Szeto Yuk-man v. The Queen
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CACC000060/1982
BETWEEN
_____________ Coram: McMullin, V.-P., Li & Silke, JJ.A. Date: 14 May 1982 __________ JUDGMENT __________ McMullin, V.-P.: 1. On the 14th of May we dismissed the appeal of SZETO Yuk-man against his conviction reserving our reasons until later. 2. The applicant SZETO Yuk-man was convicted on the 14th of January 1982 upon a charge under section 26 of the Post Office Ordinance the particulars being that on a day unknown between September 1980 and May 1981 without lawful authority he destroyed a number of postal packets. 3. His application for leave to appeal against conviction was refused by the single judge on the 9th of March 1982, no direction for time loss being given. He renewed his application for leave to appeal against conviction on the 25th of March 1982. 4. At 500 a.m. on the 25th of June 1981 a party of police officers led by Superintendent Layton entered Flat B-3 on the 10th floor of No. 15 Canal Road West, Wanchai. The purpose of this raid was the investigation of a commercial fraud involving a business concern known as International City Holdings. The applicant SZETO Yuk-man was the target of the investigation. He was discovered inside the premises together with another man known as Ah Kit. The premises was searched by the police party. We do not know whether the search revealed any evidential matter relevant to the fraud inquiry, but in the course of it the police officers discovered a quantity of diaries, films, magazines and other documents of an obscene nature which were seized. These, it would appear, revealed interest in activities of a homosexual character. 5. In two drawers in a desk in the applicant's bedroom the investigating officers also discovered a number of unfranked postage stamps of various denominations still attached to portions of the envelopes or packets to which they had been affixed. These were seized and are the subject of the present charge. At the time of the police raid, the applicant was employed as a Postman in the sorting office of the General Post Office in Central. 6. Apart from the evidence of the seizure of the stamps at his premises which evidence was-not in dispute - the case for the prosecution rested wholly upon a statement made by him at Central Police Station on the 26th of June, the day following the police raid. This statement, which amounts to a full confession to the offence, was alleged by the prosecution to be a voluntary statement made after due caution to Detective Constable 10834. It is conceded by the Crown that without it the charge could not have been sustained. Objection was taken to the admissibility of this evidence at the trial. The defence alleged that the statement had been the result of inducements and threats on the part of the police officer. Ah Kit had been arrested at the same time as the applicant and the inducements were said to include an offer to release Ah Kit from custody. It was also alleged that the applicant was threatened with prosecution for a homosexual offence. 7. On the separate trial of this issue, D.C. 10834 and Superintendent Layton testified that no such improprieties had occurred. The applicant did not give evidence upon the issue. 8. The Detective Constable admitted that he had been told to question the applicant and take a statement from him. He agreed that his intention was to "cross-examine" the applicant but in the event, according to the witness, the applicant made his statement voluntarily and without prompting, after the preliminary matter containing the caution and the nature of the police suspicions had been out to him, so that it was unnecessary to question him. The witness maintained that the only question which he had put to the applicant was recorded by him. This question appears immediately after the conclusion of the first part of the statement which, according to the witness, was taken down by him at the request of the applicant and which amounted already to a full confession. This was then signed by the applicant and by the witness. The witness then asked, and recorded, the following question:
Thereafter, according to the witness, the applicant took the pen from him and himself wrote the remaining part of the statement which was an elaboration of the original confession. The notebook record of these proceedings commences at 11.45 on the 26th of June 1981 and concludes at 12.26, that is about forty minutes in all. 9. It is noteworthy that counsel for the defendant in cross-examining D.C. 10834 upon this issue concentrated almost entirely upon the allegation that the applicant had been closely questioned in the course of the taking of the statement so that it was, in effect, the fruit of cross-examination; the allegation of threat of prosecution for a homosexual offence was not pressed at all. 10. Effectively, there is a single ground of appeal. It is said that the trial judge erred in admitting this statement since the evidence taken before him under voir dire showed a course of conduct on the part of the arresting officers which amounted to oppression, or, alternatively, to such unfairness as should have obliged the judge in the exercise of his residuary discretion to exclude the statement. It is also alleged, as supporting either of these contentions, that the police behaved unlawfully in the manner in which