HKSAR v. LEE JENNIFER

HCMA 325/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 325 OF 2002

(ON APPEAL FROM KCCC 3193/2001)

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J U D G M E N T

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1. The appellant was convicted after trial before a magistrate of a charge of theft, commonly known as "shoplifting". She was fined. She now appeals against her conviction.

2. The evidence against the appellant came from two witnesses. They were PW1 Lo Mi Yee, the stock manager of Wellcome Supermarket located at the basement of 28 Hankow Road and PW2 PC33551. PW1 testified that at about 3:50 pm on 21 November 2001, she returned from lunch and while coming down on the escalator she saw the appellant duck under the turnstile which was located at the entrance of the supermarket. The appellant was holding a blue colour paper bag which was produced as exhibit P2. They were about 3 feet from each other. PW1 spoke to the appellant in punti and the appellant just looked at her. She then spoke to the appellant in English asking the appellant if anything had not been paid to which the appellant replied "No" in punti. PW1 repeated the question and the appellant again replied in punti saying that the items inside the bag were brought from another Wellcome Supermarket located at Manson House the same morning. PW1 and the shop manager, Mr Lau checked their office computers and found that all the items inside the bag had not been sold. Upon being told the result of the computer checking, the appellant admitted stealing. The police were called.

3. PW2 arrived at the scene after receipt of the report. After enquries from the parties, he declared arrest of the appellant and under caution, the appellant said in punti: "it is just out of momentary greed, I stole the items, please give me a chance."

4. The appellant gave evidence and called a Dr Law as her witness.

5. The appellant is a 28 year-old young woman with excellent educational and family background. She said in her evidence that she had arranged to meet her mother in the vicinity and as it was still early she went to the Wellcome Supermarket to kill time. As she was browsing around, her mother called that she was ready to meet her to go home together. She held the telephone on her left hand and the back pack on her right shoulder. She decided to leave the store and as the cashier counters were very narrow and there were many people queuing up, she decided to leave through the entrance where all trolleys were placed. She just ducked under the bar and left. She did not duck under the turnstile. When she was coming out, she heard PW1 shouted at her as PW1 was coming down the escalator. She thought PW1 was mentally unstable and ignored her. She walked up the escalator to the ground floor to make a call to her mother as the reception in the basement was poor. PW1 continued to shout at her and suddenly hugged her and pressed the emergency button to stop the escalator and brought her to one side. Mr Lau, the manager, told PW1 to retrieve P2. PW1 walked up the escalator and picked up P2. It was the first time the appellant had seen this bag and its contents. PW1 and Mr Lau kept asking her about the items, she repeatedly told them that she had nothing to do with them. She never admitted stealing.

6. Dr Law is a forensic psychologist. I do not propose to deal with his evidence at this stage and will only do so if and when it becomes necessary.

7. The magistrate convicted the appellant at the end. In the concluding paragraph of her Statement of Findings, she said:

"I found that the prosecution witnesses were all honest and reliable, I accepted their evidence, I attached full weight to what the Appellant said under caution."

8. A total of 7 grounds of appeal were advanced and argued by Mr Cheng Huan S C on behalf of the Appellant. Mr Cheng Huan conceded that if he did not succeed on Grounds 1 and 2, the appeal would not succeed. On the basis of this concession, I will deal with Grounds 1 and 2 which are alternatives. These grounds are:-

"1. The learned magistrate erred in law in failing to hold a voir dire to determine the admissibility of the alleged oral confession of the appellant for the following reasons, inter alia:

a) The learned magistrate was wrong in her implicit finding in her Statement of Findings that it was not incumbent upon the prosecution to prove the voluntariness of the alleged confession if there was no issue taken as to its voluntariness;

b) There were suggestions that at the time of the alleged oral confession there was improper questioning by at least one police officer. In these circumstances it was incumbent on the learned magistrate to hold a voir dire (see Thongjai and Another v R [1997] HKLRD 678)

2. Further or alternatively to Ground 1 the learned magistrate erred in law in failing to make any finding that the alleged oral confession was given freely and voluntarily."

