THE QUEEN v. POON CHI WAI

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 1370 OF 1989

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BETWEEN

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J U D G M E N T

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1. The appellant, a Customs Officer, and Miss KWAN So-sik were jointly charged that, in or, about April 1987, they imported into Hong Kong handbags to which forged trade marks had been applied. Miss Kwan was also charged with offering the appellant an advantage of HK$300.00 in relation to these handbags; and the appellant was charged with having accepted that advantage. The appellant was further charged that in or about August 1987, he stole ten handbags, the property of Miss Kwan.

2. At the trial before Mr P.J. Line, Miss. Kwan pleaded guilty to the two charges laid against her and the appellant pleaded not guilty to both the charges which he faced. After trial the Magistrate dismissed the charge of accepting an advantage but convicted the appellant on the charge of theft. He now appeals against that conviction.

3. Miss Kwan gave evidence for the Crown but the Magistrate found her to be an unreliable witness and no reliance was placed on her testimony.

4. LAM Kam-ting gave evidence that in April 1987 he had - met Miss Kwan at the Taipei Airport and was asked by her to take a bag to Hong Kong on her behalf. He saw the appellant with another Customs Officer at the airport but not when he was conversing with Miss Kwan. She gave him a ticket to enable him to pick up the bag at the baggage reclaim area in Hong Kong. After arriving at Kai Tak Airport he saw the appellant in the reclaim area. He left the reclaim area with his luggage and what he believed to be Miss Kwan's bag. The appellant had left that area before him. He was later approached by the appellant and told that these had been a mix up between the appellant's bag and that of Miss Kwan. The appellant recovered his bag from Lam but kept custody of the bag belonging to Miss Kwan. He told Lam he would contact Miss Kwan direct and arrange to pass her bag to her. It was Lam's evidence that he had no idea what was in Miss Kwan's bag. He agreed in cross-examination that as the events had taken place two years before the trial he could only roughly remember the incident and could not remember the date of it.

5. The Magistrate allowed into evidence a statement made by the appellant under caution to the I.C.A.C. In respect of the incident, the subject of the charge his account in the statement differed from that given in evidence by Lam. The appellant claimed to have dealt directly with Lam at the Taipei Airport and to having agreed to take a bag back to Hong Kong on Lam's behalf. They exchanged bags and then travelled on different flights to Hong Kong. At Kai Tak Airport they re-exchanged bags, the appellant in the belief that he was getting his own bag back. He was at all times with LAU Chi-wai, a fellow Customs Officer. In the taxi on the way home the appellant opened the bag and found it contained ten to twenty imitation LV bags and not the shoes that his bag had contained. They returned to the airport and confronted Lam who told them the LV bags belonged to Miss Kwan and that he had forgotten to tell them so at Taipei Airport. The appellant recovered his own bag from Lam and told Lam that in respect of Miss Kwan's bag he would contact her direct. He and Lau subsequently decided that Miss Kwan and Lam had tricked them into bringing imitation LV bags to Hong Kong. They therefore kept the LV bags, dividing them equally between themselves. It was agreed that if Miss Kwan enquired she would be told the bag was left at the airport and had not been taken out. The appellant gave one bag to his sister and sold the balance to colleagues in the Customs Department. He could only remember the names of PUN Tin-kai and CHAN Chin-wing as being purchasers.

6. PUN Tin-kai and CHAN Chin-wing each gave evidence of having purchased an LV bag from the appellant.

7. The appellant was interviewed on the 4th January 1989. The interview with two I.C.A.C. officers commenced at 10:00 a.m. when the appellant was cautioned and then proceeded with questions and answers which were not contemporaneously recorded. Mr Guiney, one of the I.C.A.C. officers, made notes at the end of the interview. At 11:45 a.m. a preamble and caution were recorded and read to the appellant. Questions and answers were then recorded. The parties had lunch from 1:55 p.m. to 2:35 p.m. and the interview concluded at 4:15 p.m.

8. Objection was taken at the trial to the admissibility of both the unrecorded and the recorded statements. After hearing evidence on this issue the Magistrate admitted both statements as having been made voluntary. In his findings however, the Magistrate recorded that he did not exercise his discretion to exclude the unrecorded statement as he felt the defence might wish to use this evidence to attack the weight that he should give to the contents of the recorded statement. As the statement had not been reduced to writing he gave no weight to it as he very properly considered the room for error to be substantial. In respect of the evidence in relation to the recorded statement he was satisfied that the I.C.A.C. officers had given a true and accurate account of what had taken place and he rejected the evidence of the appellant alleging threats duress and promises.

