HKSAR v. MAHAT PREM BAHADUR

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1996, No. 722
(Criminal)

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. The Applicant who is a Nepalise national seeks leave to appeal against his conviction for murder. He was found guilty of this offence after a trial before Wong, J. and a jury.

2. The facts are relatively straight forward. An Urban Services Operative noticed that thick black smoke was emanating from the window of a building at Lan Kwai Fong early in the morning of 9th December 1995. He made a 999 call and shortly after this emergency services arrived. Firemen entered the building and went to the room where the smoke was coming from. One of the firemen saw a bed with a cover on it. When he removed the cover, he saw a body lying face up. He attempted to establish whether there were any signs of life in the body and came to the conclusion that this was not so. In this connection it was evident that the Deceased had sustained serious injuries to his head and that blood had come from his nose and mouth.

3. The Deceased, who it was agreed was the person referred to in the indictment was taken to hospital where he was pronounced to be dead and a post-mortem was conducted upon him by a Doctor Shum. The Doctor was of the opinion that the injuries which had been noted on the Deceased's body had been the cause of his death. Also he did not think that a severe struggle had ensued prior to death.

4. On the same evening a police party attended at the premises where the Applicant resided at Kwun Tong. When they arrived the Applicant was not there. He did however arrive later at the premises. The officer in charge of the search Inspector Stone asked the Applicant where he had been and what he had done over the proceeding 24 hours. The Applicant claimed that after drinking with a friend in Wanchai in the early hours of the morning he had returned home and slept at his residence. Inspector Stone continued with his inquiries and brought the Applicant back to the Upper Levels Police Station. At about 4 p.m. on the following day, that is 10th December 1995, the Applicant having been cautioned told Inspector Stone that he had had a lot of trouble with the Deceased. He then went on to give a series of detailed cautioned statements in which he admitted having attacked the Deceased in his bedroom after he had gone to bed. This statement was made in the presence of an interpreter who was proficient in the Nepalise language.

5. At the trial a somewhat unusual course was adopted concerning the cautioned statements. Mr. Haynes who represented the Applicant invited the Judge to rule the statements inadmissible because of "manifest non compliance" with the Secretary for Security rules. No voire dire was conducted.

6. However Wong, J. after hearing submissions admitted the statements as evidence.

7. At a very late stage in the trial Mr. Haynes invited the Judge to reconsider his ruling. This invitation was extended as a result of late instructions which he had received. The Applicant was making an allegation that he had been told that if he didn't make a statement he would be held in Hong Kong until after 1997 and that he would then be shot.

8. At the previous hearing we adjourned the proceedings so that a full transcript could be obtained. To summarise the evidence Inspector Stone denied that any inducement had ever been offered to the Applicant. The interpreter however gave evidence which was equivocal. He conceded that he had told the Applicant that he should co-operate with the police. He insisted though that he had only said this as part of the interpretation and that he had not said the words of his own volition.

9. Even at this stage there was no voire dire as it would appear that there was never any formalisation as to how matters should proceed.

10. After hearing the evidence of Inspector Stone and the interpreter who had been recalled the Judge declined to rule the statement inadmissible. In his ruling which was at p.435 of the bundle the Judge said:

"I have considered the arguments advanced by counsel in the light of further evidence from the Nepali interpreter, Mr Sun, and Senior Inspector STONE.

Now, having considered that evidence and the evidence given by these two witnesses previously I am satisfied that there was no inducement held out by the inspector, and the record of interview of this accused will be placed before the jury for their consideration. Further, I will not consider it a matter of exercising my discretion to exclude these documents."

11. This ruling was not satisfactory. The Judge merely stated that he accepted that Inspector Stone had not offered any inducement to the Applicant. He did not make any finding of fact as to the inducement which the interpreter admitted he had offered. This was a much more important matter than what Inspector Stone may or may not have said.

12. Although it is not normally incumbent upon a Judge to give reasons for a ruling he makes concerning the admissibility of cautioned statements when he does so it is necessary for this court to weigh and consider what is said. There is nothing in the reasons which were given by the Judge to suggest that he was satisfied that the interpreter had not said that it would be in the Applicant's interest to co-operate with the police. There was also nothing in the reasons to indicate whether the Judge was of the view that the words admittedly said by the interpreter would amount to a sufficient inducement to render the statement inadmissible. These are all matters which remain unresolved.

13. The Applicant gave evidence at the trial. He gave a detailed account of the relationship which existed between himself and the Deceased and how he had been taunted and misused. He believed that the Deceased had to a large extent been the author of the various misfortune he the Applicant had suffered.

14. So far as the incident in question was concerned he described how he had consumed a considerable quantity of alcohol and how the verbal exchanges between himself and the Deceased had escalated into violence. He gave evidence that the Deceased had attempted to assault him with a rod. He said that there had been a struggle and at its conclusion he had panicked and left the scene and returned home.

15. Wong, J. gave detailed directions on self-defence and provocation.

16. So far as the evidence as a whole is concerned it should be observed that there were significant discrepancies between the contents of the cautioned statements and the evidence the Applicant gave in the witness box.

17. There are 6 perfected Grounds of Appeal. The first five all substantially relate to the admission of the cautioned statements.

18. It will be appreciated from all of this that the question of the admission of the cautioned statements was critical to the outcome of this trial.

19. The reason for this is that the jury would have been greatly influenced by the conflicts between the contents of the statements and the Applicant's evidence at the trial. This would have had a crucial impact upon his claim to have been acting in self-defence or alternatively the question as to whether he had been provoked. There can be no doubt that a voire dire should have been conducted once the allegations had been made concerning the inducements. Also the Judge should have considered the question as to whether the alleged inducement had weighed in the mind of the Applicant when he made his cautioned statement.

20. Before leaving this application there is a further matter which requires some comment although the issue was not ventilated in the appeal. This relates to Ground 1 of the perfected Grounds of Appeal. This reads as follows:

"1. The trial Judge was wrong to reject the initial submission by defence counsel that the caution statements (P.39 & P. 40) shall not be admitted. The breaches of Direction 6 of the Rules and Directions ... for the Taking of Statements were evident from the statements themselves. The prosecution failed to call any evidence and there was nothing before the Court to correct the appearance of unfairness. The breaches were serious and unexplained; the Crown called no evidence to explain and/or to mitigate the breaches. The submission was unanswered and should have been allowed."

21. Although we have not had the advantage of submissions from counsel in this regard it seems to us that, as the statement was written in a language which the Applicant was not conversant with, the written statement should never have been admitted as evidence as the maker of the statement did not himself know what was said in it. He could not sign the document and make it his own. He could only place reliance upon what he had been told by the interpreter. That of itself would appear to be a sufficient ground to exclude the written statement as evidence regardless of the matters prayed in aid in this Ground of Appeal.

22. Be that as it may we are satisfied that the appeal must succeed for the reasons given earlier in this judgment.

23. In all the circumstances we cannot be satisfied that this conviction was safe and satisfactory.

24. We treat the application as the appeal. We allow the appeal and quash conviction.