Tang Shuk Ling v. The Queen

CACC000782/1982

BETWEEN

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Coram: Jones, J.

Date: 13 September 1982

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JUDGMENT

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1. The appellant was convicted on the 1st June 1982 of one charge of possession of dangerous drugs for the purpose of unlawful trafficking contrary to section 7(1) of the Dangerous Drugs Ordinance Cap. 134. She was sentenced to a term of imprisonment for three years.

2. The appellant appeals against her conviction and sentence.

3. A Police raid was carried out at about 6.45 a.m. on the 26th July 1981 at hut Number 6, First lane, Hok Lo Village, Kowloon City. The appellant was in the premises with another girl and three men. Inside the but the Police found A purple ladies handbag which contained packets of dangerous drugs each containing a mixture containing salts of esters of morphine. The total weight of the mixture was 33.79 grammes and the total weight of the salts of esters of morphine was 10.31 grammes.

4. The only evidence against the appellant was an admission made in a cautioned statement taken by W.P.C. 15152 at Wong Tai Sin Police Station later on the same day.

5. Objection was made to the admissibility of the statement on the grounds of physical ill treatment by a European inspector, and threats made by a male C.I.D. officer. When the objections were made by Counsel for the appellant the identity of the two police officers was not known. However, no issue arises on the appeal with regard to the allegations made against the male C.I.D. officer. During the course of the voir dire it became apparent that the European police officer was Inspector Scally. Inspector Scally did not give evidence on the voir dire.

6. The sole ground of appeal is that Inspector Scally should have been called to give evidence.

7. W.P.C. 15152 said that she took the cautioned statement in the C.I.D. general office in the presence of Inspector Cheung and that no European was present. Inspector Cheung testified that he was not sure if a European Inspector was in the office at the time, but did not think he took part in the taking of the statement.

8. The appellant said in evidence that during the course of taking the statement a European in plain clothes came into the room, looked at the statement after which he left. She was then taken to another room where there were several C.I.D. officers and one European. It was during this time in the absence of the W.P.C. and Inspector Cheung that the appellant complained of the incident of ill treatment.  Following this incident the appellant returned to the original room to complete the cautioned statement.

9. The learned magistrate rejected the allegations made by the appellant. He held that the statement had been made voluntarily and ruled it admissible. Following the ruling on admissibility the appellant's counsel Mr. Iu addressed the learned magistrate to the effect that Inspector Scally should have been called. The learned magistrate having considered the position said:

"By way of review, I have checked again -LEUNG Wing-ning v. R. 1980 No. 656 (Criminal) deals with this matter. No need to call European Inspector - Woman Police Constable was present throughout the period.

(There is specific allegation against Inspector Scally. His name has come out in the evidence of prosecution witnesses and it was alleged he interfered with the defendant's fingers - albeit at a late stage). (Page 29 of notes).

Satisfied that prosecution have covered all the ground they need to. I appreciate that it is alleged Inspector Scally and other C.I.D. officers were in another rooms but W.P.C. has covered the whole of the period. (Also Chinese Inspector). I admit cautioned statement as made voluntarily - Exhibit P7."

10. It is the duty of the Crown affirmatively to prove beyond all reasonable doubt that the cautioned statement was made voluntarily.

11. Lo Wing Cheong v. The Queen⁽¹⁾ held that there is no obligation on the Crown to adduce evidence of what happened to a defendant between the time of arrest and the taking of a statement if no allegation of impropriety is said to have occurred during that period.

12. In Au Yeung Choi Ling v. The Queen⁽²⁾ Zimmern J. held upon the authorities that it was open to the Crown to call one police officer to cover each allegation without calling all alleged to have been involved, but that it depended on the circumstances. In that case the appellant's allegations were against two police officers when they were together. Only one of the officers gave evidence. No allegation was made against the officer who was not called when he was alone. As a result in those circumstances the evidence given by the one officer was held to be sufficient.

13. That proposition was approved by the Court of Appeal in Leung Wing v. The Queen ⁽³⁾ where at page 101 McMullin V.P. said: -

"Although therefore it is always highly desirable in any case in which a particular officer is accused of wrongful behaviour that he should be called to give evidence on the admissibility issue, and although there may be circumstances when the court will feel it unsafe to rely upon other evidence which purports to discharge the onus on the Crown, we are satisfied that there is no principle preventing the onus from being discharged by evidence aliunde.”

14. In the instant case the W.P.C. did not cover the period when the allegations were made by the appellant for she was not present together with Inspector Scally at the time.

15. Having regard to the allegations that were made it was incumbent upon the Crown to call Inspector Scally. When the Crown failed to do so the learned magistrate should have suggested to the Crown that he should be called. He was in error when he said that this was not part of his function. It was particularly important that he should have done so for the learned magistrate commented in his Statement of Findings that the lay prosecutor probably did not realise the desirability of calling Inspector Scally. His reason that an adjournment might have been necessary for this purpose is wholly without merit.

16. There is no doubt in the circumstances of this case that Inspector Scally should have been called.

17. Accordingly the appeal is allowed, the conviction quashed and the sentence set aside.

18. The Crown has applied for an order for a retrial. However, as the fault entirely rests with the Crown it would not be in the interests of justice to order a retrial.

19. The application is therefore refused.

(1)    (1979) H.K.L.R. 550

(2)    Cr. App. 615/80 (unreported)

(3)    (1981) H.K.L.R. 96

Representation:

Mr. Lok (Y.K. Poon & Co.) for Appellant.

Mr. Franklin (Legal Department) for Crown.