HKSAR v. LAW TUNG YUE

HCMA 737/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 737 OF 2004

(ON APPEAL FROM ESCC 251/2004)

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J U D G M E N T

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1.  At the conclusion of the hearing I dismissed the appeal and indicated that I would give my reasons later. 

2.  The Appellant, just under 15 at the time of the offence, was convicted after trial of a single charge of robbery.  He was the 2^nd Accused at trial.  The magistrate found that the incident occurred in the following manner:  shortly after 5.30 a.m. on 6^th July 2003 a female, who testified as PW1, walked down a flight of steps near the intersection of Stubbs Road and Queens Road East; she noticed five persons standing together on the steps; after she passed them they commenced following her; four overtook her, whereupon one of the four turned around, pushed her and snatched a handbag she was carrying; the male behind her said she could use his telephone to call the police but he then passed her and made off with the other four males;  she observed that two of them, one being the person who had taken her handbag, fled by using the footbridge over Queens Road East in the direction of Wanchai.  Shortly thereafter she made a report to the police:  her handbag was found, the contents intact, near Wanchai Market.  Based upon information given to them, the police went to Cyber Café in Lockhart Road where the two Accused were arrested by different police officers some 30 minutes after the offence occurred.

3.  PC59103 arrested and cautioned the Appellant in response to which the Appellant said “I only helped LI Chi-kit (the 1^st Accused) by taking over the bag and we left together”.  Objection was taken to the admissibility of the reply.  The Magistrate resolved the issue of admissibility by way of the alternative procedure and admitted it in evidence.

4.  In respect of the general issue, the Appellant elected not to give evidence or call witnesses.  The Magistrate reminded herself that this did not justify her in drawing any inference adverse to the Appellant:  the effect was to leave the prosecution’s evidence as enjoying the advantage, for it must be an advantage, of not being undermined, contradicted or explained by any testimony from the Appellant.  (LI Defan and Another v HKSAR [2002] 1 HKLRD 527)

5.  The Magistrate was satisfied that the evidence as a whole, including the Appellant’s response to the caution, established the guilt of the Appellant and convicted him.

6.  The grounds of appeal, in summary, are:

6.1   the Magistrate “should have” exercised her discretion to exclude the reply to the caution;

6.2    she erred in finding that the five males acted in pursuance of a joint venture;

6.3    she erred in entering the arena by asking the PW1 to estimate the ages of the two Accused in court;

6.4    she erred in applying an incorrect onus or test as to inferences;

6.5    she failed to evaluate all of the evidence; and

6.6    generally, the conviction was unsafe and unsatisfactory.

Failure to exercise her discretion to exclude the reply to the caution

7.  The objection taken at trial to the admissibility of the Appellant’s reply to the caution was on the basis that PC59103 knew that the Appellant was 14 years 7 months old at the time, that he either should have delayed cautioning the Appellant until an adult relative was present or prevented the Appellant from responding to the caution other than simply to signify his understanding of it.  It was contended that the conduct of the police officer was a “gross breach” of the Rules and Directions for the Questioning of Suspects and the Taking of Statements issued by the Secretary for Security.  Further, it was suggested that the prosecution was under a duty to produce the post record in evidence so as to afford “an overall view of what happened at the scene and in the police station.”. 

8.  With respect, the basis of the objection was misconceived.  The police officer was neither questioning nor interviewing the Appellant.  When he arrested the Appellant he informed him of the time, location, description of the PW1, number of persons involved, nature of the item taken and the offence:  the Magistrate said that she was satisfied that there was no misunderstanding on the part of the Appellant as to the nature of the allegation against him.  The police officer then simply cautioned the Appellant, as indeed he should, and the Appellant made a reply.  The Magistrate observed, correctly, that no criticism could be made of the police for having cautioned the Appellant at the scene immediately after his arrest. 

9.  The Appellant’s representative at trial also urged the Magistrate, if she were against him on the issue of admissibility, to exercise her residual discretion to exclude the reply to the caution on the ground of unfairness due to the Appellant’s age.

