HKSAR v. CHAN WING KIT

HCMA951/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.951 OF 2000

(ON APPEAL FROM TWCC 1549 OF 2000)

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J U D G M E N T

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1. The appellant was charged with one count of attempted theft and one count of theft, contrary to section 9 of the Theft Ordinance, Cap.210. He pleaded not guilty to the charges. The appellant was convicted after trial. He sought to appeal against the convictions.

2. The prosecution case was basically that in the early hours of 17 April 2000, the appellant had stolen a pair of woman's underpants which was hung outside the home of Madam Cheng Yin at G/F, 66 Lo Wai Tsuen, Tsuen Wan. He then drove to a car park at Yeung Uk Tsuen. He parked his car there and walked to No.15 Yeung Uk Tsuen, where he attempted to steal the underpants at PW1's home.

3. In short, PW1's testimony was that he was returning home at about 2:30 a.m. on the material day. He saw the appellant in the act of stretching his left arm towards a clothe rack outside his home. There were underwears hanging on the rack. PW1 then questioned the appellant who tried to explain that he was looking for a toilet. PW1 did not accept this and called the police. Later PW2, PC58050, came to the scene and arrested the appellant for the offence of attempted theft. Under caution, the appellant had allegedly said that "Just now I intended to steal but (I) did not steal". The officer had made a post-recorded entry of this admission in his notebook.

4. At the police station, WDPC18209, i.e. PW3, had interviewed the appellant. According to the record, the appellant gave the following account under caution :

"... (I) left and went to get back my car and then drove back to Tung Chung. On the way, there was a forked road leading into Yeung Uk Village. I also wanted to go in there to see if there was anything else I liked, such as the female underpants. I then drove my car to the car park of Yeung Uk Village. (I) parked my car and walked up and saw upper and lower garments hung outside (a) house. I stretched my hand to touch (them). At that time, someone, that man shouted at me. After I made an explanation, that man made a report to the police."

5. In relation to the theft charge, PW2 said that after arresting the appellant at the scene, he had searched the appellant's car and found the pair of woman's underpants under the carpet at the front passenger seat. He cautioned the appellant under which further admissions were made. Apparently, the prosecution case turned very much on the admissibility and reliability of the alleged admissions made by the appellant.

6. At the trial, the defence had raised objections to the admissibility of the verbal admission, the post-recorded statement, and the record of interview. The complaints were, inter alia, that the appellant was not properly cautioned by the police officer concerned, and there was pressure exerted by the police on the appellant to reveal the source of the underpants found in his car. Further, it was said that the appellant was tired and frightened in the police station and his will was sapped. It was under such circumstances that he had signed the post-recorded statement.

7. Regarding the appellant's evidence, the learned magistrate had made the following comments and evaluation as revealed in his Statement of Findings :

"(The defendant) was, at that time, a man of good character and I gave myself the necessary directions. I found him to be an articulate and intelligent man. He gave his evidence calmly and chose his words carefully. He was not shy to point out at one stage that a conversation between counsel and the bench was not translated to him; nor to query the translation of the interpreter. He also struck me as a cautious and meticulous man. When he was given a photocopy of what is now P3 and asked to compare it with the original to confirm their contents were the same, his answer was - yes, but the original has court translator's stamp, a PP3 label and the letters M.C.P above the court translator's stamp.

It is difficult to see how an adult man, not to mention a man with D's education, professional background and attributes, could immediately become scared on hearing foul language. I noted his allegations that PW4 had threatened him with violence, and that some of the answers in P3 were made up by PW3. These allegations were never raised until he was being cross-examined. I found him to be a person quite capable of making up stories as he went along. Granted that PW2 found him looking scared, embarrassed, and frightened when P1 was found, I found his story of being in a state of collapse too melodramatic. I did not believe his evidence and had no hesitation in rejecting them.

