The Queen v. Wong Kuen and Others

CACC000732/1983

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 732 OF 1983

___________

BETWEEN

______________

Coram: Garcia, J. in Court.

Date: 16th July, 1983

__________

JUDGMENT

__________

1. The four appellants were convicted of conspiracy contrary to Common Law on 24th November 1982 and they now appeal against conviction.

2. The particulars of the conspiracy alleged are that between 1st June 1981 and 31st January 1982, the appellants conspired together and with other persons unknown to defraud the Vegetable Marketing Organization by falsely representing that quantities of vegetables were unsold and therefore not subject to payment of 8% commission to the said Organization.

3. The Vegetable Marketing Organization is established under the Agricultural Products (Marketing) Regulations Cap. 277, to operate and manage the wholesale vegetable market at Cheung Sha Wan, Kowloon. Provision is made in the said Regulations for the payment of commission to the Organization on the proceeds of sales of vegetables for the maintenance of the market and for the payment of salaries of its employees.

4. The rates of commission payable on the proceeds of sale of vegetable inside the market are 10% on vegetables grown locally and 8% on imported vegetables.

5. Most of the vegetables sold in the Cheung Sha Wan Market come daily from China and these imports are transported direct to the market. The imports are nominally made through a group of wholesalers known as the Choi Luen Hong, of which the representative handling the sale of such produce is Tse Kam Ping, the 3rd appellant, who is described as a Sales Executive of a Chinese Government Organization known as the Shum Chun Food Importing and Exporting Company. His position, it appears, was to oversee the daily imports and sales of vegetables imported into Hong Kong from China, and sold at the Cheung Sha Wan Market. The wholesalers in China working through the Choi Luen Hong set a daily quota of vegetables to be sold in the market and this apparently was the origin of the problem which the importers/wholesalers found themselves in about June 1981.

6. Inside the market there is a major wholesaler, the Tin Kee Lan, which takes all the imports from the Choi Luen Hong, and in turn the Tin Kee Lan sells the imported vegetables to 8 or 9 sub-wholesalers among whom is the Lee Wah Firm, of which LI Man-ming, the 4th appellant was one of the two partners. From the sub-wholesalers sales are made to hawkers or hawkers' representatives in the market itself and the sold vegetables are transported by them out of the market for re-sale or for ultimate consumption by the consumer. Payments for the goods are made in cash, or if credit accounts are maintained by the various buyers, sub-wholesalers or hawkers with their respective sellers debits are made thereto, but before the goods are allowed to leave the market premises, a docket showing the value and the quantity of goods sold are issued and attached to the goods which are placed in baskets, and only upon the production of this docket may the goods be allowed to be removed from the market.

7. The commission is in fact paid by the buyers, that is the hawkers, to the Vegetable Marketing Organization either in cash or again as a deduction from the amount eventually paid by the buyers to the Tin Kee Lan when accounts are settled, usually within a period of a week or 10 days. The sub-wholesalers pay a commission of 4% to the Tin Kee Lan on every sale made.

8. The 1st appellant, WONG Kuen, and the 2nd appellant, LI Wai-bun, are two of the three partners of the Tin Kee Lan and it appears that some time in the early part of June 1981, it became difficult to dispose of the whole quota of daily imports of vegetables from China into the Cheung Sha Wan Market, and large quantities of vegetables remained unsold in the afternoons and they would be transported by Tin Kee Lan to the rubbish dump or to another market for sale, and therefore such goods were not subject to the payment of commission to the Vegetable Marketing Organization.

9. However, a scheme was devised with the concurrence of the 1st, 2nd and 3rd appellants to sell the unsold vegetables to the 4th appellant who eventually transported such vegetables out of the market upon dockets issued by Tin Kee Lan to indicate that the vegetables were unsold, thereby evading the payment of the 8% commission to the Vegetable Marketing Organization

10. There is no doubt that on these findings the magistrate was entitled to convict the appellants of the conspiracy set out in the charge.

11. The Crown relies for its case against the appellants on confessional statements made by each of them to officers of the Independent Commission Against Corruption and this is acknowledged in the statement of findings of the magistrate in the sentence:

"It was conceded by the Crown that the conviction of the Defendants was dependent upon the admission of the disputed cautioned statements."

12. The main and substantial ground of appeal is that magistrate erred in ruling that the Crown had established beyond all reasonable doubt that each of the said statements were freely and voluntarily made by the appellants.

13. At the trial the admissibility of each of the statements was disputed and the magistrate adopted the alternative procedure in the inquiry.

14. Although objections to the admissibility of each of the statements were raised by Counsel on behalf of the appellants, no evidence were given by any of the appellants, nor did Counsel specifically cross-examine any of the witnesses concerned in the taking of the statements on any of the issues raised in the objections.

