THE QUEEN v. WAN KAI SHING

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Criminal Appeal No. 601 of 1985

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BETWEEN

Data of handing down of judgment: 16th August 1985.

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JUDGMENT

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1. The Appellant appeals against his conviction for theft.

2. He was charged with stealing 2329 electronic pieces and another 7,475 electronic pieces, from his employers Commodore Electronics Ltd., between December 1984 and March 1985.

3. The main prosecution evidence against him was a caution statement given to DPC 20878 (P.W.3) and signed by himself, in which he purports to admit having taken electronic spare parts from the Production Department of his company during the period in question.

4. At his trial the admissibility of this statement was challenged, but the Magistrate was satisfied beyond reasonable doubt that it was voluntarily made and admitted it in evidence.

5. On the appellant's behalf, Mr. C.Y. Wong argued that the Magistrate wrongly admitted the statement, because he disbelieved the Appellant's evidence rather than because he accepted the prosecution evidence.

6. In support of his argument, Mr. Wong pointed to the Magistrate's ruling at p.16 of the record which reads as follows -

"Court: Do not believe that the threatening remarks, if made, would have the effect D2 described, i.e. to make him sign a statement. (of which he knew the contents).  Do not believe Defendant's evidence on the air sitting episode.

Admit (PP4), as am satisfied that it was voluntarily made PP4 =(P4); (P4a) translation."

7. Mr, Wong referred to Archbold (41st Edition) §15-23, and to Ibrahim v. R. [1914] AC 599, at p.609, and he quite rightly says that the Crown must always establish beyond reasonable doubt that the statement in question has been voluntarily made. But in this case he says that there is nothing to show that the Magistrate considered the prosuection evidence, and he submits that the Magistrate made his ruling after simply considering and rejecting the Appellant's evidence.

8. If that were the case, I agree that the Magistrate's approach would have been quite wrong. But I am not persuaded that that is how the learned Magistrate came to make his ruling,

9. To start with, it is clear from the record that, immediately before the Magistrate made his ruling, Mrs. Yew (who was then appearing for the Appellant) had submitted that the "Prosecution must prove beyond reasonable doubt." So when the Magistrate made his ruling, he was fully aware where the onus of proof lay.

10. It is also clear from the learned Magistrate's ruling and from the relevant passage in his Statement of Findings (at p.23 of the transcript) that he applied the correct test - viz whether he was satisfied beyond reasonable doubt that the statement had been voluntarily made.

11. A judge or magistrate is not required to give a detailed ruling or set out his reasons in full. But as was said by Huggins J. in Lai Wei-hung v. R [1969] 642, at p.671.

"It is I apprehend incumbent on a judge when ruling upon the admissibility of an extrajudicial confession to make some reference to the arguments advanced on behalf of the accused and, where necessary, to make findings of fact".

12. As allegations of threats and violence had been made on behalf of the Appellant when Mrs. Yew objected to the admission of the statement, and as the appellant subsequently gave evidence in support of those allegations, it was certainly open to the learned Magistrate to refer to the allegations and to indicate whether he believed the Appellant.

13. But it does not follow that he was satisfied that the statement was voluntary because he disbelieved the Appellant.

14. Mr. Wong argued that that was why the Magistrate ruled as he did and that the ruling should be read as if the words "and therefore" appeared between the Magistrate's rejection of the Appellant's evidence and his admission of the statement.

15. However such words do not appear in the learned Magistrate's ruling, and I do not see why it should be read in that way. The ruling is set out at page 2 of this judgment and it consists of two separate paragraphs. In the first paragraph, the Magistrate gives brief reasons why he disbelieves the Appellant's evidence, and in the second paragraph the Magistrate admits the statement as he is satisfied it was voluntarily made. The two paragraphs are quite separate and it will be seen that the learned Magistrate admitted the statement, not because he disbelieved the Appellant's evidence, but because he was satisfied that the statement was voluntary - which is of course the correct test. Bearing in mind that the Magistrate had just been reminded that the onus of proof lay on the Prosecution, he could not have been satisfied that the statement was voluntary, simply because he did not accept the Defence's allegations of threats and violence.

16. I am therefore not persuaded that the Magistrate's approach was wrong, or that he admitted the statement because he did not believe the Appellant, rather than because he believed the Prosecution evidence. So I hold that the learned Magistrate did not wrongly admit this statement.

17. Mr. Wong made a further submission that, as there was no evidence (apart from the Appellant's statement) that the goods were stolen, and as the Magistrate had found that the evidence of the witness from the Company (P.W.4) could not be relied on to establish that the goods were stolen, the Magistrate should not have relied on the contents of the statement, as it was in conflict with P.W.4's evidence.

18. However P.W.4 did not say that the pieces did not come from the Company, and he simply said that they were "similar" to those used by the Company but that he did not know if any were missing from the Company. So the contents of the statement do not conflict with his evidence.

19. At the start of his statement, the Appellant said

"I feel that electronic spare parts are rather worth of money in the market and so (because of) monetary greediness, (I) saved up some of the electronic spare parts. (I) saved (them) up for about three to four months."

and at the end of his statement he added -

"Because of the needs of my job, nobody therefore discovered that I had taken away the electronic spare parts until the middle of March, 1985 (when) I told my friend CHU Chiu-wing to transport by vehicle for me one box and one carton of electronic spare parts to his house for storage temporarily. I had not told him that the spare parts were taken by me from the Company."

20. These were very explicit admissions by the Appellant that he had stolen these electronic pieces from the Company. The learned Magistrate was therefore fully entitled to find that those passages were true, and so he was able to conclude that the goods had been stolen and the charge proved.

21. I therefore dismiss this appeal.