Lung Wing-kei v. The Queen

CACC000386/1980

Coram: Roberts, C.J.

Date of Judgment: 12 June 1980

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JUDGMENT

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Roberts, C.J.:

1. The appellant, LUNG Wing-kei, was convicted of professing to be an office bearer in a triad society, contrary to section 19 of the Societies Ordinance.

2. The evidence against him consisted entirely of two confessions, one verbal and one written.

3. A police party comprising four officers took part in a fairly large scale police raid involving four squads on premises in Pei Ho Street, Kowloon. The only squad with which we are concerned consisted of Inspector Ireland and Detective Constables 12673, 9611 and 12927.

4. D.C. 12673 testified that he approached the defendant and asked him what he was doing there. He says that he cautioned him and said "I now caution you, suspecting you of being a '432' 'grass sandal' of 14K", and that the defendant said that he was a "432 grass sandal of 14K". D.C. 12673 added that he then took out his notebook and sought to produce it in evidence.

5. In D.C. 12673's notebook was recorded a statement, the bulk of it in his handwriting, though it was signed by the defendant who also, according to him, wrote "some of the characters in it". This statement contains an admission by the defendant that he was an office bearer in the 14K triad society.

6. The admissibility of the statement recorded in the notebook was challenged at the trial. The solicitor appearing for the defendant gave notice, when the constable sought to produce the notebook, that he objected to its introduction on the grounds that there had been threats by another member of the police party.

7. The police party consisted, as I have said, of Inspector Ireland and three constables. D.C.12673 asserted that the defendant was never threatened by any of the police party. He said that D.C.9611 was with him all the time and that D.C.12927 did not see the defendant until after the statement was taken. D.C. 9611 was tendered for cross-examination and not cross-examined; it is therefore reasonable to infer that the defendant had no complaint about the conduct of D.C. 9611.

8. When the defendant gave evidence on the voir dire, as he elected to do, he testified that he was threatened, by the police officer who first approached him, that he would be charged with a more serious offence, namely that of possession of a weapon, if he did not admit the charge. He said that this officer was not P.W.1 (D.C.12673) nor D.C. 9611. This must mean that if he was a member of the police party it must have been D.C. 12927.

9. Thus, the officer against whom allegations of threats were made by the defendant was sufficiently identified, though I quite understand how in the bustle and confusion of the trial this may not have become immediately apparent to the Crown. Nevertheless, the Crown did not call this officer to rebut allegations of improper pressure which had been levied against him. What is the effect of this failure?

10. It is established beyond argument that the general principle is that it is for the Crown to prove the voluntary nature of the statement before it may be properly admitted in evidence.

11. Where the defence puts forward allegations of improper conduct on the part of a police officer who has been sufficiently identified, it is for the Crown to establish, by calling this officer (or another officer where appropriate) that the allegations are unjustified and that the statements were of a voluntary nature.

12. It is not entirely clear from the record as to when the threat, if there was one, was delivered. According to the defendant, it came from the man who first approached him. I think it reasonable to infer that, if it did, it was delivered at an early stage, before the verbal confession, as well as before the written one. Consequently, if it was made, it would have vitiated both the verbal and the written confessions, neither of which would have properly been admissible in evidence.

13. I do not find that such threats were made. It may well be that they were not. But I am not satisfied that the Crown established the voluntary nature of either statement and I think they should both have been excluded. If they had been excluded, there was no evidence left which would justify the conviction of the defendant and I therefore quash it.

Representation:

Cheng Huan (Kwong & Lam) for appellant

Miss Ida Cheung for crown