R. v. WONG FU CHEONG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 417 OF 1994

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J U D G M E N T

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1. On 24th March 1994 at Eastern Magistrates' Court, the Appellant was convicted, after pleading not guilty, of knowingly misleading a police officer by making a false statement. He was sentenced to three months' imprisonment suspended for 18 months and fined $750. He now appeals against his conviction, his appeal against sentence having been abandoned this morning.

2. The Appellant is a serving police officer. On the evening of 17th September 1993, he went to a fast-food restaurant in Chai Wan with other officers to investigate a disturbance there. A complaint was subsequently made that the police officers had assaulted a man and two girls who had been there that evening, and that one of the girls had been indecently assaulted. One of the police officers had been said, or was believed, to have had either a pager or a mobile phone with him.

3. On 21st September 1993, the Appellant was interviewed by a detective sergeant, PW2. A written record of that interview was made by PW2. The written record of that interview was in Cantonese because that was the language in which the interview was conducted. The certified translation of the material question and answer in that written record is as follows :

"Question : Do you own any mobile phone?

Answer : I do not have (it), nor do the other team members."

I take the words "I do not have (it)" to mean "I do not have one."

5. When the Appellant gave evidence, he confirmed that he had had a mobile phone with him when he had gone to the restaurant in Chai Wan. He also confirmed that he had understood the question which PW2 had put to him on 21st September as asking him if he owned a mobile phone. He did not dispute that he had given the answer recorded in the written record of the interview. His evidence was that although he had had the use of a mobile phone at the time, he did not own one. It belonged to his girl friend, who had paid for it with her own money. He had been named as the registered owner of the mobile phone - or to be more accurate, the subscriber of the phone number to which the mobile phone related - in the records of the telephone company which had supplied the mobile phone.

6. On these facts, the first question which the magistrate had to decide was whether the Appellant's answer to the question put to him by PW2 on 21st September amounted to a statement that he did not own a mobile phone. There is some doubt as to the precise nature of the question he was asked. If the certified translation is anything to go by, the question he was asked was unambiguous. However, when PW2 read out in court what he had written in Cantonese, the translation given by the interpreter in court was: "Do you have a personal mobile phone?" In these circumstance, I am surprised by the statement in para. 7 of the magistrate's Statement of Findings that the question put by PW2 was "perfectly clear and unambiguous", when the certified translation of that question related to ownership, and the translation in court related to possession.

7. However, it was not necessary for the magistrate to resolve which translation was the more accurate, because the Appellant's own evidence was that he understood the question as asking him whether he owned a mobile phone. The answer he gave, therefore, should be construed in the light, not of what he was actually being asked (whatever that was), but in the light of what he believed he was being asked. In view of what he believed he was being asked, his answer that he did not have a mobile phone could only have meant that he did not own a mobile phone. I therefore reject the criticism that there must be a question mark over the magistrate's finding that the Appellant's answer to the question amounted to a statement that he did not own a mobile phone, although I disagree with the route which the magistrate took to make that finding.

8. The next question which the magistrate had to decide was whether that statement was false. The magistrate found that it was, not merely because the Appellant was the registered owner of the mobile phone, but also because he found as a fact that the telephone did not belong to the Appellant's girl friend. That finding is criticised by Mr. Luk for the Appellant because counsel for the prosecution at the trial did not put to the Appellant in cross-examination that his evidence about the phone belonging to his girl friend was untrue. However, having regard to the tenor of the whole of the cross-examination, I do not think it was necessary for counsel for the prosecution formally to put that question to the Appellant in cross- examination. But even if it had been necessary for her to do that, it is, in my view, quite impossible to say that the failure of counsel for the prosecution to put that question to the Appellant in cross-examination somehow prevented the magistrate from making the finding that he did.

9. The third question which the magistrate had to decide was whether PW2 was misled by the statement which the Appellant had made to him. The magistrate found as a fact that PW2 was misled because he accepted PW2's evidence that prior to the interview PW2 had no information as to whether the Appellant owned a mobile phone or not, and that PW2 believed the answers which the Appellant had given him. Mr. Luk does not seek to challenge that finding.

10. As a serving police officer, the Appellant was, of course, of hitherto good character. Indeed, he said in evidence that he had a clear record. The magistrate obviously forgot what the Appellant had said in evidence, because in his Statement of Findings the magistrate said that he "assumed" that the Appellant had a clear record. But the fact that the magistrate had forgotten that there was evidence that the Appellant had a clear record is irrelevant: the fact was that he treated the Appellant as someone of hitherto good character.

11. This was a case in which the Appellant's good character was relevant both to his credibility as a witness and to the likelihood that he would have committed an offence of this kind. However, although the magistrate took the Appellant's good character into account, he did not state in his Statement of Findings what his good character was relevant to. In my view, there was no need for the magistrate to do so. That is the effect of what was said by the Court of Appeal in Cheng King Ho (CA 255/93):

"..... this court does not require a District Judge or a Magistrate to state in his or her Reasons for Verdict that he or she has given himself or herself a Berrada or Vye direction."

This case is to be distinguished, for example, from Lai Lam Hing (MA 488/93) which was referred to in the perfected grounds of appeal, because in that case it could not be inferred from the magistrate's Statement of Findings that he had taken the Appellant's good character into account at all. That, I think, is what also lay behind the decision of the Court of Appeal in Chan Wu Nam (CA 274/92), where the judge had merely referred to the Appellant's good character in the course of dealing with the Appellant's evidence, but had not said that he had taken the Appellant's good character into account.

12. Finally, the Appellant could only have been convicted if he had knowingly misled PW2, i.e. if he had known that his statement that he did not own a mobile phone would mislead PW2. I regret to say that that was an issue which the magistrate failed to consider. That is plain from the fact that he carefully identified what he regarded as the three issues which the case raised, but failed to mention this issue amongst them. That is an error which, in my view, is fatal to the magistrate's decision to convict the Appellant. There is no equivalent in the Magistrates Ordinance (Cap.227) to section 83(1) of the Criminal Procedure Ordinance (Cap. 221). It is, therefore, not open to me to consider dismissing the appeal on the basis that no miscarriage of justice has occurred - for example, because, in view of the magistrate's other findings of fact, it was inevitable that the magistrate would have concluded that the Appellant had knowingly misled PW2. In those circumstances, it would be wrong for me to express any view as to whether I would have dismissed the appeal if there had been a provision equivalent to section 83(1) of the Criminal Procedure Ordinance in the Magistrates Ordinance.

13. Although the appeal must therefore be allowed, I have been considering whether I can remit the case to the magistrate for him to decide, having already heard all the evidence and having already heard submissions from counsel, whether the Appellant knowingly misled PW2. I have decided, in the light of section 119(1)(d) of the Magistrates Ordinance and Fai Ma Trading Co. Ltd. v. L.S. Lai (Industry Officer) [1989] 1 H.K.L.R. 582, that it is open to me to do so. I therefore allow this appeal, I set aside the Appellant's conviction by the magistrate, I set aside the sentence which the magistrate imposed consequent upon that conviction, I remit the case to the magistrate with my opinion that a necessary ingredient of the offence is that the Appellant knowingly misled PW2, and I order the magistrate to decide whether the prosecution has satisfied him so that he is sure that the Appellant knowingly misled PW2. Both Miss Betts for the Crown and Mr. Luk agreed that I have power to make such an order.