Au Yeung Choi Ling v. The Queen

Case No.CACC 615/1980

Court

Court of Appeal

Date30 Oct 1980

Judge—

Case Document

100%

CACC000615/1980

IN THE SUPREME COURT

	Criminal Appeal
	1980, No. 615

BETWEEN
	AU YEUNG CHOI LING	Appellant
	and
	THE QUEEN	Respondent

Coram: Zimmern, J.

Date of Judgment: 30th October, 1980.

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JUDGMENT

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1. The appellant with two others were charged before a magistrate with aiding and abetting Yip Yung-mau and others to remain in Hong Kong after landing here unlawfully contrary to section 38(1)(b) of the Immigration Ordinance Cap. 115 and section 89 of the Criminal Procedure Ordinance Cap. 221. She was convicted and the other two acquitted.

2. The facts of the case were that the police acting on information raided certain premises of which she was the tenant and in which were found 17 or 18 people with her.

3. The grounds of the appeal are:-

1)	that no evidence was adduced that any person named "Yip Yung-mau" was found at the premises,
2)	that there was no or no sufficient evidence that any of the persons found at the premises was an "illegal immigrant",
3)	that the prosecution failed to prove that that the caution statement made by the appellant was voluntarily made and therefore was wrongly admitted.

4. The first ground of appeal was properly abandoned at the hearing.

5. The second ground of appeal is contrary to the evidence. The first prosecution witness a police sergeant one of the police party which raided the premises said in chief:

"	Q.	What happened in the living room with those 17 people.
	A.	We found 13 out of the 17 were Hong Kong residents. The rest were illegal immigrants just arrived in Hong Kong.
	Q.	Then.
	A.	By this time the colleagues from 2nd floor brought the 2 persons up to the flat. These 2 were also illegal immigrants.
	Q.	So total of 6 illegal immigrants and 13 Hong Kong residents.
	A.	Yes."

This was not challenged in cross examination by counsel for the defendant. The learned magistrate took this point and this ground of appeal fails.

6. As to the last ground, the admissibility of the statement made by the appellant was challenged on the ground that she was taken into an annex room where two police officers namely PW1 and PW4 were. It was her case that PW1 used abusive language on her and said "You have the greatest responsibility as the arrests were made at your home. If you do not admit you will be sentenced to at least 9 months." There were other allegations against PW1 and PW4. Only PW4 gave evidence on the voir dire. He said he took the statement alone and PW1 only took the formal facts namely her name and address. Neither he nor PW1 had at any time threatened her or induced her to make the statement which was entirely voluntary. The appellant did not give evidence. The learned magistrate admitted the statement. This ground of appeal is based on principle and authority of the Court of Appeal that where an accused objects to the admissibility of a statement and gives particulars of the threat and inducement supposed to have been made the Crown is bound to call such officers as are alleged to be responsible to testify that no such threat or inducement was made. [See Lo Wing-cheung v. R. (Criminal Appeal 1979 No. 378) and Ng Tat-shing v. R. (Criminal Appeal 1979 No. 56)]. As I read the authorities which bind me it is open to the prosecution to call one officer to cover each allegation without calling all alleged to have been involved. It depends on the circumstances. In this case the appellant's allegations are against PW1 and PW4 when they were together.

7. There is no allegation that PW1 was alone at any time with the appellant when threats or inducements were made. The failure to call PW1 was not fatal. PW4 was called to cover the entire episode. The magistrate found the statement to have been made voluntary and there is no reason to say he was wrong. The appeal is dismissed.

Representation:

Cheng Huan ( H.M. S. & Co. ) for Appellant.

Sinclair for Crown.