Attorney General v. Wong Pang

CACC000797/1978

Coram: Briggs, C.J., Huggins & Pickering, JJ.A.

Date of Judgment: 17 January 1979

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JUDGMENT

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1. This is an appeal by way of case stated under the provisions of section 105 of the Magistrates Ordinance, Cap. 227. This court is asked to answer two questions of law which read as follow:-

"The question of law arising on the above statement for the opinion of this Court is therefore whether a statement which has been made by a defendant out of court, and which contains exculpatory allegations as well as admissions, is conclusive as to the facts contained therein when the statement is put in evidence by the prosecution with the consent of the defendant given under section 65C of the Criminal Procedure Ordinance, Cap. 221. In addition to or alternatively, the question of law arising is whether the Court is bound by the facts stated in the 'statement of facts' if such facts are admitted by consent between the prosecution and the defence under S. 65C of the Criminal Procedure Ordinance, Cap. 221."

2. The second question, in effect, asks whether a court may draw inferences from facts agreed by consent between the parties to a case under the provisions of the said section 65C.

3. The respondent, Wong Pang, was charged with one offence of being in possession of a dangerous drug, namely, 442 grammes of prepared opium and 31 ml. of opium water for the purpose of unlawful trafficking contrary to section 7 of the Dangerous Drugs Ordinance, Cap. 134.

4. The respondent was also charged with being in possession of an opium pipe fit and intended for the smoking of prepared opium contrary to section 36(1) of the same Ordinance.

5. We are not concerned with this second charge since the respondent pleaded guilty to it at his trial. The magistrate held that the respondent had no case to answer on the first offence to which he had pleaded not guilty but he was convicted of the lesser offence of simple possession of the prepared opium and opium water.

6. The case for the Crown on the first charge, a charge of possession of dangerous drugs for the purpose of trafficking, consisted of certain facts and exhibits which were admitted by the prosecution and the defence under the provisions of section 65C of the Criminal Procedure Ordinance.

7. No witness was called for the prosecution. And the respondent was represented by counsel.

8. Amongst the exhibits so admitted was a cautioned statement made by the respondent to an officer of the Customs and Excise Service. The statement was in writing and the part relevant to this appeal reads as follows:-

"The above seizures of dangerous drugs and smoking paraphernalia were used by me for smoking as a cure."

9. The magistrate, acting on the authority of Wong Kwai-ping v. The Queen ⁽¹⁾, held that the true interpretation of section 65C of the Criminal Procedure Ordinance was that by admitting that statement under that section, the court was precluded from questioning its contents, namely, in this particular case the court must hold that the opium was used by the respondent for his own purposes and therefore not for trafficking.

10. Section 65C, subsection(1), reads as follows:-

"65C. (1) Subject to the provisions of this section, any fact of which oral evidence may be given in any criminal proceedings may be admitted for the purpose of those proceedings by or on behalf of the prosecutor or defendant and the admission by any party of any such fact under this section shall as against that party be conclusive evidence in those proceedings of the fact admitted."

11. The purpose of section 65C is to provide a simplified means of producing evidence before the court. For example, in many cases, the Crown intends to call X, a police photographer; Y, the person who has drawn a plan of the scene of the crime, and Z, the doctor who examined the victim. If the defence agrees that evidence of such witnesses shall be put in in the form of a statement without calling the witnesses to give oral evidence, considerable expense is saved. The section is procedural only. There is no suggestion that evidence produced under the section should be treated by the court in a way different from the evidence given orally. Such evidence is of like nature as evidence given orally.

12. In the present case, all that was admitted was that the respondent had made a certain statement. The contents of the statement were not admitted. The prosecution could have called the officer before whom the statement of the respondent was taken. That officer could not have given evidence as to the truth or untruth of the contents of the statement. All he could have done is to say "I was present when the respondent made the following statement". The admission under section 65C can go no further than that. The "fact of which oral evidence may be given", in the words of the section, was the making of the statement, and not its contents. The admission was not an assessment of the contents of the statement, which was something to which the officer before whom the statement was taken, could not have deposed. If the officer himself had given evidence orally, it would have been necessary for the magistrate to have assessed the contents of the statement, and to have drawn such inference from it as he thought proper. Similarly, when the giving of the statement was admitted under section 65C, the magistrate is entitled to proceed in the same manner, and to decide if the statement is true and to draw proper inferences therefrom.

