HKSAR v. LI YAU FUK

HCMA 347/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 347 OF 1999

(On appeal from FLCC 48 of 1999)

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J U D G M E N T

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1. The Appellant appeals against his conviction on the 16 March 1999 at Fanling Magistracy of an offence of theft contrary to section 9 of the Theft Ordinance, Cap. 210.

2. The facts of the case as found by the learned magistrate were that the victim (PW1) and his wife (PW2) had gone to a movie at the Sheung Shui Centre Cinema.

3. During the film, the victim's wallet had slipped from his pocket and fallen unnoticed to the floor.

4. After they had left the Cinema, the victim noticed that his wallet was missing and he and his wife returned to the Cinema auditorium.

5. Members of the public had arrived at the auditorium for the next screening but apparently it had not yet started.

6. The victim checked where he had been sitting but his wallet was not there. Someone told him however a cleaning lady had seen a black wallet like the victim's found there and kept by a person who claimed it as his.

7. Accordingly, the victim called out to the audience that his wallet was missing and asked for it back. The victim's wife dialled "999". The victim then noticed the Appellant proceeding in the direction of the toilet exit and followed him. The Appellant went into the toilet and the victim saw him reach up and attempt to throw the victim's wallet into a water cistern in the toilet.

8. The victim grabbed the Appellant and recovered the wallet. It contained his personal documents, but money of various currencies and denominations and items such as betting tickets and an Octopus train ticket were missing.

9. The Appellant was asked for the missing money and property by the victim and handed back an amount of money in similar currencies and denominations to that missing. The victim wanted the other missing items back and pushed the Appellant and a brief struggle ensued which carried them back out into the auditorium. Eventually, the victim, his wife and the Appellant were in the lobby of the Cinema when the police arrived.

10. PC 19064 (PW3) spoke to the victim and his wife and then spoke to the Appellant asking him effectively whether the incident had taken place or not.

11. The Appellant told him he had picked up his own wallet from the ground after he had dropped it and also said that later when he entered the toilet, he saw a wallet on top of a water tank and took it down.

12. PC 19064 had conducted a body search of the Appellant prior to this conversation taking place because, as he said in evidence, he "had a reasonable suspicion the Appellant had committed an offence". That suspicion was strengthened during the search by his finding of an Octopus Card on the Appellant which he thought may well have been part of the property missing from the victim's wallet. As it turned out subsequently that Octopus Card was not the victim's.

13. He said he had not cautioned the Appellant after this and before making enquiries of him as he "just wanted to hear the Appellant's explanation".

14. Having heard that explanation, he cautioned the Appellant who repeated his statement about finding the wallet on top of the water tank and added that the victim had pounced on him as he was taking it down.

15. The first ground of appeal is that the learned magistrate was wrong in law to have allowed the Appellant's responses to the officers enquiries into evidence as those responses were made prior to the Appellant being cautioned.

16. At trial, objection was taken to the admissibility of the Appellant's statements at the scene. It was accepted that the statements were, whilst mostly exculpatory, partly an admission by the Appellant to the effect that he had picked up a wallet from the auditorium floor.

17. Mr KWOK also argued that the learned magistrate had made no finding that Rule II of the Secretary for Securities Rules and Directions in the Questioning of Suspects applied and therefore had not considered it in her ruling at the time.

18. She said in her ruling at trial at p. 76 of the transcript:

"In considering the issue, I remind myself of the danger that an accused person, being questioned by a person in authority, may feel that he cannot remain silent without some temporal disadvantages to himself."

19. In her Statement of Findings at p. 2 thereof, she repeated that warning to herself. She said:

"I have reminded myself of the danger that an accused person being questioned by a person in authority may feel that he cannot remain silent without some temporal disadvantages"

20. In my view, the learned magistrate would only have referred so carefully to this principle if she was considering the effect of enquiry of a suspect without caution on the mind of that suspect. That must mean that the learned magistrate did take into account that no caution had been given to the Appellant by the arresting officer when he had been first questioned and the statements had first been given. Against that background, she concluded that, nevertheless, the statements were voluntary.

21. The Appellant called no evidence to support his challenge to the admissibility of the verbal statements made by him prior to caution at the scene. His counsel at trial, quite properly, was content to rely upon the lack of a caution prior to the verbal statements being made as raising by that fact alone doubts as to their voluntariness and therefore rendering them inadmissible.

22. In my view, there was a breach of Rule II of the Secretary for Securities Rules and Directions. PC 19064 had spoken to the victim and his wife and had been told by them of their allegations against the Appellant. Further, the officer had found an Octopus ticket on the Appellant when he searched him. As it transpired that Octopus ticket did not come from the victim's wallet but at the time the officer would not have known that. In other words, the officer had evidence which afforded him reasonable grounds for suspecting the Appellant had committed an offence. Indeed, in evidence, the officer agreed with this proposition.

23. Accordingly, I accept Mr KWOK's argument that the officer should have cautioned the Appellant under the terms of Rule II of the Secretary for Securities Rules and Directions.

24. But a breach of the Rules and Directions for the Questioning of Suspects does not by itself govern the admissibility of any statement. The fundamental question remains whether the statements challenged were voluntary.

25. In this case, the magistrate decided that the statements were voluntary. No evidence was called in regard to the issue by the Appellant. The only evidence before the magistrate was the evidence of the police officers and of other witnesses as to the circumstances in which the Appellant was questioned. She considered all that evidence before arriving at her conclusion of fact that the prosecution had proved the voluntariness of the statements beyond reasonable doubt.

