HKSAR v. LEUNG SAI TONG, DAVID

HCMA1082/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1082 OF 2001

(ON APPEAL FROM WSCC 1781 OF 2001)

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J U D G M E N T

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1. The appellant was convicted on 7 September 2001 of one charge of criminal damage, contrary to section 60(1) of the Crimes Ordinance, Cap.200 and was sentenced to 150 hours of community service.

2. The terms of the charge were that on 15 November 2000 at Komatsu Huanan Ltd ("the Company"), Room 3507, Tower II, Lippo Centre, Queensway, Hong Kong, without lawful excuse, destroyed some of the data stored in a computer and some computer printouts belonging to the Company, intending to destroy such property or being reckless as to whether such property would be destroyed.

3. It was not in dispute that prior to his dismissal from the Company, the appellant was the General Manager of the Accounting Department of that Company. He, together with a subordinate, who was PW6 in the trial, was responsible for accounting related matters. The accounting data of the Company was stored in a computer in the Company premises and the software system used for that storage was called the Turbo Accounting System ("the System"). The System was configured so that entry was gained to it by the use of a personal user code and a password; further passwords were required to delete accounting data. Only the appellant had the authority to both gain access to the System and to delete accounting data and was in possession of the necessary personal user codes and passwords to enable him to do that. In theory, those user codes and passwords were restricted to him and were intended not to be known or available to other persons in the Company.

4. At about 1 p.m. on 15 November 2000, his superior, a Mr Saito, gave the appellant a notice of his dismissal. At that point, the Company had employed him for seven years. It was the case for the prosecution that having been dismissed from the Company, the resentment felt by the appellant was such that he deleted accounting files stored in the System and shredded through a shredding machine a number of the journal vouchers of the Company.

5. It was the evidence of PW6 that he had accessed information in the System and that at about 11 a.m. on 15 November 2000 (the date in the charge); he was working on certain accounting data stored in the System. He ceased to work and left the machine, returning at about 3 p.m. and then tried to retrieve the same data. He found it to be missing. The matter was later reported to the police.

6. On 22 November 2000, the appellant was invited to the police station where he made a statement to the police. That statement was subject to a voire dire employing the alternative procedure. The statement fell into two parts: The first part commenced soon after his arrival in the police station and involved preliminary questions that on the evidence of the prosecution involved some admissions. The second part was a formal Record of Interview. On the document admitted into evidence that Record started at 9:50 a.m., was reduced to writing, was under caution and was partially in the handwriting of the appellant as to his indication that some body should write down what he said. Sometime just after 12.00 noon he was arrested and further cautioned. It was the evidence of the prosecution that certain material was then written at his dictation and that was later read, agreed and stated to be true by the appellant.

7. The first ground of appeal relates to the admissibility of the Record of Interview. It is argued that the magistrate failed to place any or any appropriate weight upon the failure of the police to comply with the rules and directions for the questioning of suspects. There are three heads to this complaint:

(1) That the police failed to provide the appellant with a notice to persons in custody prior to the commencement of the Record of Interview and failed to do so until some two and a half hours later.

(2) That the police failed to formally charge the appellant once the officer concerned had reasonable grounds to suspect that an offence being committed.

(3) That the police officer concerned failed to make it clear to the appellant that he was being interviewed as a suspect rather than a prosecution witness until 11:50 a.m., that is two hours after commencement of the Record of the Interview.

8. There is substance in the complaint that the police failed to adhere strictly to the rules and directions for the questioning of suspects. An inspection of the notice signed by the officer and the appellant times the giving of the notice at 12 noon as best as can be determined from that document. It is clear from the face of the Record of Interview itself ignoring the questions that took place before that that the police were suspicious of the involvement of the appellant at 9:50 a.m. that he made admission subject to caution from that point on and that at about12:13 p.m. he was arrested. Further cautioned at that point the Appellant said this:

"When I received a dismissal letter from my boss, I felt it was very unfair. Thus I was very angry. Out of momentary impulse, I deleted some files in the computer of accounting department of the company and put a wad of journal vouchers into the shredder to shred."

