R. v. YAM KIT CHUNG and Another

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 806 OF 1996

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REASONS FOR DECISION

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1. The Appellants were convicted after trial by Mr. Timothy Jenkins, the Magistrate at Shatin on 2nd May 1996 of offences in relation to the possession of dutiable goods viz. cigarettes. The 1st Appellant was convicted of two offences of possession of dutiable goods; two of possession for sale of cigarettes, the packets of which did not bear a health warning etc.; and one offence of obstructing a Customs & Excise officer in the exercise of his duty. For the first two offences, concurrent terms of 9 months and 3 months imprisonment were imposed; for the third and fourth offences, there were fines of $5,000 and $1,000. For the obstruction offence there was a fine of $1,000. The 2nd Appellant was convicted of two offences: dealing with dutiable goods and a like offence of obstructing Customs & Excise officers. For the former, a 6-month term of imprisonment was imposed and he too was fined $1,000 for the latter offence. Both appeal against their convictions and sentences.

2. The essential plank of the appeal on behalf of both of them, in relation to the convictions, has been that the learned Magistrate ought not to have admitted in evidence the records of their respective interviews on the basis that those records were so patently deficient in the essential requirements as laid down in the "Rules and Directions for the questioning of suspects and the taking of statements", that the learned Magistrate ought to have exercised his discretion in the Appellants' favour by excluding, as inadmissible, those records, in accordance with the principles of natural justice, and to secure a fair trial. Those phrases are synonymous.

3. The first document which Mr. Raffell, on behalf of both Appellants, contends should not have been made admissible is Exhibit 1, (1(a) in translation). It is a record of an interview with the 1st Defendant. It is contained in the customs officer's (CO 89172) notebook. A number of prior entries has a time log. The record is significant potentially because it contains a number of admissions.

4. I will deal with the points of criticism separately. There is no entry in the record of who was present at the interview, apart, obviously, from the customs officer who wrote it in his notebook, and the 1st Defendant. However, both the customs officer concerned and another officer CO 9111 gave evidence that they were present. CO 9111 did not countersign the record to confirm this.

5. The time and place of the interview are not recorded. Evidence was given orally by CO 89172 that it took place in Unit 48A, and between 1110 and 1225 hours. The timing 1100 hours appears in the notebook opposite an entry recording "Customs personnel found a batch of cigarettes at the loading platform 1/F, Wah Lok Industrial Centre, Shan Mei Street ... and a batch of cigarettes ... were found at Flat 48A, 16F [of Wah Lok Industrial Centre]." There is also recorded 1225 hours as the time of suspending the record.

6. The officer recording the interview did not sign it at the end. However, the Defendant's signature, though described as illegible in translation, is recorded after each answer. The officer was not cross-examined to suggest that these were not the Defendant's signatures.

7. There is no record that the 1st Defendant was asked if he wished to write his answers himself but the officer gave oral evidence that he gave this opportunity.

8. The 1st Defendant did not give evidence. The Magistrate had to be satisfied on the evidence before him that the record was an accurate, voluntary series of answers to the questions put. It is true that there were deficiencies in the record but it is clear that he took account of these. Although his written reasons indicate at pages 7 to 10 that he appeared not to give the two interview records separate consideration, I am satisfied that he gave full and proper consideration both to the Record (Exhibit 1) and the arguments advanced by Mr. Raffell. Having ruled the record as admissible, he went on to give proper consideration to the significance of its contents. Mr. Raffell does not seek to argue against the conclusions to be drawn from the contents once ruled admissible. The admissions clearly went to the state of the Defendant's knowledge in relation to dutiable goods.

9. The second record, Exhibit 6, that of the 2nd Defendant, is similarly criticised for containing no record of the persons present at the interview. The officer interviewing (CO 81475) started it by saying he was "going to take a statement" from the Defendant. He was not. He was going to ask questions after caution. It may be that there is a problem in translation or it is simply the terminology used by the officer. The time of the interview is recorded and oral evidence was given (page 35 of the transcript) as to who was present at the interview. There is no record of where the interview was conducted - it took place in fact in a van.

