THE QUEEN v. MAK SHEK KIN

H E A D N O T E

         Evidence - confession - admissibility in law - truth of statement not relevant.

Evidence - oral confession - police officer refreshing memory - officer testifying as to his total recall of detail - goes to reliability and credibility.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 1055 OF 1987

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BETWEEN

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J U D G M E N T

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1. The appellant, a baggage handler at Kai Tak was convicted of two thefts and one attempted theft of passenger's luggage.

2. On appeal, the points taken relate to the admission into evidence by the learned magistrate of incriminating statements. The first point is that the magistrate, in his statement of findings, says. 'Also since the appellant had stoutly lied his way through the interview (as I found) his will was by no means overborne and I found his answers thoroughly voluntary beyond reasonable doubt, and certainly not to be excluded in my discretion.'

3. It is now clear, see R. v. Wong Kam-ming [1979] HKLR 35, that truthfulness is not relevant on the issue of voluntaries. So the magistrate erred on that Matter. The magistrate had conducted a void dire, at which there was no defense evidence. The magistrate made primary findings of fact not depend in any way on whether or not the admissions were truthful, the prosecution witnesses were not shaken, they established there were no threats or inducements, nor anything that could amount to oppression. In the circumstances, from the primary facts found, it would have been perverse, if or a proper consideration of those facts, a finding of voluntaries had not been made. In the circumstances this ground does not warrant allowing the appeal.

4. The other ground is that the magistrate relied upon a police officer recounting a conversation that he had with the appellant, which was not recorded contemporaneously, though the officer made a record of it 1½ hours later, which he used to refresh his memory. The record had never been shown to the appellant.

5. Of course a witness can give his recollection of a conversation even though it occurred a long time previously, and he never made any record of it, and though at the time of the conversation, and perhaps for years afterwards, he never thought he would have to recall it, for example the evidence of accomplies as to conversations they had with co conspirators years before hand. It has never been suggested that such evidence is inadmissible in law. There is even less reason, for ruling inadmissible in law, the evidence of a conversation by a person who took part in it, and at the time he took part, realized that he would be expected to recall it later. Even less would it be inadmissible if he were a trained observer. If he made a note shortly afterwards, there would generally be even less reason to rule he could not give evidence, refreshing his memory.

6. It is even acceptable, R. v. Bass [1953] 1QB 680 that officers may, after an incident, put their heads together to compile an accurate note. It is not suggested that such a note, if sufficiently recent, could not be used to refresh memory.

7. However if the evidence of the witness, or his note, purports to record details, particularly a mass of details, which in the circumstances it is not credible would be recalled, at the time the note compiled, or the evidence given, then as a matter of commonsense, one would doubt the reliability of such detail, and perhaps even the good faith of the witness, who purports to have recalled it when he made his note or gave evidence. As that would apply to details of various types, so would it apply to details of a conversation. It would, depending on the circumstances, apply to such a detail as remembering the precise words of a conversation. In the present case, as regards some of the admissions, they took place in a question and answer session, where the officer made no record till 1½ hours later. There were 43 questions and answers, each of which was short. The officer recorded them in direct speech and, refreshing his memory, gave evidence of them in direct speech. Under cross examination he admitted that he may not have done so quite accurately and may have left something out. The appellant relies upon R. v. Lau Ming Lai Cr. App. 962/81, and says that it decides such evidence should not be accepted. The learned magistrate decided that case did not lay down a rule of law, but a guiding principle for approaching such evidence as a matter of common sense. I agree. Evidence of conversations or admissions do not have to be ipsissima verba to be admissible R. v. Godinho [1912] 7 Cr. App. R.12. One has to look it the facts of a particular case, when concluding what weight to give to the evidence of a witness who purports to recall such detail. It may be, that one would conclude that while the purported detail is not reliable, the effect of the conversation is reliably reported. Of course that the witness purports to recall detail, which he could not, may additionally go to his credibility. There would also be cases where it would be proper to rule out such evidence in exercise of a discretion, if its probative value was exceeded by its prejudicial value. However that would not always be so.

