HKSAR v. CHOI KWAN CHEUK

HCMA 960/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 960 OF 1998

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J U D G M E N T

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1. This is an appeal against the conviction of the appellant after trial in the South Kowloon Magistrates Court of two offences of making a false statement contrary to Section 71 of the Crimes Ordinance.

2. At his trial it was alleged that what the appellant had done was to supply confidential information, concerning a business client of his, to a friend, which friend was in the insurance business; and that he had done so knowing that that friend was going to use that information to falsely complete an insurance proposal form and a related bank direct debit form with a view to boosting or exaggerating his sale/commission record and thus secure his employment.

3. It was conceded before me by Mr Wong, Counsel for the Respondent, that the only evidence before the Magistrate specifically of those alleged offences against the appellant (as opposed to peripheral matters) were his admissions in interview with a police officer following his attendance (at the police request) at the police station.

4. It was argued in the court below that such evidence was not admissable because the prosecution had failed to prove beyond a reasonable doubt that it was voluntary. A Voir Dire was held to determine the matter. At the close of the prosecution case in regards to that issue the Defence made a 'no case submission' which the learned Magistrate did not uphold. There upon the appellant gave evidence concerning the special issue and, following further submissions by Counsel, the learned Magistrate ruled the evidence to be voluntary and thus admissable; and she admitted it into evidence.

5. The issue concerning the question of voluntariness both before me and before the learned Magistrate can be simply stated. Had the prosecution proved beyond a reasonable doubt that what the interviewing officer had admittedly said to the appellant prior to the interview, was not capable of amounting to an inducement and, if not, had the prosecution then gone on to prove beyond a reasonable doubt that the appellant was unaffected by such possible inducement in his decision to answer questions which were then put to him.

6. It was apparently not in dispute that the police wished to interview the appellant concerning the matters with which he was subsequently charged and that he was asked to attend the police station for that purpose. Nor was it in dispute that when the appellant (who is a man of prior good character and who presumably had not had dealings with the police previously) put forward an excuse for not attending the police station he was told that if he did not attend, then the police would collect him and take him there. Accordingly he made his own way to the police station. When he got there, he appeared to the police officer who subsequently interviewed him to be in an extremely nervous state, in consequence of which the police officer said to him words to the effect "Don't be so nervous. This is not a big matter." The evidence of the police officer before the learned Magistrate was that he having said this to the appellant the appellant then relaxed or became more at ease. Thereafter the police officer gave to the appellant a card setting out his rights which the appellant read and acknowledged and, following a caution in the usual terms the interview proceeded.

7. In her most meticulous Statement of Findings, the learned Magistrate dealt fully with her reasons for her ruling on the special issue. She said, inter alia, in paragraph 18 of those reasons as follows:-

"I accepted that he [the police officer] intended to calm the Defendant down. I did not view this to be an inducement and I saw no impropriety in his having done so. I did not view this to be an inducement. I believed him and accepted his evidence in full ......."

8. In paragraph 19 of her Statement of Findings, the learned Magistrate said inter alia as follows:-

"Whilst I considered the evidence [of the Defendant] on the special issue .... I found [it] lacked inherent credibility. I found him to be evasive when answering questions. Counsel for [the Defendant] in his closing submissions submitted that the court might have formed the impression that [the Defendant] was not a very intelligent person. That there were times in his evidence in chief and cross-examination when he was unable to deal with simple direct questions. I am satisfied that his evidence that he was scared ...... was an attempt by him to resile from the unpalatable truth that the statement was given as related by [the police officer]."

9. On behalf of the appellant, Mr Yu of Counsel has principally argued before me two perfected grounds of appeal as follows:-

1. the learned Magistrate erred in law in admitting the record of interview when she relied on the intention of the police officer in deciding the issue of voluntariness whereas she should have considered the possible effect on the Appellant and

2. further and/or in the alternative, the learned Magistrate failed to address her mind completely as to what effect there was on the appellant as a result of what the police officer had admittedly said to him prior to the interview.

10. In support of his argument before me, Mr Yu referred me to (inter alia) the case of R v LI Shing-bun and LAW Yan-tong [1984] Criminal Appeal No. 495 and that of R v CHAN Yip Kan [1986] HKC 35.

11. In the former case, in which an Immigration Officer had said to one of the defendants prior to interview "best to reveal all and tell the truth and to do so quickly" the Court of Appeal said that that whilst that amounted to improper behaviour that was not the issue. The issue was whether or not what was admittedly said amounted to an inducement such as to render the statement in voluntary. The Court of Appeal added that in its view what was said was certainly capable of amounting to such and that accordingly the judge at first instance was obliged to consider whether it did in fact do so.

12. In CHAN's case (at page 37 of the judgment) the Court of Appeal said (inter alia) the following:-

"There is no doubt but that the burden was on the [prosecution] to establish the voluntariness of the statement. In the present case the significance of this is that it was for the [prosecution] to establish that the statement was not induced by the conduct of the inspector and not for the applicant to establish that it was so induced."

13. As regards this matter - as it affects the appeal before me - it is fundamental to note that albeit in his evidence, the police officer was of the opinion that what he had said to the appellant did not amount to an inducement (although quite obviously he could not be properly asked if it was capable of amounting to such in the mind of the appellant) the appellant himself in the course of giving his evidence was not asked either by his own counsel in chief or (perhaps more importantly) by counsel for the prosecution in cross-examination what effect the words used by the police officer had had upon him. Nor was he asked - assuming for one moment that the words did have an inducing affect upon him - whether that affect was in any way assuaged by the subsequent caution delivered to him or by his reading of the card setting out his rights.

14. The learned Magistrate in her Statement of Findings makes it perfectly clear that she did not find that the police officer's words amounted to an inducement and for that reason (and because this must logically follow) she did not consider what effect those words had upon the appellant. Was the learned Magistrate entitled to find as a fact that the words complained of did not in fact amount to an inducement (let alone that they were not capable of amounting to such) in the absence of any evidence, other than the opinion evidence of the police officer concerned? The answer to that, or so it seems to me, must be no, given the burden of proof upon the prosecution. Was the appellant's decision to answer police questions affected by his being told that in effect the matter about which he was to be questioned was not a serious matter or (by implication) he should not worry about answering the police questions? I don't know, because at his trial the appellant wasn't asked about these matters. Only the appellant himself knows the answer to that question. The learned Magistrate in her Statement of Findings appears to be saying in paragraph 18 that because she found there was no impropriety on the police officer's part then it must follow, as night follows day, that there could be no inducement. With the greatest respect, if that is what she is saying it cannot - at least in my view - be right.

15. It follows from all that I said that in my view there is substance in the grounds of appeal argues before me. On the evidence before the learned Magistrate, she was not entitled to conclude that the words of the police officer did not amount to an inducement in the mind of the appellant. Those words were capable of amounting to an inducement and there was simply no evidence (apart from opinion evidence from the police officer concerned) as to their affect upon the appellant beyond a calming affect. For these reasons I allow this appeal and set aside the appellant's conviction and sentence.

16. Having been addressed by Counsel on the matter of costs, I make no order in respect of the proceedings in the Magistracy but I order that the appellant's costs in respect of this appeal be paid by the Respondent such costs to be taxed if not agreed.