HKSAR v. WONG MAN NGAN

HCMA895/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.895 OF 2000

(ON APPEAL FROM TWCC 893 OF 2000)

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J U D G M E N T

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1. The appellant was charged before a magistrate of one charge each of assisting in export of unmanifested cargo, contrary to section 18A of the Import and Export Ordinance, and conspiracy to knowingly mislead a police officer by giving false information to the police.

2. The event giving rise to the charges took place in the evening of 28 September 1999. The unmanifested cargo involved were electrical appliances and electronic accessories. In the evening of 28 September 1999, the police mounted an anti-smuggling operation in Ap Lei Chau, as a result of which some 45 cartons of goods were recovered from a vessel. The goods seized were not manifested. In the morning of 29 September 1999, the appellant made a report of theft to the Tsing Yi Police Station claiming that some 43 cartons of electrical appliances and accessories were stolen from his goods vehicle which was parked overnight on a road in Tsing Yi Island.

3. Investigation of the smuggling activities led to the arrest of the appellant. In a cautioned statement taken by the police, the appellant admitted that on the night of 28 September 1999, he had driven the goods to the Ap Lei Chau Pier where he assisted in loading the goods onto the vessel which was subsequently intercepted by the police. He also confessed in the interview that he made up the story about the goods being stolen from the parked vehicle, that being an attempt of trying to mislead the police in releasing the goods back to him.

4. At the trial of the appellant, the prosecution sought to produce the record of interview as evidence against the appellant. The appellant contended that the interview was not conducted under voluntary circumstances. As the admissions by the appellant during the interview was the only evidence against him at the trial, the admissibility of the record was contested strongly. Based on the transcript of the proceeding available before this court, counsel for the defence came across as having lost sight, on a number of occasions, of the issue of voluntariness. At times, defence counsel was preoccupied with lengthy cross-examination on matters which are hardly relevant to the issues before him. Conduct of counsel had, in my view, unnecessarily lengthened the trial.

5. The learned magistrate adopted the alternative procedure on the issue of voluntariness and heard evidence from the police officers and also from a defence witness Mr Paul Kwong, a practicing solicitor who had visited the appellant after his arrest. The learned magistrate was satisfied that the interview was voluntary and ruled the record of interview admissible. He attached full weight to the admissions contained therein and, as a result of which, he found the appellant guilty on both charges.

6. In his grounds of appeal, Mr Oderberg, who did not appear in the court below, identified some seven areas which he contended that the magistrate had erred in his approach on the issue of voluntariness. I only need to deal with the first three grounds of appeal.

7. At page 16 of the Statement of Findings, under paragraph 3, the learned magistrate made the following observations :

" ... If the Appellant had come to a decision to tell the whole thing, bearing in mind, he had on previous occasion refused to tell when he was accompanied by Mr. Kwong, it is not unusual that the Appellant would have difficulties in facing the same lawyer. Further, the Appellant would also have to overcome other internal pressure in deciding to break his silence." (emphasis added)

8. The appellant, before making his admissions, had been interviewed by the police on two occasions, during both of which he had chosen to say nothing. He was accompanied by his solicitor Mr Kwong during the two interviews. However, on the third occasion when his solicitor was not present, the appellant had suffered a sudden change of mind and admitted the offence. From the passage quoted above, the learned magistrate attempted to explain the appellant's sudden change of attitude on the basis that the appellant had to overcome "other internal pressure". There is simply no evidential basis for this finding as was rightly pointed out by Mr Oderberg. Also, the reasons given by the learned magistrate as to how the appellant had overcome his previous silence is also founded upon a significant lack of evidence.

9. This is a case where the only evidence against the appellant are the admissions contained in the record of interview. I am somewhat perplexed by the learned magistrate's approach when he considered that this was a case which falls under rules 8(a)(iii) of the Rules and Directions for the Questioning of Suspects. The said rule covers a situation where the legal representative is instructed by a third party. Clearly, Mr Kwong was instructed not by a third party but was retained by the appellant at the time of his arrest. Rule 8(a)(iii) is therefore not applicable to the present case.

10. The treatment of the appellant by the police should have caused concern to the magistrate in deciding the issue of voluntariness. Further, the learned magistrate seemed to have based his findings on the issue of voluntariness on evidence which is non-existent.

11. That being the case, his decision to admit the statement as evidence on the general issue is flawed. For the reasons given, the conviction is rendered unsafe and unsatisfactory.

12. The appeal is allowed and the conviction is quashed.