10.  In due course the Appellant was taken back to the police station:  his mother arrived and a post-record of the events in the café was made in her presence.  The prosecution elected not to produce the post-record but simply to rely on the oral reply made to the caution.  The Magistrate heard evidence from the Accused, his mother and his father.  The effect of that evidence was twofold:  firstly, the Appellant denied having said the words attributed to him at the scene, testifying instead that he had told the police officer that he did not know what had happened and, secondly, the Appellant’s mother and father each testified to having asked, subsequent to the making of the post-record, for a further statement to be taken from the Appellant which was not done.  This evidence, of course, provided the “overall view” of events more vividly than would the production of the written post-record.

11.  The Magistrate determined that the Appellant had given his reply to the caution voluntarily.  Her Statement of Findings demonstrates that she considered all of the evidence on the issue before her.  She specifically found the prosecution witnesses to be truthful, honest and reliable and accepted that evidence:  she rejected, of necessity, the contrary evidence of the Appellant.  She then proceeded to admit the reply in evidence.

12.  On appeal the point was taken that the Magistrate did not expressly say in her Statement of Findings that she had resolved not to exercise her discretion so as to exclude the answer, therefore she must have failed to consider doing so.  The issue of admissibility was one determined by a professional Magistrate, sitting alone:  she provided brief reasons for her ruling although there are any number of authorities stating that a judge or magistrate is not required to give reasons for his ruling on the admissibility of a cautioned interview. (R. v. Chan King Hei and Others Cr.App. No. 358/94 (unreported);  HKSAR v CHUNG Sim-ying, Tracy HCMA267/2001 (unreported) and the authorities there collected).

13.  A similar situation arose in R v NGO Ngan-ting  [1976] HKLR 143 where Pickering, J., as he then was, said:

“…the learned magistrate having found that statement admissible, I am unable to accept, simply because he did not record the fact upon his record, that he failed to consider the exercise of his residual discretion to exclude the statement.

… The residual discretion, though always in the mind of a professional magistrate, need not in the circumstances of a confession such as this, occupy the forefront of his mind to the point where he must record his mental processes.”

14.  The Magistrate was fully aware that she possessed a residual discretion:  apart from any other consideration the record shows that the issue was canvassed with her a number of times immediately prior to her ruling.  That discretion is, as is well known, a single discretion to exclude admissible evidence whenever the court considers it necessary to do so to secure a fair trial for an accused (Secretary for Justice v LAM Tat-ming and Another [2002] 2 HKLRD 431) but is one which should seldom be employed (R v LAM Yip-ying [1984] HKLR 419) and is “very limited” (R v CHOW Chi-hing [1993] 2 HKC 214).

15.  In  HKSAR v CHOI Gin-ngon and OthersCACC570/1997  Mayo, JA., when dealing with the fact that a judge sitting alone had not specifically set out how she had dealt with the issue of lies, said:

“It can safely be assumed that the judge will have correctly approached the subject unless there is some clear indication to the contrary.” 

There is nothing in the Magistrate’s Statement of Findings which indicates that she did fail to consider exercising her discretion. 

16.  As to whether she was correct in declining to exercise that discretion in favour of the Appellant, the Appellant would have to satisfy me that the Magistrate’s finding was unreasonable or irrational.  He fails to do so.

The Magistrate erred in finding that the five males acted in pursuance of a joint venture

17.  The evidence of the PW1 was accepted by the Magistrate, who found her to be a truthful and honest witness:  she saw the five males standing around together; when she walked past them they started to walk behind her, as a group; four passed her;  one turned, pushed her and snatched her handbag;  all five of the males made off together.  The Magistrate found, on these facts, that “…the only inference which can be drawn is that all the five youths…were acting in concert in robbing PW1.”  On that uncontradicted evidence, she could hardly have found otherwise.

The Magistrate erred by asking the PW1 to estimate the ages of the two Accused in court

18.  PW1 had been unable to identify any of the five males.  She had described the male who had pushed her as being between 25 and 30 years of age and the others as all about 20 years of age.  The Magistrate asked PW1 to estimate the ages of the Appellant and his co-accused.  She estimated them as being between 20 and 30 years old and 20 and 22 years old respectively. 

19.  No objection was taken to this course at trial, nor could one sensibly have been made.  All that the Magistrate was doing was enquiring how the witness perceived a person’s age as demonstrated by his appearance.  The situation is no different to a witness estimating a distance and then being asked to point out that distance in court:  it does nothing more that illustrate the witness’s perception.

