HKSAR v. CHAN FAT

HCMA925/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.925 OF 2000

(ON APPEAL FROM STCC 750 OF 2000)

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J U D G M E N T

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1. The appellant was convicted after trial on 2 August 2000 and was fined the sum of $1,500.

2. The facts relied upon by the prosecution were that on 30 April 2000 outside Shatin Industrial Centre in New Territories, the police party found a crane adjacent to a building being used to withdraw from an upper floor of that building a printing press. They found that the railing on the pavement edge had been cut to enable the crane to come close to the building to effect the extraction of the printing press. No permit from the Highways Department for the cutting of the railing was produced as it ought to have been if one had been in the possession of those doing the work.

3. In the course of the trial, a woman police officer gave evidence that she questioned the appellant and that the appellant admitted instructing two casual workers who were no longer present at the scene to cut the rails. At that point, she would have had reason to suspect the appellant had committed an offence and ought to have cautioned him in respect of any further questioning.

4. The second witness for the prosecution was a station sergeant who said that he also questioned the appellant and that the appellant told him that he had instructed two men to cut the rails and that those were causal workers and who were no longer present at the scene. It was put to him in cross-examination that no such confession was made and it was further put to him that his response to the admission was to tell the appellant that he should try find two men to take responsibility for the cutting of the railings.

5. It is unclear from the state of the evidence which admission came first, that of the woman police constable or that of the station sergeant. If the woman police constable's statement came first, then the statement made to the sergeant was in a questioning which should have been subject to caution and was not. If the sergeant was first, then the admission made to the woman police constable came after and alleged impropriety in not cautioning by the station sergeant and a suggestion that the appellant go and find two men to take responsibility.

6. Given these allegations in the cross-examination, it was incumbent on the magistrate to at the very least raise with the parties the voluntariness of the admissions made by the appellant. This she did not do. There is no suggestion in the transcript nor in her findings that these matters were considered or the parties given an opportunity to consider them. This is a flaw in the conduct of the proceedings which must lead to this appeal being allowed.

7. I allowed the appeal against conviction and the penalty is set aside.

8. There will be no order as to costs.