The Queen v. Leung Kit Ling and Another

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 878 OF 1987

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BETWEEN

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Coram: Hon. Bewley, J. in Court

Date of hearing: 10th November 1987

Date of delivery of judgment: 24th November 1987

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J U D G M E N T

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1. Both appellants were convicted of theft and 1st appellant was also convicted of handling stolen property.

2. They were employed by the Royal Hong Kong Jockey Club to take bets at Shatin Races. It was alleged that they each gave a punter $500 short change.

3. At about 4:30 p.m., following complaints by the latter, the appellants were questioned by their superior, who told them "If you have done it, you should admit". The 1st appellant asked what would happen to her if she admitted and she was told that internal disciplinary action would be taken. Both appellants then admitted shortchanging customers. They later signed short confession letters drafted by their interrogator.

4. They also indicated during this interview that they did not want the matter to be dealt with by the police. They were told that, if they denied the allegation, they would be handed over to the Security Office but, if they admitted, they would be dealt with by the Jockey Club Betting Supervisor.

5. The learned magistrate ruled these admissions - both oral and written - as inadmissible, having been made as the result of an inducement. The magistrate felt that, in all probability, the girls were led to believe that, if they admitted, they would be dealt with internally and dismissed without reference to the police. He was undoubtedly right.

6. Unfortunately for the appellants matters did not end there. At 5:20 p.m. two uniformed police constables received a report from the Jockey Club and were handed two $500 notes and the confession letters. They went to the betting counter, where they saw the appellants and asked them if they had taken $500 from customers. The appellants admitted it, upon which they were arrested, cautioned and taken to the race course report room.

7. Later the appellants were taken to the police station, where, commencing at 6:43 p.m., detailed cautioned statements were taken from them.

8. These statements were also the subject of voir dire proceedings. Admitting them in evidence the magistrate said this:-

"We are now dealing with situation after the police had been brought in. Although the interview by prosecution witness 3 and prosecution witness 4 following closely on the heels of prosecution witness2's interview with the two defendants, it would have been obvious to the two defendants that they had been betrayed and I take the view that the earlier inducement held out by prosecution witness 2 no longer existed. Prosecution witness 3 and prosecution witness 4 were clearly of higher rank and authority than prosecution witness 2. Defendants were duly cautioned by prosecution witness 3 and prosecution witness 4.

I hold that the inducement held out by prosecution witness 2 had dissipated by the time defendant 1, and defendant 2 were interviewed by prosecution witness 3 and prosecution witness 4. I am fully satisfied that when defendant 1 and defendant 2 made die cautioned statement they did so freely and voluntarily."

9. Mr Kynoch, for the appellants, who also appeared at the trial, submits that these statements were wrongly admitted. There was no other evidence against the appellants and this is the only ground of appeal.

10. Mr Kynoch relies on R. v. Cheng Pak-hei and others[1], in which three cautioned statements were rejected by the trial judge, because he was not satisfied that they were taken in the circumstances alleged by the police. However, 20 minutes after the defendant's third statement, he was formally charged and his answer was admitted, the judge being satisfied that it was freely and voluntarily made.

11. Huggins, J., giving the judgment of the court, said at p.9:-

"It has been held that where an inducement has once been held out the prosecution must prove that any subsequent confession was not made under the influence of that inducement. Counsel for the Crown has emphasised that there was no finding that the earlier statements were involuntary. While that is true it seems to us that where the possibility of an inducement in the recent past has not been negatived the prosecution must show that the effect of any inducement there may have been has been dissipated. Indeed, this may be more difficult than to negative an inducement the nature of which is known, for the continuing effect of an inducement depends in part upon the degree of inducement, in part upon the time which has elapsed since it was made and in part upon the resistance of the individual defendant to that kind of inducement. It follows that, where a judge has rejected one confession because he was not satisfied that he knew the circumstances in which it was taken, the degree of any inducement there may have been is not known and a longer tine must be allowed before it can safely be said that any inducement there may have been must have dissipated. It is enough here that even a very slight inducement might survive for more than 20 minutes and we are bound to say that we think the learned judge was not entitled to conclude that the answer of the first Applicant to the charge against him was voluntary."

