capable of opening the drawer of Room A. He was also in possession of a key to the entrance grille to the building. He had been within the flat and was seen emerging from it -with a quantity of opium in his possession. The concluding passage in Exhibit 2A, the applicant having by then, made a full confession, consists of a caution in the proper form appended to a warning that the applicant is to be prosecuted for unlawful trafficking. His silence thereafter is clearly not significant of an exercise of his right to avoid self-incrimination.

46. In R v. Holmes, ex parte Sherman & another [1981] 2 All E.R. 612, the court was considering an application for habeas corpus made on behalf of certain persons who had been held in custody by the police for two days without being charged or told that they would be prosecuted in respect of burglary offences, although there was evidence sufficient to permit that to be done. The purpose of so holding them was to afford to other police officers, investigating a large number of other burglaries, an opportunity of making enquiries from the suspects. This incurred the trenchant criticism of Donaldson, L.J. who referred to it as a complete disregard for that fundamental principle of the common law which has been set out earlier in this judgment. He went on to say (at p.615):

"The law at present is that, as soon as there is enough evidence to prefer a charge, the arrested person must without delay be charged or informed that he may be prosecuted for the offence. The principle is subject to no qualification and no qualification should be introduced by, for example, setting an unduly high standard of 'sufficient evidence'. The criticism that an officer refrained from charging and retained the man in custody is incomparably more serious than that he charged the man on insufficient evidence."

47. In R v. Hudson (1981) 72 Cr. App. Rep. 163, the Court of Appeal (Criminal Division) identified the failure to warn or to charge under such circumstances as an element of oppressive conduct which, coupled with the fact that, in that case, the arrest was considered to have been unlawful from the outset, moved the court to quash the conviction of the appellant.

48. In the present case it is clear that the applicant knew why he was being arrested, but he did not know, and he was not informed, that he was going to be charged with an offence in relation to the drugs found in Room A, although, as has been said, there was, on the face of it as matters stood immediately after his arrest, abundant evidence which would have supported that course being taken. In Hudson's case, the court considered the meaning of the words "without delay" embodied in the common law principle which we are now considering, and at p.168, Waller, L.J. says:

"As we have already said it is difficult to say that there was not sufficient evidence to charge him and it is clear that once the officer had enough evidence to prefer a charge, he must without delay proceed in accordance with the rule and that means before asking any further questions". (Emphasis supplied).

49. Mr. Mason-Parker suggests that such a rule would be greatly damaging to the investigative process in drug offence cases where special presumptions operate to transform a modicum of evidence into a sufficiency: With respect, the intention and the effect of the rule is not to call a halt to the process of investigation but only to inhibit the manufacture as distinct from the uncovering of evidence. Nor does it seem unfair that where the hand of the prosecution has been so formidably strengthened at tr 1 there should at least be no relaxation of protective principle covering pre trial custody.

50. It is said that in the event since C.O. Kwok was mistaken about the keys he had not yet, in fact, a conclusive, case against the applicant. What this court is concerned with, however, is the propriety or otherwise of what was done in the light of ,what the arresting officer believed to be the position when his, interrogation of the applicant commenced. Furthermore even on the basis that the evidence in fact lacked the fortification of presumed knowledge, the position at the outset of the interrogation, that was clearly no longer the case after the 18th question and answer when despite a sudden and clear admission of guilt questioning continued without warning or caution. .

51. In Mok Kwok-sui v. The Queen, Crim. App. 702 of 1978, this court deprecated the practice of seeking to introduce in evidence statements which take the form of questions and answers. At page 5 of the judgment, the following appears:

"A person who has been charged or who the interrogating officer has decided to charge should not normally be asked questions even after caution, although there may be special circumstances which would justify a judge in admitting in evidence a statement which consisted of answers to questions, provided that they were not leading questions, that is to say, questions which suggested the answers. Williams (1978) 67 Cr. App. R. 10 is an example of a case where special circumstances existed and where a statement consisting of answers to questions was admitted in evidence. A person who has been arrested on suspicion should not, save in such special circumstances, be further questioned once the interrogating officer has made up his mind to charge the suspect. These observations should not, of course, be taken as inhibiting the asking of questions to clear up ambiguities in a statement previously made."

52. We do not resile from what was said by the learned Chief Justice in Lo Shun-wa v.The Queen (Crim. App. 538 of 1979) a decision relied upon by this court in Cheng Ho-shing(Crim. App. 356 of 1981). What those cases establish is that the mere asking of questions of a man in custody is not by itself sufficient to make his answers inadmissible, provided they are not given under circumstances of such a nature as to sap the will and make the subject talk. Silke, J. A. in the latter case said:

"The asking of questions is permissible provided that the interrogation is not such as would amount to pressure of such a nature as to sap the will and provided that the questions asked do not amount to a cross-examination in the nature of oppression or contain a gross impropriety"

53. Those cases, and others cited in them, were concerned principally with the asking of questions in the course of the making of a statement which had been allegedly volunteered. But in the present case the entire procedure involved an impropriety of an oppressive character. It fell foul not only of the principle to which we have referred, but also of the general principle that a man is not to be induced to condemn himself out of his own mouth. Effectively this is what the applicant was being asked to do in the course of interrogation at the end of a long day in custody and patently for the purpose of confirming what must have been regarded as conclusive evidence in the case against him. In the upshot we think that had these matters been considered at the trial, the statement ought to have been excluded, if only in the exercise by the Judge of his residual discretion upon the ground of unfairness. The application is granted, the appeal allowed, the conviction is quashed and the sentence set aside.

Representation:

A.J.J. Sanquinetti and Thomas Iu(James C.M. Tsang & Co.) for Applicant.

MasonParker for Respondent/Crown.