HKSAR v. Lee Man Fai

HCMA 268/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 268 OF 2005

(ON APPEAL FROM TMCC 3412/2004)

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BETWEEN

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Before: Deputy High Court Judge Barnes in Court

Date of Hearing: 22.6.2005

Date of Judgment: 6.7.2005

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J U D G M E N T

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Background

1.The Appellant (who was D1 at the trial) originally faced two charges. He was jointly charged with another person with an offence of “Criminal Intimidation” (1^st charge); and he alone faced one charge of “Claiming to be a Member of a Triad Society”, contrary to section 20(2) of the Societies Ordinance Cap. 151 (2^nd charge). (It should be noted that the date of the 2^nd charge was amended from 5^th day of October to 8^th day of October at the end of the prosecution case).

2.The Appellant pleaded not guilty before Mr. Colin Mackintosh at the Tuen Mun Magistracy. He was acquitted of the 1^st charge and convicted of the 2^nd charge after trial. He appealed against the conviction.

Prosecution case

3.PW1 was a youth surnamed LI. He came into possession of someone else’s mobile phone and $200 in cash. PW1 was supposed to pass them onto another person but he failed to do so. PW1 claimed they were stolen from him. Attempts had been made by others to get these items back from PW1. PW1 alleged that both the Appellant and the other defendant (namely D2 during the trial) were among those people.

4.On 5.10.2004, PW1 claimed that he went to a shopping mall and was met by 6-7 others including the Appellant and D2. He said he was questioned about the loss of the telephone and the cash. Threats and claims of membership of triad society were made to him. PW1 made a report to the police.

5.On 8.10.2004, a further meeting took place at another shopping mall. The meeting was watched by police officers. During this meeting both the Appellant and D2 were present. PW1 said the Appellant had said to him that the Appellant was a ‘……tor tei of Yuen Long, a follower  of Sik Chai’.

6.Upon PW1 giving a signal the police moved in and arrested the Appellant and D2. The Appellant was dealt with by PW2, a police officer.

7.According to PW2, the Appellant denied at the scene that he had threatened PW1 with violence, the Appellant said under caution “….I only scared him by saying that I was Number 14, a follower of Sik Chai……...”. PW2 made a post-record of the Appellant’s said confession back at the police station.

8.Apart from the above-mentioned post-record, PW2 further interviewed the Appellant. The Appellant wrote in his own handwriting, “I did not say to [PW1] that I would chop him or his girlfriend or say that I would ‘mai’ (buy) his arm and leg. I only scared him by saying that I was Yuen Long tor tei, number 14, Sik Chai so that he would return the phone and the 200 dollars sooner. I do not have any triad society background, but I know that ‘No. 14 Sik Chai’ is a triad society………”.

9.A series of questions and answered followed in which the Appellant said he and D2 suspected PW1 did not intend to return the money and the phone so he called PW1 on PW1’s mobile phone on 1^st October 2004 and made his claim of membership of a triad society. The Appellant said he did not say it again. So far as 8^th October was concerned, the Appellant said nothing at all was said.

10.The admissibility of the oral confession and the Record of Interview was challenged and the Appellant gave evidence during the voir dire. The learned magistrate ruled them admissible.

Defence case

11.The Appellant did not testify on the general issue, nor did he call any witness.

Grounds of appeal

12.Mr. Y. C. Yeung, counsel for the Appellant, advanced 3 grounds of appeal. In a nutshell, Mr. Yeung’s grounds fall into two aspects:

(a)	Mr. Yeung challenged the learned magistrate’s ruling that the Record of Interview was admissible in that the learned magistrate had taken into consideration irrelevant matters and failed to consider relevant matters; and
(b)	Since PW1’s description of what the Appellant had allegedly said on 8th October did not amount to a claiming of a triad society membership, the learned magistrate erred in relying on the Appellant’s admissions in the Record of Interview to convict the Appellant when such admissions were ‘limited’ to a phone call to PW1 on 1st October (to which PW1 made no reference and the Appellant was not charged with an offence).

