R. v. LEE FUK KEUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 381 OF 1996

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J U D G M E N T

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1. This is an appeal against conviction. It was alleged that on 18th November 1995 the appellant stole a wallet and its contents. He pleaded not guilty and was convicted by a magistrate on 13th February 1996.

2. The prosecution evidence was that he was seen in Tsz Wan Shan by a couple of police officers who were on patrol. When he saw them, he turned and walked in the opposite direction. They were suspicious and then intercepted him. The officer took from one of the appellant's trouser pockets a wallet which had in it, amongst other property, an identity card belonging to another. The appellant was asked whether the wallet belonged to him, and he said that it did not. He said that he had picked it up from a rubbish bin in a park. When the police said that they would accompany him to the park and find onlookers to confirm his story, he said that in fact the wallet was found at another location nearby. He said that he did not know the owner of the wallet. A series of questions was then put to him and his responses were incriminating, including the assertion that he intended to go to a place where there was no one and he would take a look to see if there was some money for his use. The officer then arrested and cautioned him, and under caution the appellant said : "Ah Sir give me a chance. Out of sudden greed I kept this wallet."

3. In cross-examination it was put to the officer that the appellant had been carrying the wallet openly in his right hand, and that on the approach of the officers, the appellant handed the wallet to the officers, that he told the officers that he had picked up the wallet, and did not make any of the incriminating remarks attributed to him in the evidence of this officer. The officer agreed that the appellant had been nervous and did not speak fluently. This is relevant, because the defendant suffered meningitis when extremely young, which left him with hearing and speech problems. It was also put during cross-examination that the inspector who accompanied the arresting officer had at one stage hit the appellant on his chest. It was not made clear when this was said to have occurred.

4. The appellant gave evidence. He is a person of previous good character, aged 33 years. His evidence was that he found the wallet, and intended to take it to Tsz Wan Shan Police Station. He was employed at the time, and had an urgent job to fulfil first. He also paused after finding the wallet, to read an advertisement. He took a turning, he said, into what transpired to be a dead end and turned back, at which point he saw the police officers, and told them immediately that he had picked up a wallet. The police however said that he had stolen the wallet. A number of officers came later; they pushed him to one side and searched his body. Then, he said, one of them hit his chest. He asserted that he was neither arrested, nor cautioned. He also said in evidence that he has a hearing problem, the result of childhood illness.

5. In his Statement of Findings which is, if I may say so, a model of clarity, the magistrate found the evidence of the arresting officer compelling and truthful. He believed that evidence, and did not believe the appellant in so far as concerned the central facts. In particular, he found that the admissions of guilt were uttered by the appellant, and that they were true.

6. Mr Kwok who appears for the appellant advanced a number of grounds of appeal :

(1) Admissibility of the admissions

7. Although the magistrate, in summarising the evidence of the defendant, recounted the testimony that the appellant was struck on his chest and was never arrested and cautioned, he made no reference to the voluntariness of the admissions, nor did he allude to the discretion which a tribunal has to exclude admissions, in certain circumstances, even if voluntary. The question of discretion arises, it is said, because of the breach of the Secretary for Security's Rules for the questioning of suspects, that breach allegedly constituted by the failure to caution the defendant sufficiently early.

8. This was a case in which voluntariness was not in issue, and where the appellant was represented at trial, and where full submissions were made without any reference to that issue. It is in those circumstances difficult to see what ground for complaint there can be. It is true that there was an allegation of an assault, but that allegation was not specific as to its timing, and there was no hint that it caused the appellant to say anything he would not otherwise have said. But in any event, it is apparent that the magistrate turned his mind to the assault allegation, for in his Statement of Findings, he makes it clear that it is an allegation which he did not believe.

9. It is then said that the appellant was not cautioned when he should have been. That was not quite the complaint made at the trial by the appellant. His allegation then was that he was never cautioned; maintaining, of course, the stance that he nevertheless had said nothing inculpatory. His case, in other words, is that the lack of caution had no impact upon him. The implication of the attack in this particular regard, however, must be that the magistrate ought to have addressed the question in the alternative; in other words, having found that the appellant had made incriminating remarks, he ought then to have asked whether the lack of a timely caution rendered unfair the admission into evidence of the incriminating remarks thus made. It is by no means cut and dried that the caution, when it came, was later than it ought to have been. It is true that the defendant had been acting suspiciously, and that he told the police that he was not the owner of the wallet, but the officer was entitled, so it seems to me, to ask why in the circumstances the appellant had it. In any event, it would have been open to counsel at the hearing to put his argument in the alternative, as indeed it is now being put; but the subject was evidently not thought to be worth a mention during cross-examination of the officer or in the submissions at the end of the evidence.

10. Mr Kwok prays in aid a judgment in R. v. Kwok Cheung Ka (Magistracy Appeal 100 of 1996). There was in that case a failure to caution, when a caution ought to have been administered, and for that reason, as well as because there was some irreconcilable evidence which apparently the magistrate did not address, the learned judge allowed the appeal. The decision in that case establishes no new principle, and no doubt it turned on its own facts.

11. One principle which is well established is that a tribunal may exclude evidence as unfair "... after substantial and significant breaches of the Rules and Directions for the Questioning of Suspects and Taking of Statements. But the circumstances when a judge would exercise this discretion will be rare, and only in cases where it was clearly demonstrated that exclusion was necessary to secure a fair trial of the accused" (see R. v. Chan King Hei [1995] 2 HKC 681). It was never suggested in this case, a case in which the appellant was represented, that there was any unfairness in this regard, and in such circumstances it does not seem to me that, unless something obvious presents itself, it is incumbent on a magistrate to comb through the Rules of his own motion to ascertain whether there was a breach of this rule or that, and whether that breach was such as to constitute that rare case when a confession which was voluntarily given should be excluded.

