THE QUEEN v. TAM KAM HUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 552 OF 1992

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JUDGMENT

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1. The appellant was convicted by a magistrate after trial on three charges of criminal damage and he appeals against all three convictions on the basis that the magistrate wrongly admitted in evidence a written confession given by him to the police. Without that confession, the prosecution would have had no case against the appellant.

2. The appellant was arrested at 12.10 a.m. on 22^nd November 1991, and taken to a police station where at 1a.m. a police officer began the interview which resulted in the written confession which was exhibited at his trial.

3. It is common ground that the appellant was a drug addict at the material time and that the police officer knew it. When the appellant indicated that he had something to say after caution, the police officer asked him if he was physically fit and conscious, and the appellant, according to the document, replied “physically all right”.

4. Objection was taken to the admission at the trial of the confession, the ground of the objection being that the confession was involuntary, and the allegations made in support of that objection by the appellant's legal representative at trial were so far as is material for the purpose of this appeal, that at the time when the appellant was taken back to Yuen Long Station, he was assaulted by two officers who were sitting next to him in a police car, one of those officers being the officer who took the statement later. It was also alleged on behalf of the appellant that the appellant was told to co-operate or else there would be another assault.

5. Counsel appearing for the appellant at the trial also said that at the time of taking the three subsequent statements which it is common ground the appellant made he was sufferings from drug withdrawal symptoms and stomach pain.

6. It appears from the record that at the time when the objection was first made, the matter of drug withdrawal and stomach pain was raised only in relation to three subsequent statements which were made several hours after the statement under consideration in this appeal.

7. However, when the appellant gave evidence on a voir dire, he testified that he had been suffering from withdrawal symptoms and stomach pain during the taking of the first statement as well as the three subsequent ones and it was on that basis that the magistrate considered the issue of voluntariness which was before her.

8. Those matters raised by way of objection were fully canvassed in the voir dire before the magistrate. The police officer who took the statement gave evidence and was fully cross-examined. He denied the allegations of assault and he gave evidence to the effect that he was an experienced police officer used to dealing with drug addicts and able to recognize the symptoms of drug withdrawal. His evidence was to the effect that before taking the statement which the appellant indicated he wanted to give he enquired whether he was physically fit and conscious and the appellant made an affirmative answer.

9. The appellant gave evidence on the voir dire, as I have said, and his evidence broadly followed the objection earlier made.

10. At this appeal, Mr. Mitchell-Heggs, who appears for the appellant, has submitted that the magistrate failed to take full account of all the circumstances in which the statement came into existence and in particular the following:-

11. First, the background of the appellant who was a drug addict. The record of the trial shows that the fact that the appellant was a drug addict at the material time was fully apparent to the magistrate and there is no reason to suppose that she did not take that matter into account. Indeed, it is obvious from her decision to rule inadmissible three later statements on the ground that by the time they were taken there was a possibility that there might have been withdrawal symptoms that she had the matter well in mind.

12. Two, the lack of any medical or other independent evidence as to actual physical or mental condition of the appellant at the start of the interview at 1a.m. It is true that there was no medical or other independent evidence as to those matters. However, the duty of the magistrate was to decide the issues on the evidence which was before her, and that she did.

13. Three, whether the appellant was capable of a free choice in the potentially oppressive circumstances that existed at that time of night. That was part and parcel of the very issue which the magistrate had to try and there is no doubt that she was aware of that. That is one of the matters which she needed to and did address her mind to.

14. Four, the absurdity, according to Mr. Mitchell-Heggs, that the appellant might want to confess in the absence of any other evidence against him. As to that, it cannot be said as a general proposition that a suspect will not confess in the absence of other evidence. Whether or not a particular suspect was willing to make a confession at a particular time is a matter which must be decided according to the evidence in the particular case.