they dealt with the applicant after his arrest. This allegation of unlawfulness arises from what is conceded to be the exact sequence of police action following upon the discovery of the applicant and Ah Kit in the applicant's premises in the early hours of the morning of the 25th of June. 11. It is clear that the purpose of the raid was to uncover evidence of the alleged commercial fraud and that the police were to some extent surprised by the other fruits of their search. D.C. 10834 said that both of the occupants were arrested in connection with the alleged fraud and that does not appear to be disputed. The fraud investigation would seem to have led nowhere and Ah Kit was in fact, released on the following day. Nevertheless, D.C. 10834 admitted that he had cautioned the applicant in connection with the stamps found on the premises and that he had questioned him in relation thereto at about 7:00 a.m. on the 25th of June shortly after the stamps were discovered. 12. It was, therefore, some thirty-one hours later when, at Central Police Station, D.C. 10834 was given instructions by Mr. Layton once more to question the applicant in relation to the stamps and to take a statement from him. 13. The most substantial allegation under the heading of unlawfulness is that, after caution and questioning on the 25th of June in respect of the postage stamps, the police were obliged by the provisions of section 52 of the Police Force Ordinance, Cap. 232 to bring the applicant before a magistrate as soon as practicable and were thus in breach of the law in not doing so. It is conceded that the courts were sitting on the 25th and 26th so that it would have been practicable to have done so. 14. A further objection arises from the fact the applicant was taken from his premises to Commercial Crime Bureau Headquarters where he was detained until noon and then taken to Central Police Station where he was detained overnight there being no cells for that purpose at the Crime Bureau. Mr. Sanguinetti points to section 51 of the Ordinance which obliges an officer who has taken anybody into custody whether with or without warrant forthwith to deliver that person into the custody of the officer-in-charge of a police station or of an officer authorized in that behalf by the Commissioner. Counsel maintains that since there is no evidence that Commercial Crime Bureau is a police station within the meaning of the section and since there is no evidence to show that the person at that bureau into whose custody the applicant was taken on the 25th of June was either a police officer in charge of such a station or else an officer authorized by the Commissioner, it must be assumed that the prosecution have not shown that the detention of the applicant, although initially lawful under section 50, continued to be so thereafter. 15. As a fortification of this subsidiary point, he asked us to consider the provisions of sub-section 3 of section 52 which empowers the officer-in-charge of the police station, or the authorized officer, to discharge the prisoner upon his own recognizance if it appears to such officer that the enquiry into the case cannot be completed forthwith. Because it has not been established that Commercial Crime Bureau is a police station or, even assuming that it is, that the applicant was delivered into the custody of the officer-in-charge thereof shortly after his arrest, this, counsel says, is an additional factor demonstrating the unlawfulness of his detention since it may be that he was deprived of an opportunity to secure immediate release if the proper procedures had been taken. 16. Finally, Mr. Sanguinetti says that the arresting officers were in breach not only of their obligations under section 57 but also of the common law principle, supported by the decision in the case of Hudson (infra), whereby a suspect must be charged with an offence, or informed that he may be prosecuted therefor once the inquiring officer is in possession of sufficient evidence to do so. This final point is, however, of little weight in the present case since the applicant was arrested in relation to the fraud allegation and we do not know what he was told on that score at the time of his arrest. Moreover, the furthest the evidence goes on the question of the stamps is that in the opinion of Mr. Layton "there was evidence that the accused had done something wrong" in connection with them. None of the witnesses were asked what precisely was said to the applicant about the stamps at the time of his arrest. 17. None of these points relating to the lawfulness of the detention were taken by counsel for the defence in arguing the matter before the trial judge. 18. So far as the subsidiary point relating to the identity of the police station and of the proper inquiring officer is concerned, we think that Mr. Jennings for the Crown rightly maintains that it would not serve the interests of justice if we were simply to assume at this late stage, and in the absence of any evidence on the matter, that the police had not followed the proper procedures after the arrest of the applicant. 