HKSAR v. LAM KOON YIN

HCMA239/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 239 OF 1998

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J U D G M E N T

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1. The Appellant was convicted of the offence of claiming to be a member of a triad society by Mr David Lok sitting at Eastern Magistracy on 16th April 1998 and was sentenced to six months' imprisonment.

2. The particulars of the charge are that on 3rd June 1997, at the Mandarin Palace Night Club in Marsh Road, Wanchai, the Appellant had claimed to be a member of a triad society, namely, the Sun Yee On Triad Society. The evidence adduced by the prosecution in support of the charge comprised two cautioned statements made by the Appellant and the evidence of an undercover police officer who gave evidence that he witnessed the incident and heard the Appellant make the claim that he is charged with. The Appellant now appeals against his conviction.

3. Mr Grounds, who appears for the Appellant, has firstly attacked the correctness of the learned Magistrate's ruling that the statements were voluntary and therefore admissible in law. If I can summarize without actually repeating Mr Grounds' grounds of appeal in relation to the cautioned statements, and if I can summarize his submission, the thrust of his submission is really that in coming to the conclusion that the learned Magistrate did, he took into account matters which in law he was not entitled to take into account.

4. It is true that in his Statement of Findings, he started off in relation to the ruling on the admissibility of the statements by saying that he found the four prosecution witnesses who gave evidence on the voire dire to be honest and truthful witnesses. He then said that he accepted that the two cautioned statements had been taken in the manner described by the prosecution witnesses and that the same were given by the Appellant voluntarily. He then said that indeed the contents and the tenor of the two cautioned statements also supported that. Mr Grounds submits, and I accept it to be correct in law, that in deciding a question of admissibility, the learned Magistrate was not entitled to consider the contents of a cautioned statement. He relies on the well known Privy Council case of R. v. Wong Kam Ming [1979] 2 WLR 81 for the proposition that on a voire dire the accused person cannot be asked in cross-examination questions which would tend to establish the truth of the statement.

5. In Criminal Appeal 319/1992 R. v. Lee Chuen On, the Court of Appeal said that they thought it was a correct submission by counsel for that appellant that the judge in deciding the admissibility of a statement was not entitled to rely upon a passage in the statement which was to the effect that the defendant had been asked if he wanted his lawyer to be present, and had declined the invitation. The Court of Appeal was of the opinion that that statement could only be of evidential value when the question of voluntariness and admissibility had been determined.

6. The learned Magistrate in the instant case also took into account the fact that the answers and the narratives, in the cautioned statements had been written by the Appellant himself. That fact ipso facto cannot assist the tribunal on the question of voluntariness. Then it is submitted that the learned Magistrate also took into account the fact that the answers in the first cautioned statement were exculpatory, and that it was only in the beginning of the second statement that an admission was made.

7. That, in my judgment, breaches the rule in R. v. Wong Kam Ming because without any considerations as regards the truthfulness of those statements, the Magistrate was in no position to say whether they were exculpatory or inculpatory. Therefore, the submission is that because the learned Magistrate took into account matters which he should not have taken into account, one is not sure of the basis upon which the Magistrate found the statements to have been voluntarily given. It is also submitted that the learned Magistrate failed to consider exercising his residual discretion to exclude the said cautioned statements because of certain breaches of the rules for the questioning of suspects.

8. Mr Hui, appearing for the prosecution, had not sought to support the learned Magistrate's ruling on the admissibility of the statements. It is mainly for the reason that the learned Magistrate took into account the contents of the statements that, in my judgment, I cannot be certain that the Magistrate's finding of voluntariness was based solely upon the evidence and the demeanour of the prosecution witnesses and the defence witnesses who gave evidence on voire dire.

9. Disregarding the two cautioned statements, there still remains, against the Appellant, the evidence of the undercover police officer. In relation to his evidence, the learned Magistrate said that having carefully considered the evidence, he found him to be an honest, truthful and reliable witness.

10. That officer's evidence was that on the day in question, at about 2 am, he was inside one of the rooms at the Night Club when he was told about the dispute outside in the corridor. In the corridor he saw the Appellant quarrelling with four to five persons who claimed themselves to be members of the Wo Hop To Triad Society. During the quarrel the Appellant used foul language and claimed that he was from "Sun Yee On" and that the Club also belonged to "Sun Yee On". After the quarrel the persons from the "Wo Hop To" group went down to the ground floor of the Club and all the other persons followed them. After arriving at the ground floor, three other persons joined the "Wo Hop To" group. The Appellant then went towards the group and shook hands with one of the persons from the group after which the Appellant asked the others to go back to the Club to resume their drinking activities.

11. Mr Grounds has attacked the reliability of the undercover police officer's evidence, particularly, his identification of the Appellant as the person who spoke those words claiming himself to be a member of the "Sun Yee On". Mr Grounds has submitted that the Magistrate's finding that during the time in the corridor sometimes the undercover police officer walked to the front of the Appellant was erroneous and was not supported by the evidence that the officer gave.

12. The evidence on that aspect is certainly unclear. However, it has to be remembered that the officer's evidence is that apart from the people from the "Wo Hop To" group, the only person from the opposing group who spoke or said anything in the corridor was the Appellant. Whether during the time at the corridor the police officer only stood behind the Appellant and therefore could not see his face, insofar as the prosecution is concerned, it is assisted by the fact that after the encounter in the corridor, the whole group went downstairs. On the ground floor the Appellant came forward and shook the hand of one of the persons of the opposing party. And during that time the undercover police officer could or would have seen the face and the appearance of the Appellant.

13. Even though that was the first time the undercover officer was seeing the Appellant, it was not the last time. His evidence is that after that meeting he saw the Appellant many times in the Mandarin Palace Night Club. He had always known him by the nickname "Man Lung". He was a trained police officer who was planted in the midst of these people to try and collect evidence on Triad Society activities. He would have taken extra care to observe events and try and remember them after which, at the end of each evening, he would make an entry in his dairy about possibly incriminating activities that he had witnessed that day.

14. Mr Grounds' submission that a police officer's powers of identification are only as good as any civilian is correct insofar as it goes. However this officer would have paid special attention to what was going on around him as opposed to a civilian who would not think that after a particular event he might be expected to give evidence about what the event was about.

15. I find that Mr Grounds' criticism that the identification of the Appellant seems to have been based upon his alleged nickname, to be unfounded. I have said on many an occasion and which has been echoed by other appeal judges and indeed by the Court of Appeal that it is only in rare circumstances that an appeals tribunal would interfere and reverse a finding of fact by a trial court.

16. A trial court has the advantage of hearing and seeing witnesses give evidence and observe the demeanour which an appeals tribunal is deprived of. In the rare circumstances when an appeals tribunal reverses a Finding of Fact by a Court of First Instance, it is only when there are other circumstances surrounding the conviction which render that conviction unsafe or which leave the appeals court with a lurking doubt on the correctness of the conviction.

17. This was always an uphill appeal to try and argue successfully. And it is commendable that Counsel has, through his industry and eloquence presented some very arguable and sensible grounds of appeal. But for the reasons which I have given, the appeal is dismissed.