THE QUEEN v. YAN KAM-TING

IN THE SUPREME COURT OF HONG KONG

MAGISTRACY APPEAL NO. 1050/89

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BETWEEN

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J U D G M E N T

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Hon. Yang, C.J.:

1. On the 12th July 1989, the appellant together with his co-accused were convicted on one charge of theft at Tsuen Wan Magistracy. Each was sentenced to a fine of $7,500. He now appeals against both his conviction and sentence.

2. The evidence from the Crown came largely from a cautioned statement made by the appellant at the Police Station, the admissibility of which was contested.

3. At the voir dire, DPC 17932, who took the statement, said that during the interview with the appellant Inspector Mak Yung-nin came in with a solicitor Mr. Tang, whom the appellant's brother engaged for him. It was put to the DPC that before entering the interview room with the solicitor, Inspector Mak had come in and spoken with the appellant to the effect that if there was a solicitor present the statement would be different, and the Inspector would follow all procedure and there would be more incriminating evidence against the appellant. This suggestion was denied; the DPC insisted that the Inspector had only been in the intereview room once. When the Inspector gave evidence, he denied having spoken to the appellant in the way suggested, but said he could not recall if he had entered the interview room once or more than once.

4. The effect of the solicitor's evidence is that the Inspector had been in the interview room twice. The first time was when the Inspector spent about two minutes in the room, and the second time was when he came out and beckoned the solicitor to go into the room with him to see the appellant.

5. The Magistrate rejected the evidence given by the appellant on the voir dire, which was to the effect that the Inspector came into the interview room, looking nervous and angry and said, "Your younger brother brings a lawyer here. This case is very simple and you'll be alright. It will not be of any help if you bring the lawyer here. In fact it will bring you more harm. If the lawyer is present the statement will not be taken in this way and will take all the formal procedure", after which the Inspector left the room and brought Mr. Tang, the solicitor, in to see him. This evidence the Magistrate rejected.

6. There was therefore clearly a discrepancy in the evidence on a point of some importance. The Magistrate in his ruling on the voir dire found both the DPC and Inspector Mak honest and he also accepted the evidence of Mr. Tang "totally". He did not deal with the discrepancy, nor did he reconcile his acceptance of the credibility of these three witnesses in the light of the discrepancy.

7. The failure to resolve the discrepancy, which touches upon an important aspect of the case, leads me to the conclusion that the conviction is unsafe and unsatisfactory. For this reason, the appeal is allowed, the conviction quashed and sentence set aside.