IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 933 OF 1992

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J U D G M E N T

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Hon Yang, CJ

On 27 May 1993 we allowed the appeal and now give our reasons for so doing.

This is an appeal from a decision of Mr R G Day sitting at Tsuen Wan Magistracy. Pursuant to S.118(1)(d) of the Magistrates Ordinance, I directed that the appeal be heard before the Court of Appeal.

The appellant was charged before the learned Magistrate with engaging in bookmaking and convicted after trial. A sentence of four months’ imprisonment suspended for two years was imposed, together with a fine of $10,000. This is his appeal against conviction only.

The evidence against the appellant was that on 9 May 1992 an Inspector of Police (PW1) and a Police Constable (PW2) entered Flat C, King Po Building, 12th Floor, 19 Shing Fong Street, Kwai Fong, N.T. These were premises where they suspected bookmaking was being carried on. The appellant was the only person in the flat.

Whilst the police officers were in the flat, PW2 took 12 incoming telephone calls between 4:35 and 5:01 p.m. The telephone conversations were all short, and all placed bets on the 5 p.m. horse-race. Eleven of these calls specified the person “Ah Yee”, and there were still others where the telephone calls were terminated when answered by PW2. PW2 listed these telephone calls in his notebook and showed it to his Inspector, who instructed him to arrest the appellant, which he did. Under caution, the appellant said he just placed the bets for friends and “if the horse bets they placed fit with mine I would take up a bet with him, otherwise other bookmakers would be phoned up”.

Noting that the crucial evidence against the appellant was the telephone calls and the cautioned statement, he concluded his Statement of Findings by saying that without the telephone calls he would have acquitted the appellant.

The issue which we are called upon to decide is whether the learned Magistrate erred in admitting the evidence of PW2, as to the contents of the telephone calls received by him at the premises in question.

The Magistrate referred to two Hong Kong authorities which held that the evidence relating to telephone calls was admissible. He also noted that in R v. Kearley [1992]2 WLR 656, the House of Lords by a majority held that such telephone calls were inadmissible. Relying on the dictum of Lord Diplock in De Lasala v. De Lasala  [1979] HKLR 214, he came to the view that as he was in the present case dealing with the common law and not some recent common legislation, he was bound to follow Hong Kong authorities and not Kearley. He went on to say it was for the Court of Appeal and not for a Magistrate to decide whether Kearley now represented the law in Hong Kong.

In HO Sheung-yin v. The Queen, Criminal Appeal No. 1247 of 1977 (unreported), Huggins JA had the occasion to consider the first appellant’s appeal against her conviction of bookmaking and the second appellant’s appeal against his conviction of being a tenant and suffering premises to be used as a gambling establishment. Whilst the police party were inside the premises in question, the first appellant was seen to be speaking into the telephone and writing on a piece of paper. The piece of paper was found to be a betting slip. The contention of the prosecution was that the first appellant was caught in the act of receiving a bet. There was also a paging machine on a desk which the first appellant instructed the police officer how to use. The officer then made a call himself, and the person at the other end of the line purported to place a bet, saying that the bet was to be placed with a person called “Ah Yin”: the name of the first appellant being HO Sheung-yin, This person said that the bet was to be made on a greyhound race. In his judgment, Huggins JA stated that the telephone conversation was clearly not hearsay evidence, but it was direct evidence tendered with the object of establishing what was said to the police officer. The judge recognized the weakness of the evidence in that only one call took place after the police arrived and that the single call might be the result of an error, however that possibility became altogether too remote when one person referred to “Ah Yin”.

None of the New Zealand authorities was referred to. The learned judge noted that the conclusion he had reached was not inconsistent with those cases.

In WONG Wing-chun v. The Queen [1978] HKLR 326, the issue was whether the trial magistrate had rightly convicted the appellant of bookmaking upon the utterance of a person who entered the appellant’s store saying, “Uncle Chung, place this for me”. In my judgment, I followed HO Sheung-yin v. The Queen (supra) and three New Zealand cases, viz., McGregor v. Stokes [1952] VLR 347, Murtagh v. Paltos  [1974] VR 768, and Police v. Machirus [1977] 1 NZLR 288. I also quoted at some length Ratten v. The Queen [1972] AC 378 ( - of which more later). I was of the view that the statement “Uncle Chung, place this for me” was a verbal act and formed part of the res gestae. Those words accompanied the speaker’s equivocal acts of calling at the appellant’s store and of trying to take something out of his pocket.

