Ho Yat Wah v. The Queen
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CACC000589/1972 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 589 OF 1972 -----------------
Coram: Rigby, C.J. Date of Judgment: 14th October, 1972. ----------------- JUDGMENT ----------------- 1. The appellant, aged 25 years, and by occupation a carpenter, was convicted upon two charges preferred against him, namely being found upon enclosed premises for an unlawful purpose, to wit, to steal, and going equipped for stealing in that he had in his possession a screw-driver "for use in the course of or in connection with theft." He now appeals against his conviction on both those charges. 2. The general outline of the facts put forward by the prosecution were relatively simple and straight-forward. Shortly before 11 p.m. on the 27th March three detectives were returning to Kowloon City Police Station, which is situated in Argyle Street. Their tour of duty that evening had taken them to Ma Tau Wai Village and to the To Kwa Wan area; it had been an uneventful evening. As they were walking along the pavement in Argyle Street on their way back to the Police Station, one of them, D.P.C. 882, MAK, apparently noticed something in front of him. His immediate reaction, so it was said, was to stop and attempt to conceal himself behind a concrete buttress forming part of the line of high iron railings in front of the house having access to the pavement. It was said that his two companions, without knowing what had happened, also sought to hide behind him. What had apparently attracted the attention of D.P.C. Mak was a man standing on the pavement some twenty yards away in front of him. From his position of concealment Mak continued to watch the man and, according to the evidence, the man was "looking round from time to time" and peering at the entrance of the building outside which he was standing. D.P.C. Mak - and the two detectives with him who were both attracted to the object of his attention - continued to watch the man for some two to three minutes. The man then turned and entered the premises outside which he had been standing. Those premises were in fact a courtyard - the courtyard of No. 212 Argyle Street containing a number of lock-up garages. After waiting for a few moments the three detectives followed the man into the courtyard. It is said that they saw the man "peering round". D.P.C. Mak called out to the man, disclosed his identity and asked the man what he was doing. The man then apparently took to his heels and ran towards the entrance of the courtyard - being the entrance by which he and the three detectives had entered. In so doing he must have run towards the three detectives. He was caught at the entrance. The man was the defendant. He was then searched and a screw-driver found in his hip pocket. When asked to account for the possession of the screw-driver he hesitated for a moment and then allegedly said that he had entered premises for the purposes of stealing. He was then taken back to the police station. At the police station, D.P.C. Mak made an entry in his notebook in these terms:-
3. According to D.P.C. Mak's evidence, after having recorded that preamble in his notebook he asked the defendant if he understood. The defendant replied in the affirmative, took the notebook and wrote down the words "I understand" and put his signature to it. D.P.C. Mak then told the defendant "If he had anything to say he had to write it in my notebook". The defendant then took the notebook and wrote down the words "I did wish to steal" and added his signature thereto. The whole of this incident took from 11.30 to 11.39 p.m. The following morning the defendant was formally charged with both these offences. All that he then had to say in answer to each charge were the words "I understand". 4. The defendant himself told a very different story. He categorically denied that he ever had been arrested in Argyle Street at all that night. That evening he went to the Walled City to buy "white powder" (heroin) for his own consumption. He bought a packet of "white powder" for two dollars and went to premises nearby where "many people were smoking white powder" and he also smoked 'white powder' there. Whilst he was there two persons - both of whom he identified as the two detectives who, according to the evidence for the prosecution, had been with D.P.C. 882 Mak in Argyle Street - entering the premises. The time was then 10.45 p.m. Sometime later as he himself was about to leave, one of the two detectives spoke to him and intimated that he would like to speak to him outside. Outside the premises one or both of the detectives asked him to give them both information about persons who had committed offences. He informed them that he was unable to give them any such information. Thereupon they told him that unless he did so it would be the worse for him. He again said that he had no knowledge of such matters whereupon, after further conversation, he was then taken by the two detectives by car to Kowloon City Police Station. In the course of giving this evidence the defendant was reminded by the learned magistrate of his own admission he had committed the offence of smoking dangerous drugs. His reply to that reminder is not without some significance: he said "Yes. If he charged me for smoking dangerous drugs I would not spend so much money to engage a solicitor. Now I am charged for stealing in Argyle Street. I have a job with income." 