Admissibility of the oral confession and the Record of Interview

13.In relation to the admissibility of the oral confession and the Record of Interview, the learned magistrate set out in detail the allegations of the Appellant – how he was ‘roughed up’ at the scene, causing him to make the initial admission; how he was threatened with more serious charges if he did not confess; how he was refused a meal; and how the bulk of the interview was concocted by PW2 – including the parts written in the Appellant’s own hand.

14.The learned magistrate dealt with all the allegations and found that PW2’s account of how he had dealt with the Appellant was reliable. The learned magistrate noted the Appellant made no complaint about any alleged maltreatment at the scene to PW3, a police sergeant, upon the Appellant’s reception at the police station.

15.The learned magistrate also dealt with the issue of whether a meal had been offered. The Appellant in evidence said he was very hungry at the time and he was told a lunch box would be offered when the interview was finished. The learned magistrate found ‘nothing of significance in the evidence concerning food which undermined or which might undermine the evidence of PW2’. The learned Magistrate also made the observation that the Appellant ‘either had eaten or was not hungry at that time’.

16.The learned magistrate referred to an answer by the Appellant in the Record of Interview, in which the Appellant said, “I do not want to say anything else” and then a series of questions and answers followed. The learned Magistrate found that, contrary to what the Appellant asserted, the answer quoted above came from the Appellant and was not dictated to him by PW2. The learned Magistrate further found that PW2 was fully entitled to question the Appellant further given that the Appellant had signalled his willingness to answer after the quoted answer.

17.The learned magistrate found that he was sure the Appellant’s account of the interview should be rejected, having regard to evidence of PW2 and PW3. He ruled that the answers were given voluntarily, without the threat of additional charges or other inducement. He found there had been no threat, force, inducement or other oppressive conduct and there was no basis to say the admission of the evidence was unfair to the Appellant.

Submission by the Appellant’s counsel

18.Mr. Yeung set out in detail his complaints against the learned magistrate regarding the issue of voluntariness, saying that the learned magistrate should not have taken into consideration irrelevant matters such as the lack of complaint to PW3 by the Appellant; the fact that PW3 was not on duty for the whole period; the time of arrest being 2 pm and the interview record was compiled between 5 and 6:50 pm.

19.In taking those irrelevant matters into consideration, the learned magistrate has considered matters not relevant to the issue of whether there was oppression/inducement in the police station of non-provision/promise of a meal, Mr. Yeung submitted. He also submitted that the learned magistrate had unreasonably made the findings that the state of the Appellant’s hunger had no bearing on the voluntariness of the interview or the fairness of its admission into the evidence, and that the Appellant had either eaten or was not hungry at the time.

20.Mr. Yeung also complained that the learned magistrate failed to take into consideration whether the possible cause of the Appellant’s change of mind (i.e. to answer questions) was due to oppression and/or his hunger when he was promised a meal after the interview.

21.Mr. Yeung submitted that the Prosecution failed to ‘disprove’ the Appellant’s assertion that he was hungry and a promise of food was held out to him during the interview. The confessions and the Record of Interview should not have been admitted into evidence, Mr. Yeung contended.

Judgment

22.An appeal under section 113 of the Magistrates Ordinance, Cap. 227 is by way of rehearing on the evidence before the trial court supplemented by such further evidence as the intermediate appellate court may admit under its statutory power to do so: see CHOU SHIH BIN v HKSAR, FACC No. 11 of 2004.

23.After considering Mr. Yeung’s very detailed submissions, I find no substance in his arguments. I find that on the evidence before the learned magistrate, he was fully entitled to reject the Appellant’s version of the event and found that the confessions were given and recorded voluntarily.

24.The Appellant was arrested at 2 pm, a meal was provided at 7 pm, the interview took place between 5pm to 6:50 pm. The learned magistrate made the remarks that the Appellant had ‘either eaten or was not hungry at the time’. Reading the remarks in the context, what the learned magistrate appeared to have meant was that since the Appellant was arrested at 2 pm, which is after what one would normally consider as the ‘lunch hour’, either the Appellant had lunch already, or, if not, the Appellant was not hungry enough at 2 pm to have something to eat.

25.Bearing in mind the interview took place at 5 pm and the Appellant was fed at 7 pm, I see nothing wrong with the learned magistrate’s remarks. The learned magistrate was entitled to make the finings that the state of the Appellant’s hunger had no bearing whatsoever on the voluntariness of the interview or the fairness of its admission.