Ratten was of course decided on the very special facts of the case, and the evidence in question was used to rebut the defence: per Lord Ackner at p. 678 H. The facts are neatly summarised in the headnote: -

“        The appellant was convicted of the murder of his wife by shooting her with a shotgun. His defence was that the gun had discharged accidentally whilst he was cleaning it. To rebut that defence the prosecution called evidence from a telephone operator who stated that shortly before the time of the shooting she had received a call from the address where the deceased lived with her husband. The witness said that the call was from a female who, in a voice sobbing and becoming hysterical, said “Get me the police, please - ” and gave the address 59, Mitchell Street; but before she could make the connection to the police station the caller hung up. The defendant objected to that evidence on the ground that it was hearsay and did not come within any of the recognised exceptions to the rule against admission of hearsay evidence. The objection was over-ruled and the evidence admitted. The defendant’s application to the Supreme Court of Victoria for leave to appeal against conviction was dismissed.”

Lord Wilberforce in his speech observed that it was relevant and important to inquire what was the action of the appellant immediately after the shooting (p. 385 H). He noted the appellant’s evidence that he (the appellant) had immediately telephoned for an ambulance and that shortly afterwards the police had telephoned him, upon which he asked them to come immediately. The appellant also denied that any telephone call had been made by his wife and that he had telephoned for the police. In these circumstances, the prosecution sought to rebut the appellant’s account by introducing evidence from the telephonist of what a female said to her, namely, “Get me the police, please - ”: vide pp 385 G - 386 B.

It was held that those words were not hearsay and were evidence of fact relevant to an issue (p. 387 B). The evidence was relevant and necessary in order to explain and complete the fact of the call being made. A telephone call is a composite act, made up of manual operations together with the utterance of words. The act had content when it was known that the call was made in a state of emotion. The knowledge that the caller desired the police to be called helped to indicate the nature of the emotion - anxiety or fear at an existing or impending emergency. See pp 388 A - B. It would appear that the appeal was decided also upon the alternative basis that the words were part of the res gestae similar to the facts in the well-known case of Reg. v. Bedingfield (1879) 14 Cox C.C. 341. The risk of concoction of fake evidence by a person who was a victim of assault was absent and might “safely be regarded as a true reflection of what was unrolling or actually happening”: see pp 389 A - 390 A, and 391 C.

It would thus seem that the facts in Ratten are so fundamentally different from those of the present case, in that there was no question of any state of emotion, fear, anxiety, panic or such like, that one should look elsewhere for guidance.

This we find in Kearley, in which Ratten was analysed in depth. Again the facts and the majority opinion are neatly summarised in the headnote of the report: -

“ The appellant was charged on indictment with, inter alia, possession of a controlled drug with intent to supply, contrary to section 5(3) of the Misuse of Drugs Act 1971. He pleaded not guilty. At the trial, the prosecution sought to call evidence that, following the appellant’s arrest, and not in his presence or hearing, a number of telephone calls had been made to his house in which the callers requested to speak to him and asked to be supplied with drugs and that a number of persons had called at the house asking to be supplied with drugs. None of those persons was called to give evidence. The trial judge, overruling the appellant’s objection, allowed police officers to give evidence recounting the callers’ requests. The appellant was convicted, and the Court of Appeal (Criminal Division) dismissed his appeal against conviction.

On appeal by the appellant: -

Held, allowing the appeal (Lord Griffiths and Lord Browne-Wilkinson dissenting), that, in so far as the callers’ requests for drugs merely manifested the callers’ state of mind, viz. their belief or opinion that the appellant would supply them with drugs, such state of mind was irrelevant and evidence as to it was, accordingly, inadmissible; and that, in so far as the callers’ requests could be treated as having impliedly asserted the fact that the appellant was a supplier of drugs, evidence of the requests was excluded by the rule against hearsay, since that rule applied equally to implied as to express assertions, and the fact that a multiplicity of requests for drugs might have greater probative force than a single request was not a ground for disregarding it.”

Lord Griffiths approached the issue from the viewpoint of common sense. He said (at p. 660 G - H): -

“…. The obvious inference is that the appellant had established a market as a drug dealer by supplying or offering to supply drugs and was thus attracting customers. There are of course other possible explanations such as a mistaken belief or even a deliberate attempt to frame the appellant, but there are very few factual situations from which different inferences cannot be drawn and it is for the jury to decide which inference they believe they can safely draw.