5. On arrival by car at the Police Station the defendant was taken to the rear of the premises and from there to a lavatory; there, he was punched and threatened by the two detectives. From there he was then taken to the C.I.D. Room in which there were a number of detectives and there, for the first time, he saw D.P.C. 882 Mak. He admitted that he wrote the words "I understand" and subsequently the words "I did wish to steal", in D.P.C. Mak's notebook but he maintained that he did so only because he was told that if he did not do so he would again be beaten up and also because D.P.C. Mak said to him "If you plead guilty in court I promise that we will not arrest you again in the street because (sic) you do not give trouble to us." 6. After the defendant had written those entries in D.P.C. Mak's notebook he was taken to the prisoners' cells. It is beyond dispute that that same evening he was visited in the cell by a European: he complained to that European of the ill-treatment he had received. A somewhat curious, and in many ways disturbing, feature in this case was the evidence given for the defence by that European, Patrick Thomas McGuire. This witness gave evidence both in the course of the voire dire - when the defendant strenuously denied the voluntariness of the statement recorded in D.P.C. Mak's notebook - and also at a later stage as a witness for the defence after the case for the prosecution had concluded. Patrick Thomas McGuire is a youth worker in a youth club in the Walled City. He has been working in that capacity since last year. Prior to that he was a Catholic priest in a church in Kwun Tong. He said that at about 11 p.m. on the 27th March he received a telephone call. Unfortunately, there was no evidence as to the name and address of the person from whom he received that call and from precisely where the call was made. As a result of the telephone call he proceeded first to the defendant's home - which took him about 10 minutes - and five minutes later he went from there to the Kowloon City Police Station where he arrived at about 11.40 p.m. At the police station he saw the defendant. He was asked by the defending solicitor, Mr. Owen:
The magistrate queried the propriety of the latter question on the grounds that any answer made would be "hearsay evidence of a self-serving statement". Mr. Owen, perhaps unfortunately, did not press the matter further. In this court it has been argued by Mr. Bokhary that the answer to that question was admissible whether on the basis of the "res gestae" exception to the rule concerning hearsay evidence or as a fresh complaint made immediately, or as soon as practically possible, after the incident complained of. Mr. Marshall, Crown Counsel, whilst resisting the justification of admissibility on the 'res gestae' principle conceded, and in my view correctly, that the answer was admissible as being evidence of a previous statement made by the defendant and therefore relevant to rebut the contention of the prosecution that the defendant's complaint of beating and ill-treatment was a complete invention. The matter is put in Cross on Evidence, 3rd Ed. p.202, in this way:-
Quite clearly, in this case, the learned magistrate never directed his mind as to whether he had any discretion to admit the answer to the question, and simply regarded any such answer as inadmissible in evidence. In the result he ruled the entry made in D.P.C. 822 Mak's notebook as admissible in evidence on the basis, presumably, that he was satisfied beyond reasonable doubt that it had been so proved to have been freely and voluntarily made and not under duress, ill-treatment or threats. Whether or not he would have reached the same conclusion if he had allowed the answer by Patrick Thomas McGuire to the question put to him, and then proceeded to consider the weight and value of that answer in relation to, and as being consistent with, the evidence given by the defendant himself in the witness box, must remain a matter for speculation. 7. However, at a later stage in the course of the trial and during the course of the defendant's own testimony, the learned magistrate, on a further submission from Mr. Owen, ruled that he would allow evidence to be given that a complaint was made by the defendant but that he would not permit the nature and particulars of that complaint to be given in evidence. It is, I think, clear that that ruling was given on the basis that the magistrate had a discretion to allow the particulars of the complaint to be given but was not prepared to exercise that discretion in favour of admitting such particulars. With respect to the learned magistrate, in my view, his ruling was wrong: what he should have done was to allow the particulars to be given and then assess for himself the weight and value to be given to such evidence in relation to the credibility