R. v. CHAN KWOK HUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 358 OF 1997
(On Appeal from NKC No. 8352 of 1996)

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J U D G M E N T

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1. The applicant, CHAN Kwok-hung, was convicted after trial on a charge of Trafficking in a dangerous drug. He now seeks leave to appeal against such conviction.

2. The allegation against the applicant by the prosecution is simple and straightforward. He was followed by two police officers in Sai Yeung Choi Street, and was seen entering the lift lobby of a building known as the Hung On Building. The applicant disappeared into the staircase and he later emerged. He was then stopped and searched. The subject matter of the charge was found from him. The applicant was said to have made an admission to the charge.

3. After he was taken back to the police station, a post-record of the earlier admission was made, and there were further enquiries by the police from the applicant. According to the prosecution's allegation, the applicant then made a further admission to the charge against him.

4. The applicant, in his evidence at the trial, completely denied the allegation against him. It was suggested that the police officers had framed him with the offence, and that the packet of dangerous drugs - that is the subject matter of the charge - was, in fact, planted on him by the police officers. He said he never made any admission, but instead he was assaulted and he was forced to sign the document containing the alleged confession.

5. It was also suggested that insofar as the content of this post-record of interview was concerned, it was never read back to him and he was never given a copy of such record.

6. In support of the present appeal, counsel for the applicant had raised a number of matters in the further grounds of appeal.

7. It was suggested that the learned magistrate had failed to consider the exercise of his discretion to exclude the confession when there were a few matters that indicated a want of form in that firstly, the applicant had not been cautioned when questions were put to him at the scene, at the beginning of the interview at the police station. And two, the statement-taking officer did not know the rules and directions for the questioning of suspects, and the taking of statements from a suspect issued by the Secretary for Security. And three, there was no record of the statement being read back to the applicant. And four, a copy of the statement was never given to the applicant, and there was no record of that having being done.

8. On this aspect, I have considered the evidence as well as the content of the record of interview in question. The record of interview itself clearly indicated that the applicant had been cautioned before the admission was made. The statement-taking officer had also said in the course of his evidence, that this record, in fact, accurately reflected the sequence of events pertaining to the interview in question.

9. In the record of interview itself, it was also stated that the applicant had read the record of interview, and that it was an accurate record of the questions asked of him and the answers given by him before he signed on the document.

10. It was clear that the learned magistrate did have this lack of form in mind, but he was of the view that such want of form did not affect the voluntariness of any confession, which really was the one issue that he has to decide. And once he was satisfied that the confession was given voluntarily, the learned magistrate should admit the confession as evidence unless it was unfair to do so.

11. There was no indication or suggestion that the admission of such confession would be, in any way, unfair. There was, in my view, no basis for suggesting that the learned magistrate had failed to exercise the discretion to exclude the confession as evidence, quite apart from the fact that in the course of the voir dire which took the form of an alternative procedure, the learned magistrate had clearly indicated, as set out at page 124 of the record, that he found no ground to exercise his residual discretion to exclude it. The learned magistrate was a professional tribunal. There was no need for him to set out in his statement of findings every step of his judicial decision process.

12. The learned magistrate clearly had, on the background and record of this case, refused to exercise such residual discretion in favour of the applicant by admitting the record as evidence against him. Insofar as the appeal seek to proceed upon this ground there was no merit.

13. It was also suggested as an alternative ground or a second ground of appeal that the learned magistrate was wrong in suggesting that the injuries suffered by the applicant were sustained as early as two days prior to his arrest. In fact, according to the doctor who examined the applicant on 23 November 1996 at quarter past nine in the evening, the injuries on the body of the applicant were sustained one to two days prior to the time of the examination.

14. The applicant, of course, was arrested on that very day, be it earlier in the day, in the morning. There was, in fact, evidence to support the finding by the learned magistrate that the injuries in question were sustained one to two days from the time of the examination, and therefore, not - on the evidence of the doctor - sustained at that time or after his arrest as alleged by the applicant.

15. I have considered the evidence as well as counsel's submissions carefully. I am satisfied that on the evidence the applicant has been rightly convicted. There is nothing unsafe or unsatisfactory about the convictions entered against the applicant. In the circumstances, the application for leave to appeal must be refused.