HKSAR v. Au Chi Leung

[English Translation – 英譯本]
HCMA 575/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO.575 OF 2007

(ON APPEAL FROM KCCC NO.6604 OF 2006)

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Before:  Hon Nguyen J in Court

Date of Hearing: 6May 2008

Date of Judgment: 22 May 2008 

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JUDGMENT

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1.The Appellant was convicted after trial on one count of ‘indecent assault’.  He now appeals against conviction.

2.The particulars of the offence were that on 14 September 2006 the Appellant indecently assaulted another person, namely Madam Sze Wah-yung, onboard an MTR train from Admiralty to Tsim Sha Tsui.

Ground of appeal

3.Mr Wong SC for the Appellant has put forward one main ground of appeal, namely:

In violation of the principle in R v. Sharp, the magistrate erroneously treated the appellant’s record of interview (Exhibit P7) as his response under caution and failed to consider that it was a mixedstatement in nature and that the part of the statement which was favourable to the Appellant should be taken as evidence of the truth of its contents and evaluated as such.    

4.Mr Wong SC makes the following submission in respect of the above ground of appeal:

Exhibit P7 is definitely a mixed statement.  In the inculpatory part of the statement, the Appellant not only admitted that he was present at the scene (present with PW1 Madam Sze Wah-yung, in the same compartment of the MTR train), but also directly and clearly admitted that at the material time he and PW1 had physical contact which he described as ‘the contact of his right thigh and waist withPW1’s back and buttocks’ ….

5.In paragraph 40 of his statement of findings, the magistrate had this to say:    

Furthermore, the defendant did respond to the accusations when he was arrested and cautioned, and he also gave an account of the incident during the subsequent interview with the police at the police station.  In short, what he said was consistent with the response of an innocent person.  Therefore, in considering all the evidence of this case, I shall bear in mind the above factors which are favorable to the defendant.

I notice what the magistrate said when he described the arrest and cautioning of the Appellant.  What the magistrate described was the Appellant’s response.  The description of such response was ‘what he said was consistent with the response of an innocent person.’

6.In paragraph 47 of his statement of findings, the magistrate described what the Appellant said upon being arrested and cautioned as his ‘response to the incident’.  In that paragraph, the magistrate said:

The evidence concerned is the defendant’s response to the incident in face of the accusations.  Upon being arrested and cautioned, the defendant told the police officer that the compartment of the train was crowded and that he had tried his best to avoid having any physical contact with the female victim.

7.Mr Wong SC submitted that:

… to treat the evidence of the truth of the contents [of the statement] as a response was to erroneously deprive the evidence which required careful consideration of its evidential value, and was a serious violation of the legal principle in R v. Sharp.      

8.In paragraph 48 of his statement of findings, the magistrate said:

Subsequently, back at the police station and about 6 to 7 hours after the incident, he gave an account at the interview of the physical contact with the female victim.  What he said was not the version presented by the prosecution.  What the defendant said was ‘the right side of his waist and his thigh came into contact with Ms Sze’s back and buttocks’.

I notice that the magistrate pointed out that what the Appellant said during the interview was not the version presented by the prosecution.

9.The magistrate said in his statement of findings:

53.       According to the version given by the defendant, the physical contact which he admitted was that the right side of his waist and his thigh came into contact with Ms Sze’s back and buttocks.  First, this contact is not the kind of contact alleged by the prosecution, and  I do not think it is able to materially assist the prosecution to prove its caseagainst the defendant. Moreover, the physical contact admitted by the defendant took place in a crowded train compartment, and such physical contact in a crowded train compartment may not necessarily amount to indecency even though it involves the touching of a relatively embarrassing part of the body such as the buttocks.  Furthermore, he explained that it was caused by the crowded condition;  in other words, he did not want it to happen, but he had no alternative and had no indecent intent.  Therefore, his testimony was purely exculpatory.

54.       As it is an exculpatory statement, it will not be relied on by the court as a factual basis.  It can only be treated as his response in face of the accusations underlying the charge.

55.       Furthermore, in any event, I reject in its entirety the account given by the defendant under caution and at the interview on the course of events.  In my judgment, instead of telling the truth, he was merely making up excuses in an attempt to extricate himself from liability.  Therefore, I give no weight whatsoever to what he said under caution and at the interview.

