HKSAR v. LEE WAI SHING

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. HCMA 442 OF 1998

(On Appeal From KTC No. 3433 of 1997)

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J U D G M E N T

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1. The Appellant appeals against his conviction on a count of Blackmail and a count of Theft.

2. The grounds of the appeal are that the Appellant was greatly prejudiced by the attendance at his trial of a PC Li Sze-chung, and that this officer's presence was both irregular and caused the Magistrate to be prejudiced against the Appellant.

3. The fourth ground of appeal, the first three being related to the questions of PC Li's presence in court, was that the Magistrate wrongly admitted the cautioned statement of the Appellant as voluntary, when she had accepted the evidence of a doctor called for the Appellant that he had pain and tenderness and when there was no evidence to show that such pain and tenderness had not been genuine.

4. The fifth ground was that the Magistrate failed to consider adequately whether or not PW4's identification of the Appellant was correct or safe, and the sixth ground was that a $50.00 banknote, which had been marked and allegedly found on the Appellant, had not been identified by any civilian witness. Further the police officer who identified the marked money did not sufficiently identify the person to whom the marked money had been given by the Appellant.

5. The most serious grounds of appeal are those listed as 1, 2 and 3, relating to the presence of PC Li in court. His presence in the public gallery was reported to the Magistrate who made enquires about it, and required PC Li to give evidence on affirmation.

6. The officer revealed that he was a Dangerous Drugs Police Constable and he said he had been discussing, with police officers relating to the case being tried, both private matters and matters relating to "this case". He later clarified that "this case" meant not the case being tried before the Magistrate, but a case on which he was working currently.

7. At the end of the examination by the court the defence counsel said that he was satisfied with the officer's explanation and when offered an opportunity by the Magistrate, said he did not need to cross-examine him. An adjournment was granted at that stage so the prosecutor could decide whether any further action needed to be taken and a very strong warning was given by the Magistrate to PC Li not to involve himself any further in the case being tried, or to make any contact with police witnesses involved in the trial.

8. I am satisfied, having considered the way the Magistrate dealt with the complaint, that no prejudice resulted to the Appellant, either real or apparent, from the way the Magistrate handled the case. There is certainly no indication from her Statement of Findings, or the way she dealt with the evidence, that this unfortunate incident had any prejudicial effect against any of the people who were appearing as accused.

9. I note that the defence counsel did not refer to the matter again after the adjournment. Similarly, defence counsel did not take any point in his submission to the court at the end of the hearing, about any possible prejudice to his client.

10. These grounds of appeal, I dismiss.

11. The fourth ground relates to the attitude allegedly adopted by the Magistrate to the pain and tenderness complained of by the Appellant. The Magistrate said she accepted the doctor's evidence and in her Statement of Findings she noted that he saw no sign of physical injury. It is correct the doctor saw no physical signs that would support any complaint of assault, and the Magistrate commented, as she was entitled to, that pain and tenderness were very subjective. There is no indication that because the complaint of pain and tenderness was subjective she disbelieved the Appellant in respect of this matter. Obviously it was a factor that she could take into account in assessing the voluntariness of the cautioned statement.

12. A complaint was made about the poor quality of identification given by PW4. It is true that that his identification evidence was poor but that was recognised by the Magistrate in her Statement of Findings; she made it quite clear that she was not relying on the identification as any basis for her conviction of the Appellant. This ground of the appeal is dismissed.

13. Similarly with the question of the marked money. When the Magistrate gave her decision at the end of the hearing, she was satisfied that the note had actually been found on D.1, who was this Appellant. She found that he had received the note, which was later found on his person, and she noted the observations of the police officer in that regard. She also had the evidence of PW1 in relation to what appeared as the handing over of a piece of paper.

14. I do not consider the Magistrate misdirected herself in relation to the identification of the note. This ground of appeal is not substantiated.

15. This appeal is dismissed.