The Queen v. Choi Chung Hing and 45 Others
Read the full judgment text of CACC 383/1983 on BabelCite. This Court of Appeal judgment.
1. The appellants in this case were charged before the magistrate with a variety of different charges in relation to a gambling establishment. The 1st appellant was charged that he did assist in the management of a gambling establishment; the 2nd, 3rd and 4th appellants were charged in that they did assist in the operation of a gambling establishment; and the remaining appellants were charged that they did gamble in a gambling establishment.
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CACC000383/1983 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CRIMINAL APPEAL NO. 383 OF 1983 ________________ BETWEEN
Coram: N.B. Hooper, J. Date: 22nd. June, 1983. ___________ JUDGMENT ___________ 1. The appellants in this case were charged before the magistrate with a variety of different charges in relation to a gambling establishment. The 1st appellant was charged that he did assist in the management of a gambling establishment; the 2nd, 3rd and 4th appellants were charged in that they did assist in the operation of a gambling establishment; and the remaining appellants were charged that they did gamble in a gambling establishment. 2. The appellants all appeal against their convictions. A number of grounds for setting aside their various convictions have been urged upon me but one ground which is common to all of them is that the convictions were unsafe and unsatisfactory in the circumstances and that there was insufficient evidence. 3. Mr. Yim who appears for the majority of the appellants beofre me and who also represented all the defendants at the trial bases his contention to a very large extent on procedural errors in the magistrates court. It is his contention that although a number of exhibits were admitted into evidence by consent, they were not admitted under Section 65B or 65C of the Criminal Procedure Ordinance. He points out that Section 65C has not been mentioned at all on the court record and that although Section 65B was mentioned, many of the statements did not include a declaration that the contents were true to the best of the witness'es knowledge or belief which was an essential pre-requisite for their admission. Further they were not read out in court. He cannot himself now remember precisely what was said at the time and feels that he is obliged to adopt the notes of the magistrate as that is the only record available to the court. Mr Cahill who appears for the Crown and who did so in the court below also cannot remember precisely what was said although it is his recollection that all statements went in under Section 65B. 4. Counsel for the other appellants base their submissions in part on the lack of proper evidence in the magistrate's court. 5. I shall now examine the evidence as it appears on the magistrate's record in relation to the charges as laid. All charges relate to the 7th September, 1982 when the police carried out a raid on the premises in question. 6. In seeking to prove the Crown case against the various appellants in the court below it would appear from the record that the Crown relied on four types of evidence:
7. The only oral evidence called by the Crown which related to the 7th September (the date of the charge) came from Woman Inspector Ong Peck (PW3) when she was recalled to give evidence after a voire dire had been determined. She had earlier produced a written statement Exhibit P.16 which referred in part to the 7th September. I will come back to that. Her oral evidence was very short and I set it out in full -
8. It is clear from this evidence and the admissions she made in cross-examination that she just looked into one room (the number of which she couldn't remember) and that the majority of her evidence was hearsay. Clearly hearsay evidence should not have been admitted to prove the truth of the assertions made therein. Furthermore it is impossible to separate that part of her evidence which was hearsay from that part which was not. 9. Next I come to the statements which purport to have been admitted under Section 65B of the Criminal Procedure Ordinance. In fact there were only two which dealt with the events on the 7th September when the raid occurred. One was the statement of P.C.2936 (the exhibit officer) at page p.66 of the appeal papers where there appears the following record of the magistrate's notes -
10. Looking at the record, the only possible explanation for the reception of this evidence is that it was supposedly put in under Section 65B. There was no suggestion in this case that it was tendered as incorporating admitted facts under Section 65C. As Mr. Yim points out, throughout the entire record of the magistrate's notes, there is no mention of Section 65C although special reference has been made to Section 65B. 11. At the commencement of the record of the trial there appears a note at page 62 of the appeal papers- 12. "Prosecution - C.P. 65B - I'll tender statement." 13. I think that note coupled with the note on page 66 is sufficient to indicate that the statement of P.C.2936 Exhibit P19 was put in evidence supposedly under the provisions of Section 65B of the Criminal Procedure Ordinance. However there are strict conditions laid down by Sub-section (2) of that Section, one of which is that the statement contains a declaration by that person to the effect that it is "true to the best of his knowledge and belief". That is no technicality or formality. The facts must be true to the best of his knowledge and belief. The words are not "knowledge, information and belief." 14. No such declaration appears on the statement of this constable 2936 Exhibit P19. It is quite clear therefore that that statement was not admissible in evidence and should not have been considered by the magistrate when he was reaching his decision even if it was put in with the consent of the defence. 15. So far as the written statement Exhibit P16 of Woman Inspector Ong is concerned, although that was produced as an exhibit by the inspector herself and marked as an exhibit, it would appear to me that it was intended and understood by everybody that it was being tendered under Section 65B. If not, the production of a self serving statement of this sort would not have been admissible. 16. Section 65B(1) provides:-