or otherwise of both Patrick Thomas McGuire and the defendant, on the issue as to whether the defendant's statement had been proved beyond reasonable doubt to be a free and voluntary one. 8. However, Patrick Thomas McGuire gave evidence that when he saw the defendant at the police station, the defendant bared his chest and made a formal complaint to him. In view of the magistrate's ruling, that was all he was permitted to say. However, what seems to me the most remarkable feature of his evidence is the undoubted fact that at about 11 p.m. that evening he did in fact receive a telephone call as a result of which he went to the police station where he saw the defendant. It was the case for the prosecution that the defendant was arrested in Argyle Street at about 10.55 p.m. There is no suggestion by the police officers that anyone was seen with him, or near him, at the time of his arrest. It was the case for the prosecution that he was taken from the place of his arrest - 212, Argyle Street - to Kowloon City Police Station - a matter of 200 to 300 yards at most further down the road. There is no suggestion that on the way to the police station the party was accosted by, or spoken to by, any of the defendant's friends or acquaintances; nor is there any suggestion that any of the police officers took the trouble to telephone the defendant's family - or to Patrick Thomas McGuire - informing him, or them, that the defendant had been arrested and taken to the police station. If, indeed, the defendant was arrested just before 11 p.m. whilst by himself in Argyle Street and taken forthwith to the police station, it is remarkable that someone should so quickly have informed Patrick Thomas McGuire of that fact and that he should then have proceeded to the police station. On the other hand, if the defendant's version is true that he was not arrested in Argyle Street at all but was picked up by the detectives in the Walled City - where he had been in the company of others smoking drugs - and then taken by the two detectives in a car, it would certainly seem very much more feasible and likely that someone who had seen what had happened would have made a report to Patrick Thomas McGuire - himself a youth worker in a youth club in the Walled City - and that as a consequence of what McGuire was then told he would have proceeded to the police station. 9. Mr. Marshall has said, with some truth, that it is, of course, entirely inconclusive as to the identity of the maker of the telephone call and the place or area from which it was made. That is, of course, true. But on the balance of probabilities, bearing in mind, as I have said, that Patrick Thomas McGuire was a youth worker in the Walled City and that the defendant maintained that he was picked up in the Walled City, the telephone call would seem very much more likely to be associated with the defendant being arrested in the Walled City than in Argyle Street. 10. A material factor - which was, of course, unknown to the learned magistrate whilst trying the case and only disclosed to him subsequent to conviction - was that the defendant was a confirmed drug addict. But further than that, Patrick Thomas McGuire had, in fact, been consulted by the defendant in the Walled City on the 24th and the 25th March with a view to him helping the defendant to solve his drug problems. This fact, again, was not disclosed to the magistrate until after conviction, when the magistrate, on the basis of this knowledge, discharged the defendant conditionally upon him attending a course of treatment as prescribed by the S.A.R.D.A. authorities. 11. The circumstances in which a court can interfere with a conviction by a magistrate on findings of fact were very fully considered by the Full Court in Lam Kau v. The Queen(1). In that case, the Full Court made it clear that on such an appeal the appeal itself is at large save only - and I quote from the judgment of that court -
The Full Court went on to say, however:-
12. This relatively simple - but from the defendant's point of view undoubtedly important - case took six full days to try. The police officers were very fully and closely cross-examined by the solicitor appearing for the defence, Mr. Owen. The learned magistrate himself made general reference to the discrepancies in their evidence although he made no attempt to analyse such discrepancies and regarded them as relatively unimportant. I am very fully conscious of the findings of fact of the learned magistrate and of the views expressed by him as to the demeanour and credibility of the witness. Nevertheless, for the reasons I have sought to indicate, I am not satisfied that this case was proved beyond reasonable doubt. 13. The appeal must accordingly be allowed and the conviction set aside. The order for probation and the conditions attached thereto must also be set aside - although I can only hope that the defendant, in his own interests, will continue with the treatment prescribed for him under the care and supervision of the S.A.R.D.A. authorities. Representation: K. Bokhary (J.S. & Master) assigned for Appellant. Marshall, C.C. for Crown/Respondent. (1) (1962) H.K.L.R. 234. |