HKSAR v. WONG HON WAI

HCMA398/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 398 OF 2002

(on appeal from WSCC 14256 of 2001)

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J U D G M E N T

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1. This is an appeal against conviction and sentence. The appellant, who suffers from schizophrenia and psychosis, was convicted after trial of the theft of two bottles of whisky from a supermarket, being the first charged offence, and of the theft of a credit card, being the second charged offence; both offences being contrary to section 9 of the Theft Ordinance, Cap. 210.

2. The magistrate, following conviction, imposed a four month hospital order on the appellant pursuant to the provisions of section 45 of the Mental Health Ordinance, Cap. 136. That order has now been substantially served.

3. The facts of the case as found by the magistrate were that the appellant had gone into a supermarket at Stanley and taken two bottles of whisky. He then left the supermarket without paying but the anti-theft alarm at the supermarket exit had sounded and alerted the manager, PW1, who had then chased after the appellant shouting "thief".

4. The appellant was stopped by passers-by. The appellant and two bottles of whisky were taken back to the supermarket and detained there until police arrived. When the police did arrive, the arresting officer, PW3, cautioned the appellant for the theft of the whisky, and the appellant admitted he had done so.

5. He was then taken to the Stanley Police Station and a post record was made of what he had said under caution at the scene of the arrest. He was then searched by PW3, and the credit card, the subject of the second charged offence, was found on his person. He was again cautioned in respect of the theft of that card, and he said he had found it outside the supermarket earlier that morning. That was also recorded in the post record and formed the second portion of that record, Exh. P5. But so far as this part of that post record was concerned, the appellant refused to sign.

6. The owner of the credit card had reported it stolen three days earlier. The magistrate found that the appellant had stolen it, either on the basis he had personally stolen it or that he had kept it after finding it.

7. Following his conviction of the appellant, the magistrate obtained two reports from two psychiatrists and hospitalized the appellant for psychiatric treatment for a period of four months, pursuant to section 45 of the Mental Health Ordinance, Cap. 136.

8. The appellant, during his trial before the magistrate, was unrepresented. Before me he was represented by Ms Panesar of counsel and she, on his behalf, advances a number of grounds of appeal against his conviction.

9. In the event, it is necessary for me to deal with only one, which is the complaint of the appellant that the magistrate wrongly allowed into evidence his statements made to the police at the scene of his arrest and the post record of those statements, Exh. P5. That ground of appeal was in the following terms :

"(a) The learned magistrate failed to explain to the appellant the meaning of 'voluntariness' and the grounds on which he could object to the admissibility of the alleged verbal confessions and exhibit P5 and P5A.

(b) The learned magistrate did not ascertain from the appellant whether he had any objections within the meaning of 'voluntariness' to the said admissions.

(c) The appellant was not advised of his right to testify on the special issue to determine admissibility of the alleged verbal admissions and exhibit P5 and P5A and further the learned magistrate failed to consider and determine their admissibility prior to admitting the same.

(d) The learned magistrate erred in admitting into evidence exhibit P5 and P5A which had not been signed by the appellant."

10. It is common ground that the magistrate at trial had simply asked the appellant whether he had any objection to the production of Exh. P5, the post record, and that the appellant had replied that he had no objection. That is as far as that enquiry went. There is nothing to suggest that there was any enquiry of the appellant as to whether the evidence of PW3 as to the appellant's verbal statements at the scene was objected to. Those statements were earlier simply given in evidence by PW3.

11. There was no explanation given to the appellant as to his right to challenge the admissibility of the statements attributed to him by PW3, those statements being the verbal statements, alleged to have been made by the appellant at the scene of his arrest and those same statements as post recorded in Exh. P5, and the further statements attributed to the appellant following his cautioning for theft of the credit card found upon him when he was searched at the end of the post recording of the first part of Exh. P5.

12. Ms Panesar argues that this aspect of the evidence was important to the appellant's convictions and that the appellant should have had some explanation as to his right to challenge the post record, Exh. P5 and the verbal statements attributed to him. This was particularly so, says Ms Panesar, as the magistrate knew the appellant, although fit to plead, did suffer from a mental disorder and perhaps was less well able to look after himself in a court environment than other unrepresented defendants, and also because of the somewhat peculiar nature of Exh. P5, the first part of which the appellant had signed but the last part which relating to the theft of the credit card he had refused to sign.

13. Leaving aside any question of admissibility of any part of the contents of Exh. P5 which the appellant had refused to adopt by not signing, it seems to me that, generally, where a defendant is unrepresented and the prosecution seek to adduce evidence of his admissions against him, some explanation should be given to him as to his right to challenge such evidence.

14. Unrepresented defendants are not legally trained and would obviously be unlikely to be aware of the nature of objections which could be made to the admissibility of admissions attributed to them by police officers. It is a general principle of our law that unrepresented persons should be reasonably assisted by the trial judge or magistrate in the conduct of their defence.

15. In R. v. Szeto Ming [1978] HKLR 61, O'Connor J said :

"It is the duty of a trial judge or magistrate to protect the interests of an unrepresented defendant and give him such assistance as is necessary for the proper conduct of his defence. ...."

16. In my view, generally, and particularly in the circumstances of this case, the magistrate should have explained to the unrepresented appellant that the prosecution had to prove the voluntariness of the alleged admissions he had made and that the appellant had a right to challenge the prosecution case in that regard. That was not done. The appellant was simply asked if he had an objection to the post record, Exh. P5, being produced in evidence. In my view, that was not enough. As I say, that question was asked only after evidence of the admissions made at the scene verbally by the appellant had been given by the arresting officer, PW3.

17. In my judgment, before admissions allegedly made by an unrepresented defendant are allowed into evidence, that defendant must have his right to challenge those admissions explained to him so as to ensure he is able to properly conduct his case.

18. For that reason, the appeal against conviction is allowed. The conviction is quashed and the sentence is set aside.