26.I find no substance in Mr. Yeung’s allegations that the learned magistrate had failed to take into consideration relevant matters and taken into consideration irrelevant ones.

Use of the Appellant’s confessions

27.The Appellant was charged with an amended charge of “Criminal Intimidation” allegedly occurred on 5^th October and another charge of “Claiming to be a member of a triad society” allegedly occurred on 8^th October. PW1’s evidence was that the Appellant and D2 were among 6-7 other people who uttered threats and made claims of membership of a triad society to him on 5^th October and the Appellant claimed to be a member of a triad society to him on 8^th October, accompanied with some threats.

28.The learned magistrate acquitted the Appellant of the ‘Criminal Intimidation” charge.  At the trial the Appellant called alibi evidence in the form of his employer. The learned magistrate, when delivering his verdict orally at the time, said he was not prepared to reject the Appellant’s alibi in light of the quality of PW1’s evidence.

29.The learned magistrate said this in his Statement of Findings:

“	9.	My assessment of PW1 was that he was an honest witness in the sense that he was not deliberately distorting, exaggerating or embellishing his evidence.  He was spontaneous, he addressed to the questions properly and he was apparently straightforward and sincere. But he was not sufficiently clear in his account for me to be able to rely on him alone. At times, his recollection ailed him and he became muddled in detail. He needed support. The fact that, in the light of the alibi evidence, I could not rely on him to convict the defendants on charges relating to the 5th October, did not undermine his credibility generally. An attack upon him was made by references to what had happened to the phone and the money (i.e. that he must have stolen them) though I could find nothing of substance in it. But given the need for some supporting evidence, what the [Appellant] alleged to have said to the police was important.
		……………………………………..
	16.	The combined evidence on the general issue was therefore PW1’s evidence and the [Appellant’s] confession. PW1’s description of the material words (“I am tor tei in Yuen Long, I am a follower of Sik Chai”) did not in itself amount to a claim of membership of a triad society. The words admitted by the [Appellant], including as they did, the use of the phrase “Number 14”, did amount to such a claim [reference was made to the admitted facts]. The defence submitted that as the [Appellant] sought at one stage in interview to limit the date of the claim of membership of a triad society to the 1st October 2004, the court should not use that admission as evidence to support Charge 2. It should be noted that I rejected the [Appellant’s] claim in interview that nothing at all had been said on the 8th October: there was patently untrue given the evidence of PW1 and the observations of PW2. Something had, as PW1 claimed, been said.
	17.	Even assuming the date in the charge to have been material, the admission written in the defendant’s own hand (at the foot of page 2 to the top of page 3 in the Chinese original) was not qualified by date in any way. If anything, it was qualified by the denial that it had been said along with a threat (to chop).PW1’s evidence was that on the 8th October, the “Yuen Long, tor tei” claim was accompanied by a threat (to beat). These were either one and the same incident, on the 8th, or, the date was an immaterial averment and the [Appellant] was in no way misled in the conduct of his defence by any inaccuracy in the date of the charge. Either way, he claimed membership to a triad society to PW1 in the context of persuading him to return the phone and the money which were the subject of dispute that the [Appellant] had involved himself in. his admitted purpose in using the triad claim was to pressure PW1 in that dispute. He was therefore guilty of the charge”. (emphasis added)

Submission of Appellant’s counsel

30.Mr. Yeung submitted that the learned magistrate erred in using the Appellant’s admission in respect of an incident on 1^st October to convict the Appellant when the learned magistrate found that he could not rely on the evidence of PW1 as to what had taken place on 8^th October without support. Even when the learned magistrate found that the Appellant did speak to PW1, it remained a fact that PW1’s version was that the Appellant had not mentioned “Number 14” – i.e. reference to a triad society.

31.Mr. Yeung also submitted that the learned magistrate erred in finding that the date was an immaterial averment. In this case the allegation was a face-to-face claim in a shopping mall, not a claim over the phone.

