R. v. LAU MING HEI

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.66 OF 1996

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D E C I S I O N

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1. The appellant was convicted after trial of one count of assault occasioning actual bodily harm and one count of claiming to be a member of a triad society. He was put on probation for 12 months. He now appeals against conviction.

2. The victim, the appellant and several others were students of a secondary school. The victim had previously assaulted the appellant in school. On the day in question, the appellant and several others asked the victim to come out. The appellant then assaulted the victim. This was followed by the others. During the assault, the appellant claimed to be a member of the Central Sun Yee On (30) Kan. Another person also told the victim that the appellant was such a member. The matter was later reported to the police. They went to the school to make enquiries. The appellant and some other students were arrested while they were at school. He was brought back to the police station. He gave a cautioned statement admitting the two offences.

3. The trial involved three defendants including the appellant and took not less than 8 days. At the trial, the appellant's cautioned statement was challenged and a voir dire was conducted. The appellant did not give evidence on this issue but called his father. The father did not and could not say very much. He said he went to the police station in the evening on that day looking for his son but was told to go home. On the next day, he went with a solicitor to the police station but they could only see the appellant in the afternoon at 3:00 p.m.

4. The learned Magistrate ruled the cautioned statement admissible. The appellant did not give evidence on the main issue. At the end of the day the learned Magistrate accepted the victim as an honest and truthful witness. However, she found it curious that the victim should volunteer that he had assaulted the appellant on a previous occasion but did not mention that to the police when he was giving a witness statement. As a result of this, the learned Magistrate said that she could not and did not rely on the victim's evidence alone to support any conviction since his evidence could not stand alone. However, she commented that the victim's evidence against the appellant and another accomplice was clear and unequivocal. Having taken into consideration, in addition to that evidence, the cautioned statement of the appellant in which he admitted having assaulted the victim, the learned Magistrate found beyond reasonable doubt that the appellant was guilty on the assault charge. The Magistrate also accepted the evidence of the victim about the appellant's claiming to be a member of a triad society, although she was not sure whether it was only the appellant or another person also who claimed that the appellant was such a member. The appellant also admitted this in his statement. Hence, the learned Magistrate convicted him of the charge of claiming to be a member of a triad society. Nevertheless, the learned Magistrate considered that there was only a claim by the appellant to be a member of a triad society but there was no evidence to show that he was indeed a triad member. As a result, the appellant was acquitted of being a member of a triad society.

5. The first main ground of appeal was that the learned Magistrate was wrong to admit the cautioned statement. It was submitted that the police were in breach of the Rules and Directions of the Secretary for Security in that they should not have arrested the appellant who was a school boy at school; that they should not have taken a statement from him without the presence of his family members or guardians; that there was no urgency to conduct the interview of the appellant in their absence; that a school janitor could not act as the guardian of a student and that the police should have tried to locate the parents or guardians.

6. It transpired that before the police intended to arrest the appellant at school, he was asked to contact his parents or guardians. The appellant said that he was not able to do so. It is of course desirable to arrest a student outside his school. The purpose of this practice is to avoid any embarrassment or adverse effect on the student in the presence of all the other students. In the present case, it is not clear whether the police had been told the appellant's address. I presume they were not, otherwise they would not have gone to make enquiries in the school. It would be unrealistic for them to leave the school after their enquiries and wait for the appellant outside the school or at his home address in order to arrest him. When they had made sufficient enquiries and found the appellant to be a suspect of the alleged crime, it would be understandable for them to immediately take the appellant away. When the appellant said he could not contact his parents or guardians, the school authority asked a janitor to accompany him to the police station. I think that was a very reasonable and sensible step.

7. There is no evidence that the students of the school were aware of this action by the police. Even if there could be said to be a breach of the Rules and Directions by making the arrest at school, I do not think this would have any adverse effect on the appellant. It was submitted that arresting the appellant in school would not only cause unnecessary embarrassment to him but also exert unnecessary pressure on him. I would agree with the learned Magistrate that such arrangement had nothing to do with the voluntariness of the statement which was taken from the appellant. I do not think it can be said that by arresting the appellant at school, this would exert such pressure on him so as to make him co-operate with the police or make admission when he would not otherwise have done so. That is not sufficient for the learned Magistrate to rule the statement made by the appellant to be inadmissible.

