HKSAR v. Fung Wing Ching

CACC000451/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No 451
(Criminal)

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Coram: Hon. Power, V.-P., Mayo and Stuart-Moore, JJ.A.

Date of Hearing: 11 March 1998

Date of Delivery of Judgment: 27 March 1998

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. The applicant faced one count of trafficking in a dangerous drug. It was particularized that he on 1st November 1996, at the ground floor of No.63, Pilkem Street, Yaumatei, Kowloon, unlawfully trafficked in a dangerous drug, namely 152.76 grammes of a crystalline solid containing 117.61 grammes of methamphetamine hydrochloride. He pleaded not guilty and was, after trial before Deputy Judge Hartmann (as he then was) and a jury, found guilty and sentenced to imprisonment for nine years. He now seeks leave to appeal against that conviction.

2. It was the prosecution case that a police party apprehended the applicant in the Golden Harvest Karaoke Restaurant and took him to the nearby entrance of No.63 Pilkem Street where he was searched. He was wearing a waist bag and drugs were found therein.

3. The summing up sets out what then occurred:

"As to what happened immediately after the search of the waist bag, the Sergeant said that he heard Constable Chan ask the Accused 'What are they?', referring, of course, to the bags found in the large black waist bag. In reply he said the Accused said that they were 'Ice'. The Accused asked for a chance and said that they were merely kept for someone else. The Accused then said that he had some more 'Ice' hidden on a hillside near his home and was willing to take the police to the spot. The Accused was then asked for his home address, asked to confirm that he was willing to take the police to the hillside and thereafter, he was given the standard police caution that he need not say anything but if he did, it would be taken down in writing and may be used in court. After the caution, said the Sergeant, the Accused did not say anything.

When Constable Chan testified to the words spoken by the Accused, his recollection was a little different. According to the Constable, the Accused said, 'They are "Ice". Ah Sir, don't arrest me, I've got some more "Ice" hidden on a hillside near my home.' The Constable did not testify to you that the Accused said anything about keeping the drugs for somebody else."

4. The evidence of the accused as set out in the summing-up was as follows:

"After their departure from the restaurant, it was the Accused's evidence that he was taken, not merely to the entrance of No.63 Pilkem Street, but inside that entrance and up some six or seven steps. One of the officers, he said, was at that time holding the unopened waist bag. One of the police, said the Accused, then asked him if he had any stuff to give them. The Accused said he answered by saying that he didn't know.

This answer aroused the anger of the officer who said that he was 'playing mad' - you may have understood the phrase better than me in Cantonese and I can see from the nods that you clearly do - and the officer then gave him four punches to the chest. The Accused said that he then began to cry. Thereafter, he said, he was taken out on to the street and after that he was placed on board the police van."

5. The applicant later at the police station made a written confessional statement. Objection was taken to that statement in the following terms:

"After the defendant was taken from the restaurant, he was taken to 63 Pilkem Street by three police officers they were PC19456, PC51087 and PC47229. The defendant was taken up eight to ten steps of the staircase. One of the officers, PC47229, questioned the defendant about dangerous drugs. The officer was not satisfied with the Defendant's answers and became angry. He punched the defendant 4 times on his chest and abdomen.

Later on, at the defendant's home, defendant's mother said to Inspector Ho, 'Let me change my clothes and accompany him (defendant) to go to the police station.' Inspector Ho answered, 'He is already 16 years old. There is no need to be accompanied by the parents. Nothing can be done even you go too.' Defendant's mother then asked the inspector whether she should engage a lawyer. Inspector Ho told her not to do so.

After the defendant was taken to the interview room a police officer, PC 47898, would from time to time come into the room to threaten the Defendant. 'Be fucking smart,' carried telephone directory, look aggressively when he (two indecipherable words) - write neatly or otherwise you will get it.'

The answers in the record of interview were written by the defendant at PC19456's dictation.

At the time of the interview the defendant was afraid that he would be assaulted again if he did not co-operate with the police."

6. The trial judge, after hearing evidence, gave a written ruling in which he refused to admit the statement. At the outset of his ruling, he said:

"The matter that has been placed before me for a ruling concerns a cautioned statement made by this accused at Yau Ma Tei Police Station in the early hours of the morning.

Essentially, my function is to ask myself whether I am satisfied so that I am sure that the prosecution has proved beyond a reasonable doubt that the statement made by this accused was made voluntarily. If I am so satisfied, there nevertheless remains a residual discretion that I must use sparingly to exclude a statement from evidence if I am satisfied that that statement has, in the manner of its taking, materially offended rules of practice concerning the taking of statements."

