R. v. CHAN PANG CHING

IN THE COURT OF APPEAL

No. 783 of 1995
(Criminal)

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J U D G M E N T

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Wong, J. (giving the judgment of the Court)

1. This is an application for leave to appeal against conviction. The applicant was convicted before Her Honour Judge Wong in the District Court of one charge of assisting the passage within Hong Kong of unauthorized entrants and sentenced to 2 years imprisonment.

2. The facts were very simple. At about 5 o'clock in the early morning of 19th March 1995 the applicant boarded a taxi in North Point and told the driver to go to Tam Kung Temple Pier in Shaukeiwan. On arrival, the applicant alighted and asked the driver to wait for him. He returned within minutes and sat at the front passenger seat while the four women who followed him also got into the taxi and sat at the back row. The driver was told to drive to Boat Street, North Point. The taxi was stopped by police officers a short distance away. The four women were asked to produce identification documents but were unable to do so. Together with the applicant they were taken to Shaukeiwan Police Station. This evidence was not disputed at all.

3. The prosecution produced two cautioned statements which were admitted into evidence without challenge from the defence. P1 was a post-record of what the applicant allegedly said at the scene of arrest while P2 was a record of interview conducted by the same constable which consisted of a number of questions and answers. Despite the fact that they were admitted without challenge, the interpretation and how these statements came into existence were not without controversy. It arose during the cross-examination of the applicant by Mr. Mackay for the prosecution when the applicant denied saying what was contained in P1 and part of P2, in particular answer No. 14. Mr. Pickavant, solicitor who appeared for the applicant at trial, submitted before the judge that although the voluntary nature of the statements was not challenged, whether the contents were true was a separate issue.

4. The applicant's case was that in the afternoon of 18th March, Mr. Lau, a business acquaintance, contacted and asked him to pick up his relatives at the pier and bring them to a hotel in North Point. Mr. Lau also told him to wear a black jacket for identification purpose. He had known Mr. Lau for over a year who had helped him in his jewellery business. He could not understand why Mr. Lau's relatives would show up at the pier so early in the morning but did not ask further questions because he wanted to do Mr. Lau a favour in return for favours that Mr. Lau had given him. When he saw the women at the pier, he became suspicious. He telephoned Mr. Lau in the taxi. Mr. Lau simply told him to bring the women to the hotel in North Point. Then the taxi was intercepted by police.

5. There are a total of four grounds of appeal in the Perfected Grounds of Appeal. The first ground reads :

"The learned trial Judge failed to fully consider the inconsistency between the testimony of PW2 on what was said by the Applicant at the scene and the post-record cautioned statement (P1) and wrongly accepted the said post record as an accurate record of what the Applicant must have told PW2 at the scene."

6. The officer who made the post record, PC6852, gave evidence at the trial. At p. 25 of the transcript, the following questions and answers were exchanged :

"Q. Did you ask the defendant anything?

A. I did.

Q. What was that?

A. Well, I asked the defendant what was his relationship with these women?

Q. And did he reply?

A. He did.

Q. What did he say?

A. He replied "I don't know those four women. Well, a friend asked me to come to collect them. I have not received any money from them.

Q. At 5:20 did you arrest the defendant?

A. I did."

7. If we look at the post record, what was written there was this :

"I do not know them. As a friend asked me to come to Tam Kung Temple Pier to pick up illegal immigrants. I came to pick them up. I never received any money from them."

8. The difference and significance between this passage and what the constable said in his evidence are apparent. The judge made no attempt to resolve or reconcile this obvious and important discrepancy. Instead she relied on the post record to reject the statutory defence available to the applicant under s. 37D(2) which reads :

"No person shall be convicted of an offence under sub-section (1) if he proves that he did not know, had no reason to suspect and could not with reasonable diligence have discovered that the person whose carriage on a conveyance or whose passage is the subject of the charge, was an unauthorized entrant".

At p. 68 of the transcript, the judge said :

"Furthermore, there is the evidence of the post-record cautioned statement. In spite of the defendant's denial, I find it recorded what the defendant must have told PW2. The details in the cautioned statement could not have been invented by PW2. And in the post recorded cautioned statement, it is recorded that the defendant told PW2 he knew he was picking up illegal immigrants. I therefore find that he must have known at the time he went to pick up the so-called relatives of Mr. Lau that they were illegal immigrants."

9. The judge made no finding whatsoever in regard to the second limb of the statutory defence, namely, whether the applicant had no reason to suspect and could not with reasonable diligence have discovered.

10. The importance the judge so readily attached to the post record without having first resolved the conflict has caused us concern as to whether the conviction can be regarded as safe and satisfactory. In our view, it cannot be so regarded. This ground alone warrants our intervention. It is not necessary for us to consider the other grounds of appeal. Treating the application for leave as the hearing of the appeal, we allow the appeal, quash the conviction and set aside the sentence.