15. In relation to the 1st appellant, the objections to admissibility were as follows:

"On arrival at the I.C.A.C. offices, NG Wai-lock (an I.C.A.C. officer) said to the 1st appellant: 'Do not be afraid. It's nothing to do with you. Put down on paper whatever you say.

If you do not speak, we will ask the Boss to take away your two spaces in the market.

If you don't speak we have the right to detain you.' "

The 2nd appellant's objections were:

"The 2nd appellant was asked how long he had been in the market and told 'nothing to do with you' and asked to co-operate and be a witness. If he did not speak he would be detained."

For the 3rd appellant, the objections were:

"The case is over the 4th Defendant - nothing to do with you. It is important for you to clear matters. You've been in the market a long time and know the market well. Nothing to do with the 3rd Defendant. NG sai, he wished to clarify matters with the 3rd Defendant, if you co-operate matters will end quickly. The 3rd Defendant was hungry. The record is not accurate as to what transpired and wrongly recorded."

For the 4th Defendant, the particulars of objections were:

"When the 4th Defendant went to the I.C.A.C. he said he had dermatitis and needed medical treatment, and said he had an appointment with Yip Chi Sze, Kowloon at 4.30. He was told it was impossible to see the doctor. The 4th Defendant said he was not well and then after that a Chinese male came in with a pile of documents and threw them on table.

He said: 'We have all the evidence. You can't deny.' The 4th Defendant was shown. a photograph of himself, and told 'we' observed you in Cheung Sha Wan Market. It's better to co-operate. There was an argument. The record is not a true record. The Defendant does not understand or read Chinese. He is illiterate."

In addition to all these objections, Counsel objected to the admissibility of all the statements on the ground that they were conducted by question and answer after the appellants had been cautioned, in breach of the Judges' Rules.

16. Counsel for the appellants submitted to this Court and in the lower Court that in the face of those objections involving as they were threats and inducements, it was incumbent upon the Crown to rebut these allegations. He relied, and relies on the judgment of Pickering J. in Wat Kwok Leung v. Reg.⁽¹⁾ in particular the following passage:

"No doubt, in these cases, the burden thrown upon the prosecution is that of proving a negative but that can be done if the proper questions are asked and receive credible appropriate answers. It is highly desirable, if not essential, that in preparing the ground for the admission of a confessional statement, questions as to whether any threats, inducements or violence were employed, be directed to the witness who took the statement and to any other witness who was present at the time ... What is required of the witness or witnesses is an account of the factual situation in which the statement came to be given and not an expression of mere opinion. That factual situation can be extracted if the proper questions are asked and receive credible appropriate answers. In the present case the questions were not put and, in my view, the learned magistrate was not justified in assuming that the statement was free and voluntary, for it had not been proved affirmatively and beyond reasonable doubt so to have been taken."

17. The above statement was adopted by the Full Court in Reg. v. Kwok Kwan-ho ⁽²⁾ as being a correct statement of the Law. In the judgment of Huggins, J. (as he then was):

"Pickering J. did not intend, and either to suggest that there are certain specific questions which must be asked in every case, but what has to be done is to ensure that, whatever questions are asked the evidence which is on the record is such that the judge can be fully satisfied that it has been proved affirmatively that the statement was voluntary. "

This latter statement was explained in Reg. v. Lo Sun Wa & Others: ⁽³⁾

"It was suggested at one stage by counsel that the voluntary nature of the record of the statements had not been established because the officer who conducted the interview had not been asked in terms whether any threats or inducements had been offered to Dl before or during the interview.

We regard this as a point without substance, in view of the clear ruling by the Full Court that no particular questions are required. Indeed, this question is quite valueless, since it could only expect to receive the answer 'No'."

18. The magistrate relying on this statement and considering the evidence of the taking of the statements from these appellants came to the conclusion that these statements were made freely and voluntarily by the appellants. He also dealt with the question of the infraction of the Judges' Rules. As the statements were taken by means of questions and answers after the appellants had been cautioned, he says as regards this matter that whilst there were breaches of the Judges' Rules they were but of a minor nature and ones which occurred frequently during the taking of statements. He further stated that none of the breaches in the present case were so grave as to cause him to exercise his discretion to exclude the statements.

19. Looking at the contents of the statements themselves there can be no doubt that these statements had been taken by means of a series of questions in cross-examination of the various appellants. Some of the questions even went as far as to allege criminal misbehaviour on the part of the appellants and some of them called for replies to be made by the appellants. The interviews were long, except in the case of the 2nd appellant and in this matter, I would refer to Reg. v. Lo Sun Wa & Others,⁽³⁾when the Chief Justice said:

"There is no doubt that the long interrogation of Dl amounted to a serious infringement of the Judges' Rules."

