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The Queen v Ng Kin Yee

Judgment Cited authorities 4 Cited in Precedent Map Related
Vincent
Judgment Date22 July 1993
Subject MatterMagistracy Appeal
Judgement NumberHCMA933/1992
CourtHigh Court (Hong Kong)
HCMA933/1992

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 933 OF 1992

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BETWEEN

THE QUEEN
and
NG KIN YEE

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Coram : Hon Yang CJ, Macdougall VP and Kaplan J

Date of Hearing : 27May 1993

Date of Judgment : 27May 1993

Date of Handing Down of Reasons : 22 July 1993

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J U D G M E N T

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Hon Yang, CJ

On 27 May 1993 we allowed the appeal and now give our reasons for so doing.

This is an appeal from a decision of Mr R G Day sitting at Tsuen Wan Magistracy. Pursuant to S.118(1)(d) of the Magistrates Ordinance, I directed that the appeal be heard before the Court of Appeal.

The appellant was charged before the learned Magistrate with engaging in bookmaking and convicted after trial. A sentence of four months’ imprisonment suspended for two years was imposed, together with a fine of $10,000. This is his appeal against conviction only.

The evidence against the appellant was that on 9 May 1992 an Inspector of Police (PW1) and a Police Constable (PW2) entered Flat C, King Po Building, 12th Floor, 19 Shing Fong Street, Kwai Fong, N.T. These were premises where they suspected bookmaking was being carried on. The appellant was the only person in the flat.

Whilst the police officers were in the flat, PW2 took 12 incoming telephone calls between 4:35 and 5:01 p.m. The telephone conversations were all short, and all placed bets on the 5 p.m. horse-race. Eleven of these calls specified the person “Ah Yee”, and there were still others where the telephone calls were terminated when answered by PW2. PW2 listed these telephone calls in his notebook and showed it to his Inspector, who instructed him to arrest the appellant, which he did. Under caution, the appellant said he just placed the bets for friends and “if the horse bets they placed fit with mine I would take up a bet with him, otherwise other bookmakers would be phoned up”.

Noting that the crucial evidence against the appellant was the telephone calls and the cautioned statement, he concluded his Statement of Findings by saying that without the telephone calls he would have acquitted the appellant.

The issue which we are called upon to decide is whether the learned Magistrate erred in admitting the evidence of PW2, as to the contents of the telephone calls received by him at the premises in question.

The Magistrate referred to two Hong Kong authorities which held that the evidence relating to telephone calls was admissible. He also noted that in R v. Kearley [1992]2 WLR 656, the House of Lords by a majority held that such telephone calls were inadmissible. Relying on the dictum of Lord Diplock in De Lasala v. De Lasala [1979] HKLR 214, he came to the view that as he was in the present case dealing with the common law and not some recent common legislation, he was bound to follow Hong Kong authorities and not Kearley. He went on to say it was for the Court of Appeal and not for a Magistrate to decide whether Kearley now represented the law in Hong Kong.

In HO Sheung-yin v. The Queen, Criminal Appeal No. 1247 of 1977 (unreported), Huggins JA had the occasion to consider the first appellant’s appeal against her conviction of bookmaking and the second appellant’s appeal against his conviction of being a tenant and suffering premises to be used as a gambling establishment. Whilst the police party were inside the premises in question, the first appellant was seen to be speaking into the telephone and writing on a piece of paper. The piece of paper was found to be a betting slip. The contention of the prosecution was that the first appellant was caught in the act of receiving a bet. There was also a paging machine on a desk which the first appellant instructed the police officer how to use. The officer then made a call himself, and the person at the other end of the line purported to place a bet, saying that the bet was to be placed with a person called “Ah Yin”: the name of the first appellant being HO Sheung-yin, This person said that the bet was to be made on a greyhound race. In his judgment, Huggins JA stated that the telephone conversation was clearly not hearsay evidence, but it was direct evidence tendered with the object of establishing what was said to the police officer. The judge recognized the weakness of the evidence in that only one call took place after the police arrived and that the single call might be the result of an error, however that possibility became altogether too remote when one person referred to “Ah Yin”.

None of the New Zealand authorities was referred to. The learned judge noted that the conclusion he had reached was not inconsistent with those cases.

In WONG Wing-chun v. The Queen [1978] HKLR 326, the issue was whether the trial magistrate had rightly convicted the appellant of bookmaking upon the utterance of a person who entered the appellant’s store saying, “Uncle Chung, place this for me”. In my judgment, I followed HO Sheung-yin v. The Queen (supra) and three New Zealand cases, viz., McGregor v. Stokes [1952] VLR 347, Murtagh v. Paltos [1974] VR 768, and Police v. Machirus [1977] 1 NZLR 288. I also quoted at some length Ratten v. The Queen [1972] AC 378 ( - of which more later). I was of the view that the statement “Uncle Chung, place this for me” was a verbal act and formed part of the res gestae. Those words accompanied the speaker’s equivocal acts of calling at the appellant’s store and of trying to take something out of his pocket.

Ratten was of course decided on the very special facts of the case, and the evidence in question was used to rebut the defence: per Lord Ackner at p. 678 H. The facts are neatly summarised in the headnote: -

“ The appellant was convicted of the murder of his wife by shooting her with a shotgun. His defence was that the gun had discharged accidentally whilst he was cleaning it. To rebut that defence the prosecution called evidence from a telephone operator who stated that shortly before the time of the shooting she had received a call from the address where the deceased lived with her husband. The witness said that the call was from a female who, in a voice sobbing and becoming hysterical, said “Get me the police, please - ” and gave the address 59, Mitchell Street; but before she could make the connection to the police station the caller hung up. The defendant objected to that evidence on the ground that it was hearsay and did not come within any of the recognised exceptions to the rule against admission of hearsay evidence. The objection was over-ruled and the evidence admitted. The defendant’s application to the Supreme Court of Victoria for leave to appeal against conviction was dismissed.”

Lord Wilberforce in his speech observed that it was relevant and important to inquire what was the action of the appellant immediately after the shooting (p. 385 H). He noted the appellant’s evidence that he (the appellant) had immediately telephoned for an ambulance and that shortly afterwards the police had telephoned him, upon which he asked them to come immediately. The appellant also denied that any telephone call had been made by his wife and that he had telephoned for the police. In these circumstances, the prosecution sought to rebut the appellant’s account by introducing evidence from the telephonist of what a female said to her, namely, “Get me the police, please - ”: vide pp 385 G - 386 B.

It was held that those words were not hearsay and were evidence of fact relevant to an issue (p. 387 B). The evidence was relevant and necessary in order to explain and complete the fact of the call being made. A telephone call is a composite act, made up of manual operations together with the utterance of words. The act had content when it was known that the call was made in a state of emotion. The knowledge that the caller desired the police to be called helped to indicate the nature of the emotion - anxiety or fear at an existing or impending emergency. See pp 388 A - B. It would appear that the appeal was decided...

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