THE QUEEN v. LAU KA-KEI

IN THE SUPREME COURT OF HUNG KONG

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 653 OF 1989

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BETWEEN

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J U D G M E N T

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1. This is an appeal against a conviction for keeping a vice establishment at 176 Nathan Road, Flat A, 2nd floor, Kowloon ('the premises').

2. On the 25th November, 1988 a notice was served on the appellant that an act of lewdness had been performed in the premises. The appellant signed the notice to acknowledge his understanding of its contents.

3. Two police officers testified that on the 2nd December, 1988, posing as customers and, after the type of euphymistic enquiries with which courts have become familiar, they were each masturbated for $100.

4. The premises, which were licensed as a massage parlour, were what are described as 'open plan' - there were no doors to the rooms and the walls were built to a height which permitted persons passing in the corridors to look into the rooms.

5. In his cautioned statement the appellant said:

" I do not know that the staff did such thing. I always take notice of the staff. But I am so busy cannot always watch the staff working under my supervision. Therefore I do not know that they had done such a thing. There are so many customers in a day. How can I know everything though I am in charge of this sauna bath (establishment). But I have spared (some) time to inspect the work of the staff. "

6. The magistrate referring to that statement, said

" In regard to the defendant's statement which was made immediately after caution and arrest, it is, of course, exculpatory. It is not proof of the truth of its contonts. "

7. The magistrate made no other reference to the statement.

8. The House of Lords in R v Sharp (1988) 1 WLR 7 dealt with 'mixed statements' and the House approved the direction to the jury as formulated by Lord Lane in R v Duncan (1981) 73 Cr. App. R. 359 :

"     Where a 'mixed' statement is under consideration by the jury in a case where the defendant has not given evidence, it seems to us that the simplest, and, therefore, the method most likely to produce a just result, is for the jury to be told that the whole statement, both the inorimin-ating parts and the excuses or explanations, must be considered by them in deciding where the truth lies. It is, to say the least, not helpful to try to explain to the jury that the exculpatory parts of the statement are something less than evidence of the facts they state. "

9. Mr Hagon made the point that had the magistrate been summing-up to a jury he would have had, in relation to the statement, to direct the jury that they must consider both the incriminating parts and the exculpatory parts in determining where the truth lay. That is so.

10. The magistrate was wrong to have referred to the statement as 'of course exculpatory'. It was a mixed-statement. But even if the statement had been entirely exculpatory the magistrate was obliged to remind himself and, to be seen to have been reminding himself, in clear and careful terms of the basis upon which a self-serving statement is before him and the use to which he may put it (See Attorney General and LI Siu-lam, Cri. App. 527 of 1988)(emphasis added).

11. It is no demigration of a statement to say that it is exculpatory. As the English Court of Appeal said in R v McCarthy (1980) 71 Cr. App. R. at 145:

" One of the best pieces of evidence that an innocent man can produce is his reaction to an accusation of crime."

12. Mr Hagon makes another point. He says that had he thought, at the close of the prosecution case, that the magistrate would have treated the statement as he subsequently did he might have given his client different advice. The appellant did not give evidence.

13. If the magistrate did evaluate the statement he cannot be said to have been seen to have done so.

14. The verdict was unsafe and unsatisfactory and the appeal is allowed. Conviction quashed and the suspended sentence and order for costs are set aside.