7. The judge went on to hold that he would exclude the statement because he was in doubt as to whether Inspector Ho had both discouraged the mother from going to the police station with her son and had indicated that there was no need for a lawyer. The judge said, on p.103 of the appeal record:

"Now in light of the fact that a cautioned statement, was as a matter of practice, going to be taken from this man, and in the light of the fact that if the mother had been present, she may well have been able to prevail upon her son to think a little differently, I do consider that there has been a material breach of the rules, although I stress that I don't, in any way, point the finger of accusation at the officers. Sometimes these things merely happen."

8. Later on that page he said:

"I am very well aware that the prosecution has said that my function is first and foremost to ascertain whether the statement was made voluntarily. I accept that. I do not comment upon that however, because there are very good reasons why our judges are not meant to make detailed judgments on voir dires, one of the reasons being that adverse comments as to the evidence given by an accused person, may perhaps result in that accused person taking steps in the trial proper, if there is to be one, which may be coloured by such comments. So I make no comments whatsoever, but I do appreciate the steps that I have to take, and the fact that I have concentrated simply on the breach of the rules in this instance, does not mean that I am ignorant of the correct procedures that I should adopt in deciding the issue. For the reasons given, I am satisfied that the statement should not be admitted into evidence."

9. The judge, having so ruled, stated, on p.104:

"Let me mention two things before we go ......

Firstly, I have considered the words spoken allegedly by the accused at the time of his arrest, and when the caution was administered. As both lawyers are aware, a caution should be administered at the earliest opportunity and I have looked at the words allegedly spoken, namely, 'I asked him what are these, these items.' This I consider to be a proper question asked because at that stage the officer would have had no knowledge of the contents. And the answer was, that what I have at the moment, "Ice", and then he went on to say, 'Don't arrest me, I've got more near a hillside where I live and I'll get it for you.' At that stage, I consider the officer should have cautioned the accused. He admits on his own evidence, that he then asked him if he was prepared to take the police to the area to find the "Ice", and thereafter he cautioned him. I consider whether that question should be deleted from evidence or not. But in the circumstances of the questions and answers given here, where according to the officer, the whole answer was, 'I've got some more and I'll take you to it.' I don't think that by deleting the question, 'Will you take me there?', advances the matter one way or the other. So, for the benefit of defence counsel I have considered whether the caution was given at an appropriate time or not, and if not whether there was any prejudice to the accused. I think that it might more happily have been asked, the caution rather might happily have been given before he was asked if he was prepared to take the accused to the scene, but as I say, for the reasons I have given, I don't see that it's prejudicial in any way whatsoever."

10. Mr. Cheng Huan, S.C., who appears for the applicant with Mr. Albert Luk, argues three grounds.

11. Ground 1 was concerned with the verbal admissions made by the applicant at 63 Pilkem Street. It was submitted:

(i) that the judge erred, when he allowed the evidence of the oral submissions to be placed before the jury, given that no caution had been administered;

(ii) that he should have conducted a voir dire to determine the admissibility of the verbal admissions given the allegations of the ill-treatment, as is set out in Thongjai v. R. (1997) 3 W.L.R. 667.

12. As we have set out above, the judge dealt at p.104 with the caution. Mr. Cheng Huan refers us to The Secretary for Security's "Rules and Directions for the Questioning of Suspects and the Taking of Statements". Rule 2 provides:

"As soon as a police officer has evidence which would afford reasonable grounds for suspecting that a person has committed an offence, he shall caution that person or cause him to be cautioned before putting to him any questions or further questions, relating to that offence."

13. Mr. Cheng Huan refers to R. v. Osbourne and Virtue (1973) Crim.L.R. 178, which, in the headnote, states that a caution should be administered when "an officer had got the beginnings of evidence to base a case". He submits that in the present case, the officer having seen the bags in the large black waist bag, had the beginnings of evidence on which to base a case, and should have then cautioned the applicant and that this was such a grave breach of the Secretary for Security's rules that the only way in which the judge could properly have exercised his discretion would have been to have excluded the oral admissions. We do not agree. We are satisfied that it was quite proper for the police officer to ask the applicant what the bags found in the waist bag were. We agree with the judge that a caution should have been administered after that answer. We are satisfied, however, that the judge was entitled, for the reasons he gave, to refuse to exercise his discretion to exclude the question and answer which followed.

14. Mr. Cheng Huan, when dealing with Ground (ii), submitted, relying upon Thongjai's case, that it was the duty of the judge to be satisfied that the oral, as well as the written, statement was voluntary before placing them before the jury. He submits that the allegation of oppressive conduct at the time when the oral statement was said to have been made clearly called the principle in Thongjai's case into play.