17. Clearly when a written statement is tendered under this section it should not contain hearsay. It is, however, clear from her evidence under cross-examination that a number of assertions in Inspector Ong's statement were hearsay and that it would be difficult to distinguish that which was not from that which was. 18. As will be seen from portions of the record which I will set out later a number of other written statements made by police officers were admitted into evidence by consent presumably under Section 65B. None of them however refer to the day of the police raid, but to the day immediately preceding that day. Not one of them bore the required declaration and should not have been considered by the magistrate. 19. No distinction appears to have been made between the procedure for their acceptance by consent into evidence and the acceptance, by consent of other types of evidence. At page 62 of the record appears the following notation - "Prosecution and Defence Counsel:
This was followed a few lines later by the recording that the cautioned statements of D1, D2, D3, D4 and D5 had been marked as Exhibits P1, P2, P3, P4 and P5 respectively. On page 64 of the record appears the following notation -
20. Then there followed the recording of oral evidence and at page 65 appears the notation -
21. Immediately following the acceptance of the photographs in evidence there appears on the record a number of entries which purport to be descriptive of the contents of the photographs -
22. There then appears a notation which I have already mentioned concerning the tendering of statement by consent of P.C.2936 . 23. Then the record continues -
24. Finally at the conclusion of the defence case appears one further notation on page 80 of the record -
25. These passages comprise the second type of evidence, namely statements under Section 65B, the third type of evidence, namely exhibits admitted by consent and the fourth type of evidence, namely matters which were agreed. 26. Now it seems to me that as this was a criminal trial the above evidence could only have been admitted by consent in three sorts of situation:-
27. Any fact which it would be necessary for the Crown to establish in order to make an exhibit admissible in criminal proceedings may be admitted under Section 65C provided it is a fact of which oral evidence may be given, 28. Mr. Yim who appeared in the lower court informed me that Section 65C was not mentioned and it is his contention that no admissions were ever made by him under this section. I find that very hard to accept but if that be so one may well wonder how the various entries in the court record came to be made and what they were supposed to represent. 29. So far as the gambling authority Exhibit P17 is concerned it would appear that it was receivable in evidence under Section 65B(6) since it was positively identified by serial number in the statement Exhibit P16 of Woman Inspector Ong (PW3). 30. So far as the photographs Exhibit P18 are concerned, no statement of a photographer was admitted under Section 65B. Neither was any admission made under Section 65C to the effect that these photographs were taken on the 7th September at the time of the police raid or that they accurately depicted the scenes portrayed at any particular time. 31. So far as the description of the photographs are concerned, even if I were to take them as admissions under Section 65C, not one of these statements was stated to specifically refer to the time of the police raid on the 7th September 1982. Counsel for the appellants now rely on this point. 32. So far as exhibits P21 to P27 are concerned the exhibit officer's statement Exhibit P19 should not have been admitted into evidence under Section 65B because it did not comply with the provisions of sub-section (2). That being so he being the exhibit officer if these exhibits were supposed to be things identified in his statement they were not properly before the court. 33. I have considered whether the statement Exhibit P16 of Woman Inspector Ong could justify their admission. The relevant paragraphs of her statement are paragraphs 6, 7 and 8. She said -
34. It can be seen that the inspector referred to an exhibits list in paragraph 8 of her statement, but that does not appear to have been exhibited in evidence in the magistrate's court. Even if the descriptions of these exhibits as they appear on the record could be regarded as having been made under Section 65C, they were not helpful where they referred to a list which was not before the court. Furthermore as I have said earlier the statement of Inspector Ong was unsatisfactory because it appeared from her evidence that it contained hearsay and that it is difficult to separate hearsay from non-hearsay. 35. This was a criminal trial and the burden was on the prosecution to prove properly every fact upon which it relied. 36. It is essential that when a statement or any other kind of evidence is tendered to the court as an exhibit the court should ensure that it is properly admissible in evidence. It cannot simply be presented by consent. Facts must be established which ground its proper admission into evidence. 