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HCMA001585/1989
IN THE SUPREME COURT OF HONG KONG
(Appellate Jurisdiction)
MAGISTRACY CRIMINAL APPEAL NO. 1585 OF 1989
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BETWEEN
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THE QUEEN |
Respondent |
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NG Pak-hat |
Appellant |
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Coram: Hon. Hooper J. in Court
Date of hearing: 23 January 1990
Date of delivery of judgment: 13 February 1990
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JUDGMENT
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1. On the 3rd of November 1989 the appellant (a youth of eighteen) was convicted on two charges as follows : (a) fighting in a public place, contrary to section 25 of the Public Order Ordinance, Cap.245, and (f) claiming to be a member of a triad society contrary to Section 20(2) of the societies Ordinance, Cap.151 of the Laws of Hong Kong.
2. The perfected grounds of appeal against convictions allege that the convictions were unsafe and unsatisfactory and material irregularities arose during the trial. There are then set out four particulars of irregularities.
Particular 1
3. The caution statement exhibit P11 (and P11A) was wrongly and unfairly admitted into evidence :-
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"(i) |
the Learned Trial Magistrate failed to enquire properly, sufficiently or at all into the issue of the admissibility of the said caution statement, and thus erred in law by admitting the said statement without any affirmative evidence that it was voluntary, further and alternatively the enquiry which was conducted was wrongful; and
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(ii) |
the Learned Trial Magistrate failed to enquire properly or at all into the objections to the admissibility of the said caution statement as he was duty bound to do in accordance with section 34 of Cap.227; and
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(iii) |
during the trial the Learned Magistrate wrongfully enquired from the unrepresented appellant upon the voluntariness of the said statement; and
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(iv) |
the Learned Trial Magistrate failed to consider and/or ignored the fact that during, the taking of the said caution statement the appellant was admitted to and confined in the surgical unit of Queen Mary Hospital and was suffering, from, inter alia, injuries over the head, neck, abdomen, arm, forearm, and knee, that he had complained of headache and dizziness, and he was being treated for his ailments, and that further;
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(v) |
there was no evidence before the Learned Magistrate that the appellant was fit or able to give a statement." |
There was also an application to adduce additional evidence in respect of the circumstances surrounding the taking of this statement.
4. I do not think that the criticisms levelled at the Magistrate above are justified. At page 40 of the record the Magistrate has recorded the evidence of the detective police constable who took the statement from the appellant and who recorded that the appellant was interviewed under caution and who recorded what he said thereafter and who produced or sought to produce the caution statement in evidence. At this stage, it is recorded by the Magistrate that the rights and position of the appellant were explained to him and the meaning of voluntariness. The appellant is recorded as saying that he understood and that the statement is voluntary and there were no assaults, threats or inducments.
5. Despite this, Mr Buchanan who represents the appellant complains that it is not clear from the record that the Magistrate explained what is meant by oppression and Mr Buchanan suggests that the circumstances in which the appellant was interviewed in the ward at Queen Mary Hospital were oppressive.
6. I am satisfied that the Magistrate did inquire properly and sufficiently into the issue of the admissibility of the said caution statement and that the evidence that was tendered to the court was sufficient to establish affirmatively in the absence of challenge that the statement was a voluntary statement. Although the Magistrate did not set out in detail exactly what he said to the appellant at the time when he explained the meaning of voluntariness, it is clear from the appellant's answers at that time as on the court record that he understood perfectly the basis upon which he could object to the statement being tendered in evidence. Indeed, the statement itself contained a complete denial of the fighting charge, claiming that the appellant was acting in self-defence. I do not accept the suggestion that there was no evidence before the Magistrate that the appellant was fit or able to give a statement. It is clear from the terms of the statement itself that the appellant was well able to lock after his own affairs at this time and was in fact putting forward an exculpatory statement. The appellant's condition at the time was a factor which no doubt was relevant for consideration when considering the weight to be attached to the statement, but it did not justify the Magistrate in excluding the statement from the case.
7. In Miller (1986) 83 Cr. App. R. C.A. page 192:-
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"The appellant, a paranoid schizophrenic, was charged with the murder of his girlfriend who had been stabbed to death in the flat where they lived together. The appellant reported her death to the police and, after questioning, confessed to having killed her. He later retracted that confession, which contained certain passages of a factual nature and others which were the products of delusions. The confession, which was central to the prosecution case, was ruled to be admissible in evidence since the jury, properly directed, were capable of discriminating between the factual and delusionary material, the confession was not obtained by oppression, nor was it proper to exclude it because of the mental condition of the appellant. Further, its probative value was not outweighed by its prejudicial effect. The appellant was convicted of manslaughter, since at the material time he was suffering from a disease of the mind which substantially impaired his mental responsibility for his act.
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On appeal, on the ground, inter alia, that the judge was wrong to rule that the confession was admissible in evidence, it was held, dismissing the appeal, that the admissibility of the confession was a question of fact and the judge having considered the issue with very great care, it was impossible to say that he had wrongly exercised his discretion to admit the confession; for there was no rule in English law to the effect that a judge was bound to rule inadmissible a confession obtained when the accused's mind was so disordered as to render it wholly unsafe to act upon it. The police officer's questioning did not amount to oppression and the direction to the jury on their approach to the confession was adequate.” |
8. In the light of this authority I did not consider that the conduct of the police in taking the statement from the appellant in the hospital ward when he was suffering from injuries which he had received amounted to oppression. I have, therefore, refused leave to adduce additional evidence on this matter.