The evidence is offered not for the purpose of inviting the jury to draw the inference that the customers believed they could obtain drugs but to prove as a fact that the telephone callers and visitors were acting as customers or potential customers which was a circumstance from which the jury could if so minded draw the inference that the appellant was trading as a drug dealer; or to put it in the language of the indictment that he was in possession of drugs with intent to supply them to others.”

On his analysis of Ratten and the Commonwealth cases considered therein the evidence of the calls in the present case did not fall within the category of impermissible hearsay:

In the opinion of Lord Browne-Wilkinson, the evidence was relevant and admissible because it showed that there were people resorting to the premises for the purpose of obtaining drugs; the existence of a substantial body of potential customers provides some evidence which a jury could take into account in deciding whether the accused had an intent to supply (pp 698 H - 699 A).

Lord Bridge was of the opinion that the state of mind of the person making the request for drugs is of no relevance at all to the question whether the accused was a supplier. “When the only relevance of the words spoken lies in their implied assertion (my emphasis) that the accused was a supplier of drugs, that implied assertion must be excluded as hearsay. The central question is whether or not any distinction is to be drawn for the purpose of the hearsay rule between express and implied assertions. If express assertions are to be excluded as hearsay, so must implied assertions. See p. 665 E - H.

Lord Ackner, in referring to the requests for drugs, said this (at p. 675 G): -

“ Thus my reply to the certified question would simply be as follows. An oral request or requests for drugs to be supplied by the defendant, not spoken in his presence or in his hearing, could only be evidence of the state of mind of the person or persons making the request, and since his or their states of mind was not a relevant issue at the trial, evidence of such a request or requests, however given, would be irrelevant and therefore inadmissible. The jury would not be entitled to infer from the fact that the request(s) was made, that the appellant was a supplier of drugs.

It will be apparent from what I have already stated that the application of the hearsay rule does not, on the facts so far recited, fall for consideration. The evidence is not admissible because it is irrelevant. It is as simple as that.”

Lord Ackner also thought that the Commonwealth authorities cannot be reconciled with English authorities (p. 679 D).

The issues canvassed at the hearing before the House of Lords were dealt with at some length by Lord Oliver. In his view, the words sought to be adduced in evidence proved no more than that the callers made the calls in the belief, which the jury were invited to infer from the words spoken, that the appellant had drugs and was willing to supply them: vide p. 683 A - C. He said that, to any ordinary layman, the resort of a large number of callers all asking for the appellant, all carrying cash, and all asking to be supplied with drugs, would be a clear indication that the appellant was dealing in drugs at the premises in question. However, he said (at p. 683 E), “But so simple - perhaps one might say, so attractively common sense - a layman’s approach is not necessarily a reliable guide in a criminal trial.”

Lord Oliver stressed that the first inquiry must be, “Is it relevant evidence ?” for nothing that is not relevant is admissible. He went on to say (at p. 684 C - G): -

“To put it, perhaps, more succinctly, a fact to be relevant must be probative, and if one asks whether the fact that a large number of persons called at the premises seeking to purchase from “Chippie” renders probable the existence of a person at the premises called “Chippie” who is willing to supply drugs, the answer can, I think, only be in the affirmative. But the difficulty here is that it is only the combination of the facts (a) that persons called, (b) that they asked for “Chippie” and (c) that they requested drugs, which renders the evidence relevant. The mere fact that people telephoned or called, in itself, is irrelevant for it neither proves nor renders probable any other fact. In order to render evidence of the calls relevant and therefore admissible there has to be added the additional element of what the callers said, and it is here that the difficulty arises. What was said - in each case a request for drugs -is, of course, probative of the state of mind of the caller. But the state of mind of the caller is not the fact in issue and is, in itself, irrelevant, for it is not probative of anything other than its own existence. It becomes relevant only if and so far as the existence of other facts can be inferred from it. So far as concerns anything in issue at the trial, what the caller said and the state of mind which that fact evinces, become relevant and probative of the fact in issue (namely, the intent of the appellant) only if, or because, (i) what was said amounts to a statement, by necessary implication, that the appellant has in the past supplied drugs to the speaker (as in two cases in which requests were made for “the usual”) or (ii) it imports the belief or opinion of the speaker that the appellant has drugs and is willing to supply them. And here, as it seems to me, we are directly up against the hearsay rule which forms one of the major established exceptions to the admissibility of relevant evidence. Clearly if, at the trial, the prosecution had sought to adduce evidence from a witness to the effect that the appellant had, in the past, supplied him with quantities of drugs, that evidence would have been both relevant and admissible; but equally clearly, if it had been sought to introduce the evidence of a police constable to the effect that a person not called as a witness had told him, in a conversation in a public house, that the appellant had supplied drugs, that would have been inadmissible hearsay evidence and so objectionable.”