15. Mr. Saw, S.C., who appears for the respondent, firstly submits that when dealing with the written statement the judge had clearly rejected the suggestion of oppressive conduct and had positively ruled that that statement was not given as a result of oppression. He then puts his submission as to the oral statement in the following way - the judge clearly identified the two stage approach which he was required to follow - firstly he had to be satisfied that the statement was voluntary and then he had to consider whether there was anything that required him to exercise his residual discretion to exclude the statement. He submits that the judge followed this course and that, when so doing, must necessarily have rejected the allegations of ill-treatment. This has to be so, he argues, as the suggested ill-treatment which he was called upon to consider was not only ill-treatment at the time the written statement was made but was also the suggested punching at the time of the making of the oral statement. This, he submits, is unarguably so as that ill-treatment was clearly set out in the grounds of objection which went on to state that "at the time of the interview the defendant was afraid that he would be assaulted again if he did not cooperate with the police". Mr. Saw points out that the impropriety upon which the judge acted when excluding the written statement (i.e. the suggestion that the mother not come to the police station and that legal advice be not sought) lay squarely at the feet of Inspector Ho and had nothing to do with PC19456, the officer to whom both the oral and the written statements were made. He submits that the judge clearly accepted the evidence of that officer before going on to consider whether he should exercise his discretion. He concedes that the trial judge did not deal in terms with the oppressive conduct at the time of making the oral statement, but submits that there can be no doubt that he rejected the allegations in that regard. He contends that the inevitable outcome, had the judge been called upon to deal in a voir dire with the oral admissions, must have been a ruling that he was satisfied that they were voluntary and should have been admitted. Mr. Saw argues, therefore, that the failure of the judge to direct himself in accordance with Thongjai's case did not occasion any miscarriage of justice and that the misdirection is one to which the proviso could properly be applied.

16. Mr. Cheng Huan submits that there can be no certainty that the judge so regarded the evidence of PC 19456 and that it is clear on the face of the record that the oral admission was never dealt with as it should have been.

17. The answer lies in the passage set out above on p.4. We have considered the words used by the judge with anxious care. We are satisfied that, when he said "I am very well aware that the prosecution has said that my function is first and foremost to ascertain whether the statement was made voluntarily. I accept that", he was accepting not only that it was his duty to resolve the issue of voluntariness, but also that he had resolved that issue. If this be not so, the words which followed, in which he states that he is making no comment upon the evidence and explains the reason why it would not be appropriate for him to do so, are meaningless. We are satisfied that the judge was here saying that, having resolved that the statement was voluntary, he would not, for the reasons he gave, go on to make any comments upon that decision but would concentrate upon the breach of rules which called his discretion into play and, importantly, pursuant to which he would be excluding the statement. We are satisfied that, if the judge had been called upon to do so, he must inevitably have ruled that the oral statement was voluntary.

18. We turn to Ground 2 in which it is argued that the judge, having allowed the prosecution to cross-examine the applicant as to what was said by his legal representative in the Magistrates' Court, did not go on to tell the jury that such previous inconsistent statements could only be taken into account when assessing the credibility of the evidence given by the applicant at trial. There is nothing in this point. The applicant did not ever admit that his legal representatives had made any statements on his behalf in the Magistrates' Court. When the statements said to have been made were put to him he said variously that he did not speak English so he had no idea what was being talked about, that he had not heard clearly what was said and that he "did not have the heart to pay attention". The judge early in his summing-up told the jury that questions to witness are not evidence and that if something was put but not agreed to "then there is no evidence before you of that suggestion". He repeated this warning when dealing with the matters said to have been put on the applicant's behalf in the Magistrates' Court saying:

".... And a number of suggestions were put to him (the applicant) concerning what was allegedly said by his legal representatives on his behalf to the Magistrate. In this regard, of course you will remember my earlier direction that a suggestion put to a witness is not evidence of that suggestion. If that suggestion is not agreed with, then there is no evidence of the matter."

19. The final ground is a general ground that the conviction was unsafe and/or unsatisfactory. We are satisfied that it was neither. We consider that there was a material irregularity as the trial judge did not hold a voir dire in relation to the oral admissions. We are satisfied, however, that had he held such a hearing, he would without question have found those admissions to have been made voluntarily. This is, therefore, a proper case in which to apply the proviso.

The application is allowed. The hearing of the application is treated as the hearing of the appeal. We are satisfied that no miscarriage of justice has occurred and we dismiss the appeal.

Representation:

Mr. D.G. Saw, S.C. & Mr. Prakash Daryanani, G.C.(D.P.P.) for the Respondent.

Mr. Cheng Huan, S.C. & Mr. Albert Luk instructed by Messrs. Chow, Griffiths & Chan for the Applicant.