Particulars 2 and 3
9. It is convenient for me to deal with these two particulars together because they were argued together by Mr Buchanan. These particulars are as follows:
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"2. |
in respect of the charge of fighting in a public place, the Learned Trial Magistrate in his statement of Findings wrongly and unfairly attached weight to the contents of the caution statement which thereby rendered the conviction unsafe and unsatisfactory; and
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3. |
with or without the said caution statement the facts accepted by the Learned Trial Magistrate in his Statement of Findings were insufficient to prove the charge of fighting in a public place beyond reasonable doubt, in particular, the Learned Trial Magistrate failed to consider properly or at all:
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i) |
the issue of the identification of the participants in the fight;
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ii) |
the distinction between the participants in the fight and persons present:
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iii) |
the issue that the appellant was the victim of an attack and acted in self defence (to both charges)." |
10. Mr Buchanan supports these particulars by referring to the statement of Findings and the following passage therein:-
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"In relation to the appellant, P.W.1 identified him in court as being one of two persons he had seen arguing. P.W.3 had identified him and another as being persons who had 'teased' her and the 2nd defendant. P.W.11 identified the appellant as being a person who was hit with a rod by the 1st defendant, and also mentioned she'd heard talking/quarrelling between them.
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I considered P.W.1 to be a rather confused witness, but a totally honest one. I had doubts about accepting his recollection of the events without other evidence to support his version. I accepted his identification of the appellant as being accurate and reliable, having warned myself of the dangers involved in all identification cases. I bore in mind that the identification only involved his presence and arguing.
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I considered P.W.3 to be an honest witness who simply couldn't remember very much about what had happened. I accepted her identification of the appellant as being accurate, again after warning myself, but I bore in mind that it only related to presence and teasing.
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P.W.11 I considered to be a most unsatisfactory witness. I thought she showed her attitude to the case rather well by absenting herself after a luncheon break without an acceptable excuse. During her evidence I found her to be evasive, reluctant, and at times simply dishonest. I determined that without corroboration her evidence should not be accepted. I did accept her identification of the appellant as it was corroborated by the cautioned statement by the appellant." |
11. Mr Buchanan submits that what the witnesses were saying is that the appellant was present and arguing and teasing. And there was some evidence from P.W.11 that the appellant was a victim. The only other evidence of the appellant's participation came in the caution statement in which he claims to have been the victim of a very savage attack and in which he says, he subsequently fainted in the toilet and was not aware of what the others did outside and he said when the police came he regained consciousness and he says that he was only beaten by a named person and that he did not counter attack him. Mr Buchanan submits that the evidence only went sufficiently far to show that the appellant was present but not to indicate that he was involved in any fighting other than in self-defence.
12. In justifing his finding of guilt, the Learned Magistrate also said:-
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"The Crown also put forward the proposition that I should look at the injuries sustained to see who was actually involved, and I agreed that could be an indication of who was involved. The appellant was not only injured but had to be transferred for specialist care due to his injuries. His injuries amounted to more than being struck by the first defendant, as he'd said in his cautioned statement.
Looking at the evidence in total I am satisfied beyond doubt that there was a fight at the time and place alleged by the Crown in which a group attacked the lst defendant. I found as a fact that the 1st defendant had been attempting to defend himself and his girlfriends from the assailants, but in the overall situation, I found that he'd gone too far, and that the legal defence of self-defence was not open to him. Nevertheless he was the person, in my judgment, who was being attacked.
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The appellant was present before, during and after this attack. His injuries are consistent with having taken part in the fight, and therefore I decided I could not place any weight on his bare denial contained in his cautioned statement. He elected to not give or call any evidence, and I was sure the Crown had proved his guilt. Accordingly I convicted him as charged." |
13. Mr Coghlan supports the Magistrate's ruling arguing that it was a fair inference on the evidence that the appellant was one of the group which attacked the 1st defendant and suggests that it is difficult to see how self-defence can arise out of this.
14. I have considered the respective submissions on this appeal and have come to the conclusion that the evidence was not sufficient to justify a conviction on the first charge. The Learned Magistrate had earlier stated in his Statement of findings:-
"I found no evidence proved of the necessary mens rea for a joint enterprise. Furthermore, the notion that this was a joint enterprise was negated by the evidence of P.W.s 1 and 11 both of whom told me that some boys did not hold weapons, did not say anything, and did not do anything. Indeed they both said that some boys actively tried to stop the fighting, and in this they were supported in a rather vague way by P.W.3."
15. I considered that the evidence was not sufficiently clear in this case and indeed was very confusing and that the conviction in respect of the first charge is unsafe and unsatisfactory.
16. There was a fourth ground of appeal but in view of my decision above on the third ground of appeal, I do not consider it necessary to say any more, the appeal against conviction on the first charge is allowed and the conviction is set aside. However, there was ample evidence before the court from the expert witness who gave expert evidence on the subject of triad societies and also in the caution statement of the appellant to justify his conviction on the (f) charge. His appeal against conviction on that charge is dismissed and the conviction affirmed.
17. I will now hear counsel on the subject of the appeal against sentence in respect of the (f) charge.
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(N.B. Hooper)
Judge of the High Court |
Representation:
Mr. R. Buchanan (Raymond Tang & Co.) for Appellant
Mr C. Coghlan, Sr.C.C., for crown
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