HKSAR v. WONG PIK FUNG

HCMA659/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.659 OF 1998

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J U D G M E N T

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1. The Appellant was convicted after trial of trafficking in a dangerous drug and sentenced to 21 months' imprisonment. He appeals against conviction and sentence.

2. There are four grounds of appeal. The first is that the learned Magistrate failed to consider the discrepancies in the evidence of PW1, the only prosecution witness, in his analysis of that evidence and his decision as to the officer's credibility. The second is that the learned Magistrate "descended into the arena". The third is that the learned Magistrate allowed himself to be influenced in his decision as to the veracity of the alleged admissions made by the Appellant, by the hearsay evidence of what D2 had done and said. The fourth ground is the general or "catch-all" ground that the conviction is unsafe and unsatisfactory.

3. The evidence for the prosecution was this. PW1 and other police officers arrested HO Sik-wah, D2, in possession of a single packet of heroin. HO Sik-wah went with the officers to the Appellant's dwelling. There, PW1 arrested this Appellant for trafficking. The Appellant made a verbal admission under caution to the effect that he had just wanted to earn several dozen dollars. When he was searched and found with a $100 note the Appellant further said that he had earned it by selling white powder to HO Sik-wah. The Appellant was taken back to the police station where PW1 interviewed him. PW1 made a post-recording of the arrest, followed by a record of questions asked by him and answers given by the Appellant.

4. At the trial the Appellant challenged the admissibility of the verbals at the scene, as well as the post-record. The alternative procedure was adopted. The Appellant himself gave evidence to the effect that he had made no admissions at his home. The police had threatened to arrest his whole family, so he had gone with them to the police station, though not, at that stage, under arrest. At the police station he was interviewed but the answers did not come from him and he had only signed in order to get bail.

5. The Appellant's wife gave evidence that she had heard the officer say that if the Appellant did not co-operate, the whole family would be arrested.

6. The learned Magistrate ruled the verbals and the written statement admissible. The Appellant did not give evidence on the general issue.

7. I turn to the first ground of appeal. The learned Magistrate found the only prosecution witness to be honest, truthful and reliable and accepted his evidence. However it is said that the learned Magistrate failed to consider various discrepancies in his analysis of that evidence and his decision as to that officer's credibility.

8. There were various discrepancies in PW1's evidence. Mr McGowan for the Appellant has gone through them in detail. The most important seems to be this. According to PW1, the Appellant, under caution, first said that he had just wanted to earn several dozen dollars and asked for a chance. Then, when he was searched and found with a $100 note the Appellant further said that he had earned it by selling white powder to HO Sik-wah. However, the post-record shows simply that he earned several tens of dollars, and asked for a chance. There is nothing in the post-record about the later admission.

9. There really does not appear to have been any proper explanation of this discrepancy from PW1. He was cross-examined at length. The learned Magistrate also questioned him in this connection. In answer PW1 produced the bizarre explanation that he thought that if the Appellant had been asked something further and answered, it would form part of the evidence but not be admissible to the Court. He was re-examined and said that in doing this he was following police guidelines. He was further cross-examined, questioned by the learned Magistrate and re-examined on this matter. It may be that he misunderstood the requirements of the Rules and Directions for the Questioning of Suspects and Taking of Statements, but this was not canvassed. Ultimately there was no sensible explanation.

10. Of course this evidence was part of the evidence on the special issue. It is not normally necessary for a magistrate to give reasons for his ruling on admissibility. However, the witness' failure to give a sensible explanation was, it seems to me, crucial to his credibility and should have been considered.

11. It seems to me that for this reason the conviction must be regarded as unsafe and unsatisfactory. There is no need for me to consider the other grounds of appeal. The appeal is allowed, the conviction is quashed and the sentence set aside.