Li Kar-wah and Another v. The Queen

CACC000396/1970

IN THE SUPPEME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO.396 OF 1970

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Coram: Rigby, C.J., Mills-Owens & Huggins, JJ.

Date of Judgment: 24 December 1970

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JUDGMENT

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1. The two appellants, who are both aged 18 and to whom it will be convenient to refer hereafter as the first and third accused, together with another youth aged 17 to whom it will be convenient to refer as the second accused, were convicted in the Magistrates Court upon separate and distinct charges preferred against each of them of possession of an offensive weapon and also, in respect of each of them being a member of a triad society, to wit, the Wo Shing Wo Triad Society. The first and third accused appealed against their convictions. The matter now comes before this court on a reference to it by a single judge under section 118(1)(d) of the Magistrates Ordinance.

2. At the outset of the appeal Crown Counsel, for reasons which will hereafter become readily apparent, conceded that he was unable to support the convictions on the charges of membership of a triad society.

3. The facts of the case may be briefly stated. At about 7.50 p.m. on the 25th March, in consequence of information received a party of Police from the Anti-Triad Society Bureau proceeded to the Lin Wah Restaurant in Argyle Street, Mongkok area. In that restaurant they found and arrested the three persons accused in this case, together with five other youths. It is said that these three accused, who were individually arrested by three different police constables, were searched and found in possession of offensive weapons, to wit, an iron file, a metal hook and a chisel. All eight youths were taken back to the Police Station and there the accused were individually and separately cautioned by the three police constables who had arrested them. Since the argument in support of this appeal turns very largely upon the contents of three alleged statements made under caution to each of the three police constables, it is convenient to reproduce those statements in full. The statement relevant to the first accused and recorded by DPC.5467 LI Ki Yiu in his notebook is as follows:-

"At 20.15 hours on 25.3.70, in the C.I.D. Office, Police Headquarters Kowloon, I said to a male person LI Kar Wah in Punti dialect, 'When I arrested you in the Lin Wah Restaurant, Nos. 99 -101, Argyle Street, ground floors, at 19.50 hours on 25.3.1970 I told you that I was D.P.C. 5467 LI Ki Yiu of the Triad Society Bureau, Hong Kong Police Headquarters, and that I arrested you because you had in your possession one iron file which could be used as an offensive weapon. I now caution you, LI Kar Wah. You are not obliged to say anything unless you wish to do so, but whatever you say will be recorded down by me and may be given in evidence. Do you understand?'. 'I understand'. (Sd) LI Kar Wah. "It was because that our Wo Shing Wo men (were about to) have a settlement talk with the 14K (men) and that a fight might occur I therefore carried on my person this iron file in readiness that I might use it if a fight should occur. I was one of the Wo Shing Wo men, I therefore had to go tonight to give assistance. It was at the end of July, 1969, on a piece of vacant ground opposite Block 10, Li Cheng Uk Village that I joined the Wo Shing Wo Triad Society as a '49' member in the form of 'hanging the blue lantern'. (I) provisionally hung (the blue lantern of) Ah Tei who was my protector. I have not yet undergone the finger-pricking ceremony for joining the society. I heard that Ah Tei had died from disease'. (Sd) LI Kar Wah. (Sd) DPC.5467 LI Ki Yiu, 20.45 hrs. 25.3.70."

The statement relevant to the second accused, who has not appealed (the reason possibly being that he was made the subject of a Probation Order whereas the two present appellants were ordered to be sent to a training centre), is recorded in the notebook of DPC.5264, Wong Kam Tong and is as follows:-

"At 20.15 hours on 25.3.70, at the C.I.D. Office, Police Headquarters Kowloon, I said to a male person, HO Chi Choi, aged 17 years, 'When I arrested you in the Lin Wah Tea House, Argyle Street, at 19.50 hours on 25.3.70 I told you that I was D.P.C. 5264 WONG Kam Tong of the Triad Society Bureau, Police Headquarters, and that I arrested you because you had in your possession one iron hook fit for an unlawful purpose. I now caution you. You are not obliged to say anything unless you wish to do so, but whatever you say will be recorded and may be given in evidence. Do you understand?' 'I understand. I had that iron hook in my possession today. Our (men of) the Shing Wo Triad Society prepared to use it to fight with the men of the 14K Triad Society. I am willing to tell you frankly that in July, 1969, I joined that Wo Shing Wo Triad Society as a member. At the time I 'hung the blue lantern' of a male person named Cha Chai. I also gave him at the time a packet of $30 as lucky money for the 'hanging of his blue lantern'. (Sd) HO Chi Choi. (Sd) D.P.C. 5264 WONG Kam Tong."

