HKSAR v. Ho Siu Kei

CACC000556/2001

CACC 556/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 556 OF 2001

(ON APPEAL FROM DCCC 426 OF 2001)

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Coram: Hon Stuart-Moore, Mayo VPP and Yeung JA in Court

Date of Hearing: 10 October 2002

Date of Judgment: 10 October 2002

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J U D G M E N T

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Hon Mayo VP (giving the judgment of the Court):

1.The applicant was jointly charged with another person (D2) in the District Court with six charges of handling stolen goods.

2.After a trial before Deputy Judge Wyeth he was convicted on counts 1 to 3 and acquitted on the remaining counts. D2 was acquitted on all counts.

3.The applicant seeks leave to appeal against his convictions.

4.The applicant and D2 were the proprietors of a business trading under the name Boxer Garage Trading Co. which carries on business at Pat Heung in the New Territories.

5.Amongst the business which is conducted by Boxer Garage is what is known as "cross loading" of containers. That is removing vehicles from one container and then packing them in another container.

6.The prosecution case was that police officers attended at the premises of Boxer Garage on 15 May 2000 with a search warrant and undertook inquiries in connection with the thefts of a number of motor vehicles which had been stolen in Canada and which the police had reason to believe had been shipped to Hong Kong.

7.The applicant made two cautioned statements to the police on that day and the main issue which had to be determined by the Judge was whether these statements had been made freely and voluntarily and were thus admissible as evidence.

8.Virtually all of the other evidence in relation to the surrounding circumstances had been agreed.

9.In simple terms it was the prosecution case that after the cars had arrived in Hong Kong in containers they had been brought to Boxer Garage for "cross loading".

10.When this had been completed the containers into which the cars had been transferred were taken to different destinations with the probable intention that they would thereafter be exported to some other country. In this connection it is relevant to add that the cars were left hand drive cars and could not be used in Hong Kong. They all bore visible marks on the doors and ignition systems that they had been forced.

11.The handling charged in each of the charges referred to the "cross loading" which had taken place at the Boxer Garage premises.

12.The main significance of the second cautioned statement which had been video taped had been that the applicant admitted that he knew that the cars in question were stolen property. It was also apparent from his admission that he proceeded with the "cross loading" in the way he did for the financial gain which had been obtained.

13.This was a matter of critical importance because D2 did not make any such admissions to the police and as a consequence of this there was insufficient evidence to prove all the essential ingredients of the offences and he was therefore acquitted.

14.This was also the reason why the applicant was acquitted on counts 4 to 6. The admissions contained in the cautioned statement only related to the subject matter of the first three counts.

15.Once the cautioned statements were admitted as evidence and the Judge was satisfied of the truth of the contents it was virtually inevitable that convictions would follow.

16.The two grounds of appeal can conveniently be dealt with together.

17.The first is that the Judge erred in admitting the cautioned statements.

18.The second is that the failure of the Judge to give detailed reasons why he was satisfied that the statements had been made freely and voluntarily constituted a material irregularity such as to render the convictions unsafe and unsatisfactory.

19.The main allegation made by the applicant in relation to the statements was that he only made them as a consequence of an inducement offered to him by the police officers.

20.The inducement alleged was that if he made a statement which was satisfactory to them he would become a witness for the prosecution in proceedings against the principal culprit or culprits and that no action would be taken against him.

21.There were other alleged improprieties. The main one being that there was no written record that when the applicant had been informed of his rights that he had said that he did not wish to avail himself of the services of either a barrister or a solicitor.

22.There were also questions concerning the time when the second statement had been made in relation to events in general. More particularly what was being called in question was the time when the officer's initial inquiries had convinced them that the applicant should be arrested and whether he had been treated fairly in this respect.

23.It is apparent from a perusal of the transcript of the voire dire which was conducted by the alternative procedure that the Judge had before him in considerable detail the prosecution evidence to the effect that the statement had been made freely and voluntarily and also the evidence of the applicant to the contrary and whether in fact any inducement had been offered.

24.The Judge did not condescend to any detail as to why he accepted the prosecution version of the evidence and rejected the applicant's evidence.

25.However what is clear is that there was more than sufficient evidence available, if accepted, to enable him to reach the conclusion he did. In all the circumstances it is perhaps not altogether surprising that he did accept the evidence of the police officers.

26.This then brings us to the next issue which is whether it was incumbent upon the Judge to give reasons why he had been satisfied that the prosecution had discharged the burden imposed upon it of proving that the statements were admissible.

27.There would not appear to be any doubt from the various authorities that it is not necessary for a judge to give reasons for his ruling on a voire dire at its conclusion. See Li Ming-kwan v R [1973] HKLR 275, Leung Lai-por v R [1975] HKLR 202 and Mohammed Hasham Khan v R CACC 777/1979 (unreported).

28.The question however which arises is whether the Judge was required to give these reasons when delivering his Reasons for Verdict.

29.None of the cases we have been referred to would indicate that failure to do so would constitute any irregularity.

30.The Privy Council in Thongjai & Anor v R [1997] 2 HKC 109 indicated that it was desirable for a judge to give brief reasons why a statement had not been admitted as evidence as this might be of assistance in clarifying issues should there be an appeal. That is a wholly different situation to the present case.

31.In the instant case it has to be said that it must be obvious that the reason why the Judge admitted the statements was that he was satisfied that the police officers were telling the truth and that he had rejected the applicant's evidence.

32.Mr McGowan for the applicant sought to derive some assistance from Leong How-seng v R [1982] HKLR 245 where the Court of Appeal made observations on the requirements which have to be complied with by District Judges when giving their reasons for verdict.

33.This case does not assist him as the observations made by the court were of a general nature and were not directed to reasons being given for admitting or not admitting a statement as evidence.

34.Ms Sin for the respondent has most helpfully also referred us to R v Lam Wai-kwong & Anor CACC 378/1985 (unreported) which supports the well-established proposition that a District Judge is not required to give any reason for his decision to admit a statement when giving his reasons for verdict.

35.Whilst the Judge might have considered it to have been appropriate to give more detailed reasons for his decision to admit the statements it cannot be said that his decision not to do so should be criticised.

36.The convictions were in no way unsafe or unsatisfactory and this application is accordingly dismissed.

Representation:

Ms Mary Sin, SADPP, of the Department of Justice, for the Respondent.

Mr James H.M. McGowan, instructed by Messrs Ivan Tang & Co, for the Applicant.