8. One should also keep in mind, as a matter of common sense, and experience, that witnesses giving evidence in Cantonese often appear to have difficulty in distinguishing between direct and incorrect speech.

9. The learned magistrate was not relying on the precise words of the conversation, but on its effect.

10. This ground also fails appeal against conviction dismissed.

MA No. 1055 of 1987

H E A D N O T E

    Sentence - Theft by baggage handlers at Kai Take airport-persistent theft-starting point 18 months to 2 years immediate imprisonment.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 1055 OF 1987

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BETWEEN

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Corm: The Hon. Mr. Justice O'Connor in Court

Date of hearing: 25 March 1988

Date of delivery of judgment: 31 March 1988

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J U D G M E N T

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11. The appellant was convicted in respect of a number of thefts, and an attempted theft of items of unknown value from luggage on various aircraft. The offences occurred between July 1984 and December 1986. The actual number of incidents of theft was not particularized, but the evidence disclosed persistent pilfering by the appellant over a period of 2½ years. The appellant was a baggage handler, employed by Hong Kong Air Terminal Services Limited, at Kai Tak Airport, to load and unload luggage from aeroplanes. The evidence consisted of statements containing admissions made by him to ICAC officers, and also video tapes, taken by concealed cameras in the luggage hold of aircraft, that showed him rifling passenger's luggage and pocketing items. The items he took were such goods as expensive pens and lighters. He had a previous clear record. In my view, these offences are more serious than offences of shoplifting from supermarkets, or pickpocketing. I am told that there is no decision, on appeal from Magistrates, in respect of sentences for theft by baggage handlers. The Magistrate in his findings referred to the case of the Queen v. Dhunay which is reported at [1986], 8 Criminal Appeal Report(s) page 107. That case, on its facts, is very similar to the case the subject matter of this appeal. The only material distinction is, in that case there were a number of accused persons, who were jointly charged with the thefts, so that case contained an element of conspiracy. In the judgment in that case the following passages appear:

"Our conclusion is that for persistent pilfering from luggage at airports of the kind committed by these appellants, three years' imprisonment is the starting point. Whether it is necessary to punish more severely than that will depend, of course, on the particular circumstances in each case. Whether it is possible to punish with less severity likewise would fall to be considered having regard to any particular mitigation there may be."

And later on the following passage appears:

"The only redeeming feature in this case with respect to any one of them is the fact they pleaded guilty. That and that alone favours them. If it were not for a factor to which I shall turn in a moment, it might have helped to reduce their sentences from three years to two years. We bear in mind that if it had not been for the fact that there were installed in the place as I have mentioned, in Terminal 3, video cameras, it is unlikely that the dishonesty would have been uncovered. So to a certain extent, the kind of reduction in sentence which they could properly expect for a plea of guilty is watered down to the extent that we can, we think, give but a six months' allowance in respect of it."

12. Counsel have handed me a schedule, showing sentences imposed on Kai Tak baggage handlers, for offences of theft. This schedule covers a period of six months leading up to mid February of this year. During that period of 6 months, no less than 25 such baggage handlers were convicted of theft. That, of course, indicates how rife this offence is at Kai Tak. The schedule also shows the sentences on those 25 persons were that, eleven of them received suspended sentences, two were fined and twelve received sentences of immediate imprisonment. Of the sentences of immediate imprisonment, two for 3 months, one was for 4 months, four were for 6 months, three were for 9 months, and two including the defendant in the present appeal, were sentenced to 18 months imprisonment.

13. It appears to me looking at the schedule that the sentences being imposed for this type of offence are inordinately low. However, as no such sentences had apparently ever gone on appeal, I considered it appropriate to consult my brother High Court Judges, on the criminal side, who are in Hong Kong, as to what would be an appropriate sentence and we are all of the view that for persistent theft by a baggage handler at Kai Tak, the starting point ought to be 18 months to 2 years immediate imprisonment. Accordingly, it seems to me that the sentences imposed by the learned Magistrate in this case are not manifestly excessive and I dismiss the appeals.

Representation:

Mr. A.A. Bruce, Senior Crown Counsel, for Crown.

Mr. Haldane of Messrs. Haldane, Midgley & Booth, for the appellant.