HKSAR v. LO LIK MAN

HCMA629/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.629 OF 2004

(ON APPEAL FROM STCC158 OF 2004, STS67 OF 2004)

---------------------

--------------------

------------------------

J U D G M E N T

------------------------

BACKGROUND

1. The appellant was convicted after trial of a charge of possession of goods to which Dutiable Commodities Ordinance applied, namely 100 litres of motor spirit, contrary to section 17(1) and section 46(3) of the Dutiable Commodities Ordinance, Cap.109 and in respect of a summons which averred that on the same occasion he stored that quantity of motor spirit, containing hydrocarbons which are classified under category 5, class 1, Division 1 of the Dangerous goods (Application and Exemption) Regulations otherwise than under and in accordance with a licence granted under the Dangerous Goods Ordinance.

THE EVIDENCE ADDUCED AT TRIAL

(a) Undisputed evidence

2. It was not in dispute at trial that at the time and place alleged in the charge and the summons, customs officers discovered in the boot of a car owned by the appellant and parked nearby to a garage which he owned, four plastic jerry cans containing the motor spirits, the subject of the proceedings. The appellant was not present at the scene at the time of that discovery. However, shortly thereafter, the appellant arrived at the scene.

(b) Disputed evidence

3. At issue in the trial was an alleged oral admission made by the appellant to a customs officer at the scene shortly after the arrival of the appellant. That officer testified that the appellant had asserted that he was the owner of the vehicle. In response, he said, that he arrested and cautioned the defendant. However it is not apparent for what stipulated offence the appellant was arrested. The officer testified that in answer to the words of caution the appellant said : "The petrol is for my own use". The officer inquired about the provenance of the petrol. He was answered by the appellant : "It is oil from the Mainland". The officer asked the appellant if he had paid duty for the petrol and he said that the appellant responded "No".

4. The appellant gave evidence at his trial and denied making those admissions to the officer.

THE ADMISSION OF EVIDENCE IN RELATION TO A RECORD OF INTERVIEW

5. The prosecution led evidence that at 00:05 a.m. on 9 December 2003, a record of interview (P13-A) was conducted of the appellant by the arresting officer. At the outset, he set out a record of what had happened at the scene including the oral admissions of the appellant. Thereafter, he indicated he had questions to ask of the appellant and administered a further caution. In answer to the question "Do you understand the above content and the reasons for the making of the record of interview this time?" The appellant wrote "I understand" and signed nearby. However, the appellant responded to all questions thereafter by saying "I have nothing to say". One of the questions was "Q(4) : Do you have anything to clarify on your answer to my questions during your arrest? A(4) : I am not willing to answer."

REASONS FOR VERDICT

6. The magistrate accepted the testimony of the customs officer as to the oral admission at the scene in answer to arrest and caution made by the appellant. Furthermore, that subsequent to the oral admissions when asked to sign the officer's notebook, the appellant decided to call his lawyer and did not sign the notebook.

7. The magistrate did not accept the testimony of the defendant, rather, he found it "incredible". Specifically, he found "from his account and demeanour in court, I found him to be selective in his evidence, unreliable and untruthful."

8. Notwithstanding the fact that the appellant had responded by saying that he was not willing to answer questions posed of him and had answered "understand" only in the context of the question whether he understood the above content and the reasons for the making of the record of interview, not that he accepted the truth and accuracy of what was written in the preamble, the magistrate stated :

"... If the appellant did not make any admissions to this officer at scene, or if there were any inaccuracies in the record of interview, it is inconceivable that with his barrister being present, the appellant did not take the chance to amend the post-record part of the document, nor to clarify his answers given at scene when his attention was specifically drawn to this in question 4".

9. Nevertheless, the magistrate went on to add :

"... Even without the written record of interview, I am satisfied that the appellant had made the verbal admissions at the scene, and that these verbal admissions are true".

PERFECTED GROUNDS OF APPEAL AGAINST CONVICTION

10. By ground 4 it is submitted that the magistrate had :

"... failed to give proper weight to the effect to the appellant's refusal to sign the post-recorded note in determining whether the alleged admissions had been made."

