Case Detail

HCMA000345/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MAGISTRACY APPEAL NO. 345 OF 1997

____________

BETWEEN
	HKSAR	Respondent

	AND

	WU WAI HUNG	Appellant

____________

Coram: Hon. Wong, J. in Court

Date of Hearing: 22 January 1998

Date of Handing Down of Judgment: 13 February 1998

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J U D G M E N T

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1. The appellant, a police sergeant, was jointly charged with Wong Wing-lok, a police constable, with one charge of common assault. They were both convicted after trial before a magistrate. Each of them was sentenced to one month's imprisonment, suspended for 12 months and ordered to pay costs. Both lodged notices of appeal against convictions. The appeal of Wong Wing-lok was heard before Deputy Judge Gill who, on 9 October, 1997, allowed the appeal and quashed the conviction. The appeal of the appellant was adjourned. The appellant also faced one additional charge of common assault and another charge of theft. All the charges arose out of the same incident. He was acquitted of the latter two charges.

2. The evidence against the appellant comes mainly from one witness and that is Au Kui-leung, the complainant, who is no stranger to the courts with nineteen previous convictions for a variety of crimes. The prosecution case was that at about 8 p.m. on 14 January 1995, the complainant went to Anchor Street Playground to watch other people playing chess. A team of five blue berets led by the appellant were there to check identity cards. The complainant was made to stand aside and after he produced his identity card to the appellant, he was searched by the appellant and a bunch of keys, a phonebook and $600.00 were taken from him. The appellant only returned $100.00 to him. He asked the appellant where was the $500.00 and the appellant replied "what $500.00?" and hit him on the head. He felt dizzy and fell to the ground where he was kicked several times. These blows caused him to bleed both from the head and round the right eye and nose. The team of officers then left after returning the documents to him and told him to go. He went to the Po Wah Restaurant and dialled 999. This incident forms the subject of the charges of common assault and theft of which he was acquitted.

3. About ten minutes later, the same team of officers led by the appellant returned and the appellant asked if the complainant had dialled 999 to which he replied "yes". Another police vehicle and officers also arrived but left the scene after they were assured by the appellant that he would handle the matter. The appellant then took the complainant to a wall in a lane and said: "you dare dial 999." He was told to walk to the corner where he was assaulted. He reckoned that he was kicked as many as twenty times. After the officers had left he dialled 999 again. He was later taken to Kwong Wah Hospital in an ambulance. On examination, he was found to have a mild bruise over the right ride of nose. This incident forms the subject of the charge in respect of which he was jointly charged with Wong Wing-lok and convicted.

4. Mrs. Mok Sau Hong and a Mr. Leung who lived in the neighbourhood also gave evidence. Mrs. Mok said that she saw a police officer kicking a man who shouted "Ah Sir, don't assault me." She was looking out of the window of her 9th floor flat along Pine Street and Po Wah Restaurant. Mr. Leung looked out from his 6th floor flat in Pine Street opposite Po Wah Restaurant and saw two or three blue berets press a person to the ground.

5. The main thrust of the appeal is that the magistrate failed to resolve the conflicts and inconsistencies in the evidence and to properly evaluate the prosecution evidence.

6. In his very lengthy statement of findings, the magistrate first of all reminded himself of the long lapse of time which could affect the memories of those called to give evidence. He further reminded himself that each charge must be considered separately. Throughout the trial, he always had firmly in mind that the complainant was a man of bad character with as many as 19 previous convictions to his credit and his evidence must be viewed with caution. He believed that the complainant was quite capable of twisting the truth if he saw advantage in it. That is why he acquitted on the other two charges because there was no other evidence apart from the evidence of the complainant. The charge for which the appellant was convicted is different because there is supporting evidence from Mrs. Mok. In paragraph 33 of his statement of findings at p.204 the magistrate made these findings:

"I have examined P1 Annexure C with care; the timings. I take it as accurate and confirms PW1 when he said other officers - a Sergeant in the EU attended also in a van and were sent away. PW1 then says of course that he was dragged by the hair by D1, two other officers holding his arms and legs, 10 paces into a lane by Po Wah Restaurant and repeatedly kicked, after D1 said 'You dare dial 999'. I am satisfied in my own mind that this indeed occurred. It might have been at that lane entrance rather than 10 paces inside. I accept the evidence of PW5 Mrs. Mok Sau Hong. She was an entirely honest and truthful witness who at about that time - she thought 10:45, but I think that it was later - she heard a man shout 'police officers please don't assault' and looked out to see, as she marked on P7, a man lying near the Po Wah Restaurant and a policeman - a blue beret - kicking him. The man was seen by her at an oblique angle, from a 9th floor flat, at quite a distance and possibly as she said in cross examination the Po Wah Restaurant illuminated sign was off, but there were street lights and I am satisfied that in the 10 minutes she observed she did indeed witness an assault. The person assaulted, as a matter of common sense, could only have been PW1. I have of course the medical evidence which shows an injury to PW1's nose. I have seen P-2 which has blood stains on it and I am satisfied that when PW2 went to make his 2nd 999 call he had blood on him seen by Mr. Kong at the Wing Fat Store; and that PW3 saw more blood stains on PW1's face when he went with him in the ambulance to the hospital then he had seen when he went the first time to where PW1 had been and saw blood on his face there. All this evidence leaves me in no doubt at all that an assault took place close to or just inside a lane near the Po Wah Restaurant between 2250 and 2315 hours and I accept the identification made by PW1 of D1 as one of the perpetrators of this assault. I am satisfied there were others involved, and that they were confined to members of the PTU Team 7 Co Platoon or Column 2 (6 men). PW6 observed matters towards the end. He confirms Po Wah Restaurant sign off and that PTU appeared to hand matters to flat hatted officers (PW3 and PW4)."

7. I am satisfied that the magistrate was entitled to find as he did. He evaluated the evidence with care and there are no irreconcilable conflicts or inconsistencies that have not been resolved. There is no merit in the arguments advanced on behalf of the appellant. The appeal is dismissed.

Representation:

Ms. Evena Chan, DPGC for Director of Public Prosecution.

Mr. Gary Plowman, S.C. instructed by Messrs. Paul Cheng & Co., for the Appellant.

	(Michael Wong)
	Judge of the Court of First Instance

HCMA000345A/1997

1997, NO. MA 345

IN THE HIGH COURT OF

THE HONG KONG SPECIAL ADMINISTRATIVE REGION

(Appellate Jurisdiction)

MAGISTRACY APPEAL

_______________

BETWEEN
	HKSAR	Respondent

	AND

	WONG Wing-lok	Appellant

_______________

Coram: Deputy Judge Gill, in Court

Date of hearing: 9 September 1997

Date of judgment: 9 October 1997

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J U D G M E N T

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1. In a trial lasting three days, two defendants, both serving police officers, one a sergeant, the other this appellant, a constable, appeared before Mr J. Miller, magistrate. The sergeant alone faced a charge of common assault and another of theft. He was acquitted of these. Together they faced a third charge of common assault. Both were convicted.

2. The appellant now appeals conviction. The sergeant is also appealing his conviction, but his appeal is yet to be dealt with and forms no part of this judgment. He is the sergeant I refer to as such in this judgment.

3. The prosecution case centred around one AU Kui-leung, a citizen well-known to the police for his drug addiction and propensity, with nineteen previous convictions under his belt, to commit petty crime. The sergeant, at the relevant time, this being January 1995, was leading a police tactical unit called Y Company. The appellant was a member of that team. Over a period of months up to the night in question they had patrolled Tai Kok Tsui district and carried out a number of arrests during the course of their duties. The area of patrol included the playground in Anchor Street.

4. On the night in question Y Company was on a dangerous drugs surveillance. The sergeant was in charge. They came to the playground. AU was there. He was apprehended. His evidence was that there was an altercation between him and the sergeant. The sergeant took $500 from his wallet and pocketed it. Then the sergeant slapped and kicked him. This activity gave rise to the 1st charge of assault and the 2nd of theft, in respect of which he, the sergeant, was found not guilty. AU was permitted to leave and made for a nearby restaurant, from which he made a 999 call to the police.

5. Whilst awaiting assistance he was approached again by the sergeant and his squad. Because of what AU says they regarded as his audacity in calling 999, all gave him a thorough working over. He was released again. He made a second 999 call, this time for an ambulance. It arrived with three other police officers. He was taken for examination and treatment to Kwong Wah Hospital. This second alleged assault gave rise to the 3rd charge the sergeant and the appellant jointly faced which led ultimately to their being found guilty and to this appeal.

6. AU handed to the police for forensic examination a T-shirt he said he was wearing during the incidents. A boot print was found on the sleeve. A woman police sergeant, designated PW7 in the trial, was part of the CAPO team investigating AU's complaint. Twelve days after the incident she went to the police station where Y Company was stationed, and, in the presence of two senior officers, ordered three constables belonging to Y Company, of whom the appellant was one, to hand over the boots they were wearing on the night of the incident. They did so. Forensic analysis established that a print taken from one of the appellant's boots matched that on the T-shirt to the extent that there was nothing more than an extremely remote possibility that the print was not made by the boot.

7. During the trial the account by the woman police sergeant of how the boot came into the hands of the investigating team and the boot itself were admitted in evidence after a challenge to the admissibility made on the appellant's behalf was turned down. It is that the magistrate allowed in this evidence in the face of such challenge or that he did so without conducting a proper enquiry into its admissibility that forms the crux of this appeal.