The statement relevant to the third accused, as recorded in the notebook of DPC 3862 is as follows:-

"At 20.15 hours on 25.3.70, at the C.I.D. Office, Police Headquarters Kowloon, I said to a male person CHAN Tak Wo, 'When I was arresting you at 19.50 hours on 25.3.70 in the Lin Wah Tea House, Argyle Street, I told you that I was D.P.C. 3862 TAM Yan of the Triad Society Bureau and that I arrested you because I found, after searching, in your right European-style Trousers pocket, an iron chisel fit for an unlawful purpose. You are not obliged to say anything unless you wish to do so, but whatever you say will be recorded and may be given in evidence. Do you understand?' 'I understand'. (Sd) CHAN Tak Wo. 'That chisel of mine was intended for use in a fight with another party of men. I am a member of the Wo Shing Wo. I 'hung the blue lantern' of Sai Pang who is/was my protector (to whom I gave) $2.00 as lucky money'. (Sd) CHAN Tak Wo. I had read the above-mentioned caution once again to CHAN Tak Wo who agreed that it was correct. (Sd) CHAN Tak Wo. (Sd) D.P.C. 3862 Tam Yan, 25.3.70."

4. The similarities in all three statements from beginning to end, including the sequence in the contents of those statements, are striking in the extreme. All three police officers were carefully and assiduously cross-examined by the solicitor who appeared for all three accused at the trial. All three police officers maintained that none of the accused had any opportunity of speaking to each other before they made their statements, that no mention of membership of a triad society and/or no suggestion that any of them were members of a society was made to them by any one (except by the words of the caution) and that no statement by any one of them was shown to the other before that other himself made a statement. All three police officers maintained that the statements were voluntary. and spontaneous and that at no stage of the proceedings, either before the making of the statements or during the making, was any one of the accused prompted or questioned in any way nor did they (the police officers) in any way themselves collaborate in the making or taking of such statements. The three accused denied that the statements were freely and voluntarily made and all three of them maintained that pieces of paper were placed before them by the individual police officers and that they were compelled under threat of beating to copy the contents of those statements into the police officers' notebooks. The learned magistrate ruled all three statements to have been freely and voluntarily made. In so doing, however, he said:-

"The only question which has given me any real concern is the similarity between the statements made by each of the three accused. However, each case must be considered separately. I do not consider the evidence in one case admissible as evidence in another, either for or against each of the other two defendants. In any event the similarities in the statements are not sufficient to create in my mind any reasonable doubt as to their voluntariness."

5. It is clear beyond doubt, and is so conceded by Crown Counsel, that for the purpose of considering their voluntariness the learned magistrate ought not to have considered each statement in isolation to the others but should have looked at all of them together. However, subsequent to the admission of the statements a Police Inspector Chan gave evidence that all three accused were individually and separately brought before him and formally charged and cautioned with the respective offences of possession of an offensive weapon and membership of a triad society. Here again, the similarity of the statements made by the accused is quite remarkable. In regard to the charges of membership of a triad society, the first accused said:-

"I understand. It was in July, 1969 that I became a '49' member of the 'Shing Wo' by 'hanging. The blue lantern'."

The second accused said:-

"(I) understand. In August, 1969, (I) joined the Wo Shing Wo Triad Society as a verbal 'hanging the blue lantern' (member) on payment of $30 as initiation fee."

The third accused said:-

"I understand. In July, 1969, I joined the 'Shing Wo' as a '49' member by 'hanging the blue lantern'."

The similarity of the statements made by each accused when charged with possession of an offensive weapon is equally striking. In cross-examination it was put to the Inspector that the statements were neither freely nor voluntarily made but that the whole of these statements were in fact dictated to each of the accused by the Inspector himself. The Inspector denied this allegation. The learned magistrate ruled the statements, six in all, as being freely and voluntarily made and he admitted them in evidence. It is, however, of particular relevance to consider his ruling, which is in the following terms:-

"In considering the evidence on this voir dire I again indicate that I intend to consider the evidence against each accused separately. In the circumstances and as the only evidence before me comes from the prosecution, I have no doubt as to the voluntariness of the statement in each case. However I do add that I consider the similarities between the statements made by each of the three accused on each charge unlikely to be merely coincidental. If I felt myself entitled in law to consider each of the three statements on each charge, in relation to any one case I feel I may have some doubt as to their voluntariness, only because of the similarities between them. However, in the circumstances I propose to admit the statements in evidence."

6. At the close of the case for the prosecution all three accused gave evidence denying the charge of possession of offensive weapons, denying membership of any triad society and reiterating that the statements made by them had been made under duress and compulsion and that, in the case of the statements made to the police constables, they had been told to copy the contents, recorded on a piece of paper placed before them, into the notebook of the constable and that, in the case of the Police Inspector, the contents of the statements they made had, in fact, been dictated to them by the Police Inspector.