The Magistrate erred in applying the incorrect onus or test as to inferences

20.  This ground of appeal contends either that the Magistrate applied an incorrect onus when saying “… PW1’s evidence… does not exclude D1 or D2 as part of the group...” or applied a test as to the drawing of an inference contrary to the well-established principles laid down in R v KWANG Ping-bong and Another [1979] HKLR 1.  This complaint arises as a result of two passages in the Magistrate’s ex tempore reasons being taken out of context.

21.  In the course of reviewing PW1’s evidence and the conduct of the five males the Magistrate said

“On that evidence…I am satisfied that all five of them were together in a group, and one of the inferences which could be drawn was that they were actually concerned in the robbery together.”

22.  Exception is also taken to the later passage

“…in relation to PW1’s evidence, her evidence does not exclude D1 or D2 as part of the group, and certainly one of the inferences is that they were all working together in relation to this robbery.” 

23.  The submission ignores the fact that she immediately went on to say:

“But in effect, the only evidence against either of these two is their verbal admission at the time of their arrest and caution.

I warned myself of the dangers of convicting on the basis of the verbal admissions, but having considered all the evidence, as I have said, I was satisfied that the verbal admissions contained the truth and that the police officers had made it very clear to the two defendants what they were suspected of having done, and sufficiently particularized it so that there would be no problem.”

24.  Looked at in context, it is plain that the Magistrate was simply following a step-by-step process to arrive at her decision.  She first made a finding of fact that the five males formed a single group.  She then went on to recognise that one, but only one, of the inferences was all five were involved in the robbery.  She considered PW1’s evidence to see whether there was anything in it which would have excluded the involvement of the Appellant, being fully aware that there was nothing in it which actually demonstrated his participation.  She then recognised that it was the response made by the Appellant at the time he was cautioned which was the only link between him and the offence.  She considered the question of whether the content of the response were true and found it to be so.  Accepting the existence of that link she logically concluded that it constituted direct proof, from his own mouth, of the fact that he participated in the offence as one of the group of five.

25.  That is the effect of these passages, read realistically and together.

26.  It can do no harm to recall that Hong Kong Magistrates are professional judges:  it has long been acknowledged by the courts that where a fundamental area is involved and there is no express misdirection but rather a non-direction, the wider appellate practice is to make assumptions in favour of a trial judge or magistrate. (For example, LAM Ting-chung v R [1970] HKLR 105;  R v CHAIN Kam-sam CACC563/1984 (unreported) per Silke, JA., “We are, we think, entitled to assume that he is aware of where the burden lies and of the standard of that burden.”;  R v WU Chun-lung and Others  HKMA710/1984 (unreported)).

The Magistrate failed to evaluate all of the evidence

27.  The Magistrate not only demonstrated quite clearly, by the way she arrived at her decision, that she was fully aware of all of the evidence before her but she said so in terms:

“…I carefully considered the evidence of all of the witnesses and the content of their evidence, all the exhibits, submissions and authorities given to me, and I also bore in mind that both the Appellant and (the co-accused) had a clear record.”

28.  The evidence which it is suggested in the grounds of appeal she failed to evaluate are facts, each of which, the Magistrate addressed. 

The conviction was unsafe and unsatisfactory

29.  The Magistrate was well aware of and addressed each of the issues in turn:  force was applied to PW1 at the time of her handbag was taken; this was done by one of a group of five males who had started to follow her after she had passed them; the five males made off together; within 30 minutes of these events the Appellant was arrested not very far away; at the time of arrest the circumstances of the offence were spelt out to him; his response was incriminating; the Magistrate admitted it in evidence and was satisfied as to its truth.  It would have been surprising if, in the circumstances, conviction had not followed.

30.  There was a faint suggestion at the hearing of the appeal that because PW1’s handbag had been found with its contents intact not long after it was snatched from PW1 there could not have been any robbery because there was no evidence of any intention to permanently deprive PW1 of her bag.  Nothing more need be said other than that that is an untenable proposition.

Conclusion

31.  There was no merit in any of the grounds of appeal.  The Accused was rightly convicted. 

                                                                         (A R Wright)

                                                  Deputy Judge of the Court of First Instance

                                                                          High Court

Mr Vincent Wong, GC of Department of Justice, for the Respondent

Mr C S Fu, instructed by Messrs Lee & Li, for the Appellant