13. As I have said above, at the end of the case for the prosecution, the magistrate held that there was no case to answer on the first charge because of the contents of the statement. He was persuaded to do this by counsel for the respondent, who relied on the case of Wong Kwai Ping v. The Queen ⁽¹⁾. The headnote of that case reads, in part, thus:-

14. In that case, the trial judge relied on the case of R. v. Kwan and Another ⁽²⁾, another case in which the prosecution offered no evidence against the appellant Kwan, except an agreed statement of facts. That case is distinguishable from the present case. Part of the headnote reads as follows:-

15. In giving the judgment of the court, Pickering, J. said this, at page 344:-

"We refrain, at this stage, from any ruling as to whether an agreed statement of this type can bind not only the parties, but also the court, but we feel constrained to say that in view of the learned judge's ruling that the trial could proceed, so far as the first appellant was concerned, on the basis of the agreed statement and that only, that it would be utterly prejudicial to the first appellant for the judge at first instance, or for us, to stray outside that agreed statement."

16. At page 346, he had this to say:-

"The learned judge, like any judge acting as judge and jury, was conditioned to a frame of mind in which inferences of fact, for or against an accused, can properly be drawn. What he overlooked when he came to consider his findings in the present case was that, the facts having been agreed between the prosecution and the defence and the court having acquiesced in the trial proceeding upon the basis of those facts, no room was left for inference. He was shackled. The Crown had hamstrung itself by agreed facts - and the judge had agreed to proceed upon the basis of those facts. Could he have done otherwise is, as we have said, a matter we reserve for future consideration - should the Crown ever get itself into this position again. In the meantime, the learned judge agreed to what he agreed and we, like him, are bound by his decision in that respect. Thus, there is no room for inference and the agreed facts, as far as the first appellant is concerned, are exclusive and binding. As we have seen, those facts, even had the charge been adequately drawn, revealed no offence."

17. In that case, though one of the agreed facts was the belief of the appellant Kwan to certain matters, the prosecution persuaded the court to hold that that belief was unreasonable or incredible. This was obviously wrong as the belief had been agreed under section 65C as a fact. It is not a question of inferences to be drawn from agreed facts.

18. It was emphasized in that case that the court acquiesced in the agreement between the parties that reliance would only be placed on the facts agreed under section 65C.However, it would appear that the real reason the court took this view was so as not to prejudice the particular appellants in any way in that case. I do not think that the acquiescence by the court went further than that.

19. The case of Wong Kwai Ping ⁽¹⁾ differs from Kwan's Case ⁽²⁾ in that the court did not acquiesce that the facts agreed under section 65C were to be treated as the complete facts.

20. In Wong's Case ⁽¹⁾, a certain statement made by the appellant formed part of the agreed facts under section 65C. The court held that when the Crown accepted that the statement had been made by the appellant, the Crown also accepted the contents of the statement and the magistrate could not draw any inference from the statement. He must accept the contents of the statement as being accepted facts under section 65C.

21. This, as I have shown above, is not correct. It is enough to say that the case of Wong Kwai Ping ⁽¹⁾was wrongly decided and must be overruled.

22. The case of R. v. Lam Man-woo ⁽³⁾was referred to in that case and it appears that Huggins, J. was of the opinion that inferences can be drawn from admitted facts though this was obiter.

23. Counsel drew the attention of the court to section 65A of the Criminal Procedure Ordinance. This reads as follows:-

"65A. (1) A court or jury, in determining whether a person has committed an offence -

The inferences are to be drawn "from the evidence" and since the admitted facts are evidence, it is clear that inferences may be drawn from the admitted facts.

24. The real question is "What fact has been agreed?" and it is clear here that it was the making of the statement and not its contents which was agreed.

25. The answer to the question mentioned in paragraph 13 of the case stated must be answered in the negative in each case and proper inferences may be drawn from the statement of agreed facts and the mere agreement that a statement has been made does not mean that the contents of that statement have been agreed.

26. The appeal is allowed and the case is remitted to the magistrate with a direction to proceed with the trial of the original charge of being in possession of dangerous drugs for the purpose of trafficking.

Representation:

Duncan for crown/appellant

Cheng Huan (Ho & Wong) for respondent

(1) (1977) H.K.L.R. 287.

(2) (1973) H.K.L.R. 335.

(3) (1974) H.K.L.R. 331.

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Coram: Briggs, C.J., Huggins and Pickering, JJ.A.

Date of Judgment: 17th January 1979.

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JUDGMENT

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Huggins, J.A.:

27. This seems to me a very clear case. The learned magistrate rightly considered himself bound by Wong Kwai-ping v Reg. 1977 H.K.L.R. 287, but he was clearly doubtful about the correctness of that decision and it is submitted by Mr. Duncan on behalf of the Attorney General that those doubts were justified.