10. Each answer is followed by the 2nd Defendant's signature. It is not challenged that those are his signatures. However, it is the case, and so recorded on the document that the 2nd Defendant refused to sign the document at the end of the interview to certify that it was "an accurate record of questions asked, and answers I provided". The other officer present (CO 90106) witnessed the suspect's refusal and signed beneath the statement to this effect. For some reason, another officer was called in to countersign as well. This superfluity was the result of a misunderstanding of the last part of Rule V where there is a reference to "the senior officer present" - The operative word is "present". He does not have to be sent for simply because he is the senior officer of the investigating/arresting group. The officer interviewing, agreed with Mr. Raffell that he did not ask the 2nd Defendant if he wanted to write the answers down himself. The 2nd Defendant did not give evidence.

11. In the case of both Defendants, Mr. Raffell alleges that they did not have their rights explained to them. The records of interview show that both Defendants were cautioned before being questioned. Rule 8 (with the exception of (a)(v) has no practical application at the scene of arrest.

12. As in the case of Exhibit 1, the learned Magistrate considered the points raised in argument - see pages 7 to 10 of his findings. He was satisfied that the prosecution had discharged its burden of proof and he ruled that the statement was admissible. Having done so he then considered the contents. There were clear admissions supporting the prosecution case and they showed the necessary element of knowledge.

13. Both these records were made at the scene of arrest and very shortly afterwards. The facilities and formalities of an interview room were not available either to the interviewing officers or to the Defendants. The sort of circumstances considered in the directions under Direction 8 did not obtain. That is not to say that interviews recorded at the scene in an officer's notebook should not comply with the rules and directions but it should be borne in mind that a different and more structured atmosphere prevails in a police station interview room where there can be less if any excuse for a failure to observe the rules and directions.

14. There is no substance in the grounds of appeal advanced. The convictions were well and properly founded in fact and law.

15. When I gave my decision and adjourned any argument on sentence, I gave a firm indication that, in relation to the offences of obstruction, I would substitute absolute discharges for the fines. In my view to charge the obstruction offences was an overloading of the charge sheet as well as being quite unnecessary. The charges were founded on the fact that both Defendants ran away a short distance before arrest. There was no assault involved. Prosecutors would be well advised to exercise a degree of judgment in deciding what charges are necessary to reflect the nature and extent of criminal activity. These charges of obstruction were quite pointless and I quash the fine and substitute an absolute discharge in the case of both Defendants.

SENTENCE

16. When the learned magistrate sentenced the two defendants, as it appears from the record, there were a number of matters to which he referred.

17. He took into account the previous clear records of the defendants and the matters advanced by Mr. Raffell on their behalf. He noted that the amount of dutiable cigarettes involved was substantial, and it appeared that it was only a little under one million cigarettes in total.

18. The amount of duty potentially evaded was over HK$600,000. Dealing in such cigarettes is a lucrative trade, and obviously the greater the proportion of duty payable the more lucrative it potentially becomes. They are sums of money of which the country is being deprived, if it succeeds, and it is a criminal trade that is not always easy to detect. The potential gain being substantial for the offenders, the potential loss is substantial for the country.

19. When I looked at the sentences of imprisonment imposed, I confess that I thought they were on the lenient side because it seems to me, for a variety of reasons, there should be a strong deterrent element in the sentences imposed.

20. Despite Mr. Raffell's able statement of the matters for me to consider in mitigation, I take the view that in principle there is nothing wrong with those sentences at all. And in order to try and nip such trade in the bud, if that is ever possible, heavy sentences will have to be passed. These were not, in the circumstances, in my view, heavy sentences.

21. There is also an argument in relation to the fines imposed for the offences relating to the fact that the packets did not bear a health warning and tar group designation. I think there is justification for the imposition of a financial penalty for these offences in addition to penalties of imprisonment for the main offence, but it seems to me that they ought to be treated collectively and one fine imposed for the total.

22. It would be wrong to interfere with the basic principle adopted by the learned magistrate, and therefore I will not disturb the fine of $5,000 for the first of those two offences, but substitute an absolute discharge for the second.

23. So, the ultimate result is that the prison sentences of, in effect, totals of nine months and six months respectively for the two Appellants, stand.

24. For the 1st Appellant, the fine of $5,000 stands in respect of count six, and the fine of $1,000 for count seven and $1,000 for count two is quashed and absolute discharges are substituted.

25. For the 2nd Defendant, the period of imprisonment of six months stands in respect of count one, and the fine in respect of count three is quashed and an absolute discharge is substituted for that.