15. Five, the concession in testimony, which Mr. Mitchell-Heggs describes as a curious concession, "that the statement-taking police officer had accidentally bumped into the appellant during the journey". The issue was whether the appellant had been assaulted on the way to the police station. There was ample evidence from two police officers that he had not been assaulted. The officer who took the statement, when asked if he could possibly have accidentally bumped into the appellant's chest with his elbow, fairly said that that was possible but it seems to me that that does not assist the appellant.

16. Six, the circumstances generally which had properly caused the learned magistrate to exclude three 1ater confessions made by the appellant. It was suggested by Mr. Mitchell-Heggs that the fact that the magistrate was doubtful about the voluntariness of three confessions made later in a day by the appellant should raise some doubt as to the propriety of earlier events of that night and that therefore the magistrate should have ruled the product of the first interview inadmissible.

17. There was a considerable interval between the completion of the taking of the first statement, which was clearly taken as soon as possible after the arrival of the appellant at the police station and very shortly after his arrest, and the taking of three subsequent statements. It is clear that it was because there was such a long interval that the magistrate felt that it was her duty to give the appellant the benefit of the doubt as to whether by that time he was in a condition to make a free choice as to whether or not to make a further statement. She dealt with the first statement on its merits and the later statements on their merits, and the fact that she rejected later statements is no ground, it seems to me, for rejecting an earlier one since the circumstances were substantially different.

18. The next point, seven, is that, according to Mr. Mitchell-Heggs, there are signs of the appellant's disorientation of mind on the face of the document, in what he wrote and the manner in which he wrote it. In that regard, I have before me some formal admissions pursuant to section 65(C) of the Criminal Procedure Ordinance which were made for the purposes of this appeal. They relate to two aspects of the writing of the confession. The first is that on page 3 of the document, after passage which is translated as “please sign below to indicate understanding”, the appellant wrote two characters which were subsequently deleted. Those characters, if they stand alone, are meaningless.

19. It is common ground that those characters which were deleted are the first and third characters of a three-character expression. They were deleted and the three characters were written in.

20. It seems to me that it is impossible to say that the inevitable inference from that is that the appellant was in any way disoriented. If a person makes a mistake in writing, then notices and corrects it, it seems to me that it is an indication that he is alert. And it seems to me that it is a perfectly reasonable inference that all that happened here was an error which was corrected.

21. The second matter relates to another part of the same page of the confession, where after a passage which is translated as “Please write down willing or not willing below and sign to confirm that”. The appellant wrote two characters which mean “agree”. Those characters were deleted and replaced by two characters meaning “willing”. It is common ground again that there is one character common to both groups, and again it seems to me that the fact that the appellant wrote “agree” and then substituted “willing” is not a matter from which an inference may readily be draw that he was disoriented. In fact, it might be said that, on the contrary, he was alert and after noticing a mistake, put it right.

22. It is mentioned in the Perfected Grounds of Appeal that in the absence of any confession by the appellant there was no evidence against him. That fact must have been apparent to the trial magistrate, and I have no doubt that the possibility that, in those circumstances, the police may have attempted to encourage a confession, must have been obvious to her.

23. There was a full voir dire in this case. It is clear from the magistrate’s Statement of Findings that she understood what the objections were. She believed the police officers and disbelieved the appellant. In those circumstances, there was ample evidence before her upon which she was entitled to find that the confession was voluntary as she did, and I find no ground for interfering with her decision.

24. It has been suggested, on behalf of the appellant, that this court might consider issuing guidelines to the police and other law enforcement agencies as to the way in which a suspect who is a drug addict should be dealt with when in custody. It has been submitted by counsel appearing for the Crown, that if it were appropriate to give such guidelines should be given only after a full enquiry into the general arrangements which already exist. I do not considerate it appropriate issue any such guidelines.

25. For the above reasons, the appeal is dismissed.

26. The appellant obtained leave to appeal out of time against sentence and did file a notice of appeal, but I am informed by counsel for the appellant that he wishes to abandon his appeal against sentence. I grant leave for him so to do and the file will be so marked.