I was satisfied beyond reasonable doubt that the events were as described by the police officers. I took the view that PW2 could not be criticised for questioning D prior to caution when he arrived at Yeung Uk Tsuen. It was only proper that he began by investigating the matter. I saw nothing wrong in PW2's way of questioning D.

As regard the criticism that PW2 did not immediately caution D, when P1 was found. I took the view that the two offences should be looked at and dealt with by PW2 separately. I found PW2 was entitled to make the preliminary enquiry in the way he did before cautioning D."

8. The learned magistrate found that the post-recorded statement and the record of interview were made voluntarily and therefore he ruled them admissible. At the end, the learned magistrate considered that the charges had been proved by the prosecution beyond a reasonable doubt. The grounds of appeal related mainly to the magistrate's ruling that such admissions were made voluntarily. The respondent very fairly conceded that without the admissions, there would not be sufficient evidence to support the convictions.

9. The transcript revealed a very detailed cross-examination by defence counsel on the prosecution witnesses, particularly concerning the special issue. I noted that the learned magistrate had succinctly summarized PW2's evidence in the following manner :

"PW2 was cross-examined at length. I do not propose to go through all that he said. He agreed that his questions and D's answers which took place prior to caution, and which were mentioned by him in his evidence in chief, were not recorded in P2. As such, he agreed the notebook was only a partly accurate record in the sense that it was not a complete record of what was said. He further agreed that he should have cautioned D before questioning him about P1, that he continued to make enquiries when D remained silent, and that he did not handle the situation very well because of inexperience. He agreed that D's demeanour at that time looked scared, embarrassed and frightened, and that he had pressed D to take him to the location where D picked up P1. The rest of D's case was put to him, but he did not accept any of them." (Emphasis added)

10. PW2 was the main witness in the case. His testimony as to the circumstances of how the admissions had been made caused me much concern. He agreed that he should have cautioned the appellant before questioning him about the underpants found in the car. He admitted that he had not handled the situation very well because of lack of experience. He accepted that at the time the appellant looked scared, embarrassed and frightened. This was in fact consistent with the appellant's account, which was summarized by the learned magistrate as follows:

"On their way to the car park, PW4 spoke to him in an uncouth manner, and he felt scared and embarrassed. After P1 was found, PW4 twice asked him where did he steal P1, but he did not answer. PW4 then asked him a third time adding that the matter would become worse if news reporters arrive. At that stage, he described himself as having collapsed, and likened himself to a piece of meat on a chopping block. He then agreed to cooperate even though he was unwilling. He said he was never cautioned and formally arrested."

11. The transcript further confirmed that when the officer first asked the appellant questions about the underpants found in the car, the appellant had remained silent, but the officer nevertheless pressed on to question him without first reminding him as to his right of silence (see page 40). Although the issue of voluntariness was really a matter for the trial magistrate, he should have considered whether the failure to deliver a caution at the appropriate time had affected the voluntary nature of the alleged admissions, particularly in view of the undisputed condition of the appellant. I was not completely satisfied that the learned magistrate had given sufficient assessment of this aspect of the evidence.

12. Furthermore, in considering the appellant's evidence, I take the view that the learned magistrate had apparently placed too much emphasis on his conduct and demeanour in the witness box. The appellant might be calm and meticulous in the witness box, but I doubt whether projections could be readily made on such basis as to his mental state at the material time. The situation could be quite different when the appellant was at the scene faced with the accusation. I do not for one moment suggest that the trial magistrate was not entitled to observe the demeanour of a witness in the witness box and draw proper inferences and conclusions as to his credibility and veracity. But the difference in time and space should have been recognized and considered.

13. Despite the very persuasive submissions made by counsel for the respondent, in view of the inherent problems in PW2's evidence as to how he had conducted the questioning, and the learned magistrate's approach in rejecting the appellant's evidence, there must be a doubt as to the voluntariness of the admissions and in any case, I found the convictions to be unsafe.

14. In the premises, I found that I must allow the appeal and dismiss both charges.