THE QUEEN v. YUEN WAI PUN

IN THE HIGH COURT OF JUSTICE

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JUDGMENT

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1. On the 15th August this year, the appellant was convicted on a charge of being a member of the triad society, namely the Chuk Luen Triad Society, on the 12th June 1984 contrary to section 20(2) of the Society's Ordinance Cap. 151.

2. He appeals to this court against his conviction on the grounds that the learned Magistrate erred in law and that the conviction was against the weight of evidence.  In addition to his original Notice of Appeal, he relies on additional grounds of appeal set out in another notice dated the 30th October this year.  These number some 8 in all.

3. It appeared at the hearing of the appeal that the appellant's real complaint is that a statement purporting to contain an admission to the effect that he was a member of the triad society in question was admitted into evidence when it should not have been.  Without that statement the Crown would have had no case.

4. It seems to me that the various grounds of appeal can be grouped into 3 questions: -

(1)	Was the statement, Exhibit "P1", made voluntarily and was it thus admissible in evidence.
(2)	If so, should the Magistrate in the exercise of his discretion have excluded it, and
(3)	if the statement was rightly admitted into evidence, was the admission of membership of a triad society contained in it in answer to a particular question, sufficient evidence upon which to found a conviction of an offence contrary to section 20(2) of the Society's Ordinance?

5. There appears to be some confusion over the 1st and 2nd questions in the drafting of the second Notice of Appeal because ground 3 is that "the learned trial Magistrate in the proper exercise of his discretion should have ruled that Exhibit 'P. 1' was inadmissible on the ground that the Crown had failed affirmatively to prove that it was voluntary."

6. That does not state the position correctly, because if the Magistrate was not satisfied beyond reasonable doubt that the Crown had affirmatively proved that it was a voluntary statement, as this term is used in this branch of the law, he was bound to exclude it and had no discretion to admit it.

7. The only other ground of appeal which appears to relate to this first question is ground 7 of the additional grounds which is to the effect that the learned trial Magistrate erred in not giving any weight to the evidence of Doctor K. H. Poon and Mr. Laddy Cheng, who were called as witnesses by the appellant on the Voir Dire.  With the exception of ground 8 (which relates to the third question), the other grounds of appeal appear to be more appropriate for consideration of the discretion which forms the second question.

8. The answer to the first question, of course, depends upon the Magistrate's view of the credibility of the respective witnesses, and upon his properly directing himself on the burden and standard of proof.

9. Mr. Mullick for the appellant complains that the Magistrate never said that he was satisfied beyond reasonable doubt that the statement was voluntary, and he refers to certain passages in the Magistrate's Statement of Findings which appear to indicate that the Magistrate considered that the burden had shifted to the defense and that he adopted a balancing exercise.

10. When the court is considering an appeal from a professional Magistrate, it will normally, I think, in the absence of any express mention of the burden and standard of proof, assume that the Magistrate is fully aware of these fundamental concepts.  If, however, the Magistrate has, from the form of words he has used in his Statement of Findings, made it appear that he was departed from these fundamental principles, depending upon the strength of the prosecution case the appeal will invariably succeed.

11. The learned Magistrate when dealing with the prosecution evidence did not examine it in any great detail but contented himself with saying "The police account of events seemed perfectly credible to me".  Later, he said "I saw no reason to disbelieve PW1's evidence that the Statement was made voluntarily and I admitted it."  These passages would appear to indicate that the Magistrate felt that because the police account of events seemed perfectly credible to him, he had no reason to disbelieve PW1's contention that the statement was voluntary and thus he could admit that statement in evidence. He made no mention of his discretion to exclude.

12. What concerns me here in this case is the way in which the Magistrate set out his Statement of Findings.  He dealt, first of all, with the defense evidence and set out reasons why he disbelieved the defense case, some of which were obviously based upon faulty logic.  Furthermore it is impossible to ascertain how much weight he gave to the particular reasons open to this criticism of which both his first and second reasons were examples.

13. Mr. Mullick attacks the Magistrate's reasons not only on the basis that some of his logic is faulty but also on the basis that the Magistrate did not deal adequately with the points in favour of the defense.

14. Mr. Mullick points to the proved injuries which the solicitor, Mr. Cheng, saw on the appellant on the following day at five past nine when they attended the Magistrate's court and which were seen by Doctor Poon at ten past twelve later that same day.

15. It is common ground that the doctor, on the 13th June at 12:15 p.m., found an abrasion on the right side of the appellant's chest, an abrasion on each side of his neck, a small abrasion on the back of his left hand and a bruise in the centre of his back. The doctor described these as all recent injuries and he estimated that they would have been caused within 24 hours before examination.  Mr. Mullick argues that they could not, therefore, have been caused before his arrest.  Thus, says Mr. Mullick, they could either have been caused during the course of the interview or at some time after the interview.  If it were after the interview, it means, says Mr. Mullick, that the accused must have inflicted them upon himself.  He argues, however, that this would be impossible in view of the positions of the injuries.

16. Although some of the reasons put forward by the Magistrate for disbelieving the defendant can be criticised, nevertheless, it does seem to me from an examination of the record that he would have been justified in reaching the conclusion that the appellant had been less than frank in giving his evidence to the court.  However, that would not mean that the appellant should be convicted.  There was always the possibility that the defendant had exaggerated his injuries.  Furthermore, there were conflicts between the police evidence and his solicitor's evidence which were not resolved.  Mr. Mullick's main complaint is that the Magistrate appears to have approached this case on the basis that he put the cart before the horse in that he first examined the evidence of the defendant to find whether it was credible or not, and having reached the conclusion based partly on faulty reasoning that it was not, he then looked at the prosecution evidence to see whether it was credible or not and came to the conclusion that the police account of events "seemed perfectly credible" to him.  He submits that the Magistrate adopted a balancing exercise between the evidence for the defense and the evidence for the prosecution and did not properly evaluate the prosecution evidence.   He was able to point to parts of the evidence of PW1 which did not, on the face of the record, appear to be satisfactory and in particular in respect of the question as to whether he had recorded the fact that the appellant had been arrested and cautioned for arson, before the interview commenced.

17. Mr. Jenkyn-Jones supports the conviction by arguing that when the Magistrate said that he saw no reason to disbelieve the prosecution evidence, what he really meant was that he had no reason to doubt it.

18. With respect to Mr. Jenkyn-Jones, there were parts of the evidence of PW1 which were obviously unsatisfactory, the question that really concerned the Magistrate was whether he was satisfied beyond reasonable doubt that the statement was a voluntary statement.

19. Not only does he not say he was so satisfied, but his Statement of Findings indicates that he may have approached the question in the wrong manner. Furthermore, he does not appear to have considered whether he should exercise his discretion to exclude on the grounds of unfairness despite the apparent breaches of the earlier judges rules and despite the fact that parts of the interrogation appear to have been conducted in the form of cross-examination.

20. In all the circumstances, I feel that it would be unsafe to allow the conviction to stand.   The evidence does not appear to me to be so overwhelming that I should allow the conviction to stand. I set aside the conviction and sentence.