9. As considerable reliance has been placed on the leading authority of the decision of the Privy Council in Thongjai and Another v R [1997] HKLRD 678, it is better to put this in context first and then proceed to examine to see if the facts of the present appeal fall within the ambit of Thongjai. For present purposes, it suffices to set out what was held by the Privy Council (p. 679 D-J and p. 680 A-E):

"(1) Where the prosecution alleged that the defendant made an oral admission, and the case was raised on behalf of the defendant that he did not make the oral admission and that he was ill-treated by the police before or at the time of the alleged admission, two issues were raised which were not mutuallyexclusive. The first issue, which was for the judge to decide, was whether, on the assumption that the alleged admission was made, it was inadmissible as being involuntary. The second issue, which was for the jury to decide if the judge ruled that the alleged admission was admissible in evidence, was whether the admission was in fact made (Ajodha v The State [1982] AC 204 followed). (See p.684E-F.)

(2) In stating the applicable principles at p. 221H in Ajodha, Lord Bridge was not intending to deal with every situation which could arise but was only referring to four typical situations. The type of situation envisaged by Lord Bridge in situation (2) was not confined to the making of a written statement . Further Lord Bridge was not intending to state that an issue of voluntariness for the judge to decide could only arise if the evidence of the prosecution suggested that the admission might be involuntary. The word "simply" in situation (4) made it clear that Lord Bridge was considering the situation where the defendant made no allegation of improper conduct by the police. (See p. 686A-E.)

(3) In the context of a case where there was no suggestion by the defendant of threat, inducement or impropriety by the police at the time of the alleged oral admission, the only issue was whether the oral admission was made and if so what weight should be given to it. However, the contention that where a defendant denied making an oral admission he could not also contend that the trial judge should exclude the alleged admission as being involuntary, was erroneous and contrary to the principle established in Ajodha and MacPherson v The Queen (1981) 147 CLR 512 (R v Cheung Hon Yeung [1993] 1 HKCLR 292 (See [1993] HKLY 272), R v Lee Man Liu [1992] 2 HKCLR 41 (see [1992] HKLY 250) and R v Chu Chi Kwong [1995] 1 HKCLR 327 (see [1994] HKLY 306; [1996] HKLY 346) overruled). Where a defendant alleged both that he had not made the admission and that he had been ill-treated before or at the time of the making of the alleged admission, the trial judge should hold a voire dire to decide whether (in case the jury found that the admission was made) the admission was made in circumstances which rendered it involuntary (See p. 688F-I)

(4) It was sufficient to raise the issue of voluntariness for consideration by the trial judge if an allegation of ill-treatment was put to a police officer in cross-examination, even if the defendant did not give evidence in support of the allegation. (See p. 690I-J.)

(5) Accordingly, in the trials of both T and L, the trial judge should have made a ruling in the voire dire upon whether the Crown had proved that the alleged oral admission was voluntary, and in each case, the trial judge wrongly held that he would not give such a ruling. (See p. 692G-H).

(6) On the state of the evidence in the voire dires no conclusion could be reached that in either case the judge, if he had considered the issue, would inevitably have ruled that the oral admission was admissible. Moreover in the case of T the ruling of the trial judge effectively prevented calling T in the voire dire to give evidence as to his treatment by the police and the circumstances in which he was held in the flat before he made the alleged admission to the interpreter. (See p. 692I-J.)

(7) In each case the appellant was deprived of the very important safeguard of a ruling by the trial judge as to the admissibility of the alleged oral admission which was an important part of the case against him. Accordingly, in each case the conviction of the appellant was unsafe and could not stand. (See p. 693B-C.)

(8) (Obiter) It was desirable that a trial judge should give brief reasons for ruling that a confession was inadmissible, as his reasons might assist in clarifying issues if there should be an appeal. (See p. 682G.)"

10. Mr Cheng Huan submitted that the magistrate committed a number of fundamental errors in not conducting a voir dire to determine the voluntariness of the verbal admission by the appellant. He said that the errors were initiated by the magistrate during an exchange between her and Counsel for the appellant, Mr Poots. The first encounter took place during the cross-examination of PW1. These were the exchanges (p. 67 of the transcript L-T):-

"Court:	Mr Poots, do I take it from you that the issue of voluntariness was not
	in dispute? There was not an issue of voluntariness in this matter.
Mr Poots:	In relation to this witness?
Court:	No, in relation to the admission. The violence, inducement, promises,
	use of threats.
Mr Poots:	Yes. Well, my instructions are that she made no admission.
Court:	She made no admission; so there was no issue of voluntariness.
Mr Poots:	That's right, Madam.
Court:	Thank you. I note in my record.....
Mr Poots:	Yes.
Court:	... "No issue of voluntariness."

