HKSAR v. VICTOR NDUBUEZE EKEOGU

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

1998, No. 342
(HCMA)

-----------------------------------------

----------------------

J U D G M E N T

----------------------

Mayo, J.A. (giving the judgment of the Court)::

1. The Appellant who is a Nigerian was convicted of conspiracy to possess a forged identity card. He now appeals against this conviction.

2. It would appear that this offence came to light when the Appellant was making a complaint to the police concerning the theft of some moneys.

3. The main prosecution witness was Inspector Berry. He was found by the magistrate to be a truthful and accurate witness. During the course of a video taped interview the Appellant stated that another Nigerian gentleman had suggested to him that instead of repaying to him the money he owed him he would "do an identity card for him". The Appellant had acquiesced in this proposal and had said in Reply 59 on the video tape: "Alright if I got a Hong Kong Identity Card I think I could stay here three months and find a job. I to get benefit to me then I didn't refuse the offer."

4. To clarify matters further he went on to say that he had provided a photograph of himself for inclusion in the identity card.

5. These admissions were the only evidence adduced to support this conviction. It is accordingly necessary to consider carefully whether or not these admissions should have been adduced as evidence.

6. The first matter which has to be borne in mind is the context of the initial interview with the inspector. It would appear that it was not the case that the inspector had reason to believe the Appellant had committed any offence. There is nothing to indicate whether a caution was administered to the Appellant when he first unburdened himself to the inspector.

7. There is however a record of a caution being administered at the commencement of the video taped interview. This appears at p. 66 of the transcript:

"Q12: Okay three tapes will be made of this interview. At the end of the interview you will be given a notice explaining what will happen to those tapes. Subject to a proviso outlined in this notice one of the tapes will be given to you. I now intend to start this interview. Remember early this morning that you were arrested in connection with conspiracy to make a counterfeit ahm document. I must tell you again that you are not obliged to say anything unless you wish to do so but whatever you say may be given in evidence. I'd first like to show you an exhibit which is police exhibit no. 4 which is a United States passport have you seen this the passport before today?

R: You showed me you showed it today.

Q13: But did I, no, but before today.

R: I 've not seen it before. I have not seen it.

Q14: Okay. Okay. Could you tell me is that your photograph on the picture?

R: It looks alike but I said as I told you the way it comes about I never had any intention of making an American passport.

Q15: I know that I know that.

R: I'm a Nigerian."

8. The interview then goes rambling on. It is difficult not to gain the impression that when the inspector administered this caution, he was simply "going through the motions". It is also relevant to observe that the caution appears to have been directed to irregularities concerning a U.S. passport.

9. At the beginning of the trial before the magistrate Miss Yew, the counsel representing the Appellant, did inform the magistrate that there had been attempts to agree the evidence but these attempts had been unavailing. Certainly Miss Yew did not inform the court that the admissibility of the video statement would be contested. It was not until the Appellant himself went into the witness box that it became apparent that he was strongly contesting the admissibility of the statement.

10. Even at this stage the magistrate did not conduct a voire dire so as to satisfy himself that the evidence was admissible. He was content to simply state that when he viewed the video tape of the interview he could see nothing to indicate that the defendant was being influenced by the inspector. No attempt he was made to resolve the defendant's allegations that he had been mistreated and assaulted by the police officers.

11. As already stated these admissions were the only evidence supporting this conviction. A voire dire should have been conducted. It was not.

12. I do not consider that the conviction can be regarded as being safe and satisfactory. This appeal is accordingly allowed and the conviction is quashed.