R. v. TSE KOON KIT

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 926 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 by Mr Kwok sitting at South Kowloon Magistracy. The appellant was charged with being in possession of offensive weapon.

2. The facts were very brief. Police officers had noticed a car in the early hours of the morning and the appellant was apparently in the driving seat and there were a number of other people who ran away. The police officers searched the car and found two knifes, a machete and a sabre, and also some apparatus that was obviously being used or was about to be used for taking "ice".

3. Police officers who gave evidence did not notice anything wrong about him. They said he did not smell of anything. He obviously looked pale, but when the police officers came up to him, he could stand straight and there was nothing wrong at all with him. That was 6:15 in the morning. He was then taken back to the police station and had a post-recording of what he earlier admitted. At 8:55 am, nearly three hours later, a statement was taken. It was a very long statement, it must have taken some time, and in it the defendant admitted that he had purchased the two knives and that he knew that they were in the boot of the car and he said he had purchased them for self-defence.

4. They were clearly offensive weapons, they were found in a public place, he made a full confession in that statement. He should have been thereafter charged immediately with the offence. What happened unusually was that he was sent off to hospital and it was found by the doctor in the hospital that he was drowsy, his pupils constricted and alcoholic smell was noted.

5. It must be remembered that that was a number of hours after he was found. Now I take judicial knowledge that defendants are not provided with alcohol in police stations and therefore the alcohol must have been consumed before he got to the police station. But it was of sufficient quantity that Dr Wong Po-po, the medical officer, said that he was confused and not coordinate.

6. In my judgment, there was clear evidence therefore that he was under the influence of drink and the magistrate very properly excluded that confession statement.

7. He came back late that night to the police station and for some unknown reason, another officer, a CID officer, started to ask him questions. He should have been charged straight-away on his return to the police station, but he was not. The CID officer, who was perfectly entitled to, wanted to ask him some questions, it may be about general crime, but what he did, having the original statement in his hand which had been improperly obtained, was to ask him questions "in clarification". These were not in clarification, they were a repetition and the court should ask itself the purpose of the police officer asking those questions.

8. The magistrate below gave very careful consideration to the matter and set out his conclusions in a clear manner. In my judgment, he was right to exclude the first statement - I would have excluded it on a different ground. I would have excluded it on the ground that the police officers clearly were not telling the truth when they said that this man was not under the influence of drink. The officers, on the evidence, were clearly lying. The magistrate does not appear to have had that in his mind. The medical evidence clearly disproves their evidence particularly, as I am also entitled to take judicial knowledge, of the fact that alcohol has a lessening effect on a person after a period of hours. If he was in an uncoordinated state when seen by a medical officer some hours later, he must have been in a worse state earlier on. I would have excluded the statement on the basis that it was improperly obtained, not necessarily under the residual discretion that it was unfair.

9. As my view is different from the magistrate that the statement was improperly obtained, it follows that the second statement which the CID officer had in his hand was similarly tainted because it was from that earlier statement he sought to ask these questions. In my judgment, the magistrate should have excluded the second statement. The appeal therefore against conviction is allowed.