HKSAR v. WONG WAI SUM

HCMA201/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.201 OF 1998

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J U D G M E N T

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1. The Appellant was convicted on 2nd February 1998 of the offence of possession of cannabis by Miss Susanna Lee sitting at South Kowloon Magistracy and was fined $2,000.

2. The prosecution's evidence was that of a police officer who gave evidence that on 1st December 1997, at Rick's Café, No.4, Hart Avenue, he found in the possession of the Appellant a packet of cigarettes which contained one cigarette. When the cigarette was found by the police officer, the police officer gave evidence that the Appellant then allegedly said to him :-

"Ah Sir, the cannabis that you have just seized are for my own consumption."

It is clear that it was based upon that verbal that the learned Magistrate convicted because she had said in her Reasons for Verdict that she accepted that in a crowded place such as the Rick's Café, it was possible that the Appellant could have mistakenly picked up somebody else's cigarettes.

3. Mr Yip, who appears for the Appellant, has advanced four grounds of appeal, one of which is that the learned Magistrate had not complied with the Privy Council case of Thakoen Gwitsa Thongjai & Another v. The Queen [1997] HKLRD 678. The Privy Council in that case had held, inter alia, that :-

"where the prosecution alleged that the defendant made an oral admission, and the case was raised on behalf of the defendant that he did not make the oral admission, and that he was ill-treated by the police before or at the time of the alleged admission, two issues were raised which were not mutually exclusive. The first issue which was for the judge to decide was whether on the assumption that the alleged admission was made, it was inadmissible as being involuntary. The second issue which was for the jury to decide if the judge ruled that the alleged admission was admissible in evidence was whether the admission was in fact made."

4. In the instant appeal, the alleged verbal was contained in a post-record made by the police officer concerned. At the outset of the trial, the Appellant's solicitor had indicated to the Court that the production of the post-record would be objected to. The Magistrate then asked for the objections to be reduced to writing and to be handed to her. She would have been aware that what the post-record contained would have been the alleged verbal made by the Appellant, because she said to the prosecutor that if the verbal was post-recorded, was it really necessary for the prosecution to tender the post-recorded statement in Court if the police constable was able to utter the verbal. In the event, the production of the post-record was withdrawn, and no written objections were submitted by the defence solicitor. However, when the police officer concerned gave evidence, he was cross-examined by the defence solicitor and it was put to the police officer that at the time of the arrest of the Appellant, he was drunk and was not in a fit state to answer any questions.

5. When the Appellant himself gave evidence, he testified as to other further grounds which, if accepted, would have made the verbal involuntary. He testified that when the cigarette was found by the police officer, he was shocked. He testified that he had said to the police officer that the cigarette was not his whereupon the police officer had said "Not yours? If it is for your own consumption, it is for your own consumption." Those alleged words by the police officer could have amounted to an inducement to the Appellant to admit the offence. The Appellant also gave evidence that the police officer had said to him that nothing would happen, and he should just follow the police officer back to the police station to assist with the investigations. Those words also could have amounted to an inducement to the Appellant to admit.

6. Quite clearly, therefore, the issue of voluntariness of the verbal was very much an issue before the Magistrate. At the conclusion of the trial, she accepted the evidence of the police officer, and thereby accepted that the verbal had been made by the Appellant. Unfortunately, neither in her oral Reasons for the Verdict delivered in Court, nor in her written Statement of Findings, did she address and make a finding on the issue of voluntarines. It is for that reason that Mr Hui, appearing for the prosecution, has very properly conceded that he cannot support this conviction.

7. I agree that the conviction cannot be upheld because of the failure of the learned Magistrate to make a finding on the issue of voluntariness. For that reason, the appeal against conviction is allowed and the conviction is quashed.