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R. v Fung Kit

Judgment Cited authorities 8 Cited in Precedent Map Related
Judgment Date19 May 1994
Year1994
Judgement NumberHCMA1052/1993
CourtHigh Court (Hong Kong)
HCMA001052/1993 R. v. FUNG KIT

HCMA001052/1993

M.A. No.1052 of 1993

IN THE SUPREME COURT OF HONG KONG

MAGISTRACY APPEAL NO.1052 OF 1993

(On appeal from KT 9050 of 1993)

_________________

BETWEEN
THE QUEEN
and
FUNG KIT Appellant

_________________

Coram: The Hon. Mr. Justice Barnett in Court

Date of hearing: 6 May 1994

Date of delivery of judgment: 19 May 1994

_________________

J U D G M E N T

_________________

1. The Appellant was charged with 12 offences of employing a person not lawfully employable. Charge A reads : -

"(A)EMPLOYING A PERSON NOT LAWFULLY
EMPLOYABLE

Statement of offence : -

Contrary to Section 171(1) of the Immigration Ordinance, Cap.115, Laws of Hong Kong.

Particulars of offence : -

FUNG Kit, you are charged that on the 21st day of September, 1993, at Wickey Garment Factory, 12th Floor, No.23, Hing Yip Street, Kwun Tong, Kowloon, in Hong Kong, you were the employer of LAM Wing-chung, an employee who was not lawfully employable."

2. The other 11 charges were in identical terms save for the name of the employee. In relation to the first three charges, the employee in each case was an illegal immigrant. In each of the remaining charges, the employee was an overstayer from China. Nothing turns on the difference, at least in relation to commission of the offence, it not being in dispute that each employee was not lawfully employable.

3. After trial before a magistrate, the Appellant was on 26th November 1993 acquitted of charges D, E, G and I. He was convicted of the remaining 8 charges. In relation to charges A, B and C relating to the illegal immigrants, he was sentenced to 15 months imprisonment on each charge. In relation to each of the remaining charges relating to overstayers, he was sentenced to 3 months imprisonment on each charge: The sentences were ordered to run concurrently so that the Appellant was sentenced to a total of 15 months imprisonment. Against both conviction and sentence, the Appellant now appeals.

4. In the early hours of 21st September 1993, the police arrested two persons in Hing Yip Street, Kwun Tong. Those persons were the alleged employees in charges D and E. As a result of what the police learned, they went to the premises of Wickey Garment Factory Limited (the word "Limited" was omitted in the charges but nothing turns on this. "Wickey" is sometimes represented by "Wang Kei".) There, they arrested 9 other persons, who were the alleged employees in relation to the other charges save for charge G. The alleged employee in relation to charge G was arrested at about 4.30 a.m. when he came to the factory and tried to open the door with keys in his possession.

5. At about 9:15 a.m. on the same day, the Appellant returned to the factory where he was intercepted by PC 52199 (PW8). PW8 asked the Appellant if he was the person in charge of that place to which the Appellant replied yes. The Appellant also agreed that he was responsible for the recruitment of workers and agreed that he had employed the 9 persons who had actually been found in the factory. PW8 then arrested the Appellant for aiding and abetting illegal immigrants, employing illegal employees and failing to register information concerning those employees. The Appellant was cautioned but did not say anything.

6. At 10:45 a.m. the same day at Kwun Tong Police Station, PW8 post recorded the arrest and caution. The interview continued. PW8 recorded the interview as follows : -

" "I wish to put some questions to you about the offence with which you have been charged. You are not obliged to answer any of these questions, but if you do the questions and answers will be taken down in writing and may be given in evidence."

I, FUNG kit, wish to make a statement. I want someone to write down what I say. I have been told that I need not say anything unless I wish to do so and that whatever I say may be given in evidence.

Question (1) :Did you take charge of employing staff for Wang Kei Garment Factory Limited?

Answer : Yes.

Question (2) :According to the Police enquiry, it was
known that there were three illegal immigrants, including male LAM Wing-chung, male LAM Wing-kwan, female CHAN Yuet-ming, and six other persons holding China Two-way Permit, including male CHAN Pui- fong, male NG Ka-lau, male YAU Chung-fat, female TSANG Suk-wai, female CHAN Suet-chi and female CHAN Suk-ching, working inside Wang Kei Garment Factory Limited. Did you offer employment to the above-mentioned persons?

