Chau Mei-ling v. The Queen

Case No.CACC 438/1981[1981] HKC 542

Court

Court of Appeal

Date—

Judge—

Case Document

100%Judiciary

CACC000438/1981

Confession - person in authority - voluntariness - whether inducement still operative

IN THE SUPREME COURT

	Criminal Appeal
	1981, No. 438

BETWEEN
	CHAU Mei-ling	Appellant
	and
	THE QUEEN	Respondent

Coram: Rhind, J. in Court

Date of Judgment: 16th June, 1981.

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JUDGMENT

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1. The Appellant, who was represented by a solicitor at her trial before a magistrate, was found guilty on a charge of stealing 168,300 Japanese Yen on the 14th September, 1980 from her employer, Duty Free Shoppers Ltd. She now appeals against conviction only.

2. On 1st September, 1980, the Appellant commenced working for Duty Free Shoppers Ltd., as a cashier, at its shop in the Airport. At that time she was aged about 20.

3. She took some holidays towards the end of September to enable her to get married on the 25th September, and did not return to work until the 1st October. Prior till then she had been given no cause to believe that she was suspected of stealing anything. On returning to work on the 1st October, she was confronted by her employer's Security Officer, Mr. Aireth, who interviewed her at about 3.30 p.m. in the presence of another officer of the company who acted as interpreter.

4. Mr. Aireth made it clear to her that she was suspected of having stolen 168,300 Japanese Yen which she had received in the course of her work as a cashier on the 14th September, 1980. He showed her various company vouchers which indicated that the money in question must have passed through her hands, and asked her in effect whether she had stolen it. She denied being the thief.

5. Having interviewed the Appellant without getting any admissions from her, Mr. Aireth then immediately handed her over to her Supervisor, Miss Leung, who then proceeded to conduct a further interview. It is what transpired in this interview with Miss Leung which is critical for the purposes of the present appeal. According to Miss Leung, the Appellant in effect asked her whether the matter could be settled if the Appellant were to pay her employer the missing money. Precisely what Miss Leung's answer was to this query did not emerge in her evidence. It was put to Miss Leung in cross-examination that she had in effect promised the Appellant that if the Appellant were to admit stealing the money and were to repay it, then everything would be all right, and the matter would not be referred to the police. Miss Leung denied ever saying any such thing.

6. It was not disputed by the Crown that, in so far as the Appellant was concerned, Miss Leung was a person in authority over her. If someone in Miss Leung's position, assisting in the investigation of a theft of the employer's money, were to have made a promise of the type alleged to an employee such as the Appellant, it is clear that any admission made by that employee as the result of that promise would not be voluntary in nature, and hence would not be admissible evidence against that employee. See Deokinanan v. R.⁽¹⁾

7. Immediately after it was put to Miss Leung that she had made the alleged promise to the Appellant, the issue arose whether any admission made by the Appellant as the result of such an inducement was voluntary. That issue could only be resolved by conducting a "trial within a trial", or else adopting what is commonly known as "the alternative procedure" described in Ho Yiu-fai v. The Queen⁽²⁾. Unfortunately, the learned magistrate failed to follow either of the procedures just referred to for the purpose of determining voluntariness.

8. Immediately after Miss Leung had finished interviewing the Appellant, Mr. Aireth then proceeded to interview the Appellant again. Mr. Aireth clearly falls within the category of a person in authority in relation to the Appellant. Whether the Appellant was still under the influence of the promise allegedly made by Miss Leung needed to be resolved.

9. According to Mr. Aireth's evidence, he now warned the Appellant that whatever information she gave him would be communicated to the police. This time, though, no interpreter was present, so how much of this conversation would have been understood by the Appellant is open to question. Mr. Aireth told the court how by various nods of the head, the Appellant indicated to him that she had stolen the money. Unless the Crown proved affirmatively that the Appellant was no longer under the influence of the promise allegedly made to her by Miss Leung, her confession implicit in her nods of the head to Mr. Aireth would not be admissible: R. v. Smith⁽³⁾. Thus the "trial within a trial" or "alternative procedure" should have extended to determine the admissibility of what transpired at this second interview with Mr. Aireth.

10. Following swiftly on that second interview with Mr. Aireth, the Appellant was next interviewed by another authority figure - Mrs. Lee, her employer's manager. According to Mrs. Lee's evidence, the Appellant explained her motive in stealing the money - she needed it for her forthcoming marriage. Exploration was again necessary to see whether the effect of the promise allegedly made by Miss Leung had yet been dissipated.

11. Without the issue of voluntariness having been determined, the Appellant was called upon to make her defence. At the close of the prosecution case, the Appellant only had a case to answer provided the prosecution were able to rely on her admissions. Without her admissions, the prosecution evidence merely showed that she had had the opportunity of stealing the money, but did not point to her indubitably as the culprit.

12. In his reasons for decision given at the conclusion of the whole trial, the learned magistrate indicated his awareness that it was essential for the prosecution to establish that the Appellant's admissions were voluntary. However, the learned magistrate appears to have been under the impression that it would be all right if the prosecution postponed establishing such voluntariness till the conclusion of the trial rather than determining it by the end of the prosecution case.

13. That it is incumbent upon the prosecution to prove the voluntariness of admissions at or before the conclusion of the prosecution case is too firmly established a part of the procedure in our courts to permit of any deviation.

14. In the present case where the Appellant's admissions were crucial for the success of the prosecution case, the learned magistrate's failure to follow established procedures for the purpose of determining the voluntariness of those admissions inevitably means that this appeal must succeed.

15. The next question which arises is whether there should be a retrial.

16. This present appeal is from the Appellant's second trial. At her first trial, the Appellant was convicted, but the magistrate on that occasion set the conviction aside on an application for review and ordered a trial de novo. Should I order yet a third trial? Even for an offence as serious as murder, it would be unusual to order an accused to stand trial as many as three times. Already the Appellant has had this matter hanging over her for over eight months. I would not regard it as just to prolong her anxieties any further. I have accordingly decided against ordering a retrial.