HKSAR v. WONG KA LAU

IN THE HIGH COURT OF HONG KONG

(APPELLATE JURISDICTION)

MAGISTRACY CRIMINAL APPEAL NO. 464/97

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J U D G M E N T

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1. The appellant was convicted before a magistrate of a charge of living on the earnings of prostitution of another and sentenced to 4 months imprisonment, suspended for 18 months. He now appeals against conviction.

2. No oral evidence was called at the trial. The only evidence to support the conviction was a cautioned statement. In summarizing the prosecution case and the defence case in his statement of findings, the magistrate said at p.39 of the transcript : -

"Prosecution Case

The Crown relied exclusively upon a caution statement made by the Appellant. The caution statement contained admissions that he had worked as a Ma Foo, i.e., a person who escorted girls to customer for purpose of sexual services. That on each occasion when such an event took place, the girl would be paid $350 by the customer and that after deductions to the relevant Villa's, the girl would keep $250 and give this sum to the Ma Foo who had escorted her to the Villa. The Appellant admitted that he had received $60 for every customer served by the girl.

Defence Case

It was the Appellant's case that the caution statement containing the confession was hearsay and was therefore inadmissible, and that the contents of the caution statement could not prove beyond reasonable doubt, the facts contained therein."

3. Over the page at p.40, the magistrate went on to say : -

"The case against the Appellant consisted of a single caution statement. At the outset of the Crown's case, the Appellant indicated that he was going to challenge that caution statement on the basis of two grounds. Firstly that it contained hearsay evidence and secondly that it was not made voluntarily. Following a ruling by the court on the hearsay objection, the Appellant indicated that he would no longer continue with his challenge that the caution statement had been made involuntarily. The caution statement was therefore produced to the Court, pursuant to Section 65C of the Criminal Procedure Ordinance, Cap.221, Laws of Hong Kong as an exhibit."

4. Mr. Ching Y.Wong, SC, who appeared for the appellant both here and before the magistrate disputed that the cautioned statement was admitted under s.65C and made this his second ground of appeal which reads : -

"The learned magistrate erred in finding that the statement under caution (Exh P1) was "produced ..... pursuant to Section 65C of the Criminal Procedure Ordinance, Cap.221" and therefore wrongly assumed that it had been produced to the court as a document of admissions."

5. This part of the case is set out at p.25 of the transcript and it reads :

"Court adjourns - 2.24 p.m.

Court resumes 2.34 p.m.

Defendant present. Appearances as before.

MR. WONG : Sir, we are obliged for the indulgence. May I just inform the court that having taken instructions and given certain advice to the defendant, we no longer require a voir dire or voir dire proceedings concerning the voluntariness of the statement. I have of course informed my learned friend for the prosecution about the position.

MR. SIU : Yes, Sir. Without the voluntariness being contested, Sir, may the cautioned statement PP1 and PP1A be marked as Exhibit P1 and P1A, Sir?

COURT : Very well."

6. Mr. Wong submits that the hearsay parts of the cautioned statement were strongly contended by the Appellant not to be admissible or reliable. It was totally wrong for the learned Magistrate to have found that the statement was admitted pursuant to section 65C and then to treat it as conclusive evidence of facts stated therein; that is, to treat the contents of the cautioned statement as 'admitted facts.' As is evident from the transcript of the trial, the Appellant had at no time admitted the truth of any of the contents of the statement be it under s.65C or otherwise, s.65C reads :-

"(1) Subject to the provisions of this section, any fact of which oral evidence may be given in any criminal proceedings may be admitted for the purpose of those proceedings by or on behalf of the prosecutor or defendant and the admission by any party of any such fact under this section shall as against that party be conclusive evidence in those proceedings of the fact admitted.

(2) An admission under this section -

(a) may be made before or during the proceedings;

(b) if made otherwise than in court, shall be in writing;

(c) if made in writing by an individual, shall purport to be signed by the person making it and, if so made by a body corporate, shall purport to be signed by a director or manager, or the secretary or clerk, or some other similar officer of the body corporate;

(d) if made on behalf of a defendant who is an individual, shall be made by his counsel or solicitor;

(e) if made at any stage before the trial by a defendant who is an individual, must be approved by his counsel or solicitor (whether at the time it was made or subsequently) before or during the proceedings in question.

7. It is a well-established principle that in dealing with cautioned statements, a judge or magistrate must go through a two-stage process. Firstly, he must decide whether it is voluntary and if it is then to decide whether it is true. In my view, there is force in the submission that once the issue of voluntariness was no longer contested, the magistrate then assumed the statement to be true as 'admitted facts' under s.65C and went on to construe the document on that basis.

8. Another complaint Mr. Wong makes is that the magistrate had relied on hearsay to convict the appellant. He submits that the magistrate's view on whether parts of the cautioned statement were hearsay was contradictory and inconsistent. He said different things at different stages of the trial. At p.22C, the magistrate said : "I think it is quite clear on the facts that it is hearsay." At p.21E to H, he said :

"Now, applying the authorities to this case, the defendant's admission in itself provides material from which the court could infer that the accused or the defendant had some degree of knowledge or expertise upon which the court could infer that he was involved in prostitution and that he was living on the earnings of prostitutes. A jury, or in this case a court , is entitled to draw inferences on facts from admissions or confessions made by an accused. Consequently, I rule against the defence on this application."

9. When the magistrate was later invited to clarify his ruling, he said even though it was hearsay, it was evidence that could go in as an exception to the hearsay rule. In his statement of findings, the magistrate had this to say : -

I accepted that the Appellant's caution statement contained hearsay evidence. Hearsay evidence was clearly evidence upon which I could rely as being evidence capable of proving beyond reasonable doubt, the Appellant's guilt. In reaching my verdict in this case, I excluded the hearsay evidence contained within the caution statement. In excluding the hearsay evidence, I was left with the following."

10. In the Privy Council decision in Surujpaul v R (1958) 42 Cr. App. R 266 at p.273 Lord Tucker said :

"A voluntary statement made by an accused person is admissible as a "confession". He can confess to his own acts, knowledge or intention, but he cannot "confess" as to the acts of other persons which he has not seen and of which he can only have knowledge by hearsay. A failure by the prosecution to prove an essential element in the offence cannot be cured by an "admission" of this nature."

11. The magistrate recognized that the cautioned statement contained hearsay but in the light of the diverse views he expressed during the trial, it is difficult to know whether he had relied on the heresay material to convict the appellant despite what he said in the statement of findings that he excluded it.

12. In the circumstances, the conviction cannot be regarded as safe and satisfactory and the appeal is accordingly allowed. The conviction is quashed and the sentence set aside.