Answer : Yes.

Question (3) : Did you record the personal
information of the above-mentioned persons in a Staff Register?

Answer : No.

Question (4) : For the above-mentioned persons, how
did you employ them?

Answer : As our office always hurried on with
the production, one of the above- mentioned persons helped me to employ the said persons to help me to rush through my work. As to which person offered me the help, I do not remember.

Question (5) : Who did take charge of paying salaries
to the above-mentioned persons?

Answer: Our office paid their salaries.

I, FUNG Kit, have read the above record of interview, consisting of two pages. It is an accurate record of questions asked, and answers I provided."

7. I have set that out in full (apart from the usual signatures) because it was crucial to the Crown's case and an important part of this appeal. Ground one of the appeal against conviction was : -

1. The Learned Magistrate was wrong to admit the Defendant's statement under caution in that:

(i) The Defendant's initial reaction to the caution was to remain silent and he should not in those circumstances, have been questioned by PW8. The Magistrate's reasoning that there was no breach of the right of silence because the Defendant's initial reaction formed part of the post-record was illogical and/or incomprehensible.

(ii) PW8 admitted that at the time of taking the statement, the police had already decided to charge the Defendant.

(iii) PW8 admitted that in a number of material respect, the statement was not an accurate record of his interview with the Defendant."

8. For the Appellant, Mr. Bell said that the matters of which he there complains taken together amounted to oppression so that the statement was involuntary. The magistrate should therefore have ruled it inadmissible. Alternatively, in the exercise of her residual discretion, the magistrate should have excluded the statement on the grounds of unfairness. When, after the post-recording, PW8 sought to put questions to the Appellant who had previously remained silent, Mr. Bell said that PW8 was pestering the Appellant. I accept that in some circumstances to seek to question or interrogate an arrested person who has hitherto remained silent might amount to pestering and be oppressive. In this case, I am wholly satisfied that it was not, particularly in the light of PW8's evidence which was refreshingly candid.

9. Mr. Bell then complained that the Appellant, having said that he wished to make a statement, was then in fact in interrogated by PW8, the first three questions put to the Appellant being leading. He said that it will never be known what the Appellant would have said had he been allowed to make his own statement. Further, this amounted to a breach of rule IV (b) of the "Rules and Directions for the Questioning of Suspects and the Taking of Statements" (the Rules) given by the Secretary for Security for the guidance of police officers. That rule provides : -

"Any person writing his own statement shall be allowed to do so without any prompting as distinct from indicating to him what matters are material."

10. I accept that, prima-facie, there was a breach of this rule.

11. In the statement which I have set out above, PW8 referred to "the offence with which you have been charged." In fact the Appellant had not at that stage been charged. In his evidence, however, PW8 agreed that it had already being decided to charge the Appellant. Mr. Bell said that PW8 was in breach of rule III (b) of the Rules, first paragraph, which reads : -

"It is only in exceptional cases that questions relating to the offence should be put to the accused person after he has been charged or informed that he may be prosecuted. Such questions may be put where they are necessary for the purpose of preventing or minimizing harm or loss to some other person or to the public or for clearing up an ambiguity in a previous answer or statement."

12. Again, I accept that, prima-facie, there was a breach of that rule.

13. Finally, Mr. Bell contended that PW8 had made three serious mistakes or omissions in taking the statement. He said first, that PW8 had not recorded that the Appellant said he was willing to answer verbally. Second, PW8 wrongly recorded that the Appellant had been charged with the offences. Third, PW8 did not record that he had told the Appellant that the Appellant could add to, delete from or amend his statement. Accordingly, said Mr. Bell, the statement did not accurately record what had taken place between PW8 and the Appellant and was again in breach of the Rules, in particular, the final paragraph of rule III (b) which reads : -

"Any questions put and answers given relating to the offence must be contemporaneously recorded in full and the record signed by that person or if he refuses by the interrogating officer."

It was also Mr. Bell said in breach of rule V (a) and (c) : -

"V. Interview Records

The questioning of suspects shall be recorded in the following manner : -

(a) Accurate records must be made of each interview with a person suspected of an offence.

(c) Where a contemporaneous written record of an interview has been made, .... The record must accurately reflect the total of what occurred during the interview."

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