8. Inside the police station, the appellant was asked again to contact his parents or guardians but he was still not able to do so. One can say that the police could then wait until the parents or guardians had come. It is accepted that the officer who took the statement simply commenced the interview within a very short time, approximately 5 - 10 minutes, after their arrival at the police station. The interview was of course done in the presence of the janitor. There is no direct evidence that the school authority gave consent to the police for the interview. But the janitor did ring the school authority before the interview and informed the school. If the school had an objection or anything to say, this would have been made known to the police. There was none. In any event, the police did not need the consent of the school authority to interview the appellant.

9. In my view, the purpose of asking a witness to be present during the interview of a young suspect is to ensure that the interview is conducted fairly. Since the appellant had difficulty in getting in touch with his parents and guardians (and it turned out at a later stage that the appellant was not on very good terms with his parents), the police could not wait indefinitely. It is accepted that the police could and should have waited a little longer. However, the interview was conducted in the presence of the witness. The learned Magistrate did not say that Mr Fung, the janitor, was treated as a person in loco parentis to the appellant. It is clear that he was present to witness the interview. That was the purpose of his presence. Whether he was in loco parentis is not relevant. The learned Magistrate heard the evidence with regard to the taking of the statement. She accepted the officer's evidence. There was no evidence that the interview was conducted unfairly. The learned Magistrate was, in my view, entitled to come to the conclusion that it was a fair interview. I do not think she can be criticised.

10. Another complaint was that the prosecution had failed to call the janitor as a witness to testify as to what happened during the interview. There is no property in any witness. The prosecution was not informed that they should either call the janitor or provide him for cross-examination by the defence. In any event, there is no evidence from the defence as to what happened during the interview, the appellant not giving evidence in the voir dire or in the main trial. I do not think the "failure" to call the janitor would make any difference. This ground of appeal has no substance.

11. The next ground was that the learned Magistrate had failed to attach sufficient weight to the fact that there were repeated corrections in the cautioned statement of the name of an accomplice from Law Wai Leung to Wong Wai Leung. It was submitted that the mistake appeared a few times in the appellant's statement. The same mistake also appeared in another statement by another defendant. It appears from his statement that there was already a mistake in the preamble which was however not corrected. In the statement itself, there was mention of this person Wong Wai Leung who was alleged to be one of the persons present during the assault. The officer had given evidence as to how the mistake came about and how the corrections were made. The learned Magistrate did refer to this mistake not only in the appellant's statement but also in the statement of another defendant. She dealt with the matter. She accepted, and I agree, that this was a common error. In my view, there could be many reasons for the mistake. It could be that the appellant and the others were not sure about the surname of one of the classmates or schoolmates, Wong Wai Leung. This is a matter of credibility which is best to be judged by the learned Magistrate who heard the evidence from the officers. I do not think she had failed to consider this point adequately.

12. Another ground of appeal was that the officer, having informed the appellant that he might be prosecuted, should not continue to take a statement from him. This, counsel argued, was a breach of r.III(b) of the Rules & Directions of the Secretary of Security. Counsel referred me to the case of Mok Kwok Sui v. The Queen (unreported) Crim App 702 of 1978. The Court of Appeal said that :

"A person who has been charged or who the interrogating officer has decided to charge should not normally be asked questions even after caution, although there may be special circumstances which would justify a judge in admitting in evidence a statement which consisted of answers to questions, ....."

It was said that a person who had been arrested on suspicion should not, save in special circumstances, be further questioned once the interrogating officer had made up his mind to charge the suspect. I note that the case which sought to explain the Judges Rules, referred to the situation where the person had been charged or after interrogation, was about to be charged by the interrogating officer. This is of course not the case here. The officers made some preliminary enquiries at the school. The only part which the officer indicated that the appellant might be prosecuted was in fact one of the first sentences in the preamble of the statement. That was said as a prelude to the caution. Without it, it would make the preamble without meaning. That is far from the officer having decided to prosecute the appellant. In fact, it was not up to him to make the decision. He had not started interrogating the appellant in the police station. I do not think there is any substance in this ground.

