HKSAR v. Wong Kai

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

APPELLATE JURISDICTION

Magistracy Appeal No. 553 of 1997

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J U D G M E N T

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1. The defendant appeals today against a conviction for indecent assault, for which he was sentenced to six months imprisonment on 15 May this year. The only evidence against the defendant, effectively, at his trial was his cautioned statement which was admitted by the magistrate. The defendant's identity and presence were not at issue but, because the victim was unconscious at the time, she was unable to give direct evidence of the incident.

2. The defendant complained of a number of breaches of the Judge's Rules, which he said should have made the magistrate refuse to admit the statement. These were: that he had not been allowed to have a lawyer or informed of his legal rights; that he had not been properly cautioned; that the cautioned statement was not a verbatim record, and; that no rest or refreshment had been given to him over a period of some hours, from six o'clock at night - the time of his arrest - until two o'clock in the morning of the following day.

3. The second ground was that there had been insufficient witnesses called on the voir dire to establish to the court's satisfaction that the statement was voluntary. The third ground was that the magistrate had failed to give himself a warning as to the acceptance of uncorroborated evidence of the complainant. The fourth ground was that there were no grounds on which the magistrate could infer the lack of consent on the part of the victim.

4. This appellant was arrested originally to have inquiries made in respect of a rape case, and it was for that reason he was taken back to the police station. It was in the course of being questioned in respect of the rape inquiry that he made the alleged admissions to the indecent assault.

5. The magistrate did consider the breaches of the Judge's Rules and considered that they were not sufficient for him to exclude the statement. He pointed out quite correctly that the breach of those rules does not automatically render an admission or confession inadmissible, and he said that he had considered all the points raised in respect of the breaches.

6. In respect of the first allegation, the magistrate correctly found, in my view, that the failure to allow access to a lawyer, although a breach of the Judge's Rules, was not such a breach that would have rendered him incapable of giving a voluntary statement.

7. The second ground - that he was not properly

cautioned - I dismiss, because it is quite clear that this appellant was properly cautioned in respect of the rape, and he was made aware of his rights by the officer, P.W. 2, who was taking his statement, and that caution continued over. He did not have to be separately cautioned for the indecent assault.

8. The two breaches that do cause me some concern are the fact that the caution statement was not a verbatim record and that it was accepted by the magistrate as not being a verbatim record and, further, that there was a long period during which no rest or refreshment was given to this appellant.

9. In respect of the cautioned statement, the officer, P.W. 2, admitted that he had chosen to replace the defendant's words with his own, allegedly because he considered they were vulgar. That may well have been the case. However, he was not able to say in court what parts of the statement he had, in fact, changed to suit himself and which suited his own view of what was proper.

10. At page 61 of the transcript, he was asked whether what he recalled was an accurate record, and he said:

"I could not record down his words verbatim but generally the meanings I wrote down was in accordance with what he meant."

11. He insisted, despite obvious differences, that this was a verbatim record, in that he said he conveyed the defendant's meaning.

12. At page 63, he was asked to say what happened when he wrote down something different from what the defendant said to him. He was asked:

"Where did you write those different words down?"

He said:

"For the rules was I could not write it out. He said something very vulgar. I did not -- maybe I did not know to write it down or I cannot write it down."

13. The question was then:

"So he said ..."

The answer:

"So maybe I used some police phrase to replace what he said, but the meaning was the same."

14. In respect of the questioning, the magistrate took the view, apparently, that the officer had given a sufficient explanation of how he had changed the statement for him to be able to rely on it. I am slightly at a loss to see how he could do that, given that it was quite clear from the officer's evidence that he was not able to say, at the stage he was being questioned, what changes he had made to the statement and where those changes had been made.

15. In respect of the question of refreshment, the officer said that there was no request for rest or refreshment made by the appellant during the course of the taking of the statement. The magistrate accepted that, although he conceded that, probably, it would have been preferable for the officer to have given the opportunity for both rest and refreshment.

16. In respect of the suggestion that insufficient witnesses were called on the voir dire, I am satisfied, having considered the magistrate's findings and having considered the course of the evidence, that this was not a ground on which the conviction could be challenged. It was for the magistrate to be satisfied whether or not the relevant times had been covered and, in fact, it was sufficient in this particular instance for P.W. 2 to refer to the period in which the allegations of impropriety took place.

17. In respect of the ground that he failed to give himself a warning regarding convicting on the uncorroborated evidence of the complainant, I reject that ground also. In any event, such a warning might be considered otiose, as the evidence of the indecent assault came only from the appellant himself.

18. Further, the question of the irresistible inference drawn by the magistrate that the victim did not consent was one I found from the magistrate's evidence, on the basis of the appellant's caution statement, that the magistrate could correctly come to. In fact, it is difficult to see how any other conclusion could have been reached by the magistrate, in view of the fact that the victim was unconscious at the time.

19. In his statement of findings, the magistrate didn't consider in detail the question of whether he should exercise his residual discretion to exclude the statement on the ground of fairness, although he found it voluntary. However, on reconsidering the magistrate's findings, I find that he did, in fact, make reference to the fact that he had taken this into account, when he said at paragraph 20:

"And I found no good reasons that I should exercise my discretion to exclude this statement."

20. However, I have concluded that, on the basis of, in particular, the failure to take a verbatim statement - that that, coupled with the fact the defendant was not given rest or refreshment over a period of a number of hours when he was being questioned for very serious offences, as such that the magistrate should have excluded this statement, on the ground of unfairness, as having been unfairly obtained.

21. I am particularly concerned about the fact that the officer felt it was within his province to rewrite the words of a suspect who was being questioned for a rape offence. For this reason, I am not satisfied that this is a safe conviction and I quash it. The sentence, of course, is also quashed.