And (at p. 688 C - D): -

“ If we now apply that to the facts of the instant case, what is in issue is the state of mind of the appellant: did he or did he not have an intent to deal in drugs ? Is the existence of that state of mind in the appellant proved or rendered more probable by the fact that a third person, not even proved to have been known to him, has called at the premises where he and two other persons live and has asked a police officer to supply drugs ? I find it very difficult to see how it can be except by treating it as an assertion by the caller to the police officer that the appellant is a supplier of drugs, an assertion clearly inadmissible as hearsay because tendered as evidence of fact. To put it another way, the circumstance of the call and the request in combination becomes relevant only by virtue of the latter’s very inadmissibility. So one is faced with a circular and self-defeating process.”

In referring to the Commonwealth cases, he said (at p. 692 A - D): -

“….. But it is said, following the Australasian cases to which I will refer later, that what renders such evidence admissible in the instant case is that the statements were made on the occasion of visits to or calls at the premises where the accused lived. The visits or calls, irrelevant in themselves, were invested with a relevance as ‘acts’ of the persons concerned by the contemporaneous words which, though inadmissible as hearsay if they stood alone as proof of the veracity of the belief which they indicate, are nevertheless admissible as ‘explaining’ the state of mind of the caller in performing the act of making the call or visiting the premises. From that combination of words and acts it is said that it is permissible to infer that the accused had dealt in and was dealing in drugs, that is to say that he was known to the callers as a drug dealer, which is what I take to be intended in the reference to ‘an established market.’ To my mind, this reasoning is fallacious in that it mistakes the real purpose of the evidence by investing the acts of the callers in calling or visiting the premises with an entirely false significance, so that they become merely a peg on which to hang the statement. The issue to which the evidence is directed is not, as it was in the Australian cases, the use which was being made of the accused’s house. It is the intention or state of mind of the accused and it is, on analysis, the content of the statement and that alone from which the jury is invited to infer that intention. The fact that it was made in the course of a telephone call or at the front door of the house - the circumstance which, it is said, the statement is admissible to ‘explain’ - adds nothing at all.”

A little lower on the same page, he said that to say that the words were admitted in order to “explain” an act which was, in itself, without any significance was merely to conceal the true purpose of their admission.

In declining to follow the Commonwealth decisions, he said, “What one looks for in vain in all the cases is some convincing analysis of how the proven acts and intentions of other persons can be relevant to the acts and intentions of the accused person …..” (at p. 695 B).

And (at p. 693 G): -

“I confess that I find difficulty in seeing a logically defensible distinction between an inference to be drawn from an express assertion (viz. that that which is asserted is true) (impermissible) and an inference to be drawn from precisely the same assertion made by implication (permissible). That calls are made to premises is, by itself, irrelevant, for it is probative of nothing but the fact that the calls have been made. They have no independent relevance of their own but become relevant only by virtue of the caller’s purpose in making them based in turn upon the caller’s belief that bets will be accepted, which in turn is relevant only as an assertion by the callers that the premises are used for betting.”

On the multiplicity of calls, he said (at p. 696 B - D) : -

“….. The rationale of that can only be that whilst it is credible that one person may harbour and act upon a mistaken belief, it is less credible that two or three or more persons would do so. Thus the existence of the cumulative belief is admissible as evidence of its truth.

If that was indeed the reasoning it cannot in my judgment be reconciled with the English authorities. The multiplicity of calls can go only to indicating that a shared belief is more likely to be true than a belief held by a single person or a few people. That, however, goes to weight or reliability, not to admissibility and it cannot in itself make admissible that which is inadmissible.”

Although the decision in Kearley, being on a matter which is governed by the common law, is not ipso facto binding on the courts of Hong Kong, it is not one in a field of law in which the circumstances of Hong Kong or its inhabitants make it inappropriate that the common law in that field should develop on the same lines in Hong Kong as in England. The Privy Council is therefore unlikely to diverge from a decision which its members have reached in their alternative capacity in the House of Lords. That being so, we have reluctantly come to the conclusion that we are bound by Kearley.

On that authority, the only true basis upon which the words uttered by the callers was their implied assertion that the appellant was in fact carrying on bookmaking on the premises. Such evidence is hearsay and cannot be saved by the res gestae rule.

The previous Hong Kong decisions and the Australian authorities to the contrary are therefore not to be followed.

We accordingly allowed the appeal, quashed the conviction and set aside the sentence.