13. Another ground of appeal was that the prosecution had failed to call a fat officer who was alleged to have assaulted and threatened the appellant. The learned Magistrate in her notes referred to this submission by counsel for the appellant. She said that she could not recall or find any mention of this allegation in her Notes of Proceedings. Counsel for the appellant accepted that if what the learned Magistrate said in her notes was that there was no evidence of the allegation against a fat officer, as opposed to no allegation made by the appellant, then this point would not be sustainable. In my view, that was exactly what the learned Magistrate meant. Counsel for the appellant before the learned Magistrate did mention in his ground of objection an allegation that a fat officer had assaulted and threatened the appellant. When the statement taker was giving evidence, the allegation was however wrongly put to him but this was denied. If the Crown fails to call any witness and in the absence of such evidence a doubt is created, then the Crown runs the risk. The court can make an adverse inference against the Crown. The Crown simply has failed to prove beyond reasonable doubt that the cautioned statement was taken voluntarily. But if the court was not in any way in doubt, the failure to call any one or more witnesses would not matter. It is clear that the prosecution need not call every witness. In the present case, there is no evidence from the defence, the appellant not giving evidence in the voir dire or on the main issue with regard to the allegation. That is what the learned Magistrate intended to say when she said that there was no such mention in her notes because there was no evidence to that ground. In any event, if the defence had wished, it was always open to him to call either the janitor or the police officer involved. There has been many occasions when the defence requests to have an informal identification of the police officers involved in the operation in order to find out which officer need to be called and which need to be provided for cross-examination purpose. This was not done in the present case.

14. The next ground of appeal was that the learned Magistrate should not have failed to consider the possibility of oppression. It was submitted that police station was an oppressive place especially for young people. Counsel referred me to the cases of R. v. Mak Chi Wah, Magisterial Appeal 1351 of 1994, AG v. Lam Man Wah, Crim App No.293 of 1991. It appears from that case that the trial judge rejected all allegations of impropriety made against the police but found that the mother being not well educated was not in a position properly to advise his son as to his rights and hence, the court could exercise his procedural discretion to exclude the statement. This was reversed by the Court of Appeal who held that the mother was not there in the capacity of a legal adviser and the mother's knowledge of law was irrelevant. Counsel seeks to argue that the case of Lam Man Wah was distinguishable because the present case was not a case where the appellant was accompanied by his parents and the Judges Rules required a young person to be interviewed in the presence of a parent or guardian. As I have said, the purpose of having someone present at the interview of a young person is to ensure that the interview was conducted fairly and without oppression. I do not understand what was the oppression alleged in this case. The appellant was accompanied to the police station by a janitor of the school. He was requested on two occasions to contact his parents or guardians but was unable to do so. He was interviewed in the presence of the janitor. There was no evidence of any assault or threat by the police officers. In the circumstances, I do not think this ground is relevant. The case of Lam Man Wah simply does not apply.

15. Finally, as a last ground of appeal, it was submitted that the appellant admitted that he was a member of the Sun Yee On Central (30) Kan. Counsel submitted that the Magistrate made no findings as to whether that was a triad society in Hong Kong or that it was a branch or related to the Sun Yee On triad society. I do not think that is of any substance in the present case. From the admitted facts, it is quite clear that the Central Sun Yee On Sam Sap (30) Kan is an active society. Furthermore, it makes itself known by having a name associating with the Sun Yee On which is a notorious triad society. Any society which has nothing to do with the Sun Yee On or triad activities would not, in my view, be stupid enough to adopt that as part of its name. It is clear that the members of this society, by adopting Sun Yee On as part of its name, intend to and does associate itself with that triad society. I do not think there is any substance in this argument.

16. For the reasons which I have given, there is no merit in any of the grounds of appeal. The appeal is therefore dismissed.