26. The evidence before the magistrate was to the effect that no force or oppression had been directed by the officer against the Appellant. In the absence of any evidence as to oppression or of the Appellant coming under some pressure to respond to the officer's questions, I do not see how that finding of voluntariness, regardless of whether there was a breach of the Secretary for Securities Rules, can now be challenged.

27. It may well be that in many cases the failure to caution a suspect in breach of the Secretary for Securities Rules and Directions is a factor, and may be an important factor, which causes a court doubt as to the absence of oppression or threat or some other alleged impropriety. But it is a factor only. After taking into account the absence of a caution, a court may be satisfied nevertheless that the statements of the defendant were voluntary. The absence of a caution is one matter of fact, albeit an important matter to be taken into account, but it is not by itself, however, determinative of voluntariness.

28. In this case, the magistrate was entitled to take into account all the circumstances including the lack of a caution, as I am sure she did, before arriving at her conclusion that the challenged statements of the Appellant were voluntary.

29. The first ground of appeal must fail.

30. The second ground of appeal is that the magistrate's factual finding that the victim's wife had used a mobile phone to make a "999" call was contrary to the evidence.

31. PC 19064 had said in evidence a report of "fighting" had been received by the police. The victim's wife said she reported the loss of the wallet to the police.

32. Mr KWOK says that the Defence case as presented in cross-examination was that the whole incident was a fight and that allegations of theft were only subsequently made by the victim and his wife to the police to cover up the victim's assault on the Appellant and accordingly, the magistrate's finding that the victim's wife used her mobile phone to make a "999" call about the loss of the wallet was, given PC 19064's evidence, factually wrong and given the nature of the Defence case prejudicial to the Appellant.

33. I disagree. The finding was not factually wrong. Firstly, the magistrate did not say she disbelieved all of PW2's evidence. She simply said in her findings PW2 exaggerated her evidence.

34. The magistrate was perfectly entitled to reject part and accept part of the victim's wife evidence. On the evidence in the case as a whole, presumably including the cleaning lady's (PW4's) evidence, that the victim and his wife had returned to the Cinema to locate a lost wallet, the magistrate was entitled to accept the victim's wife's evidence in this regard. Importantly, it was supported also by the victim who heard her make the initial call to the police. Finally, I might add in this regard, the evidence given at trial before the magistrate was to the effect that the victim's wife had made a number of phone calls to the police and that would explain PC 19064's evidence of a "fighting" report. It may well have been that more than one report was made.

35. Accordingly, the magistrate was entitled to make that finding that, at some stage, the victim's wife had made a "999" report about the loss of the wallet.

36. There is nothing in the second ground of appeal.

37. The third ground of appeal was that the learned magistrate ignored probative evidence in that she concluded that the fact that some betting tickets and an Octopus train pass were missing from the victim's wallet, after it was recovered, and were not found upon the Appellant upon search did not throw doubt upon the prosecution case.

38. Mr KWOK argues that if the victim had seen the Appellant leave the auditorium and go into the toilet and followed him, then if the Appellant had stolen the victim's wallet then either these items would have been found upon the Appellant or the victim would have seen the Appellant disposing of them outside the toilet.

39. These items, or some of them, were in fact subsequently found outside the toilet in its vicinity by the police who arrived at the scene. No missing items were found upon the person of the Appellant.

40. The flaw in this argument is that the victim, according to his evidence, was quite uncertain as to whether he had momentarily lost sight of the Appellant as he followed him to the toilet. That evidence appears at p. 34 of the transcript and in part reads:

" Q. But, you see, I was just clarifying with your evidence. If the door had closed that means you had lost sight of him even for a split of a second.

A. No, I am not sure. Then, I am not quite sure about this matter.

Q. I want to make sure what you mean by that. Are you now saying that you are not sure whether you had lost sight of him, even for a very short period of time.

A. I'm not sure. I'm not quite sure about the moment while we were going into the toilet."

41. And later,

" Q. Right. And you can't say whether there is a time gap when you lost sight of him. You're not sure.

A. Only for the moment when we are going inside the toilet. I am not sure about the part where, as questioned by you, while going into the toilet."

42. Accordingly, there was an opportunity on the evidence for the Appellant to have disposed of these items before entering the toilet.

43. Mr KWOK then argues that if the victim had lost sight of the person who he had followed to the toilet, the magistrate could not have been properly sure that it was the same person the victim says he found inside the toilet attempting to dispose of his wallet.

44. Mr KWOK seems to suggest that this would support the Appellant's case in that if another person went into the toilet, then it was possible it might have been that person who placed the wallet on the cistern where it was found by the Appellant.

45. It is sufficient to answer that argument by simple reference to the magistrate's findings. She accepted PW1's evidence that he had seen the Appellant attempting to put the wallet on top of the cistern and that subsequently when the victim had demanded of the return of its contents, the Appellant did return some items owned by the victim and missing from the victim's wallet from his own pocket.

46. In my view, the lack of a specific reference to the matters raised by Mr KWOK before me in this regard today by the magistrate in her Statement of Findings in no way undermined those findings.

47. Those submissions were made, in addition, to the magistrate at the end of the evidence in the trial and she came to her conclusions no doubt bearing those matters in mind.

48. The magistrate was entitled to arrive at the findings she did on the evidence in the case.

49. In my view, there is nothing in this final ground.

50. The appeal is dismissed.