HKSAR v. CHAN WAI KEUNG SPENDER

HCMA1121/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1121 OF 2002

(ON APPEAL FROM ESCC 1924 OF 2002)

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J U D G M E N T

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1. This is an appeal against conviction only.

2. The appellant was convicted of an offence of possession of 0.11 grammes of ketamine contrary to sections 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap.134.

3. The facts of the case as found by the magistrate were that during a license check of a discotheque called "Indulge" in Wanchai by police officers, the appellant was seen to be behaving suspiciously by one of the officers, PW1, who asked him what he was holding in his hands. The appellant then unclasped his hand and showed the packet he was holding to PW1. That packet was subsequently found to contain the charged drug. The appellant was arrested and cautioned at the scene by PW1. He said the drug was for his own consumption. He adopted and repeated that admission under caution during a later post-recorded statement and interview. Those admissions were allowed into evidence by the trial magistrate. Mr Cheung for the appellant advances two grounds of appeal :

(a) The admissions of the appellant should have been ruled inadmissible as evidence, and

(b) The magistrate was wrong to reject the evidence of DW1, the only defence witness, who said that at the time the appellant was spoken to and arrested by PW1 the appellant was holding nothing in his hands and that the drugs were found by PW1 elsewhere in the premises and then placed in the appellant's possession.

I will deal with these complaints concerning the appellant's conviction in turn.

4. Firstly as to the admissibility of the appellant's verbal and recorded statements under caution, Mr Cheung says those statements were made in response to police questions which were in breach of principle (d) in the preliminary notes of the Rules and Directions for the Questioning of Suspects and the Taking of Statements issued to the Hong Kong Police Force by the Secretary for Security (the Rules and Directions). Principle (d) is as follows :

"Whenever a police officer who is making enquiries of any person about an offence has enough evidence to prefer a charge against that person for the offence, he should, without delay, cause that person to be charged or informed that he may be prosecuted for that offence."

5. Mr Cheung says that as the police evidence, as given by PW1, was to the effect that the appellant was caught red-handed, that upon PW1 finding the drugs in the hands of the appellant at the scene there was already sufficient evidence to warrant charging the appellant and no question should have been asked of him. He says the appellant should have been told he may be prosecuted whilst at the scene and charged without delay once back at the police station without further interview so as to comply with principle (d).

6. As I understand Mr Cheung's arguments that triggering of principle (d) would then have brought into play the provisions of Rule III of the Rules and Directions. That Rule in its relevant parts is as follows :

"It is only in exceptional cases that questions relating to the offence should be put to the accused person after he has been charged or informed that he may be prosecuted. Such questions may be put where they are necessary for the purpose of preventing or minimizing harm or loss to some other person or to the public or for clearing up an ambiguity in a previous answer or statement."

It is not suggested that any exceptional circumstances ever existed in the present case so as to allow the further limited questions provided for by Rule III(b).

7. Accordingly, the simple issues raised by this ground of appeal were firstly, whether in dealing with the appellant at the scene or questioning him at the police station later, the police officer involved, PW1, was in breach of principle (d) and thereby of Rule III(b) and secondly, if so, what effect that has on the magistrate's ruling that the statements of the appellant were voluntary and admissible.

8. So far as the possible breach of principle (d) and Rule III(B) is concerned, Mr Cheung relies primarily upon the authority of a ruling by the trial judge in HKSAR v. Kwan Tsz Ngon [1999] 1 HKC 781 where in ruling the defendant's statements under caution inadmissible following a voire dire the judge said principle (d) was a fundamental principle governing the questioning of suspects by police and that where in that case a defendant was caught red-handed carrying a bag containing a large quantity of "ice" there was already ample evidence to charge that defendant pursuant to principle (d) and accordingly no question should have then been asked of him pursuant to Rule III(b). With respect to that ruling's applicability to the present appeal, firstly it was decided upon its own facts and secondly did not purport to nor could it lay down any binding principle of law.

9. What then does principle (d) mean so far as the admissibility of a defendant's statements are concerned? It should be noted that by its own terms it applies at a point of time when a police officer is already making inquiries of a suspect. It does not seek to prevent the initiation of inquiries of a suspect. In other words it is concerned not with preventing enquiries being made of a suspect but of ensuring that once enquiries of him have resulted in evidence being obtained warranting him being charged or prosecuted then he should be so charged or told he will be prosecuted.