7. Crown Counsel concedes - and we agree - that here again the learned magistrate was wrong in holding that he was precluded from considering the statements in their entirety and taken as a whole and that he was only entitled to look at each statement separately. Crown Counsel concedes, therefore, that in so far as the statements made to the Police Inspector are concerned, if the magistrate had done what he should have done, that is to say, considered the statements as a whole and not in isolation he would, on his own finding, have found such statements to be, to use his own words again, "unlikely to be merely coincidental", and he might have had "some doubt as to their voluntariness".

8. Since the evidence as to membership of a triad society depends upon the answers to the charges made by each of the accused, Crown Counsel concedes that he is unable to support the convictions on those charges. However, in so far as the convictions on the charge of possession of an offensive weapon is concerned, Crown Counsel relies upon the finding of the learned magistrate that the cautioned statements to the three police constables were freely and voluntarily made and that those statements amount to an admission of possession of such offensive weapons. Further, he seeks to rely to some extent on the evidence of Police Inspector Chan. Police Inspector Chan gave evidence that he was present at the time of the raid on the Lin Wah Restaurant and he was able to identify two of the offensive weapons, namely, the hook (which was allegedly found in the possession of the second accused) and the chisel, although he was unable to say from which of the numerous youths in that restaurant those implements were in fact taken.

9. The onus was upon the prosecution affirmatively to establish that the various statements were freely and voluntarily made. It was not necessary for the accused to prove, as was alleged, that they were forced to copy statements already written by someone else on separate pieces of paper into the police constables' notebooks. We think the onus of proof necessarily involved the prosecution satisfying the magistrate that the statements were made in the manner in which the police officers positively affirmed that they were made, because if the police officers' evidence as to that was not believed that was sufficient to raise doubts as to the voluntary nature of the statements even though the magistrate did not go to the full extent of accepting that the statements were obtained in the manner in which the accused themselves said they were obtained. Unless a judge or magistrate is satisfied that he has been told the truth as to the method employed in taking a statement how can he be certain that the method which was employed did not involve a measure of inducement?

10. It is said that the three statements allegedly made to the three constables contained such striking similarities both as to what was said and the sequence in which it was said that it goes beyond the bounds of possibility that they were merely coincidental and that the statements were spontaneously made by the three accused without any form of interrogation or questioning. But the matter does not rest there. The striking similarities in the three cautioned statements must be considered not only in the light of each other but also in the light of the six answers to the charges. In regard to those answers the learned magistrate has himself stated that if he had felt it was open to him to consider them together, as a whole (as we think it was) instead of in isolation he might have had some doubt as to their voluntariness. The words 'might have had some doubt' are, of course, sufficient to make those answers inadmissible since, before they could be admitted, the court had to be satisfied beyond reasonable doubt that they were in fact freely and voluntarily made and it is clear that the learned magistrate was not talking of a fanciful doubt. If he had then considered all nine statements together, bearing in mind that there were remarkable similarities between the three cautioned statements, we cannot be certain that the learned magistrate would not have found that his doubt extended to them also. That being so it is at least possible, if not probable, that he would, in retrospect, have extended the same doubt to the cautioned statements. That is enough to decide the appeal and we are unanimously of the opinion that it would be unsafe to allow the convictions to stand in respect of the charges of possession of an offensive weapon.

11. Two members of the court would go further. Looking at the similarities in the three cautioned statements they are quite unable to believe that those statements were made spontaneously and without any form of interrogation, despite the police officers' oral testimony to the contrary.

12. In conclusion, we would only say this. The Courts of this Colony rely, and very properly rely, to a great extent on the testimony of police officers in relation to criminal cases. It is a matter of paramount importance in the proper administration of justice that the courts should be able to rely on the complete integrity and veracity of police officers when they give evidence in the Courts. If there are grounds - sufficient grounds - for thinking that the evidence of police officers is not to be believed then the whole fabric of the administration of justice in these courts is very seriously strained. In the present instance there was at least strong reason to suspect that the statements made by the accused persons were the result of questioning and interrogation, if not also collaboration between the police officers concerned. If the police officers had frankly admitted that the statements were the result of questioning it would have been open to the trial magistrate, despite the fact that there may have been some breach of the Judges' Rules in questioning an accused person in custody, to exercise his discretion and allow the statements to be admitted, always assuming that he was satisfied that the necessary condition precedent that the statements were in fact voluntary had been proved beyond reasonable doubt. The regrettable, but by no means infrequent, practice under which police officers are, from time to time, disposed to be less than frank with the courts on matters often of no great importance is to be deprecated.

13. To adopt words recently used by the Lord Chief Justice of England:-

"There are cases, of which this is one, in which the principles involved are more important than the case itself."⁽¹⁾

14. The appeals must be allowed, the convictions quashed and the orders that the appellants be sent to a training centre set aside.

Representation:

Mills-Owens (Gunston & Chow) assigned for both Appellants. Lucas, S.C.C. for Crown/Respondent. (Judgment of the Court delivered by the President)

(1) Regina v. Barnes (The Times, Dec. 1st, 1970)