Judgment

32.I will first point out, according to the evidence adduced, the 8^th October incident took place at Yuen Long Plaza, not Citimall. It would appear that only the date of the 2^nd charge was amended and the place was not (may be due to an oversight). Anyway, nothing turns on that - it is common ground that the Appellant did meet up with PW1 at a shopping mall watched by the police and the Appellant was later arrested by the police at that shopping mall.

33.After perusing the learned magistrate’s Statement of Findings, and, reading it in conjunction with the oral verdict delivered at the trial, it appears to me that the learned magistrate relied on the combined evidence of PW1 and the oral admission made by the Appellant to PW2 upon his arrest to convict the Appellant.

34.The learned magistrate referred to the evidence of PW1 that the Appellant claimed to be a member of a triad society on 8^th October and found that the description PW1 gave, by itself, did not amount to such claiming.

35.The learned Magistrate referred to the arrest of the Appellant by PW2 at the scene. According to the evidence of PW2 (as related by the learned Magistrate), “ The arrest was for intimidation and claiming to be a member of a triad society because I have reason to believe that on 1, 5, 7 October of this year, four times in sequence you claimed to be Yuen Long ‘tor tei’ No. 14, follower of Sik Chai to [PW1]……”. The Appellant then answered under caution,  “……. I only scared him by saying that I was Number 14, a follower of Sik Chai…”. There was no qualification in respect of date when the Appellant made the oral confession.

36.It was at this juncture that learned magistrate explained why in most cases the date was not a material averment and he made references to the Hong Kong Archbold. When one reads what the learned magistrate had written in para 17 of the Statement of Findings, one must bear in mind under what circumstances and in what context the learned magistrate made such comments.

37.The learned magistrate found, quite rightly, that there was no qualification of date in the Appellant’s oral confession. The Appellant knew the allegation was that he had on 4 occasions claimed to be a triad member (though PW2 only mentioned 3 dates, i.e. 1^st, 5^th and 7^th October and the evidence at the trial only related to 5^th and 8^th October). The Appellant confessed that he did claim to be a member of a triad society. The only qualification he made at the time was in respect of the alleged threats uttered. The Appellant’s oral admission was recorded in the post-record.  The Appellant signed on the post-record, signifying his agreement that the police had accurately recorded his answer at the scene.

38.The Appellant only qualified his answer later on during the interview (in the question and answer session) by saying that the claiming was done via a telephone on 1^st October. The admission written in his own handwriting contains no qualification or limitation of date.

39.Whilst PW1’s description of the ‘claiming’  - Yuen Long tor tei, Chik Chai (which, incidentally, was not dissimilar to the confession made by the Appellant) – did not contain the all important words “Number 14”, the learned magistrate was perfectly entitled to take into account the Appellant’s oral confession (which was accurately reproduced in the post-record) to find that the Appellant did claim to be a member of a triad society to PW1.

40.The Appellant only faced one charge of “Claiming to be a member of a triad society” on 8^th October. He was not charged with any such offence on either 1^st or 5^th October. The learned magistrate had acquitted the Appellant on the “Criminal Intimidation” charge on 5^th October. There is no reference anywhere to show that the learned magistrate convicted the Appellant on a claim over the telephone on 1^st October.

41.The learned Magistrate was combining the evidence of PW1 with the Appellant’s oral confession at the scene to find that the Appellant did claim to be a member of a triad society to PW1. The learned Magistrate also made a specific finding that the Appellant did talk to PW1 on 8^th October, witnessed by the police. The learned Magistrate said the date was not important in such context. The Appellant was convicted of such claiming on 8^th October.

42.I have already mentioned that an appeal here is by way of rehearing on the evidence before the trial court. Bearing in mind the learned Magistrate’s findings on the quality of the evidence of PW1 (which I have emphasized by underlining) and the oral confession by the Appellant at the scene on 8^th October, the learned Magistrate was fully entitled to find the Appellant guilty of the ‘Claiming’ offence on 8^th October. I find no basis to say that the conviction was either unsafe or unsatisfactory. The appeal is therefore dismissed.

Ms. Olivia TSANG, Government Counsel, Secretary for Justice, for the Respondent

Mr. Y.C. YEUNG, instructed by M/s Leung Kin & Co for the Appellant