THE QUEEN v. YEUNG KWAN MING AND OTHERS

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO.446 OF 1993

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J U D G M E N T

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1. The appellants were convicted before a magistrate of conspiracy to steal and each sentenced to a term of imprisonment for 12 months. They now appeal against these convictions. A fourth man who was D1 at the trial was acquitted of the offence after the voir dire when the magistrate ruled that his cautioned statements were inadmissible, being tainted by inducement.

2. The charge was that the appellants and Dl, on various dates from April 1990 to October 1992, conspired to steal electrical appliances from luggage belonging to unknown persons at the Hong Kong International Airport. The appellants were employees of Cathay Pacific Airway at the airport and their work was to check and collect luggage of passengers to be placed on board aircrafts to be transported to destinations to which the passengers travelled or requested. The modus operandi used to commit the offence was that the appellants removed the original destination tags on the luggage and replaced them with destination tags to Thailand. On the same day, someone would travel to Thailand to collect the luggage and disposed them there and then.

3. The only evidence against the appellants is their cautioned statements, the admissibility of which was vigorously contested before the magistrate at the trial. The sole ground of appeal before this court is that the convictions are unsafe and unsatisfactory having regard to all the circumstances of the case.

4. The 1st appellant (D2) and the 2nd appellant (D3) were arrested shortly after 9 o’clock in the morning of 9 October 1992 outside the Cathay Pacific Building near the airport. The 3rd Appellant (D4) was arrested at his home that same evening. They were taken back to Airport Police Station where they were interviewed by different police officers at different times. The result of the interviews was that a number of statements were taken from them. If these statements are voluntary and therefore admissible they would amount to full confessions sufficient to sustain the convictions. This has not been contended to the contrary. What was contended on behalf of the appellants is that the statements are not voluntary and should never have been admitted. The grounds of objection to the admission of the statements were that they were obtained as a result of threats, assault and inducement.

5. The appellants were released on bail in the afternoon of the next day on 10 October after they had been interviewed and detained overnight. The evidence of the 1st and 2nd appellants was to the effect that shortly after their release on bail they telephoned each other and D1 to find out if the others had been assaulted by the police and suffered injuries. The three later went together to Kwong Wah Hospital to seek medical treatment. The 3rd appellant went to the same hospital on his own, being conveyed there by an ambulance summoned by the police. This appellant had not contacted the other co-defendants between the time of his release and the time he showed up at the hospital. His evidence does not seem to support an inference that the appellants and D1 had concocted the story of police assault and the injuries. In this regard, the medical report on D1 is also relevant. It reads :

“On examination, my medical findings are :-

Claimed assaulted by some the day before day of visit. Ways of injury included punching and kicking by knees on the back and abdomen.

Examination showed :

(1) 1½ cm abrasion on left wrist

(2) 1 x 2 cm and 1 x 1 cm red purple bruise over the back.

The injury was compatible with claim. Chest X-ray was normal.”

The sentence : “The injury was compatible with claim” is significant. Although it was not specified in the report what the claim was it must be clear in the context that it referred to the assault that D1 said to have been carried out by the police.

6. This report as well as the medical reports on the appellants were not disputed by the prosecution and as a matter of fact they were admitted by agreement under section 65B of the Criminal Procedure Ordinance. No attempt was made to call the makers of these documents for cross-examination to elucidate matters such as the age of the injuries and whether they were consistent with having been caused in the manner alleged by the defendants. The magistrate was, however, readily prepared to rely on the evidence of the 1st and 2nd appellants and D1 to infer that the conversation between them was the spectre of a confederation to avoid consequences of the admissions. In my judgment, he was not entitled to this conclusion because the evidence is equally capable of an innocent construction.

7. If the magistrate had approached the issue and evaluated the medical evidence properly, he should have a reasonable doubt in his mind. In the circumstances, the convictions cannot be regarded as safe and satisfactory.

8. This being the case, it is sufficient for me to allow the appeal by all three appellants, quash their convictions and set aside the sentences. I so order.