19. Without attempting to define what are the limits of proper procedure under sections 52 and 52, we cannot conceive that the evidence as to what was done in this case is sufficient to disclose a material delinquency on the part of the police within the spirit of those sections, save only for the matter of failing to take the applicant before a magistrate as soon as practicable after his arrest. Although it is clear that the police were primarily concerned with the commercial fraud, the investigation of which had taken them to those premises, and that that was the primary focus of interest and the cause of the applicant's arrest, there was no explanation for the failure to bring him before a magistrate on any charge within a reasonable time after his arrest. Even if there was not evidence sufficient to charge him with fraud, it was perfectly practicable to take him to court on a charge of some kind arising from what had been uncovered at his premises. The alternative was to set him free upon his own recognizance. Neither course was taken for thirty-one hours after his arrest. 20. However, even though the detention was to that degree technically unlawful, the question still is: was it sufficient ground for excluding the statement? We do not think that the case of Hudson(l) , upon which Mr. Sanguinetti heavily relies is adequate to support the contention either of oppression or unfairness. Counsel concedes that the facts in that case are very different and indeed they are. The defendant, a man of 59 years, was arrested without warrant on suspicion of bribery. He was taken to a police station where he was detained for five days and four nights. During that period he was questioned for twenty-five hours and some seven hundred questions were put to him. The interrogating officers had been ordered by the DPP not to charge the defendant while they were interviewing him. Eventually he broke down and made a confession admitting acts amounting to corruption. He was then released and twelve months later he was charged with corruption under the Public Bodies Corrupt Practices Act 1889. The trial judge admitted in evidence the cautioned statement made by him twelve months previously despite objection by the defence. The evidence at the trial did not support the incriminating statement and was in fact in contradiction to parts of it. 21. The defendant was convicted and he appealed. The Court of Appeal held that the combination of these factors, vie: the arrest without warrant for a non-arrestable offence; the failure to inform the defendant of the precise offence for which he was being arrested; the failure to put him before a magistrate as soon as practicable taker all together made his detention unlawful. The Appeal Court held, however, that it was the manner of the questioning of the defendant itself, coupled with the fact that the incriminating statement was not supported by the evidence adduced by the Crown, which provided the strong inference of oppression obliging the court to upset the conviction. The court said (page 169):
22. That makes it plain that the mere unlawfulness alone would not have predisposed the court to find oppression. The court, however, made a distinction between oppression and unfairness on which Mr. Sanguinetti seeks to rely. At page 170 the court said:
23. The court concluded that even if the statement had not been made as a result of oppression, it had been made as a result of the detention. The conclusion was in these terms:
24. We cannot read this judgment as meaning that, oppression apart, any element of unlawfulness in any period of detention amounts to such unfairness as should move the judge to exercise his discretion in excluding evidence so obtained. The matter is one of discretion, but clearly the discretion to exclude for unfairness alone, and in the absence of oppression, will not invariably be exercised in favour of an accused merely because a salutary rule of procedure has not been observed. It is a matter of degree. 25. In Hudson (1) the twenty-five hours of interrogation extended over 5 days in periods of two to two and a half hours each time. On the second day the interrogating officers had quite sufficient to charge him with an offence of corruption but by reason of the instructions they had received from the DPP, they were unable to do so. For the same reason the defendant was not taken before a magistrate in accordance with the provisions of section 38 of the Summary Jurisdiction Act of 1879. He was thereafter held for a further three days. Apart from the obvious element of oppression which those facts disclose, the sheer disregard for fairplay to the defendant was extreme. No comparable dereliction is disclosed in the present case. 26. It is true that in his ruling the judge appears to concentrate on the question whether anything had occurred which might have exerted such pressure upon the defendant as to make his statement involuntary. He was satisfied that the circumstances including the detention for thirty-one hours did not disclose anything which would have made it involuntary. He does mot appear to have been addressed on the alternative possibility of exclusion by the use of his residuary discretion and no mention was made of such discretion in his ruling. We cannot say that in the circumstances of this case the failure to take the applicant before a magistrate in compliance with the provisions of section 52 amounted to such unfairness as would oblige us now to exercise our discretion in his favour. (1) (1981) Cr. App. R. 163 Representation: Mr. A.J. Sanguinetti & Cheng Huan (K.Y. Woo & Co.) for the Appellant. Mr. Michael Jennings, for Respondent/Crown. |