HKSAR v. LI KIT MONG

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.703
(Criminal)

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. The applicant, who was the 1st defendant at a trial which involved three defendants, faced one charge of burglary. This was particularized as follows: that he, together with Lai Koon-man and Leung Wing-hong, on or about 3rd August 1997, at Yuen Long, New Territories, having entered as trespassers part of a building known as the Wah Tai Telecom Company, Room 3, G/F, Cheung Wai Building, Fung Yau Street, North, stole therein 11 digital mobile phones, 27 walkie talkies, one remote control microphone, cash $3,410 Hong Kong currency and cash $1,400 Renminbi. The applicant pleaded not guilty but was found guilty after trial before District Judge Davies.

2. The prosecution evidence against him as set out in the judge's Reasons for Verdict was as follows:

"... in the very early hours of 3 August, 1997, Mr. Tiu-Chiu-yuen (PW2) was at home on the 2nd Floor, Block 1, Kau Lung Mansion, Fung Kau Street, Yuen Long, when he looked out of his window which overlooks Fung Yau Street North, to check on his car which was parked in a parking area adjacent to a shop owned by the Wah Tai Telecom Company. He saw a blue van parked with its rear facing the shop and a man holding an umbrella walking around outside the shop. He then saw two other men come out of the shop holding a carton which they placed in the van. The van then drove off with all three men.

Hong Kong was at the time subject to a No.9 typhoon signal. In view of the lateness of the hour and what PW1 had observed, he took note of the index numbers of the van which were 6277. He had been unable to see the letters on the registration plate. He then telephoned the police and reported what he had seen. Within a matter of two or three minutes, the police arrived. This was at 2.18 a.m.

PW2 showed them the shop from which the men had emerged. Examination of the shop's door and metal shutters revealed that both had been prised open. The shop itself had been ransacked. Inside the shop was a raincoat and an iron bar. Some of the officers who had attended the scene then went to explore the vicinity with a view to finding the blue van with index numbers 6277.

At 2:30 a.m., one of these officers, PC 51033 (PW4) was informed over his beat radio that a blue van index number DX 6277 was about to enter the car park. He and his colleagues then made their way towards the car park and while doing so saw the van with three persons on board. This officer has said in evidence that he saw it stationary and that three men got out of it. He stopped them. He has said that D1 (the applicant) had emerged from the driving seat. He spoke to D1 near the driver's door and through its window saw on the front seats some labourers' white gloves and a screwdriver. He has said that he also saw a carton box containing walkie-talkies and other items in the rear goods section of the van. As a result, he asked the defendant how he came by 'this stuff' and was told by the defendant that they had been obtained earlier by way of burglary. On hearing this, the officer then arrested the defendant and cautioned him. The officer has said that the defendant had then said that he had had no money to pay his children's school fees which was why he had had to get money. The officer then searched D1 and found in his trousers pocket fourteen 100 Renminbi notes and $3,410 in Hong Kong currency."

3. The applicant at trial gave evidence saying that he had lent his van to D2 and D3 and that D2 had, when he was driving those two men home, forced the money into his pocket.

4. The trial judge said, when dealing with the matter overall:

The thrust of the prosecution's case covers two aspects. Firstly, the defendant's verbal admission at the scene of having been involved in this burglary, and secondly, the evidence going to his possession of recently stolen property.

With regard to the first aspect, I have had the opportunity of seeing and hearing the police officer and the defendant give evidence and I am satisfied that the officer was a truthful and substantially accurate witness of what took place between him and the defendant. The evidence relating to the defendant's complaint to the duty officer and the doctor was admitted because the defence wished to use it to undermine PW4's - that is, the officer's - credibility as a witness. However, only in cross-examination of the defendant did it become clear that he had had every opportunity of making such a complaint at an earlier stage when he had asked the duty officer for medical attention and had been escorted to a hospital. It was only later after he had been interviewed by a lawyer at the police station did he complain against the arresting officer and was again taken to the hospital and examined in the light of this complaint. The doctor found no visible injuries except tenderness to the touch.

I am satisfied that there is no substance in the complaint and that the defendant's efforts to impugn the credibility of the arresting officer have failed. I think the officer was wrong not to have cautioned the defendant prior to asking him where he had obtained the property in the light of the information he already had regarding the burglary and its connection with a blue van with index numbers 6277.

As there exists, therefore, a blatant breach of rule 2 of the Rules and Directions to Police Officers in the Taking of Statements from Suspects, I feel that I should exercise my residual discretion and not take into my considerations what the defendant said which was not under caution. However, what the defendant said after he was cautioned, that is, of his needing money to pay his children's school fees, was a clear admission of his complicity.

I reject the defendant's evidence that this was a fabrication on the part of the officer. Dl's arrest comes within the scope of being caught red-handed. In this instance, returning to the scene of the recently committed crime, no doubt, to retrieve his crowbar which had been left behind, he was at this time at his most vulnerable to confession, the stolen property being discovered in his van and the burgled premises close by. "

5. It is upon this finding that the appeal principally turns.

6. Mr. Watson-Brown, who appears for the applicant, argues one ground which is that, given that the applicant denied making any oral admission and alleged ill-treatment, the trial judge erred in law when he received that admission into evidence without holding a voir dire to determine its admissibility. It is certainly correct that the trial judge did not hold a voir dire or follow the alternative procedure. It must, however be said that he made all of the findings that he would have had to make had he done so. He found that the officer was truthful and accurate and that the complaint which was made against him was without substance.

7. The real matter of complaint before us is that if the judge had held a voir dire or followed the alternative procedure, as he should have done in accordance with the decision in Thongjai's case, he would not, when deciding on admissibility, have been in a position to use the evidence of the applicant in the trial.

8. Given the judge's explicit and comprehensive findings as to credit, we are satisfied that he would inevitably have come to the same conclusion as to credibility had he held a voir dire or followed the alternative procedure. We are fortified in this conclusion when we look at the judge's reasons, when dealing with the verbal admission. When doing so, he concentrates upon what "took place between him, the officer and the defendant at that time", i.e. the time of the confrontation, and upon the credibility of the defendant.

9. Mr. Watson-Brown has also raised a number of factual matters in which he says the assessment of the judge was neither fair nor properly used against the applicant. He refers principally to the evidence of the alleged ill-treatment and to the medical evidence which he suggests were not given proper consideration. We reject this submission. All of these matters were before the trial judge. He was the judge of fact and of credibility and we have no doubt that he had them in mind when coming to his conclusion.

10. There was, we are satisfied, given the decision in Thongjai, a duty upon the judge to hold a voir dire or to follow the alternative procedure. He did not do so and there was, therefore, a material irregularity. However, given the findings which he did make and given the overwhelmingly strong prosecution case this is, we are satisfied, clearly a matter which calls for the application of the proviso.

11. The application is allowed. The hearing of the application is treated as the hearing of the appeal and. The appeal is dismissed as we are satisfied that there was no miscarriage of justice.