9. Mr Hampton, for the appellant, argues that if the appellant was initially cautioned that caution must have included a statement that what was said would be recorded, that the I.C.A.C. did not do so and accordingly a question must be raised as to the propriety of the second interview. He also raises the liklihood of oppression given the length of the questioning and the nature of some of the questions. There was no evidence as to the content of the first caution and the I.C.A.C. officers were not cross-examined about it. The I.C.A.C. officers were making an initial investigation of the appellant who was not under arrest. There is nothing in the evidence to justify an inference that the appellant was told that the initial enquiry would be recorded. The Magistrate considered whether this initial conversation raised any doubt as to the voluntariness of the recorded statement and-was satisfied it did not. I do not find any reason to disagree with his finding, I do not consider that the initial enquiry in any way taints the admissibility of the written statement.

10. The Magistrate also directed himself to the question of oppression. He was satisfied that the length of the enquiry and the nature of the questions were not oppressive. Again, I can find no grounds to disagree with his finding.

11. I can find no grounds to say that the Magistrate was wrong to admit the recorded statement.

12. The Magistrate is also criticised for having accepted Lam as a credible witness. It is argued that if the appellant's version of the event as contained in the statement is accepted then Lam should have been treated as an accomplice. This was not a matter which was raised before the Magistrate but even if it had been and he had accepted that Lam was an accomplice, the statement of the appellant was ample corroboration of Lam's evidence that the appellant retained the LV bags which he knew belonged to Miss Kwan. It is also argued that the Magistrate did not address himself to the difference between the evidence of Lam and the content of the appellant's statement, to which I have referred to earlier. The Magistrate accepted Lam as a credible witness whose memory had dimmed with the passage of time. He was however satisfied that Lam had recalled correctly that the appellant had left the airport with the wrong bag and that he subsequently told Lam that he would return it to Miss kwan, which was the evidence going to the heart of the charge.

13. It is submitted that the charge makes a specific averment as to the date of the offence, which the prosecution failed to establish. I do not agree. This was not a case where time was of the essence of the offence. The Magistrate accepted that Lam could not remember the date and had made an error when he said it had occurred in April. He was satisfied that Lam and the appellant were talking about the same incident and that it had occurred in September. The appellant gave evidence to this effect but denied any mix up with the bags and of having kept the bag of LV bags belonging to Miss Kwan - a denial which the Magistrate rejected.

14. The Magistrate saw no need to amend the charge as it stated "in or about August 1987". It was quite proper for him to adopt this course.

15. The appellant argues that the evidence did not establish the appellant knew the LV bags belonged to Miss Kwan, such ownership being a specific averment. There is no substance to this ground. The evidence which the Magistrate accepted clearly established that the appellant at Kai Tak Airport was aware that the bags belonged to Miss Kwan.

16. It is a further ground of appeal that the Magistrate did riot consider whether the appellant retained the LV bags dishonestly; that it was a reasonable inference from the statement and the facts that he had been tricked by Miss Kwan and Lam, thereby giving him a legal or moral right to retain the bags in lieu of payment for his services. There were no grounds upon which the appellant could possibly have believed he had a legal or a moral right to the LV bags. Even if he believed he had been tricked into bringing imitation LV bags into Hong Kong he had no legal right to retain them - indeed his duty as a Customs Officer was to report the matter to his superiors. There is no merit in this ground.

17. The final ground is that the arrest of the appellant on a charge of theft by the I.C.A.C. officer was unlawful.

18. Section 10(2) of the Independant Commission Against Corruption Ordinance provides that where during an investigation of a suspected offence under the Prevention of Bribery Ordinance another offence is disclosed an officer may without warrant arrest a person if he reasonably suspects that such person is guilty of that other offence and the offence is one specified in Section 10(5).

19. Section 10(5) includes the offence of theft under Section 9 of the Theft Ordinance. The offence of theft arose during the I.C.A.C. officers investigation of a suspected offence under the Prevention of Bribery Ordinance involving the appellant. His arrest by the I.C.A.C. officers was therefore lawful.

20. I do not consider the conviction to be unsafe or unsatisfactory.

21. The appeal is dismissed.