37. Whichever way the descriptions to the photographs are to be regarded, they are not without inconsistency. At page 66 of the appeal record in relation to photograph X appears the description "P.O. holds '302' rest are defendants". It has been suggested to me that P.O means police officer. The photograph in question actually depicts one person standing up holding a card with "302" on it and 5 other persons. So it would follow from this that the other 5 persons are defendants. However the description of the persons in photograph X appearing on page 75 of the record only refers to four defendants "D42 to D45". 38. In my view the photographs were of no assistance to the prosecution in this case because they were not properly admitted into evidence and there was no admission under Section 65C that they were taken on the day of the police raid and represented the positions of persons when the police raid took place. 39. The remaining agreed statements appearing at the end of the prosecution case refer to exhibits in a list. I find these agreed statements very difficult to understand and there appears to be no list of exhibits on the file to which they refer. 40. The evidence before the magistrate at the time he came to make his decision was far from satisfactory. The only evidence specifically referring to the 7th September came from Inspector Ong. The only person she referred to by name was a person by the same name as the 1st appellant. So far as the other appellants are concerned, in the absence of any other evidence to show that they were present at the time of the police raid, the prosecution case against them was not proved. 41. There was no other evidence to show that appellants 5 to 45 were present in the premises at this time and I therefore set aside their convictions in respect of gambling in a gambling establishment. 42. So far as the 2nd, 3rd and 4th appellants are concerned, there were the cautioned statements made by each of them which were admitted by consent. (See page 62 of the record.) Again I am faced with a difficulty because of this phrase "admitted by consent". Such a document cannot be put in by consent in a criminal case without more. 43. Exhibit P2 purports to be the cautioned statement of the 2nd appellant. It purports to have been taken by Police Constable 19205 Tsang Kwong Biu (see page 151 of the record). However this police constable was not called to give oral evidence to produce the statement in evidence neither was his statement admitted under Section 65B. Furthermore no admission appears on the face of the record that this statement was taken from the 2nd appellant on the 7th September at the premises in question nor that the contents represented any admitted facts. There being no proper evidence to ground the admission of this statement, it should not have been considered by the magistrate, even though it was put in by consent. 44. The position is precisely the same in respect of the 3rd and 4th appellants. 45. For these reasons I set aside the convictions of the 2nd, 3rd and 4th appellants. 46. I turn now to the case of the 1st appellant. 47. For the same reasons the cautioned statement of the 1st appellant should not have been admitted into evidence. 48. Only one of the Crown witnesses in this case identified the 1st appellant. That was P.C.20624 WOO Wui-ki (PW1) who gave evidence about attending the premises in question on the 6th September, 1982. He produced his written statement Exhibit P6. That statement which is set out at page 168 of the record describes events which occurred on the 6th September, 1982 at these premises. At no stage in his evidence does he purport to describe events on the 7th September. Again his statement Exhibit P6 should not have been admitted into evidence under Section 65B because it did not contain a declaration that the contents of the statement were true "to the best of his knowledge and belief". That being so the only admissible evidence before the court from this particular witness was his oral evidence. In relation to his visit to the premises on the 6th September he said from the witness box. and I quote -
49. That evidence without the statement being properly admitted was of no assistance to the Crown. 50. Woman Inspector Ong (PW3) did not identify the 1st appellant as being the person to whom she referred in her statement Exhibit P16 as CHOI Chung-hing. Indeed under cross-examination she denied identifying the 1st appellant to P.C.20624 (PW1). In any event her evidence was unsatisfactory for the reasons I have mentioned. 51. Even though Mr. Sanguinetti who represents the 1st appellant does not take the identification point in respect of the 1st appellant, the remaining evidence was far from satisfactory and it is contended that, no admissions were made under Section 65C and no reference to that section appears on the record. 52. I set aside the convictions of all the appellants in this case on the ground that their convictions were unsatisfactory in all the circumstances of the case. I do not think that the sort of looseness of expression which appeared on the record in this case would necessarily in all cases be fatal, though it is desirable that where the parties agree on the admission of evidence, the exact terms of their agreement should be recorded showing that the evidence is properly before the court. However in this case the irregularities were extensive and were specifically made a ground of attack in this appeal by the same Counsel who appeared in both courts. In view of the fact that both the Crown and the magistrate appear to have been substantially misled by the way in which the Counsel for the defence conducted the defence at the trial and the extent of his concessions at that trial I consider that this is a proper case to order a retrial de novo before another magistrate.
Representation: Mr. A.J.J. Sanguinetti (Francis Yim & Co.) for Al - A4. Mr. Brian van Buuren (P.T. Yeung & Co.) for A6 - A9. Mr. Francis Yim (C.T. Chan & Co.) for A5 and A10 - A46. Mr. Cahill, Crown Counsel, for Crown/Respondent, P.S. After hearing legal argument I ordered a retrial in respect of 1st Appellant alone. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||