In support of that ground, it is submitted, are the matters identified in para. 3 of the perfected grounds of appeal. namely :

"(i) Construing the appellant's failure to correct the subsequent record of interview as amounting to an acceptance that he had made the alleged admissions when arrested.

(ii) Treating the 'preamble' to the record of interview as a post-recorded note.

(iii) Failing to recognize that where a person indicates that he does not wish to answer any questions (as the appellant had indicated) and is accordingly to be taken as being a person who does not wish to participate in an interview such a person will not consider it appropriate to make any alterations to the record of interview.

(iv) Failing to realise that in signing the record of interview the appellant was doing no more than acknowledge [sic] that it was an accurate record of what had been said in that interview. It is not an acknowledgement of the truth of the matters contained in the interviewer's questions."

11. By ground 5, it is submitted that the magistrate "erred in her approach to determining the issue whether the alleged admissions were made".

THE RESPONDENT'S SUBMISSIONS

12. Ms Grace Chan on behalf of the respondent conceded that the learned magistrate was in error to have had regard to the appellant's response to the allegations as to his oral admissions at arrest contained in the preamble to the record of interview repeatedly saying in answer to all questions that he was not willing to answer and, more particularly that the appellant did not take the opportunity to amend or clarify his alleged answers on arrest. Of that the magistrate had stated that : "If the appellant did not make any admissions to this officer at scene, or if there were any inaccuracies in the record of interview, it is inconceivable ..." that the defendant would not have protested in the way identified above.

13. Notwithstanding, the concession as to the learned magistrate's error in that regard, counsel for the respondent submits that the magistrate had independently determined that she accepted the evidence of the customs officer as to the oral admission and had stated, in her Statement of Findings :

"... Even without the written record of interview, I am satisfied that the appellant had made the verbal admissions at the scene, and that these verbal admissions are true."

14. The prosecution submitted that this finding, being independent of the inferences adverse to the appellant drawn in respect of his conduct at the record of interview, was sufficient to sustain a conviction.

15. It was common ground between the parties that not only did the prosecution case depend on an acceptance of the alleged oral confession by the appellant to the customs officer but also by itself that admission was sufficient to found convictions upon both the charge and the summons.

16. I am satisfied that the respondent's concession of the appellant's complaint that the magistrate was in error to draw inferences adverse to the appellant in consequence of his silence when confronted with the alleged oral admissions in written form as a preamble to the record of interview is fully justified. Neither counsel was able to assist me as to how it was that the record of interview had been led into evidence in the first place. Although Mr Burkett had been counsel for the appellant at trial, he was unable to assist me as to whether any objection had been taken to its admissibility. He could not recall.

17. The preamble to the record of interview concludes with a reminder to the appellant that he was still under caution. The reminder was reinforced by the caution being re-administered to the appellant. In those circumstances it is trite law that it is not permissible to draw an inference adverse to the appellant for exercising the right of which he has been reminded. In R. v. Mann 56 Cr.App.R. 750 Lord Widgery CJ, put the matter thus (757) :

"It is, of course, well established by authority that, if an accusation is made against a suspected person, the mere fact that he is silent in the face of the accusation is not the basis upon which an inference against him can be drawn. If one wanted modern authority, it is found in HALL v. R. [1971] 1 W.L.R. 299. If the accused had failed to respond and kept silent to every question, it may very well be that on that simple principle it would be said that the evidence of the abortive dialogue, the one-sided dialogue, should not be admitted...."

[See also the judgment of the Court of Appeal in HKSAR v. Chow Wing Man CACC613/2002]

18. Accordingly, in my judgment, the magistrate was wrong in law to draw inferences adverse to the appellant in those circumstances.

19. However, the matter does not end there. In her Statement of Findings, the learned magistrate sets out in sequence her findings :

(a) "... the evidence of the customs officers is credible and consistent, and from their accounts and their demeanour in court, I found each of them to be truthful and reliable."

(b) Of the defendant : "I found his evidence to be incredible ... I found him to be selective in his evidence, unreliable and untruthful."

