HKSAR v. WONG WING LOK

1997, NO. MA 345

IN THE HIGH COURT OF

THE HONG KONG SPECIAL ADMINISTRATIVE REGION

(Appellate Jurisdiction)

MAGISTRACY APPEAL

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J U D G M E N T

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1. In a trial lasting three days, two defendants, both serving police officers, one a sergeant, the other this appellant, a constable, appeared before Mr J. Miller, magistrate. The sergeant alone faced a charge of common assault and another of theft. He was acquitted of these. Together they faced a third charge of common assault. Both were convicted.

2. The appellant now appeals conviction. The sergeant is also appealing his conviction, but his appeal is yet to be dealt with and forms no part of this judgment. He is the sergeant I refer to as such in this judgment.

3. The prosecution case centred around one AU Kui-leung, a citizen well-known to the police for his drug addiction and propensity, with nineteen previous convictions under his belt, to commit petty crime. The sergeant, at the relevant time, this being January 1995, was leading a police tactical unit called Y Company. The appellant was a member of that team. Over a period of months up to the night in question they had patrolled Tai Kok Tsui district and carried out a number of arrests during the course of their duties. The area of patrol included the playground in Anchor Street.

4. On the night in question Y Company was on a dangerous drugs surveillance. The sergeant was in charge. They came to the playground. AU was there. He was apprehended. His evidence was that there was an altercation between him and the sergeant. The sergeant took $500 from his wallet and pocketed it. Then the sergeant slapped and kicked him. This activity gave rise to the 1st charge of assault and the 2nd of theft, in respect of which he, the sergeant, was found not guilty. AU was permitted to leave and made for a nearby restaurant, from which he made a 999 call to the police.

5. Whilst awaiting assistance he was approached again by the sergeant and his squad. Because of what AU says they regarded as his audacity in calling 999, all gave him a thorough working over. He was released again. He made a second 999 call, this time for an ambulance. It arrived with three other police officers. He was taken for examination and treatment to Kwong Wah Hospital. This second alleged assault gave rise to the 3rd charge the sergeant and the appellant jointly faced which led ultimately to their being found guilty and to this appeal.

6. AU handed to the police for forensic examination a T-shirt he said he was wearing during the incidents. A boot print was found on the sleeve. A woman police sergeant, designated PW7 in the trial, was part of the CAPO team investigating AU's complaint. Twelve days after the incident she went to the police station where Y Company was stationed, and, in the presence of two senior officers, ordered three constables belonging to Y Company, of whom the appellant was one, to hand over the boots they were wearing on the night of the incident. They did so. Forensic analysis established that a print taken from one of the appellant's boots matched that on the T-shirt to the extent that there was nothing more than an extremely remote possibility that the print was not made by the boot.

7. During the trial the account by the woman police sergeant of how the boot came into the hands of the investigating team and the boot itself were admitted in evidence after a challenge to the admissibility made on the appellant's behalf was turned down. It is that the magistrate allowed in this evidence in the face of such challenge or that he did so without conducting a proper enquiry into its admissibility that forms the crux of this appeal.

8. Mr Marash, counsel for the appellant in the appeal, not at first instance, has argued:

(i) by the time the appellant and his colleagues were directed to hand over their boots, the boot print on the T-shirt must have been discovered;

(ii)the purpose of calling for the boots of the members of the squad was to attempt a match;

(iii)the appellant must have been a suspect;

(iv) the appellant should have been cautioned that he was not obliged to incriminate himself, but there was no caution. In fact he was directed to hand over his boots. This was tantamount to an order which he would have had to obey or face disciplinary sanction if he did not;

(v) his handing over a pair of boots amounted to an admission that he was wearing them on the night in question.

9. What thus took place was the forced or involuntary production of a potentially incriminating article and involuntary admission, both of which offended the principle against self-incrimination.

10. So the argument mounted is that the learned magistrate should have rejected that evidence or not have admitted it without a voir dire once that admissibility was challenged. Had there been a voir dire, then this issue would have been fully canvassed in evidence, and the question of voluntariness dealt with, with the magistrate reserving to himself for consideration the residual discretion to exclude on the grounds of oppression or unfairness if voluntariness was proved.

11. There were other grounds mounted, but they are peripheral or otherwise flow from this principal theme.

12. Mr Bruce SC, appearing for the prosecution, concedes that complying with an order to admit would make the admission, if it were found to be one, involuntary. From this he accepts that if I find that there was an implied confession then this appeal must succeed. But his submission is that there was no confession, express or implied. He says the learned magistrate was entitled to find, as he did, that the seizure and production of the boots followed proper police enquiries. Further that there was no admission, other than one given voluntarily, that the boots were those worn on the night in question.

13. So now I have to decide whether the learned magistrate did err, as Mr Marash submits, rendering the conviction of the appellant unsafe and unsatisfactory.

14. This appeal, if I may say, has been thoroughly researched and fully and competently argued with a wealth of authority produced. But the issues for consideration are really quite simple. Was the compliance by the appellant to hand over the boots in effect an admission, and was there thus a requirement that he be cautioned first? If the answer is yes, were the police able then to rely on one of the boots as evidence, it having come into their possession without caution?

15. In my view it is beyond doubt that the boots of all squad members were targeted to assist in the enquiry to attempt a match against the print on the T-shirt. The appellant and his squad colleagues were suspects. It could not have been otherwise. An order to hand over the boots they wore on the night in question was beyond routine and a facet of proper police enquiries.

16. Had the appellant been a civilian he would have had to have been requested to do what was sought and been told he need not comply. Alternatively a search warrant could have been asked for and the boots seized by this means. The appellant, as a serving police officer, was entitled to no less a course of conduct entrenched to preserve and safeguard the rights of suspects. The issue of an order was tantamount to circumventing proper procedure.

17. The handing over of the boots was an admission that they were worn on the night the complainant was assaulted, and represented a material piece of evidence in the police enquiries leading to the culprit. The admissibility of that admission following challenge should have been considered after a separate enquiry in the shape of a voir dire or alternative procedure to establish whether the prosecution could prove that the appellant had made the admission in the exercise of a free choice. Only if the outcome of that enquiry was that it had been proved voluntary with no inherent oppression or unfairness should the boot itself have been admitted.

18. The learned magistrate failed to call for a separate enquiry.

19. In fairness to him there was no forewarning to the challenge until PW7, the CAPO sergeant, was in the witness-box poised to produce the boots. In the normal course notice of the challenge to the prosecution and the court is given at an early stage, so that the trial judge or magistrate can consider how best to deal with the challenge. And, when the challenge was made, there was no proposal that there be a voir dire. Had the magistrate been alerted in this way the resultant error would very likely not have been made.

20. The fact that the evidence was admitted without enquiry to determine voluntariness denied the appellant his rights to put the prosecution to the proof of this and, if found to be so, to invite the court to exercise its inherent jurisdiction to exclude on the grounds of oppression or unfairness.

21. It follows, as I find, that the boot could only have been admitted once the admission it had been worn on the night in question was allowed in. Its production was central to the prosecution case and the outcome of the trial. Without it there may well not have been a conviction, which thus I must find to be unsafe and unsatisfactory.

22. The appeal is allowed and the conviction is quashed.