12. In that case the appeal was allowed. It is significant however that all the statements were taken by police officers. There was, moreover, nothing to suggest that the effect of any inducement might have been dissipated.

13. The leading English case is R. v. Smith[2]. The facts, as stated in the headnote, were:-

“Three soldiers were stabbed at a barracks with a bayonet about 10 p.m. Very soon afterwards a number of soldiers, including the appellant, were paraded by the regimental sergeant-major, who said: 'I am going to get to the bottom of this fighting and whoever did it must step forward.' Nobody then stepped forward and they were all questioned by the regimental sergeant-major with regard to their movements at the material time. The appellant stated that he was in bed. The regimental sergeant-major then said: 'I am not leaving; I am staying here till you give me an answer about this fight.' The appellant then stepped forward and said that he had done the stabbing with a bayonet, and was taken into custody. At about 7:30 on the following morning a sergeant from the Special Investigation Branch interviewed the appellant, and after administering the usual caution referred to what had happened the night before and the appellant's admission at that time. The appellant replied: 'Yes, I am not denying it. I stabbed three of them all right,' and then made a written statement under caution to the same effect. On the trial of the appellant for the murder of one of the three stabbed men, who subsequently died,"

14. it was held:-

"that the appellant's first confession to the regimental sergeant-major was inadmissible as having been induced by a threat; but that his subsequent oral and written confessions to the sergeant of the Special Investigation Branch were admissible, as by that time the effect of the original threat had been dissipated."

After reviewing the authorities, Parker L.C.J. said, at p. 128:-

"The court thinks that the principle to be deduced from the cases is really this: that if the threat or promise under which the first statement. was made still persists when the second statement is made, then it is inadmissible. Only if the time limit between the two statements, the circumstances existing at the time and the caution are such that it can be said that the original threat or inducement has been dissipated can the second statement be admitted as a voluntary statement.

In the present case the Judge-Advocate never had to consider or rule on this second statement. Having admitted the first statement, there was no question on that basis but that the second statement must be also admissible. Accordingly, he never had to rule on the question of admissibility. He never had to exercise any discretion in the matter, and there was no occasion for his leaving it to the court on the value or weight to be attached to the confession. This court, however, is of the clear opinion that the second statement was admissible. No doubt, the opening reference to what it was he had said to the regimental sergeant-major put the appellant in a difficulty. No doubt it was introduced by Sergeant Ellis in the hope that thereby he might get a continued confession; but it is quite clear that the effect of any original inducement or threat under which the first statement was made had been dissipated. Quite apart from the fact that the caution was given and given twice, some nine hours had elapsed and the whole circumstances had changed. The parade had ended. The rest of the company had gone to bed. The effect of the threat or the inducement was spent. On those grounds this court has come to the conclusion that the oral and written statements made to Sergeant Ellis were clearly admissible."

15. It seems to me that this is close to the situation in the present appeal. The main difference is the time factor. There is no doubt, however, that the inducement - to avoid arrest and prosecution ceased to operate on the minds of the appellants as soon as the police officers arrived. They must have felt bitter at the apparent failure of the Jockey Club staff to keep their promise. They were, as was the appellant in Smith, "in a difficulty", because of their earlier confessions, which were now in the hands of the police, but the inducement had gone. They were properly cautioned and their subsequent statements were clearly made voluntarily.

16. I am satisfied that the magistrate's approach was correct and that this appeal should be dismissed.

Mr Stephen Wong, Crown Counsel for Respondent

Mr J. Kynoch (instructed by M/S Fairbairn Catley Low & Wong) for Appellants

[1]  C.A. No. 42 of 1973

[2]  [1959] 43 C.A.R. 121