I think therefore that long interrogations of suspects under caution are not, as stated by the magistrate in this case, minor infractions of the Judges' Rules. The Chief Justice stated further:

"A few years' ago, such an infringement would, by itself, have been sufficient to render the record of the interview   inadmissible. For example, in Cheung Kun Sun & Others v. R.,⁽⁴⁾ the Full Court, when discussing Rule 3 of the Judges' Rules, as clarified by a Home Office Circular issued in 1930, says-

'Rule 3 was never intended to encourage or authorise the questioning or cross-examination of a person in custody after he has been cautioned, on the subject of crime for which he is in custody, and long before this Rule was formulated since, it has been the practice for the judge not to allow any answer to a question so improperly put to be given in evidence.'

This case illustrates the strict view, taken at that time, that any serious infringement of the Judges' Rules would normally, by itself, be sufficient to exclude a confession obtained after such a breach.

However, this approach has been modified during the past decade. The principle is now firmly established that infringements of the Judges' Rules are only one element, albeit an important one, to be considered in deciding the central question, which is whether or not the Crown has established the voluntary nature of the admission. (5)

An example of the present approach is LI Wing-loi v. R., in which Briggs, C.J. says -

'It is settled law that what the judge has to do is to satisfy himself beyond reasonable doubt that any statement put before him is a voluntary statement as that phrase has been interpreted in the courts. One matter he can take into consideration is whether or not there has been a breach of the Judges' Rules.

The principle was clearly stated by Davies, L.J. in R. v. Prager ⁽⁶⁾ as follows -

'The non-observance (of the Rules) may, and at times does, lead to the exclusion of an alleged confession; but ultimately all turns on the judge's decision as to whether, breach or no breach, it has been shown to have been made voluntarily.' "

20. In this case the magistrate brushed aside the breaches against the Judges' Rules, and ruled that the statements of the four appellants were admissible in evidence. He also considered that the absence of what he termed "ritual" questions as to the inducements and threats set out in the objections made on behalf of the appellants not to be significant in the circumstances, having considered the manner in which the statements had been taken, found that the Crown had already discharged its burden of proof in respect of the admissibility of those statements following Lo Sun Wa ⁽³⁾ and that it was not incumbent upon the Crown, in the circumstances such as we have in this case,to rebut the allegations which have been made on behalf of the appellants. In my view, Lo Sun Wa ⁽³⁾ must be read together with another statement made by the Chief Justice in the case of LO Wing-cheung and explained in the case of The Queen v. NG Tat-shing and CHEUNG Kuen-yuen v. The Queen. ⁽⁷⁾ At page 11 he says:

"In LO Win-cheung v. Reg. ⁽⁸⁾ this court considered how the obligation which lies on the Crown, where the voluntary nature of a statement is attacked, to show that it was made without threats or pressure of any kind should be discharged. We made it clear that, in general, there is no obligation on the Crown to cover the whole period between arrest and the taking of a statement, if the defence does not allege any impropriety during that period. We commented that there is no burden on the Crown to disprove something which nobody suggested had occurred."

21. Pausing here I think in the objections raised there were suggestions that something had occurred during the time when statements were taken from the appellants. Further on, he says:

"But we expressed the opinion that, where particulars are given of the form of threat or inducement which is supposed to have been made to the accused person, the Crown could only discharge its obligation to prove the voluntary nature of the confession if it calls evidence from such police officers as were alleged to have been responsible, to testify that no such threat or inducement was delivered."

22. I think this obligation has not been discharged by the Crown in this case. This obligation is still extant in law, and the Lo Sun Wa ⁽³⁾ case does not in my view reduce or in any way set aside the obligation of the Crown in this respect. It does not appear necessary that, before the Crown is asked to discharge its obligation, and I think that obligation can only be discharged by the relevant evidence being adduced, the allegations be supported by evidence from those who made them.

23. I think that in a case such as this, where particulars of objections to the admissibility of statements have been furnished, it is incumbent upon the Crown to adduce evidence to rebut those allegations. This had not been done and taking these matters into consideration and the breaches of the Judges' Rules involved in the taking of those statements, I come to the conclusion that the Crown has not discharged its burden of proof to show affirmatively and beyond all reasonable doubt that the statements admitted in evidence by the magistrate had been freely and voluntarily made by the appellants.

24. In the result, since the statements are the only evidence upon which the Crown relies for the conviction of the appellants I would allow the appeal and quash the convictions of the four appellants. The sentences against the appellants are therefore revoked and the fines, if paid, are to be returned to each of them.

(1)    Cr. App. 880 of 1972.

(2)    (1973) H.K.L.R. 234

(3)    (1980) H.K.L.R. 253 & 257

(4)    (1962) H.K.L.R. 13

(5)    (1974) H.K.L.R. 440 at p.444.

(6)    (1972) 56 Criminal Appeal Report 151 Criminal Appeal 880/72, unreported.

(7)    Crim. App. 56 of 1979

(8)    Crim. App. 1979 No. 378.

Representation:

Mr. Osborne for Crown.

Mr. CHENG Huan (Wong, Hui & Souza) for all Appellants.