HKSAR v. LAM SAI CHEUNG

FAMC No. 3 of 1998

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. FAMC No. 3 OF 1998 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMA No. 1141 OF 1997)

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D E T E R M I N A T I O N

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Mr Justice Ching, PJ :

1. This is the determination of the Appeals Committee.

2. The applicant was convicted of one count of theft in the Magistrates' Court. His appeal to a Judge of the Court of First Instance was dismissed and he now applies to us for leave to appeal to the Court of Final Appeal on the grounds that a grave and substantial injustice has been done to him and that the appeal would involve a point of law of great and general importance. That point is said to be

'whether an uncautioned note, obtained by his employers pursuant to company policy for the purpose of summarily dismissing him, is admissible as a voluntary confession in criminal proceedings.'

He asks us to certify that point of law in accordance with section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484.

3. The charge upon which he was convicted was that on 26th June, 1997, he stole a baby-changing table from his employer, IKEA, at its Tsuen Wan branch. He was a customer services supervisor employed at that branch at the time. The table was not an item of furniture sold at the branch but had been sent to it from another branch. The applicant admitted that he had signed for its receipt and that he had put it in his office but denied taking it away. He admitted having left the branch with a parcel on the day in question but claimed that it consisted of diapers which he had bought in a supermarket.

4. More importantly, there was evidence that when suspicion fell on the applicant he was interviewed by four of his superiors. One of them, whose evidence was expressly accepted by the Magistrate, said that although denying the allegation at first the applicant eventually made an oral admission that he had taken the table in a moment of greed. He was then asked to reduce his admission into writing and he did so, adding to it upon the prompting of one of his superiors that he would return the table by 10:00 a.m. the next day. The evidence of the prosecution was that he asked if he would be charged and he was told that that would be a matter for the board of directors. His own evidence was that he was told that his written admission was for the purposes of his summary dismissal and that that would be the end of the matter. The Magistrate disbelieved his evidence and admitted both the oral and the written confession into evidence.

5. The attack that is now sought to be made is only upon the admissibility of the written confession. The question which is said to be one of great and general importance to the law is whether such a confession obtained by an employer from its employee for the purposes of summary dismissal is voluntary and is therefore admissible against the employee in criminal proceedings. It is accepted that an employer is in a position of authority. The Magistrate considered all of the evidence and on that evidence decided that the statement was a voluntary one and therefore admitted it. Having regard to the findings of fact which were made and which are not and could not be attacked, no arguable point is raised.

6. This application is dismissed.