THE QUEEN v. WONG CHI KIN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1345 OF 1990

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BETWEEN

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JUDGMENT

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1. The appellant was convicted by Mr Venning at Fanling Magistrates Court of:

2. On 4th June the appellant was followed by two police officers into a staircase and, when he was seen to swallow what the officers suspected was heroin, he was approached and, after a struggle, arrested by the officers.

3. Next day he was taken to his home by different officers from the same squad and his room was searched in the presence of his mother.  Three syringes were found in a wardrobe drawer.  Under examination the appellant said they belonged to him and had nothing to do with his mother.

4. The appellant gave evidence and said that on 4th June he was acting in self-defence.  He said that the syringes were not his and were not found in his room but in the sitting room, which was shared by other tenants.

5. The magistrate believed the police officers and disbelieved the appellant.  It was a straightforward issue of credibility.

6. Unfortunately, although the appellant was represented by a solicitor, neither he nor the magistrate realised that the issue of admissibility of the appellant's cautioned statement had been raised by the evidence.

7. It was suggested to the officer who found the syringes that he told the appellant that, if he did not admit possession of the articles, his mother would be arrested.  In his evidence he said : "...  they said mother would be arrested.  What they meant was that if I didn't confess they would arrest her.". The appellant was saying in effect that his confession was induced by an implied threat.

8. It would have been appropriate for the magistrate to have heard the appellant's evidence on his issue alone before the close of the Crown case.  It is understandable, in the absence of objection by his counsel, that he did not do so, but nevertheless the failure to deal with the admissibility of the confession may have affected the result of the case.

9. Although the appellant was caught by the presumption, his explanation was coloured adversely by the confession.  The credibility of the other members of the squad in their evidence as to 4th June may also have been affected.

10. For these reasons 1 allowed the appeal and quashed the convictions.   Counsel for the Crown did not seek a retrial.