8. Mr Marash, counsel for the appellant in the appeal, not at first instance, has argued:

(i) by the time the appellant and his colleagues were directed to hand over their boots, the boot print on the T-shirt must have been discovered;
(ii)the purpose of calling for the boots of the members of the squad was to attempt a match;
(iii)the appellant must have been a suspect;
(iv) the appellant should have been cautioned that he was not obliged to incriminate himself, but there was no caution. In fact he was directed to hand over his boots. This was tantamount to an order which he would have had to obey or face disciplinary sanction if he did not;

(v) his handing over a pair of boots amounted to an admission that he was wearing them on the night in question.

9. What thus took place was the forced or involuntary production of a potentially incriminating article and involuntary admission, both of which offended the principle against self-incrimination.

10. So the argument mounted is that the learned magistrate should have rejected that evidence or not have admitted it without a voir dire once that admissibility was challenged. Had there been a voir dire, then this issue would have been fully canvassed in evidence, and the question of voluntariness dealt with, with the magistrate reserving to himself for consideration the residual discretion to exclude on the grounds of oppression or unfairness if voluntariness was proved.

11. There were other grounds mounted, but they are peripheral or otherwise flow from this principal theme.

12. Mr Bruce SC, appearing for the prosecution, concedes that complying with an order to admit would make the admission, if it were found to be one, involuntary. From this he accepts that if I find that there was an implied confession then this appeal must succeed. But his submission is that there was no confession, express or implied. He says the learned magistrate was entitled to find, as he did, that the seizure and production of the boots followed proper police enquiries. Further that there was no admission, other than one given voluntarily, that the boots were those worn on the night in question.

13. So now I have to decide whether the learned magistrate did err, as Mr Marash submits, rendering the conviction of the appellant unsafe and unsatisfactory.

14. This appeal, if I may say, has been thoroughly researched and fully and competently argued with a wealth of authority produced. But the issues for consideration are really quite simple. Was the compliance by the appellant to hand over the boots in effect an admission, and was there thus a requirement that he be cautioned first? If the answer is yes, were the police able then to rely on one of the boots as evidence, it having come into their possession without caution?

15. In my view it is beyond doubt that the boots of all squad members were targeted to assist in the enquiry to attempt a match against the print on the T-shirt. The appellant and his squad colleagues were suspects. It could not have been otherwise. An order to hand over the boots they wore on the night in question was beyond routine and a facet of proper police enquiries.

16. Had the appellant been a civilian he would have had to have been requested to do what was sought and been told he need not comply. Alternatively a search warrant could have been asked for and the boots seized by this means. The appellant, as a serving police officer, was entitled to no less a course of conduct entrenched to preserve and safeguard the rights of suspects. The issue of an order was tantamount to circumventing proper procedure.

17. The handing over of the boots was an admission that they were worn on the night the complainant was assaulted, and represented a material piece of evidence in the police enquiries leading to the culprit. The admissibility of that admission following challenge should have been considered after a separate enquiry in the shape of a voir dire or alternative procedure to establish whether the prosecution could prove that the appellant had made the admission in the exercise of a free choice. Only if the outcome of that enquiry was that it had been proved voluntary with no inherent oppression or unfairness should the boot itself have been admitted.

18. The learned magistrate failed to call for a separate enquiry.

19. In fairness to him there was no forewarning to the challenge until PW7, the CAPO sergeant, was in the witness-box poised to produce the boots. In the normal course notice of the challenge to the prosecution and the court is given at an early stage, so that the trial judge or magistrate can consider how best to deal with the challenge. And, when the challenge was made, there was no proposal that there be a voir dire. Had the magistrate been alerted in this way the resultant error would very likely not have been made.

20. The fact that the evidence was admitted without enquiry to determine voluntariness denied the appellant his rights to put the prosecution to the proof of this and, if found to be so, to invite the court to exercise its inherent jurisdiction to exclude on the grounds of oppression or unfairness.

21. It follows, as I find, that the boot could only have been admitted once the admission it had been worn on the night in question was allowed in. Its production was central to the prosecution case and the outcome of the trial. Without it there may well not have been a conviction, which thus I must find to be unsafe and unsatisfactory.

22. The appeal is allowed and the conviction is quashed.

	(D.M.B. GILL)
	Deputy Judge of Court of First Instance

Representation:

Mr A.A. Bruce, Senior Government Counsel, for HKSAR

Mr Daniel Marash, (Paul Cheng & Co.) for the Appellant, assigned by DLA

	I/we certify that to the best of our ability and skill, the foregoing is a true transcript of the audio recording of the above proceedings
	................................................
	B. PIRIE Date: 15 October 1997

HKSAR v. WONG WING LOK

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