HKSAR v. Wu Man Ming

HCMA000833/1999

HCMA833/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.833 OF 1999

(ON APPEAL FROM ESCC 1651 OF 1999)

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Coram: Hon Gall J in Court

Dates of Hearing: 22 and 27 March 2000

Date of Judgment: 27 March 2000

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J U D G M E N T

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1. The appellant was convicted on 22 July 1999 of dealing with property known or believed to represent proceeds of an indictable offence, contrary to section 25(1) of the Organized and Serious Crimes Ordinance, and secondly, dealing with property known or believed to represent proceeds of an indictable offence, contrary to the same Ordinance.

2. In respect of the first charge, he was sentenced to six months' imprisonment, suspended for two years and a fine of $30,000. In respect of the second charge, three months' imprisonment, to run concurrently with the first charge, suspended for two years and a fine of $20,000. He was ordered to pay $15,000 by way of costs. Against this conviction, he has appealed.

3. The grounds of appeal fall into two parts. Firstly, it is argued by Mr Yu that the magistrate wrongly admitted into evidence statements made by the appellant by way of video interview when he had been threatened by a police officer, and when the prosecution had not called evidence to directly prove that the threats made by that police officer did not take place. The second ground of appeal is that the transcription of the video interview was not certified by a person appointed by the Chief Justice and thereby the transcript was inadmissible.

4. As to the first ground of appeal, in his grounds of objection and later in his evidence, the appellant alleged that in the police station, while he was waiting for the video interview, and as it transpired at the time between 9 a.m. and 9:23 a.m. on 6 June 1998, he said that he had been approached by a big-built police officer in his mid-30s, described as being 5'10", wearing a white T-shirt and jeans. The evidence of PW1, who was officer escorting the appellant, was that he was present with the appellant prior to the interview in the room described in the Organized Crimes and Triad Bureau as the "big room" - the big room is familiar to those who practise within the criminal jurisdictions of these courts as the room allocated to a team for its use as an office. In that room, PW1 testified that he was together with the appellant from the time he was brought to the room until the time that he went for his interview at some point prior to 9:23 a.m. and that he was only absent from that room on one or two occasions for a brief period of time within two or three minutes.

5. A second officer gave evidence saying that he was in the room until 9:00 a.m. Both officers testified that during the time they were there, no one approached the appellant.

6. There was no informal identification parade of the officers involved. None was suggested by either party. The magistrate was placed in the position of having the whole of the period covered except for at the most two period of time of perhaps up to two or three minutes each.

7. Mr Yu complains that an officer was not put in the witness box to testify as to the whereabouts of each member of the team of police whom had arrested the appellant.

8. The magistrate was well aware of this situation. He said at paragraph 10 of his findings :-

"10. So far as the special issue was concerned, I had to determine whether the prosecution had proved that the answers allegedly given in the house and those given at the police station were voluntary. If any part of the appellant's allegation were true, the answers would have to be excluded. And if the appellant may have been tired and hungry when interviewed, it would be necessary to consider the use of my discretion to exclude the answers.

11. I repeat the reasons given in the court for my finding that PW1 was a witness of truth and for rejecting the appellant's evidence. There was no lacuna left in the prosecution case by their failure to call any other officers to deal with the allegations of an inducement/threat being made at the police station. The best that the appellant could offer by way of a description was a man in his mid thirties of a certain estimated height, modified to a bald man by the appellant in his evidence. ..."

I pause here to say that the reference to "bald man" was clearly a mistake on the part of the learned magistrate - the witness having modified his description to a "big-build man". The word "build" obviously being mistaken for the word "bald". I would note that this was not the only occasion in the course of the trial where some confusion arose over the English words used. But to continue with the quotation :-

" ... Such a description was too vague to oblige the prosecution to assemble a large group of police officers to give evidence. They called PW2 who was in the room for most of the material time and his evidence that there was no such approach whilst he was there was not challenged. I was in no doubt that had the appellant been threatened in such a way by a stranger coming into the room, he would have referred to it in the interview with PW1 which followed immediately afterwards. I was sure from PW1's evidence, consistent as it was with the search warrant (Exh 6) that the appellant's wife had not been a target of the investigation and that there was never any intention or suggestion that she should be arrested.

12. It was plain beyond any doubt from what I saw of the appellant's behaviour in the video that he was not, as he claimed, frightened; neither was he disorientated or confused by tiredness or hunger. He was relaxed, animated and self possessed. His fluent and unambiguous account of the various deposits and withdrawals into his accounts was completely inconsistent with his claim that he was a man frightened by threats or inducements. The answers he gave at the house were written by him into the officer's notebook and adopted by him in the interview. It was inconceivable that he would have been forced to do so whilst in the house with his wife or that he would have been given the opportunity to speak to her in private after the threats had been made. I was sure that the appellant was not hungry and that he had been asked if he wanted breakfast. PW1 was balanced enough to concede that the appellant looked as though he had just woken up when the police arrived; but he must have quickly shed his sleepiness when he realised he was being arrested. There was no basis for me to use any discretion to exclude the answers given by the appellant and accordingly I admitted them into evidence."

9. The magistrate's approach was one which was perfectly proper. He dealt with all the allegations made by the appellant in the light of the appellant's manner and the way in which he delivered his answers in the interview, together with the nature of the description of the man who was said to have threatened him before that interview. It is only the issue concerning that man which gives rise to this ground of appeal. There is no complaint by the appellant on any of the other findings of the magistrate concerning the events leading up to that interview nor its nature. The magistrate was entitled to find that the description was so vague that the person could not be located and that it was not necessary for the prosecution to assemble, as he said, a large group of police officers to give evidence.

10. I have considered further whether or not the absence of that evidence would have placed the magistrate in a position where he had insufficient evidence to come to a conclusion. From the closely reasoned account that he gave of the thought processes which he used in coming to his conclusion, I am satisfied that he properly directed his mind and properly came to the conclusion that the admissions were voluntary.

11. The second ground of appeal can be dealt with shortly. Mr Yu was in error in arguing that the only way in which a transcript can be placed in evidence is where is certified by a person appointed by the Chief Justice. That is, of course, one of the manners in which the transcript can be placed in evidence but it is not the sole manner. The matter was canvassed in evidence and the magistrate perfectly properly found the transcript to be admissible.

12. The appeal against conviction is dismissed.

Representation:

Mr P.K. Madigan, SGC of Department of Justice, for HKSAR

Mr Raymond Yu, instructed by Messrs Chan & Tsu, for the Appellant