Judicial precedents on mixed statement

10.(1)     In R v. Sharp [1988] 1 WLR 7, the appellant admitted in a police interview that he had been in the area at the material time and had heard the burglar alarm but he gave an innocent explanation for having been there and for his subsequent conduct.  It was held by the House of Lords that:

… it was important that a jury should be directed in a way that they could understand and follow; that they could not fairly evaluate the facts in an admission unless they could evaluate the facts in the excuse or explanation accompanying it; and that they should be directed that the whole of a ‘mixed’ statement was to be taken into consideration as evidence in deciding where the truth lay, …

I notice that that appellant in that case only admitted to the police that he had appeared in the vicinity of the scene of burglary and heard the alarm.  He explained that his presence at that place had nothing to do with the burglary.  The court classified his statement as a mixed statement.

(2) In R v. Aziz [1995] 2 Cr App R 478 at 484, Lord Steyn quoted Lord Lane CJ in R v. Duncan (1981) 73 Cr App R 359 that all parts of a mixed statement “were evidence of the facts stated, although their weight as evidence must differ widely”.

(3) In R v. Garrod [1997] Crim LR 445, Evans LJ said:

… This could not be regarded as a satisfactory exercise, not least because it was almost impossible to conceive of any series of answers which could not be regarded as containing some admissions of relevant fact as well as a statement of innocence and denial of guilt.  The question was how to identify the kind of interview which contained enough in the nature of admissions to justify calling it ‘mixed’.

Where the statement contained an admission of fact which was significant to any issue in the case, meaning capable of adding some degree of weight to the prosecution case on an issue which was relevant to guilt, that statement must be regarded as ‘mixed’ for the purposes of this rule. …

(4) In HKSAR v. Kong Siu Ming & Others[2000] 2 HKLRD449,the Court of Appeal quashed the convictions where a district judge had treated the defendants’ statements as wholly exculpatory and so treated them not as evidence of the facts but as showing no more than the defendants’image orreaction when taxed with the allegations.

The Court of Appeal was of the view that the statements were ‘mixed’ statements and reiterated that where a ‘mixed’ statement was under consideration, all parts of the statement were evidence of the facts stated, although their weight as evidence must differ.

In that case the trial judge did not entirely ignore the evidence provided in the statements.  The appellants did not give evidence at the trial.  The judge referred to a part of the statements and said that what was stated there was not supported by any evidence.  There were similar references elsewhere in the reasons for verdict which led the Court of Appeal to conclude that the ‘mixed’ statement of one of the appellants had not been properly considered by the judge asevidence.

From other things said by the judge, the Court of Appeal concluded that the judge had not regarded the explanations given in the defendants’ interviews as evidence capable of being considered as forming the basis of a defence.  The Court of Appeal regarded this as a fundamental error in the judge’s approach to the evidence.  The Court regarded the error as a material misdirection by the judge and the verdicts against the appellantsmust be regarded as suspect.

(5) HKSAR v. Poon Hoi Wing & Anor[2001] 1 HKC 363,where the Court of Appeal held that:

The categorization by a judge of a statement as wholly exculpatory when it ought to have been categorized as mixed will almost inevitably constitute a material irregularity, …

And in that case the Court of Appeal proceeded on the basis that there was such a material irregularity.

(6) HKSAR v. Yuen Man Tung[2004] 3 HKC 274, where Stock JA said at page 280:

… Whether a statement is or is not wholly exculpatory is not a question resolved by having regard to the issues which remain to be determined in the light of admissions made at the time of trial.  Its nature is to be determined rather by its content at the time it is made.  If it is adverse to the person making it in relation to an important element of the offence charged – and this is not intended to be an exhaustive delineation, but merely one that suffices for the purpose of the present case – then self-evidently it is not wholly exculpatory. …

(7) HKSAR v. Wong Chi Wan, CACC 156/2005, where on arrestfor an allegation of rape, the appellant said to a police officer:

I did not rape her.  She did it with me of her own free will …

Stuart-Moore VP giving the judgment of the court said:

Mr. Reading accepted that the applicant’s statement, albeit a denial of rape, implicitly amounted to an admission on the part of the applicant to an essential ingredient of the offence by his concession to having had sexual intercourse with the complainant.  As such, this was a ‘mixed’ statement, being partly exculpatory and partly inculpatory.