(c) "From the oral evidence, I was satisfied that the appellant had made the verbal admissions, and when asked to sign the officer's notebook at the scene, he then decided it was better to call his lawyer first, rather than sign the notebook."

(d) Having made those findings, the magistrate turned to the issue of the circumstances and inferences to be drawn of the making of the record of interview describing it as "In addition to the oral evidence of the prosecution witnesses". Of those circumstances, the magistrate found "If the appellant did not make any admissions to this officer at scene, or if there were any inaccuracies in the record of interview, it is inconceivable that with his barrister being present, the appellant did not take the chance to amend the post-record part of the document, nor to clarify his answers given at scene when his attention was specifically drawn to this in question 4."

(e) In conclusion, the magistrate found "I accept the account of CO9505 to be the facts of the case, and that the appellant did make the admissions as this officer said he did, .... Even without the written record of interview, I am satisfied that the appellant had made the verbal admissions at the scene, and that these verbal admissions are true."

20. Clearly, Mr Burkett is correct that the learned magistrate, even at the time of making her written Statement of Findings did not acknowledge that she was in error to draw inferences adverse to the appellant from his non-response at the record of interview. Also, he is correct to point out that in the short oral reasons given by the magistrate immediately prior to her findings of guilt, the magistrate did not make the specific reservation : "Even without the written record of interview, I am satisfied that the appellant had made the verbal admissions at the scene, and that these verbal admissions are true". However, it is right to note that the magistrate had said at the outset : "I am not going to give reasons for my decision, only a few brief salient points so that the parties know how I arrived at my decision."

21. Mr Burkett submits that the "compartmentalization" of the evidence by the magistrate in the written Statement of Findings is not how she approach matters in her oral reasons. He submits that there is a risk that the magistrate has been influenced in her ex post facto reasoning in the Statement of Findings to have reached that determination by being influenced by her earlier erroneous approach to the evidence.

22. I am satisfied that that is not the case. Recourse to the brief oral reasons given by the magistrate at the time of her decision to convict the appellant indicates that the magistrate described her findings in the same sequence as in her written Statement of Findings. Importantly, at a very early stage of her findings, she determined that the evidence of the customs officer who testified as to the appellant's oral admissions at the scene :

"The evidence of this Custom officer is detailed, firm and unshaken...."

Later, she went on to find :

"... the evidence of the prosecution witnesses are credible and consistent and, from their accounts and demeanour in court, I found each of them to be truthful and reliable."

23. It was only after she had made that finding that the learned magistrate went on to reject the evidence of the defence and then to deal with the inferences that she erroneously drew from the appellant's non-response at the record of interview.

CONCLUSION

24. Having the benefit of the magistrate's detailed reasoning for her determinations, I am satisfied that the risk to which Mr Burkett adverted is not a risk in reality. I accept the magistrate's statement : "Even without the written record of interview, I am satisfied that the appellant had made the verbal admissions at the scene, and that these verbal admissions are true." In consequence, in light of her determination that the customs officers were truthful and reliable witnesses upon whose testimony she determined that the appellant had made the oral admissions, the magistrate had made unimpugned determinations that entitled her to convict the appellant of the charge in the summons.

25. Given the clear error in law made by the magistrate in the drawing of inferences adverse to the appellant from his non-response having been confronted with the alleged oral admissions at the scene contained as a preamble to the record of interview, I am mindful of the observations of Sir Alan Huggins NPJ in the judgment of the Court of Final Appeal in Ching Kwok Yin v. HKSAR (2000) 3 HKCFAR 387 (p.390G) :

"There is in the Magistrates Ordinance no equivalent to s.83 of the Criminal Procedure Ordinance (Cap.221), which specifies the grounds upon which an appeal to the Court of Appeal may be allowed, and therefore there is no proviso which requires that the appeal shall be dismissed if no miscarriage of justice has actually occurred: the judge may make such order as he thinks just. It follows that he has to decide whether there has been in the Magistrates' Court an error which makes it just that the appeal should be allowed and the conviction set aside."

26. In my judgment, there is no error in the conduct of this case which makes it just that the appeal should be allowed and the convictions set aside. Accordingly, this appeal is dismissed.