9. The first question to be considered in respect of this first ground of appeal is whether the breaches of the rules questioning of suspects took place and secondly whether they were such as to warrant the magistrate, upon a proper consideration, rejecting the statement made by the appellant as inadmissable. The magistrate considered the evidence of PW1 who was PC 46724 and found in his findings at page 18 of the transcript:

"He had not breached any Rules for Questioning Suspect in obtaining the RI."

10. The directions of the Rules and Directions for the questioning of suspects and the taking of statements issued by the Secretary for Security provides at Direction 8(d):

"A person in custody, or present with the police and under investigation by them, should be informed of his rights and the facilities available to him, and in addition notices describing them should be displayed at convenient and conspicuous places at police stations."

11. It is quite clear that the method used by the police to inform a person under investigation of his rights and the facilities available to him was the copy of the notice to persons in custody provided to the appellant at 12 noon. I accept there were notices posted in the police station and in the interview room however the fact that the police also elected to serve the notice on the Appellant in writing indicates they considered those notices insufficient to comply with the direction. The appellant had at 9:50 a.m. or soon thereafter been told enquiries were being made of him in respect of the deletion of information from the computer and in respect of a wad of accounts documents which were found to be missing. He was told the police had reason to belief that he was connected with the case and that he was cautioned in the usual terms. In his evidence, PW1 considered that at this point, he suspected the involvement of the appellant in the case in the commission of the offence, given the remarks that the Appellant had made prior to the commencement of this statement. He was clearly at this point under investigation in the mind of the police and at this point, the notice of his rights and the facilities available to him should have been given to him. This was a breach of Direction 8(d).

12. This conclusion is further reinforced by the admission of PW1 that the change of the venue of the interview from Room 206 to Interview Room 1 in the police station was occasioned by his change of belief in the status of the appellant from that of a potential prosecution witness to that of a potential accused. The first breach of the rules is made out.

13. The second alleged breach is that in his evidence, PW1 conceded that at the conclusion of the initial remarks made by the appellant to him in Room 206 prior to the commencement of the Record of Interview taken in the interview room, he stopped the conversation with the appellant upon this basis:

"Q: And quite obviously the reason you stopped the conversation then was because you believe and arrest of the offence had been committed.

A: Right."

At that point upon what had been said by the appellant, the officer clearly believed that he had committed an offence. He did not at that point arrest the appellant. He then went on to reinforce his belief by taking a statement under caution as was his practice. Technically, however, at the point where he came to the conclusion that the appellant had committed an offence, he ought to have arrested him and then cautioned him and then sought to take a Record of Interview. This is a second breach of the Rules and Directions for the questioning of suspects.

14. Thirdly, it is claimed that the magistrate failed to make it clear the appellant was being interviewed as a suspect rather than a prosecution witness until 11:15 a.m., that is some two hours after commencement of the Record of Interview. I cannot accept this allegation. It is quite clear from the tenor of the Record of Interview starting at 9:50 a.m. that the appellant was both under investigation and was a suspect. He was cautioned in terms that put him on warning that anything he said could be given in evidence. There is no breach of the rules in respect of this third allegation.

15. I have to be concerned that the magistrate gave no consideration to the two breaches that I have found occurred and that the magistrate, in his findings, specifically ruled as a matter of fact that there had been no breaches. It may well have been that the magistrate upon consideration of those breaches would have found that they did not warrant a ruling that the statement was inadmissible but he did not do so. He cannot be said to have considered the admissibility of the Record of Interview in the light of the breaches of the rules when he did not find those breaches to exist. I find that he was in error in respect of this finding of fact and that he ought to have considered the admissibility of the Record of Interview in the light of those two breaches.

16. I regret that I cannot place myself in the position of the magistrate and find that notwithstanding his lack of consideration of those breaches the statements to be admissible were where I able to do so that is the view that I would take, and I am forced to the conclusion that the magistrate has not approached the consideration of the admissibility of the record in the manner which he ought. Going no further into the grounds of appeal, on the basis of this ground alone, the appeal must be allowed and the sentence set aside.