HKSAR v. LAM CHIN FAI

HCMA 64/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 64 OF 1999

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J U D G M E N T

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1. This is an appeal against the conviction of the appellant in the South Kowloon Magistrates Court of an offence of possessing dangerous drugs, and also an appeal against the sentence of 3 months imposed. As to the appeal against sentence, Mr Wong who appears for the appellant this morning does not seek to pursue it. The ground of appeal against conviction can be simply stated as follows:-

"The learned Magistrate failed to conduct a voir dire to deal with the admissibility of an alleged oral admission".

2. The matter arose in this way. The appellant was unrepresented at his trial and a police officer gave evidence in chief to the effect that in the middle of the night on 28th August 1998, he had entered a hotel room where he found the appellant and a woman lying on a bed. The officer said that in the room he had seen a piece of cardboard with some white powder on it and he had asked the appellant what the powder was. The appellant had replied saying that it was white powder, and was what remained after his consumption. The evidence of the officer then was that he had arrested the appellant and cautioned him to which the appellant replied -

"Ah Sir give me a chance, this is the remains after my consumption this morning. It has nothing to do with my girlfriend."

3. When the appellant cross-examined the police officer he put to him that when the police came to his (the appellant's) room they threatened him by saying that if he did not make admissions they would assault him; that when the police came to his room he was asleep but they slapped his face and told him to wake up; that he was then told that as he was a man he would have to make an admission and, later at the police station, he was told that he should not let the girl bear responsibility for the matter but that he should accept it.

4. The police officer denied each of these allegations, but the point is that the appellant was clearly saying at that state of proceedings that any verbal admission attributed to him by the police officer, either at the scene of his arrest or later at the police station, was involuntary. The learned Magistrate was then at that stage clearly put on notice that admissibility of the alleged verbal admission was in issue, yet he took no steps to clarify the matter and/or to indicate how he intended to resolve it.

5. Indeed, as soon as the police officer had completed his evidence the prosecution closed its case and the learned Magistrate said this to the appellant:-

"Your case. Yes do you wish to give evidence now? That is the case for the prosecution, and I do find that there is a case for you to answer. If you wish to, now is your opportunity to give evidence" ......

6. The appellant elected to give evidence and in so doing repeated his allegation that he was told by the police that if he did not make an admission he would be assaulted. On being questioned by the learned Magistrate, he agreed that he did make such admission at the police station but not at the scene of his arrest, and that what in fact he had said at the scene of his arrest was that the white powder was what remained after consumption by his girlfriend. Cross-examined by the prosecution, the appellant denied making any 'voluntary' admission at all.

7. In his Statement of Findings the learned Magistrate said this:-

"The appellant gave evidence. He said that the police entered the room and the girl admitted to them ownership of the drugs in question. He denied making any admission at the scene of the arrest ....."

8. What the learned Magistrate did not do was to refer to the fact that the appellant had made it clear, in his cross-examination of the police officer, that he was challenging the admissibility of the alleged verbal at the scene of his arrest (assuming as the learned Magistrate was required to do that that verbal had been uttered) and also the admissibility of the verbal which he agreed he did utter at the police station.

9. Later, under the heading 'findings' the learned Magistrate said this:-

"I found also that the appellant did admit possession of the drug to the police officer and that his admission was true and was not made simply to protect his girlfriend."

10. Again, however, the learned Magistrate did not address the question of admissibility which was plainly in issue. During the course of argument I have been referred to a number of well established authorities each of which makes it clear that once the question, or issue, of voluntariness affecting admissibility has been raised, then it is incumbent upon the tribunal concerned to deal with it by conducting a voir dire and, if it does not do so, then the trial is materially defective.

11. In HKSAR v LEE Ying-lun [1996] Criminal Appeal No. 633 the Court of Appeal stated that:-

"It is always the duty of a judge to satisfy himself that inadmissible evidence is not admitted. Additionally, special care is expected of a judge where a person defends himself and raises the issue in cross-examination or in evidence. See MacPherson v The Queen [1981] 147 CLR 512."

Miss Ko for the Respondent has sought to argue that the principles which I have stated do not apply to a Magistrate or to a District Judge who sit as both judge and jury, and that they can rule on the question of admissibility of evidence at the same time as determining the general issue, even without hearing from the accused specifically as regards the admissibility question. With respect that cannot possibly be right.

12. In this case the learned Magistrate not only failed to satisfy himself that the evidence in issue was admissible by enquiry in a voir dire, but he failed to address the question of admissibility at all.

13. That was a material irregularity and this appeal must be allowed. The appellant's conviction is quashed and his sentence is set aside.