10. Principle (d) is triggered only when "enough" evidence has been obtained so as to warrant the charging of the suspect or his prosecution. The question of what amounts to enough evidence will obviously vary from case to case.

11. But I do not think that a police officer is required to jump to conclusions or make assumptions in considering whether enough evidence has been obtained to warrant the charging or prosecution of a suspect. Even where, to an experienced police officer, the facts are familiar and such as to lead him to an educated guess that the suspect will very likely be charged and prosecuted he is still obliged and entitled to proceed on the basis of the actual evidence before him, not on the basis of assumptions, no matter how well founded they may be. It would be quite wrong for a suspect to be charged not on the evidence available to the police, but on educated police guesses or assumptions based on that evidence. It is the duty of a police officer to investigate criminal offences. It is his duty to do so reasonably and thoroughly.

12. Further, before a prudent police officer would consider himself to be in a position to fairly and accurately assess whether a suspect should be charged or informed that he may be prosecuted, it seems to me that officer would properly, in most cases, need to be satisfied that the investigation had been undertaken to the extent that any version of events that a suspect wished to provide, after caution, was available to be taken into account. No doubt most police officers would, even in cases where there was other substantial evidence pointing to a suspect's guilt, still wish to take into account any such information a suspect wished to provide under caution before arriving at the important decision that there was enough evidence available so that the suspect should be charged or told he may be prosecuted. There is no inherent unfairness in that. It is a sensible and reasonable part of the investigatory process. It allows an officer to place other evidence into the perspective of any explanation of events the suspect wishes to offer. It should not be overlooked, in my judgment, that an investigating officer would be entitled to take the view that there is not enough evidence to warrant charging a suspect or informing him he may be prosecuted until all elements of the offence required to be proven are supported by evidence which is in his view reliable.

13. So very often then whether there is "enough" evidence so as to warrant charging a suspect or informing him that he may be prosecuted may, in the opinion of the police, require that suspect to be given the opportunity to participate in enquiries which go to elements and matters pertinent to the suspected offence, such perhaps as the suspect's state of mind or intent. An ancillary question is how far an interview of a suspect can go on a particular matter before principle (d) is triggered. In my view an officer is entitled to ask reasonable questions concerning the details or circumstances of matters connected with any statement of admission made by a suspect. He is entitled to do so to be able to make an assessment of the weight or reliability to be attached to the suspect's statement.

14. So questioning can continue beyond generalities such as the words as said by the present appellant at the scene of the arrest "that it is for my own consumption". No doubt a lot could be read into that by an experienced officer. But that officer is entitled to go on and make enquiries, as in this case, as to whether the appellant knew what the substance was and the circumstance of the appellant coming into possession of the drug that he was allegedly found to be holding.

15. Accordingly, a police officer is not required to terminate an interview and proceed to comply with the provisions of principle (d) simply because a suspect answers a particular question in a way which, on its face, amounts to an admission to an offence. In my view the interviewing officer is entitled to make further inquiries so as to place that admission in a proper and fair context and to determine the scope and nature of the offence in respect of which the suspect is making admissions so as to be able to conclude he has enough evidence to properly charge, or to express accurately what offence the suspect may be prosecuted for. Principle (d) is not designed, as I say, to obstruct proper and fair police enquires, so far as those enquiries relate to matters of investigation. That was what was said by the Court of Appeal in R. v. Lai Kin Ming [1984] HKC 1, and so far as I have been informed in this appeal is still the law.

16. In that regard and with respect I do not think what was said by the trial judge in R. v. Chuen Wui Shing, HCCC176/1992 to the effect that principle (d) simply serves to reinforce a suspects privilege of not incriminating himself, and that the principle assumes that questioning can continue after he is told he may be prosecuted can be correct. In my view if there is enough evidence to charge a suspect or inform him that he may be prosecuted then Rule III(b) must effectively operate at that stage to disallow, under the Rules and Directions at least, the police from making further enquiries of the suspect (except for the limited enquiries allowed for by Rule III(b)). It cannot be that by omitting to charge the suspect or to inform him he may be prosecuted, when in fact they should have done so, that the police can place themselves in a better position to continue their questioning under the Rules and Directions that they would otherwise be.

17. In my view the principle espoused in Lai Kin Ming is good law and what principle (d) does prevent the police doing, when necessarily taken in conjunction with Rule III(b), is subjecting a suspect to enquiries not for any proper investigatory purpose but so as to have him or allow him to simply further incriminate himself.

