The Queen v. Ng Kin Wa

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MAGISTRACY CRIMINAL APPEAL NO. 381 OF 1987

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BETWEEN

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Coram: Hon. Barnes, J. in Court

Date of Hearing: 25th May 1987

Date of Delivery of Judgment: 25th May, 1987

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JUDGNENT

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1. The Appellant pleaded not guilty to a charge of robbery but was found guilty after trial in the Magistrates Court. The offence occurred on the 21st. of June 1986 but the Appellant was not arrested until the 14th of January 1987. Following his arrest at 10:20 p.m. that day, he was taken to a police station where he was cautioned and thereafter a statement taken from him which concluded at 2:10 a.m. on the 15th of January 1987. Thereafter he remained in custody and at 3:10 p.m. on the 15th, of January 1987 he was confronted with the victim of the robbery after he declined to take part in a formal identification parade. After he was identified the inspector in charge of the case who was present during the confrontation cautioned him. The Appellant then made an oral admission of complicity in the robbery.

2. At the trial the Appellant's statement made under caution on the night and early morning of the 14th and 15th of January was ruled inadmissible on the ground of involuntariness. That statement was taken by a DPC. The learned magistrate said that he was not satisfied beyond a reasonable doubt that the statement was taken in the way that the DPC alleged. And he added that, even if he had been satisfied as to its voluntariness he would have exercised his discretion to exclude the statement - the Appellant then being a 16-year-old boy cautioned at a police station after being arrested in the late hours of the evening.

3. In relation to the oral admission about which the inspector gave evidence, the Appellant in his evidence denied that any such admission was ever made. The magistrate accepted the inspector's evidence that it was made and convicted the Appellant. In convicting him the magistrate did not rely upon the identification evidence having ruled it unreliable because of the circumstances in which the identification was made. In the result he convicted the Appellant solely on the basis of the oral admission made to the inspector.

4. The Appellant now attacks that conviction on three grounds. Firstly, he says that in accepting the admission as a fact, the learned magistrate erred in his assessment of the credibility of the inspector. The inspector in the course of his evidence was cross-examined about the usual practice adopted by the police in conducting identification parades and confrontation identifications. The question asked in cross-examination was double-barrelled in that it referred to both types of procedure and the inspector in his answer said that it was not unusual for the officer in charge of a case to conduct the identification procedure. The learned magistrate in the course of his finding said that he would have found this answer misleading if the practice in Hong Kong was the same as the practice which he knew to exist in England and Wales. He came to the conclusion that the inspector's evidence was not misleading on the basis of the magistrate's own experience in Hong Kong.

5. At the hearing of this appeal, counsel for the Appellant who was also counsel at the trial, brought to my attention certain general orders issued by the Commissioner of Police. None of these to which I have been referred, speaks of the confrontation procedure which was followed in this case, the procedure the Appellant himself preferred at the time. The general orders refer to the holding of formal identification parades and lay down that they should be conducted by officers other than the officer in charge of the particular case.

6. Mr Wong for the Appellant has submitted that if the learned magistrate had known of the police general orders, he would have concluded that the practice was the same as the one to which he was accustomed in England and Wales, he would therefore have found the inspector's evidence misleading, and been led to have doubt his credibility. The answer to that is contained in the learned magistrate's own statement of findings. From his own experience he found that the inspector's evidence was not misleading. It seems to me that the production of the police general orders before me can in no way affect that finding of credibility. I do not think that the magistrate's conclusion as to the inspector's credibility could have been affected even if the police general orders had been put before him. I, therefore, see no substance in that ground.

7. Mr. Wong further submitted that the learned magistrate, having ruled the first statement involuntary, had no basis for coming to the conclusion that the circumstances which vitiated the first statement were absent when the oral admission was made to the inspector. The learned magistrate deals with this in his statement of findings. He rejected the allegation of impropriety made against the inspector. He pointed out that the inspector cautioned the Appellant after the confrontation, and he found that there was nothing in the inspector's conduct at any time in the investigation that might have rendered the admission involuntary. He went on to say this: "Whatever might have happened between the DPC and the Appellant was not, I was sure, a continuing factor in the Appellant's mind at the time of the admission after the confrontation. In those circumstances that did not render the admission at any way involuntary. The ground on which I would have exercised my discretion to exclude the other statement did not exist at the time of the confrontation. There was nothing to suggest at that time the Appellant was sufficiently short of rest or sleep or that there was any other reason for the admission to have been taken in unfair circumstances.”

8. In my view the magistrate was entitled to come to that conclusion. The oral admission was made to an officer superior in rank to the officer who took the first caution statement. It was made some 13 hours after that statement. It was made at a time when there was a change in the evidence which the prosecution had and which he knew they had in support of the case against him. There was a clear motive for the Appellant wanting to speak even though he had been warned of his right not to say anything if he did not want to. Those circumstances were capable of influencing and no doubt did influence the learned magistrate to come to rule the evidence admissible. Accordingly there is no ground for me to interfere with the discretion which he did exercise, nor to interfere with the finding that he made regarding the voluntariness of that oral admission. I therefore see no merit in the second ground.

9. The third ground was that in considering the admission, the learned magistrate did not pay due regard to the exculpatory content revealed in that admission. The exculpatory content consisted of a statement that the Appellant was "forced to do the robbery". The Appellant gave evidence on the general issue and made no reference to having been coerced into committing the offence, i.e. the Appellant did not raise any issue of duress. The learned magistrate, it is true, makes no mention of whether he accepted that part of the Appellant's statement to the inspector or not. To my mind, however, it makes no difference. That addendum to his admission even if accepted does no more than provide a motive for the commission of the offence. If the magistrate accepted it, he must have convicted him; if he did not accept it, he still must have convicted him. There is, therefore, no merit in that ground. Since none of the grounds of appeal have any merit the appeal must be dismissed.

Mr. M.D. Wilson, C.C. for the Crown

Mr. M.K. Wong (Philip S.W. Wong & Co.) for Appellant