28. The Case Stated recites that the case against the Respondent proceeded upon facts and exhibits admitted by both the prosecution and the defence pursuant to section 65C of the Criminal Procedure Ordinance. The question we have to decide is whether the learned magistrate was bound to decide the case upon those facts and exhibits alone or whether he was at liberty to draw all proper inferences from the admitted facts and exhibits. One of the facts admitted was that the Defendant under caution had "admitted ... that the drugs were used for smoking as a cure by him". It is, perhaps, unfortunate that the word "admitted" was used in this connection, because it does suggest that it was alleged by the police that the drugs were used by the Defendant for smoking as a cure. Strictly one cannot "accept as valid or true" (to quote the Concise Oxford Dictionary) something which has not been offered or put forward as valid or true. What was here "admitted" was obviously not alleged by the police either then or subsequently. The word may have been appropriate to the ownership of the drugs, because an admission of ownership in the circumstances in which the drugs were found would undoubtedly include an admission of possession - which was alleged by the police. However, I do not think this case falls to be decided upon some nicety of language: clearly what was admitted was the fact that the Defendant had said that the drugs were used for smoking as a cure by him. If this fact had not been admitted, the officer of the Customs and Excise Service who cautioned the Defendant and took the statement from him would have had to be called to say that he heard the Defendant make the statement. It is unlikely in the extreme that he would have been able to testify also to the truth or otherwise of the Defendant's explanation for his possession of the drugs. For my part I do not think the words of the admission under section 65C can properly be construed as an admission by counsel for the prosecution that the explanation was true. That he did not so understand it is clear from the fact that the charge was not amended at the outset.

29. The argument that, once the statement was admitted in evidence under section 65C, the truth of the statement was ipso facto admitted is manifestly untenable. It may be that the dual meanings of the word "admitted" as used in the argument has caused misunderstanding. Be that as it may, Mr. Cheng Huan has relied upon the decisions in Kwan Cheuk-yin v Reg. 1973 H.K.L.R. 335 and Wong Kwai-ping v Reg. 1977 H.K.L.R. 287. The judge in the latter case purported to follow the former, but with all respect to him I think he did not appreciate a vital factor which was present in the earlier case and not in his. In Kwan Cheuk-yin v Reg. there was an agreed statement of the facts: that is to say, not only were facts admitted by both the prosecution and the defence but it was agreed that the trial should proceed on the basis that those were the complete facts in relation to the charge against the 1st appellant. The Full Court therefore held that it was not open to the prosecution to rely upon further facts which could have been inferred from the agreed facts. In Wong Kwai-ping v Reg. facts were admitted but there was no agreement that those facts should constitute the entire factual basis of the decision. Nevertheless the case was decided on appeal as though there had been such an agreement and in my judgment the decision was wrong.

30. I would only add two comments upon Kwan Cheuk-yin v Reg. First, it was stated in the judgment that the court had acquiesced in the trial's proceeding upon the basis of the agreed statement of the facts. It should not be inferred from that that the acquiescence of the court was material: as I understand it the court was bound to decide the case upon the evidence placed before it, although a judge may, no doubt, properly point out the insufficiency of an agreed statement of the facts, as was apparently done in Tsui Hing-cho v Reg. Miscellaneous Proceedings 1978 No. 748, although we do not have the judgment either of the trial judge or of the Full Bench in that case. As I understand it, what happened was that the judge gave leave under section 65C(4) to withdraw an admission of facts and the Full Bench held that he was entitled so to do. The case is certainly not authority for the proposition that the leave of the court can be given or refused for the filing of a statement of admitted facts. Secondly, our attention has been drawn to the provisions of section 65A(1)(b), which provide, inter alia, that in determining whether a person has committed an offence the court or jury shall draw such inferences from the evidence as appear proper in the circumstances. It may have to be decided hereafter whether a party can lawfully bind the court by agreement from drawing any proper inferences from facts admitted. There can be a statement of admitted facts but it may be open to question whether there can be an agreed statement of the facts otherwise than for the purpose of deciding a preliminary point of law.

31. In the present case the learned magistrate ought now to be free to draw any inference he thinks proper from the facts which were admitted and I agree that the appeal should be allowed. 

17th January 1979

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Coram: Briggs, C.J., Huggins and Pickering, JJ.A.

Date of Judgment: 17 January 1979

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JUDGMENT

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Pickering, J.A.:

32. I concur and there is nothing I wish to add.