18. But what if principle (d) is breached? It may well be that such a breach occurs even when a police officer is acting in good faith. That is because as a matter of common sense a considerable grey area must exist in the day-to-day application of principle (d).

19. It seems to me that even if a court were to conclude that there had been a breach of principle (d) that that of itself does not render any admission made subsequent to that breach inadmissible. In R. v. Chai Shang Yi [1989] 1 HKC 334, the Court of Appeal said in respect of such a case :

"That there had been a breach of the Judges Rules in not preferring a charge when there was sufficient evidence to do so was a factor to be taken into consideration but it has been clear in Hong Kong since the decision in R. v. Leung Cheuk Faw & Ors (Crim Appellant 964/83, unreported) that it is only one factor and a judge may nevertheless find statements to be voluntary and therefore admissible subject to the residual discretion of the ground of unfairness. The court approved the earlier dicta of Roberts CJ in R. v. Lo Sun Wah & Ors [1980] HKLR 253, 256 where he said :

'However, this approach has been modified during the last decade. The principle is now firmly established that infringements of the Judges Rules are only one element, albeit an important one, to be considered in deciding the central question which is whether or not the Crown has established the voluntary nature of the admission.' "

The fundamental tests to be applied in determining the admissibility of a defendant's admissions in evidence remain as those of voluntariness and fairness. It may be well be that where principle (d), and thereby the spirit of Rule III(b) are plainly and obviously breached, that a court would be unable to be satisfied that the police behaviour was not oppressive and that the will of the defendant was not overborne. Just as importantly the court may regard flagrant breaches as being so unfair as to warrant the exercise of its discretion to exclude the admissions. But with cases in the "greyer" part of the spectrum the court may still be satisfied that the admissions of the defendant were voluntary and fair even though there may well have been a breach of principle (d).

20. In the present case, there can have been nothing wrong with the police inquiring of the appellant what it was that he held in his hand and the circumstances in which he obtained it. In my view there was no breach of principle (d). As the learned trial magistrate very succinctly put it in his Statement of Findings :

"Given the facts in this case, it was my view that it would be totally unrealistic to say Principle (d) should have been followed when the sum of evidence was the Defendant's suspicious behaviour, and a packet of white powder found in his hand, which PW1 suspected to be a dangerous drug. Equally, I did not see the need for PW1 to follow Principle (d) when all that the Defendant admitted was "that stuff" was for his own consumption, albeit he asked for a chance. Technically, PW1 should have perhaps followed Principle (d) after answer (6) in exhibit P3. But on the facts found by me, I was satisfied that the Prosecution had proved the issue of voluntariness; that Defendant was adequately cautioned (at the discotheque and at the commencement of exhibit P3, albeit he was not cautioned again at the commencement of exhibit P2); and that he had understood his rights. In the circumstances, I was satisfied that the Defendant's right of silence was safeguarded (see S-J v. Lam Tat Ming & Anor, supra at p.441C; HKSAR v. Yip Siu Tak HCMA 364/2001), and I saw no reasons for exercising my residual discretion to exclude any of the verbal admission and exhibits P1-P3."

21. In my judgment the magistrate's findings encapsulate the principles of law involved and apply them properly to the facts of the case before him. He was obviously aware of those principles of law. His findings that the statements of the appellant were admissible in evidence cannot be criticized.

22. The second ground of appeal advanced by Mr Cheung on behalf of the appellant is that the magistrate was wrong to place no weight on the evidence of DW1, a friend of the appellant present at the scene, who said he saw that the hands of the appellant were empty when the appellant was first spoken to by the police but that something was planted in the appellant's hand by the police. DW1 was the only defence witness, the appellant electing not to testify on the general issue.

23. In regard to DW1's evidence the magistrate said that he rejected that evidence for certain specific reasons. He found it unbelievable that DW1, who had been drinking for some time, for no apparent reason would be able to give, some time after the event, details such as the brand of drink the appellant was holding and in which hand he was holding it at the time of the incident. He thought also DW1's evidence as to the details he observed was inconsistent with the crowded nature of the premises and the obstructions which must have existed to his view.

24. In short the magistrate gave sensible reasons as to why he rejected DW1's evidence. He took into account also that DW1 was a friend of the appellant and therefore not an independent witness. That was a factor which the magistrate was entitled to take into account but by itself it may not have been determinative.

25. In short there can be no complaint made of the magistrate's findings in this regard. For the above reasons, the appeal against conviction is dismissed.