THE QUEEN v. KWOK CHEUNG KA

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL No.100 of 1996

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J U D G M E N T

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1. The appellant appeals his conviction on 12th December 1995 being a person employing a person not lawfully employable, contrary to s.17I(1) of the Immigration Ordinance.

2. The facts alleged by the Crown are that on 23rd August 1995 at a stall in Upper Wong Tai Sin Estate, a party of police officers entered the stall selling food whether they saw a man serving food to a customer. The man was approached by one of the police party and admitted to that officer that he was an illegal immigrant. A second police officer approached the appellant and asked the appellant if the man who had been found to be an illegal immigrant was his worker, the appellant was said to have answered "Yes" and the officer went on to ask "Do you know this man illegally immigrated to Hong Kong?", the appellant was said to have said "Yes, I know he illegally immigrated to Hong Kong".

3. The first ground of appeal urged by Mr Chan is that at this point the police officer had evidence which would afford reasonable grounds for suspecting that the appellant had committed an offence, and that at that point he should have cautioned the appellant or caused him to be cautioned before putting to him any questions or further questions relating to that offence.

4. The first point that must be made is that the rules and directions for the questioning of suspects and the taking of statements set out by the Secretary for Security in October 1992 have taken the place of the Judges Rules and have no greater effect than those rules. They are not rules of law but are rules which should be considered by a judicial officer when deciding whether or not a confession or admission is admissible in evidence.

5. The thrust of Mr Chan's argument is that subsequent evidence before the learned Magistrate indicated that the appellant did not adopt the statements that he was alleged to have made at the time of his arrest and prior to it when asked to sign a post record 30 minutes later in the police station. It was common ground that that statement was resiled from by the appellant.

6. Mr Chan argues that the learned Magistrate nowhere in his findings, either those he gave orally at the determination of this matter nor in his Reasons given on the appeal, has directed his mind to whether or not the statement was voluntary. He concedes that the appellant was represented by counsel at the trial but argues that the Magistrate should, when considering the admissibility of the admission, at least direct his mind to the issue of admissibility by way of a question on non-voluntariness and should make a finding concerning that matter. There is no finding other than a single word in the findings of the learned Magistrate that he found the evidence to be admissible.

7. The second matter of substance that Mr Chan refers to is the evidence of the third defence witness. That witness gave evidence that he was present in the stall at the time of the arrival of the police and that he was working there. He further testified that it was he who served the illegal immigrant and that the illegal immigrant was not an employee of the appellant. The learned Magistrate in his Findings at p.48 said this in respect to the evidence of the third defence witness :

"I am satisfied beyond all reasonable doubt that DW3 was not present at the incident on 23rd August, and that he has given the false evidence he has in an effort to assist his employer."

Mr Chan further points to the reasons given by learned Magistrate at p.54 when in referring to the evidence given by the appellant, he says :

"I found that he was dishonest, devious, and untruthful. I did not believe his account of the events. I did not believe that he employed DW3."

Given that the prosecution must prove the guilt of the appellant beyond reasonable doubt, and given that the learned Magistrate should look to the evidence of defence witnesses to see whether there are doubts in respect of the prosecution case, Mr Chan argues that by finding on the one hand that the third defence witness was not to be believed because he favoured his employer, but on the other hand finding that he was not employed by the appellant was a contradiction which indicated that he had not properly considered or assessed the evidence of the third defence witness and had not rejected it on proper grounds.

8. Taking the two arguments together, I am satisfied that there must be a doubt in respect of the safety of this conviction and the appeal against conviction is allowed.