Further exchanges took place during the examination and cross-examination of PW2 PC33551 and these are to be found at p. 71 of the transcript H-P:-

"Miss Kuk (the prosecutor): Did you, at any stage, use any violence on her?

Mr Poots: There is no suggestion of impropriety.

Miss Kuk: Yes.

Court: Mmm?

Mr Poots: There's no suggestion of any impropriety by the officer.

Court: So, ...

Mr Poots: What is -- what is the situation is that the defence is that she didn't say this.

Court: I see, thank you. So, defence say that defendant never made any admission.

Mr Poots: That's right."

The matter obviously did not stop there because the saga continued over the page (p. 72) from F-Q:-

"Mr Poots: I just clarify, Madam, that just before the break, as regards to this statement, I did say there was no suggestion of any violence. There are two points which I've informed the prosecutor already in writing. But I bring ...

Court: Shall I ask this witness to leave now?

Mr Poots: I think, yes, that would be -- for a short period, Madam, if you mind.

Court: Would you, please, leave the court? You can leave the bag here.

WITNESS LEAVES COURT - 12.13 PM

Mr Poots: It's an important thing, isn't it? Madam, the allegations are straightforward. And that is at no time did she state that she was momentarily greedy and hoped to be given a chance. There are some Chinese characters appearing on the officer's notebook. They're to the effect of, "I understand, I've nothing to change." These were written with the assistance of the officer, not by the -- the officer assisted the defendant to write that.

Court: But there is no notebook before me.

Mr Poots: There will be. This is why I bring it up now. And "I hope you can give me a chance" was suggested by PW2, that's this witness, who declared it would be good for the defendant if she said -- if that was included. And finally, ...

Court: When? Where's -- at what stage?"

The next page (p. 73) was a discussion among the court, the prosecutor and defence counsel about whether a post-record of the verbal admission should be produced. But at that stage, it seemed that the magistrate began to have doubt in her mind as to whether there should be a voir dire to determine the issue of voluntariness. The first question at p. 74A-C was from the magistrate:

"Court: So, do we need to go through an alternative procedure?

Mr Poots: It would appear to be ..... (indistinct). It clearly is - my position is quite clear; that it was never said."

11. From these passages, it is clear that the issue of voluntariness never went away. The last statement of Mr Poots at p. 72 was an allegation of inducement that PW2 suggested to the appellant that it would be good for her to say that she was momentarily greedy. It was put to PC33551 in cross-examination by Mr Poots that the appellant did not say what was alleged. Miss Lam who appeared for the respondent before this court agreed that this allegation, if raised, could amount to inducement. It is unfortunate that the real issue was clouded by interruptions by the magistrate and misunderstanding between her and defence counsel. If the magistrate had committed any error, it was compounded by defence counsel because of his failure to put his case before the magistrate clearly. It might be that he was unaware that he could launch a "double barrel" attack or objection on both voluntariness and that the appellant did not make the admission. The question raised by the magistrate at p. 74 was a golden opportunity but he missed it. Be that as it may, Mr Poots' response to the magistrate's enquiries had all along been consistently one of "Yes, but ....".

12. There is, in my view, enough material before the magistrate to alert herself to hold a voir dire notwithstanding the fact that the question of voluntariness was not expressly and specifically raised. If a voir dire had been held, the magistrate might have come to the conclusion that the verbal admission was not made voluntarily and excluded it from the evidence. Fairness dictates a voir dire to be conducted and the failure to do so constitutes a material irregularity.

13. As the evidence of PW1 and the appellant is of such a sharp divergence, it is not possible to say that the magistrate would have convicted without the verbal admission having regard to what she said in the Statement of Findings that she attached full weight to what the Appellant said under caution.

14. In the circumstances, the conviction cannot be considered to be safe and satisfactory. In view of the conclusions I have reached it is not necessary for me to deal with the other grounds of appeal. Accordingly, I allow the appeal, quash the conviction and set aside the fine.