Further on Stuart-Moore VP said:

… Plainly, the exculpatory element contained in the applicant’s reply was evidence of the truth of what was said, although it might not carry the same weight as the inculpatory part. …

(8)     HKSAR v. Lo Wai Ming, CACC 530/2005, where in thevideo-recorded interview of the appellant, he admitted that cash of $25,000 odd had been found in his own car after his arrest as well as $7,000 cash in his wallet.  He agreed that the money was his.  Little of that was in issue as the appellant gave evidence at the trial in broadly the same terms except for one matter.  The Court of Appeal was of the view that that statement was a mixed statement.  McMahon J giving the judgment of the court said:

Given the contents of Ex. D1 summarized above, while it came to be that they were broadly in accordance with the appellant’s evidence at trial and therefore made no admission as to any live issue, we have concluded that important parts of Ex. D1 were in fact inculpatory and that the statement as a whole should have been regarded as ‘mixed’.  As an example, the appellant’s admission in Ex. D1 that the sum of $32,000 odd in total in his possession at the time of the arrest was the basis of cross-examination of him to the effect he had come to thatlocation to meet Lau with sufficient money to make payment or part payment for the drugs that Lau was to provide to him.

A statement which contains admissions does not change in nature simply because the matters the admissions pertain to become dead issues at trial.  The statement, if ‘mixed’ in its nature, remains so.  Nor do those admissions have to directly go to an element of the offence.  They may be circumstantial in nature.  But if they are such as to be able to materially assist the prosecution to prove its case against the defendant they render the nature of the statement ‘mixed’.

I notice that the appellant in that appeal only admitted that $32,000 was his property, but the Court of Appeal took the view that the statement should be treated as a mixed statement.   

11.In his submission, Mr Hui, Senior Government Counsel for the Respondent, points out that the factual matrix of the present case was that the Appellant was found committing the offence of indecent assault and arrested on the spot.  Mr Hui said:

… under these circumstances, the Appellant could not but ‘admit’ under caution that he was at the scene of the offence and had had physical contact with PW1.  On the facts of the case, neither of the above two so-called ‘admissions’ can materially assist the prosecution to prove its case against the Appellant.  Furthermore, the physical contact and the circumstances under which it took place as ‘admitted’ by the Appellant are in fact disproving the element of ‘indecency’ in the offence charged.  Therefore, what he said in the statement can be regarded as exculpatory in nature.

12.With respect, I do not agree with that submission.  The statement should be a mixed statement as long as the Appellant made admissions adverse to him on some issues.  The issues on which the Appellant made admissions need not be the ones which can materially assist the prosecution to prove its case against him.

13.Mr Hui also submits that:

… the magistrate had in fact considered and analysed the course of events as described by the Appellant in the cautioned statement. …

With respect, I do not agree.

14.In my judgment, what the Appellant said under caution and the account that he gave at the recorded interview should constitute a mixed statement.  As the Court of Appeal indicated in Poon Hoi Wing, an erroneous categorization by a judge of a statement as exculpatory when it should have been categorized as mixed will inevitably constitute a material irregularity.  As stated in Lo Wai Ming, ‘to materially assist the prosecution to prove its case againstthe defendant’ is not the only test for determining whether a statement is a mixed statement.  As pointed out in Yuen Man Tung, if the content of a statement made by the defendant is adverse to him in relation to an element of the offence charged, the statement ought to be categorized by the court as a mixed statement.  

15.For the above reasons, I allow the Appellant’s appeal, quash his conviction and set aside the sentence.  As the circumstances of the present case are serious, I order that the case be remitted to another magistrate for re-trial.  The bail currently given to the Appellant is to be extended until conclusion of the re-trial.

Mr Martin Hui, Senior Government Counsel, for the Respondent.

Mr Wong Man Kit SC and Ms Samantha Chiu, instructed by Simon S M Kwok & Co, for the Appellant.

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. Edmund Cham, Solicitor.