(2) Demeanour

12. The next ground upon which Mr Kwok relies related to the basis upon which the magistrate said that he disbelieved the appellant's evidence. What he said was this :

"However, after giving full weight to the Appellant's good character, and after assessing his evidence in the light of the benefits that that good character bestowed, it was apparent to me that he was lying intermittently in the course of his evidence. That would have been apparent to any impartial observer watching him testify. His account of slipping over, of carrying the wallet in the same hand as his mobile phone, of offering the wallet to PW1, of being accused and then being struck by the police, all lacked the ring of truth. This was in contrast to his descriptions of his work, of his finding of the wallet, and of his looking for accommodation, all of which rang completely true. The simple truth of the matter was that the appellant had had the misfortune to be exposed to a sudden temptation, on finding the wallet. He had yielded to that temptation, and was trying to avoid the consequences of having done so by untruths."

13. Mr Kwok drew to my attention the judgment in R. v. Ng Wing Ming [1994] 2 HKC 464. That was a case in which a District Court judge relied for her preference of one account over another, exclusively or almost exclusively on the demeanour of the contending witnesses. The Court of Appeal commented that :

"Demeanour is a notoriously uncertain guide to the truth for obvious reasons. A witness comes into court as a total stranger to the judge who can hardly be expected to read from his or her facial expressions or 'body language' indications as to truthfulness or otherwise. The inherent probabilities in most cases would be the first point of reference for the trial judge in seeking to ascertain the truth. Demeanour could only be a point of last resort.

As regards the competing versions in this case, it is difficult to say which story was inherently more probable or improbable. Both versions had aspects which would tend to make a jury or a trial judge raise an eyebrow."

14. I do not think that the Court of Appeal intended those comments to suggest that in every case in which a tribunal hints at an assessment of a witness' account without reference to inherent probabilities that the resulting conclusion is impeachable, nor that in every case in which a tribunal refers to or expresses some reliance upon demeanour or attitude, that the result is necessarily faulty. The facts of that case were such that probabilities and improbabilities ought to have played the predominant role in any assessment of the truth; there clearly were inherent improbabilities which the judge did not address. In this case, the factual matrix was quite different. So too was the manner in which the tribunal expressed itself. In Ng Wing Ming, the trial judge expressed herself to be persuaded by the fact that, for example, "... [the witness'] face and his responses ... convinced me beyond reasonable doubt that every detail of his lamentable story was true," and, on the other hand, that she "... observed [the defendant] was not by any stretch of the imagination a slick liar. His demeanour and his answers revealed his mendacity."

15. This magistrate has not expressed himself in such terms, although there is reference to observation of a witness. It does happen that some magistrates occasionally appear to rely heavily upon demeanour and "body language", and I would respectfully agree that such reliance can carry a ring of unreality. But in this particular case, I do not read the magistrate's comments as some broad incantation; it is quite permissible to say that evidence does not have the ring of truth; inherent in that comment is the suggestion that it struck the magistrate, observation aside, as evidence which was unlikely to be true. That is reinforced by his finding that other evidence from the same witness had the ring of truth. Whilst one would not be comfortable with a reference to the benefit of watching the witness testify, if it is suggested to be the sole yardstick employed to assess truth or falsity, I do not see in this case that that is what the magistrate has done. But even so, to the extent that he has relied on the appellant's manner, he has done so whilst expressly acknowledging "the dangers involved in relying on demeanour in assessing a witness' veracity", an acknowledgment which in the Statement of Findings immediately precedes the passage about which Mr Kwok complains, and which I have quoted.

(3) The Medical Evidence

16. Finally, Mr Kwok contends that the magistrate ought to have reviewed his decision after verdict when a medical report about the defendant was produced for the magistrate's consideration. I have that report. It is by a psychiatrist who examined the defendant before trial. It refers to the appellant's anxious temperament, accompanied as that temperament apparently is by stuttering; to the defendant's impairment of his hearing; and to some difficulty in conceptualizing facts to verbal expression. The psychiatrist then goes on to state certain conclusions about the appellant's conduct at the time of the offence. It is said that had the magistrate taken cognizance of this report, his conclusions about the alleged admissions and about the appellant's guilt might well have been different.

17. This point can be answered shortly. No one asked the magistrate to review himself, and although a magistrate may do so of his own motion, it was not in my judgment necessary to do so in this case, not least because the magistrate had seen the report before verdict. That is apparent from the record. The prosecutor would not, during the course of the trial, agree the contents of the medical report. Defence counsel then said that having considered the matter, he "may not need to put it [the report] in". The magistrate, perhaps concerned about the exclusion of something that might assist the appellant, asked if the prosecutor minded him seeing it. The prosecutor did not object. It is quite evident then from the magistrate's comments that he read the report; and he then said to counsel for the appellant "... you may take it that I accept the defendant has auditory and speech problems you have already suggested." He pressed the prosecutor to agree the report. She would not. Counsel for the defendant made no application to call the doctor. The appellant's counsel said in terms, after taking instructions : "In all circumstances, I will not need to produce medical report and to call doctor." I note as well that in his Statement of Findings, the magistrate remarked that :

"In particular, I made every allowance for his manifest health problems, which were explained as stemming from a childhood illness."

18. In the circumstances which I have described, I see no valid ground for complaint in relation to the magistrate's treatment of that report.

19. There are therefore, in my judgment, no grounds of appeal which move me to say that the magistrate has erred. Accordingly, this appeal against conviction is dismissed.