Ng Ka-hung v. The Queen
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CACC001309/1977
----------------- Coram: Leonard, J. in Court. Date of Judgment: 30th January, 1978. ----------------- JUDGMENT ----------------- 1. The appellant, a government servant, faced two charges of having, as far back as 1972 or 1973 (the charges did not specify which) accepted a bribe of $15 in each case from other government servants. The appellant was employed, inter alia, to issue vouchers which enabled drivers of government vehicles to obtain fuel, and he was also in a position where he could assist these drivers, themselves probably illiterate, in the preparation of mileage returns. It was the prosecution's case that he received from each of two drivers a sum of $15 for helping them with their returns, it being implicit but never proved that fuel was being "syphoned off"-either literally or metaphorically. It appears from the cross-examination of one of the drivers (the only one who gave evidence) that it was appellant's contention that he received the sums for the purpose of arranging dinner parties rather than as bribes. 2. The evidence came firstly from that driver who was apparently very reluctant to come up to proof for in the course of his evidence the prosecuting officer, without establishing hostility on his part, applied to treat him as a hostile witness. No ruling as to whether or not he was a hostile witness appears on the record and his examination continued. Again it does not appear whether or not leading questions were asked of him. His evidence was of little value. The question whether he was hostile is not of great importance in view of the learned magistrate's findings but the failure to rule on the application does indicate incompleteness in the record. 3. Clearly the success or failure of the prosecution's case depended upon the admissibility of statements made by the accused. what happened was this : the appellant was interviewed on the 20th August 1977 at the I.C.A.C. offices by investigating officers of the I.C.A.C. a Mr. TSUI Ka-wah and a Mr. FAN Sai-chor. They questioned him about matters which had occurred in 1972 or 1973 and subjected him to what, if the evidence of Mr. Tsui be accepted without reservations, I would regard as a vigorous but not unfair interrogation. Throughout this interrogation the appellant maintained his innocence but after about 1 ½ hours another member of the I.C.A.C., a Mr. Jones, joined in the interrogation. Mr. Tsui gave evidence as to the conversation between Mr. Jones and the appellant despite objection by the appellant's solicitor. The objection was to admissibility on the ground that the statement made by the appellant in the course of the conversation with Mr. Jones was not voluntary. This objection the magistrate "noted". At that stage apparently the learned magistrate decided to adopt what has, since the case of Reg. v. HO Yiu - fai & Others(1) been frequently referred to as the "alternative procedure" and not to hold a voir dire in order to determine admissibility of the statements made by the appellant to Mr. Jones. After the magistrate had noted the objection made by the appellant's solicitor to "the conversation between Mr. Jones and my client" (having cut short that solicitor's explanation as to why he contended that the appellant's part in the conversation was not voluntary) Mr. Tsui was allowed to refer to notes made contemporaneously by Mr. Jones. What followed was undesirable. The learned magistrate did not originally hear direct from Mr. Jones all that had taken place. He heard of it in the first place from the more junior officer. Mr. Jones did not repeat it in detail. Furthermore Mr. Tsui purported to "refresh his memory" by reference to the notebook kept by Mr. Jones he having studied the relevant entry when it was made. While this course has been sanctioned in the past I think it woudd have been preferable had Mr. Jones been called first. Mr. Tsui looked at Mr. Jones' notebook for one purpose only, to "refresh his memory", but it would appear that what he in fact did was read from the notebook. The record reads:
and so on. In each case the questions and answers are almost direct quotations from what was said by the participants to the conversation and almost certainly direct quotations from the notebook. What Mr. Tsui was doing was not really refreshing his memory but reading aloud the notes kept by Mr. Jones. In those notes clearly the appellant was recorded as having made a confession to Mr. Jones whereupon Mr. Jones is recorded as having informed the appellant that "Mr. Fan will take a statement from you under caution". It should be noted that Mr. Jones' notes were not an exhibit. Mr. Jones in due course gave evidence and he also referred to his own notes. His evidence at this point reads :
The phrase "These are my notes" would suggest that he at that stage tendered his notes to the court. They were not made an exhibit and again the record is deficient since it does not appear whether or not the magistrate read them. The appellant had also made a statement to Mr. Fan (as indeed Mr. Jones had promised him that he would) and this statement was tendered in evidence and was stated by the learned magistrate to be "put in and marked as exhibit P.1 and P.1A". The magistrate later put in an addendum to his findings in which he refers to this and explains that what he had intended to indicate was that the statement signed by the appellant was put in and provisionally marked as exhibit P. 1 and its translation as P.1A. The magistrate in the course of this same corrective note refers to the fact that he had held a voir dire. 4. After all the prosecution witnesses had given evidence there was an adjournment. Thereafter the magistrate's note reads:
The magistrate did not hear again the witness who had tendered the cautioned statement but he heard the appellant. This was not then a voir dire in the ordinary sense of the term. These was no trial within the trial. Either the magistrate was using the alternative procedure and calling it a voir dire or he was mixing the alternative procedure with the voir dire procedure. In his ruling on what he calls the voir dire after having examined the evidence he says at one stage :
I must presume that what he meant here was "I find that the I.C.A.C. officers did not set out to compare with the defendant the distinctions etc." otherwise I would be constrained to hold that the learned magistrate had misdirected himself insofar as the onus of proof was concerned. I do not think he misdirected himself on onus or failed to appreciate that the onus of proving that the statements were voluntary remained on the prosecution because of a later finding that he was satisfied that the statement was voluntary. Unfortunately however the sentence in which he makes this finding is also worded oddly. It reads:
This sentence confines itself to the statement dictated to Mr. Fan and does not deal with the confession made to Mr. Jones but the question as to whether that statement was true was not before the magistrate as an issue to be decided at that stage. Admittedly the accused had been cross-examined as to what parts of that dictated statement were true. But that was a subsidiary matter as to whether the statement was voluntary and that cross-examination went to credit only. The only decisions at which the learned magistrate had to arrive was whether or not the confession made in the course of conversation with Mr. Jones was voluntary and to be admitted and the question whether the confession dictated to Mr. Fan was voluntary and to be admitted. Having found that the statement dictated to Mr. Fan was "true" the magistrate (apparently although this is not clear) put to the defendant the alternative open to him whereupon the appellant's solicitor said :
We do not know why the appellant made that election. He may well have thought that there was no point in going into the witness-box to deny the truth of the confession when it had been held that it was true. Indeed having regard to the wording of the confession dictated to Mr. Fan there would have been no point in his going into the witness-box or putting forward any defence in the case once it was decided that the confession was true. The issue had been decided. To my mind that alone would be fatal to this conviction. There are however other matters to which I consider I should refer. The first is the confusion in the learned magistrate's mind as to whether or not he was holding a voir dire or using the alternative procedure. This perhaps is only a question of semantics. The learned magistrate may have used the wrong expression. I don't think serious objection could have been taken to the course he followed if he had used the expression "question of admissibility" where he did in fact use the expression "voir dire". The three main requirements which according to the court in Reg. v. HO Yiu-fai & Others(1) must be kept in mind by a judge following the "alternative procedure" appear to have been kept in mind here but the danger of confusion referred to in LEUNG Sui-ng (Criminal Appeal 570/74) was present. Perhaps it was the fact that he was using the "alternative procedure" that led the magistrate into holding that the confessions were true before calling on the appellant for his defence as distinct from his evidence on the admissibility question. To my mind the danger of confusion such as this is the principal reason for advocating the use of the voir dire procedure rather than the alternative procedure. 5. The next matter calling for comment arises from the ruling on the question of the admissibility of the two confessions. This ruling the magistrate called his "ruling on the voir dire". The defendant's evidence on these confessions was that they were involuntary because he was in a disturbed state of mind when he made them. He was, he said, worrying about his wife because she had had two miscarriages and he feared that her present pregnancy might be terminated by a third. Members of the I.C.A.C. he claimed had told him that they had a right to detain him for 48 hours and that "they said the room is ready for me to be kept for 48 hours ... as a result I admitted .." At another stage in his evidence he said he made the confessions "because all three promised me that they would set me free as soon as I had signed my name." Towards the end of his evidence-in-chief Mr. Tsui had said:
The significance of this passage when coupled with the appellant's allegations as quoted is too obvious for elaboration but the magistrate does not refer to it. Obviously if a person is told he will be bailed out as soon as he has made a statement that is an inducement rendering the statement inadmissible. The presence of the passage quoted from Mr. Tsui's evidence and the absence of reference to it by the magistrate, coupled with the fact that Mr. Tsui had "grilled" the appellant for over an hour without result but that he confessed to Mr. Jones immediately Mr. Jones appeared is enough to cause me profound disquiet as to the admissibility of the statement made to Mr. Jones. If that statement was inadmissible clearly the statement made to Mr. Fan was equally inadmissible. In considering if it was admissible the magistrate failed to consider this evidence as to bail. 6. A further factor giving rise to unease here stems from the following finding of the magistrate:
As I have said earlier what happened was that Mr. Tsui refreshed his memory from Mr. Jones' notes which Mr. Tsui had read at the time they were made but apparently he read them verbatim at the trial so that he can scarcely be said to have spoken from his own recollection however refreshed. Mr. Jones said he had made up his notes 1 ¼ hours after the interview had been completed. He produced his notebook, identified the passage and said that it was an accurate record. It had not been signed by the appellant. The appellant had not been asked to confirm its accuracy. It was not admissible in evidence (being res inter alios) and was not admitted as an exhibit and yet the magistrate makes this comment suggesting that he too had read it. 7. All these matters convince me that the conviction was unsafe and unsatisfactory (perhaps unsatisfactory rather than unsafe) and I quash the conviction. 8. Counsel for the appellant to whom I am indebted for a full argument has suggested that I should indicate my views on whether the "judges rules" or the spirit behind them should be applied to statements made to officers of the I.C.A.C. If the judges rules were so to be applied, he suggests, the I.C.A.C. officers had clearly acted in breach of the judges rules for the appellant had been questioned at length when he was under arrest. I disclaim possession of any angelic qualities but since it is unnecessary for me to decide the question as to whether the I.C.A.C. are "bound by the judges rules" I will refrain from rushing into a discussion of it. 9. The appeal is allowed and the conviction is quashed. The fine if paid is to be returned.
Representation: Mr. A. J. J. Sanguinetti (W. S. Lo & Co.) for appellant. Mr. Dawson, C. C. for Crown / respondent. (1) (1970) H.K.L.R. 415. |