ATTORNEY GENERAL v. YU WAN YING

1988, No. 1719

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H E A D N O T E

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A MAGISTRATE DOES NOT HAVE A DISCRETION TO EXCLUDE IMPROPERLY OBTAINED EVIDENCE, SAVE WHERE THE EVIDENCE IS MORE PREJUDICIAL THAN PROBATIVE, OR OBTAINED BY A TRICK OR DECEPTION.

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J U D G M E N T

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1. This is an appeal by way of case stated by the Attorney General against the dismissal of an information under Section 8(1)(a) of the Dangerous Drugs Ordinance in which the respondent was charged with possession of 1.83 grammes of a mixture containing salts of eaters of morphine.

2. The facts as set out in the case stated were that a police party conducting a search for dangerous drugs came upon a room occupied he respondent, and when received no reply to their knocking, informed the manager of the building who told them that there was someone in the room. The police thendemanded to be allowed entry and the manager provided them the means of entry. The repondent was found to be the only occupant of the room and the drugs alleged in the charge were found in the room with the respondent. The learned magistrate also found as a fact that the policeman entering and finding the drugs had no reason to suspect that there were dangerous drugs in the premises before he entered, but that heentered and searched the room because he was ordered to participate generally in a search of the whole building. These were the facts and they were succinctly set out in the case stated.

3. However, there then followed a dissertation on the authorities dealing with the discretion of a court to exclude improperly obtained evidence, the magistrate having decided that the evidence of the seized drugs was obtained by an illegal search. I do not think it is for a magistrate to argue his case at length in a case stated. In the Attorney General v. LEUNG Chi-kin [1974] HKLR 269, Huggins J. give a clear enunciation of the correct form that a case stated should take. Among other things he said this:

    "The case stated should contain in numbered paragraphs:

(a)........

(b) The contentions of law of each party each of the issues referred for the opinion of the court;

(c) A statement of the decision of the magistrate on those issues. Normally extensive quotations from the judgment will he unnecessary and should therefore be avoided;

(d) The questions the Court is asked to answer. They should be stated clearly and concisely and care should be taken to ensure that the questions are not wider than is warranted by the facts. A case stated is not to be used as a device for obtaining the opinion of the court upon questions which did not form the basis of the magistrate's decision."

4. In this case stated, what we got was a comprehensive review of the authorities in Australia, the United States, Scotland, England and Hong Kong. This was obviously done in an effort on the part of the magistrate to justify him not following the fairly established principles enunciated in the Hong Kong and English cases. That, with respect to him, is not the purpose of the case stated procedure. It needs to be said once more that magistrates should not use the case stated procedure to argue points of law on which they hold strong personal views. Argument is for counsel, and it is for counsel to decide if there is any merit in the magistrate's statements of the law. All that the magistrate in this case needed to do was to state that he found he had a discretion to exclude evidence improperly obtained and then leave it to counsel to argue the point on appeal, if indeed he found it to be arguable.

5. In any event, the magistrate appears to find support for his argument where, with respect to him, none exists. For example, in quoting the decision of NG Wai-ming and others v. R [1980] HKLR 228, he said this :

"It seemed (to me) to follow from the analysis in NG Wai-ming that in Hong Kong, courts retain a discretion to exclude in appropriate cases."

6. That is so, but it is a discretion confined within the limits of evidence more prejudicial than probative, and evidence obtained by a trick or deception. The decision in NG Wai-wing followed closely upon the heels of the decision in R v. Sang [1979]2 All E. R. 1222 H.L., and in NG Wai-wing, Roberts C.J. giving the judgment of the court said this:

"However, the law has been clarified by R v. Sang. The effect of that case as we interpret it, is that where evidence is obtained as a result of a confession, which is inadmissible because the Crown has failed to establish its voluntary nature, such evidence may nevertheless be put before the court. However, there remains in the trial judge his overriding discretion to refuse to admit evidence if, in his opinion, its prejudicial effect outweighs its probative value. In this instance the probative value was substantial."

7. The Judgment also goes onto include within that discretion to exclude, evidence obtained by a trick or deception. Neither NG Wai-ming nor R v. Sang could have been any authority for the learned magistrate to exercise a discretion in this case to exclude the evidence of the finding of the drugs.

8. The magistrate also quotes from The Attorney General of Hong Kong v. Sham Chuen, Privy Council Appeal No. 13 of 1986, which had to do with loitering.

9. Once again with respect to the learned magistrate that case was no support for his decision in the instant case, nor were recent English authorities which had to do with the interpretation of the Police and Criminal Evidence Act 1984, nor were Australian or American authorities, nor even Scottish authorities, where they disagreed with the established law in Hong Kong.

10. He was bound to follow the decisions in Hong Kong which adopted the decision in R v. Sang. The law in Hong Kong is that evidence, which is improperly obtained, is, nonetheless admissible, subject to learned magistrate sdiscretion to exclude it if its effect is more prejudicial than probative, and having regard to the need to preserve a sense of fairness in the trial, it is found to have been obtained by a trick or deception. None of these matters applied in the present case. What we had was the police entering a room, which they knew to be occupied, without the permission of the occupant. It was conceded by the Crown that that was improper. Nonetheless, once they entered the room and searched they found the drugs. That finding was neither by deception, nor by trick. The evidence was highly probative. There was, therefore, no room for any discretion to exclude in this case.

11. The answer to the questions of law therefore "l) was I correct in my determination that I had a discretion to exclude improperly obtained evidence from the trial of Madam Yu?" is "no". That makes it unnecessary to answer the second question.