R. v. YIU MAN CHUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.156 OF 1996

--------------------

--------------------

-------------------------

J U D G M E N T

-------------------------

1. The Appellant was convicted of possession of offensive weapons in a public place after a trial. He was sentenced to 12 months imprisonment. He now appealed against sentence.

2. The prosecution evidence was principally the evidence of three police officers who were on mobile patrol with other officers on board a police vehicle. They stopped and searched a suspicious private car. On board the car was a driver and a passenger in the front seat who was later identified as the Appellant. PW1 PC20106 searched the driver while PW2 PC46089 searched the car. PW1 saw PW2 find a knife under the driver's seat and heard PW2 shout he found a knife under the driver's seat. He saw PW2 later found another knife which was under the passenger seat. PW1 was instructed to search the driver again and he found some cannabis on him. When he cautioned the driver for possession of offensive weapons and cannabis, the driver replied that he was beaten earlier therefore he brought along those two knives for self defence and the knives had nothing to do with the Appellant or the owner of the car. PW2's evidence was he searched the car and found the first knife from the driver's seat and he told his colleagues of what he found. When he continued to search the car, he found the second knife under the front passenger seat. The third witness PW3 48141 was at the scene. He heard PW2 say he found a knife and soon after, he heard PW2 say another knife was found. He arrested the Appellant for possession of offensive weapon and cautioned him. The Appellant said : "Ah Wai was beaten up by eight persons in Jordon earlier, he paged me and waited for me at junction of Nelson and Portland Street and he had machetes in car to take revenge on those eight persons who has beaten him up." PW3 then made a post record of this in his note book. This post entry was subject of a special issue enquiry at the trial and the magistrate after hearing all evidence ruled it admissible in evidence. The driver and the Appellant were originally jointly charged with the offence of possession of offensive weapons in a public place. At the trial, the driver failed to appear. The Appellant opposed adjournment of the hearing and the trial proceeded against the Appellant in the absence of his co-defendant.

3. The first ground of appeal was that the magistrate was wrong in concluding the utterances by the driver when he was arrested were hearsay and inadmissible to prove the truth of the contents but admissible to prove that they were said and he could draw no inference from them. Mr Matthews relied on a number of cases : R. v. Rattan [1972] AC 378, R. V. Mill (1995) 1 WLR 511, the Hong Kong cases of R. v. Chow Ching Fuk Cr.App.396/93 andR. v. Ko Kam Wing Cr.App.131/88. He cited the general principle in R. v. Rattan :

"Hearsay evidence may be admitted if the statement providing it is made in such conditions (always being those of proximate but not exact contemporaneity) of involvement or pressure so as to exclude the possibility of concoction or distortion to the advantage of the marker or the disadvantage of the accused."

4. The effect of these cases is to set out the circumstances under which a statement, otherwise hearsay, could be admitted in evidence as part of res gestae. In Ko Kam Wing, Silk J.A. after referring to the statement of principle in Rattan had this to say :

"This statement of principle was followed by the English Court of Appeal in R. v. Turnbull and most recently by the House of Lords in R. v. Andrews. The principal speech was given by Lord Ackner who, between pp.422 and 423, summarises the position faced by a trial judge when in a criminal case an application is made to him under the re gestae doctrine to admit evidence of statements with a view to establishing the truth of some fact thus narrated such evidence being truly categorised as hearsay evidence. Lord Ackner gave the following guidance :

'(1) The primary question which the judge must ask himself is can the possibility of concoction or distortion be disregarded?

(2) To answer that question, the judge must first consider the circumstances in which the particular statement was made, in order to satisfy himself that the event was so unusual or startling or dramatic as to dominate the thoughts of the victim, so that his utterance was an instinctive reaction to that event, thus giving no real opportunity for reasoned reflection. In such a situation the judge would be entitled to conclude that the involvement or the pressure of the event would exclude the possibility of concoction or distortion, providing that the statement was made in conditions of approximate but not exact contemporaneity.'"

5. No challenge has been made to that statement of principle. The question is : were the utterances of the driver an instinctive reaction of that event giving no real opportunity for reasoned reflection so that the possibility of concoction or distortion could be disregarded? The driver said those words after the two knives had been found and after the finding of the cannabis on him. These words were not said by him spontaneously upon the weapons being found. There was a lapse of time between finding them and his later arrest. He was cautioned and given the opportunity to say what he did say. There was time for his reflection and there was the possibility of him protecting the Appellant by shouldering all the responsibility for the weapons being found. The magistrate was right in concluding that in these circumstances these utterances were admissible only to show they were said in answer to the caution but not as the truth of the matter. These could not be part of the res gestae.

6. The second ground of appeal concerned the evidence on where the knives were found. It was submitted there were significant inconsistencies.

7. As to the positions of the two knives, the evidence was clear. The magistrate dealt with the evidence of PW1 and PW2 in details. What they said about the positions of the knives are not inconsistent. PW3 only heard the other officers say where they were found and did not see they find the knives. His evidence on what he heard was not what the other officers actually found. This discrepancy was not material and the magistrate was entitled to say there was no significant material discrepancy. The magistrate had observed the demeanour of PW2 giving evidence. He observed PW2 was defensive and not always responsive. However, he considered these did not reflect dishonesty and he believed PW2. This was what he was entitled to do.

8. There was no material discrepancy between what PW3 said the Appellant replied in answer to his caution and what was post recorded in the officer's note book. What PW1 said he heard the Appellant reply to the caution might not be the same as PW3's evidence in that respect. PW1 was not the arresting officer and what he said in evidence was in general terms of what the Appellant said and not his precise words. The magistrate was entitled to find what was recorded in the note book correctly recorded what the Appellant said in reply to the caution.

9. The post record was the subject matter of a special issue enquiry. The magistrate had considered the evidence, the note book and the way in which the signatures of the Appellant came to be on it. He made a finding of fact. There was ample evidence to support his finding that the post record was voluntary and admissible in evidence.

10. I find no ground to interfere with the conviction which is not unsafe or unsatisfactory. The Appellant had been rightly convicted. The appeal against conviction is dismissed.

11. Mr Matthews informed me that the Appellant did not wish to proceed with the appeal against sentence. This appeal is accordingly dismissed.