The Queen v. Yin Shiu-hee

HCMA000578/1984

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Headnote

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Voir dire - questions

concerning truth of Statement should not be allowed.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 578 OF 1984

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BETWEEN

Coram: Hon. Bewley, J. in Court.

Date of hearing: 25th October, 1984.

Date of delivery of judgment: 25th October, 1984.

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JUDGMENT

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1. The appellant was convicted of abstracting electricity, contrary to section 15 of the Theft Ordinance. At the conclusion of the appeal I indicated that it would be allowed and now give my reasons.

2. An inspection by the Hong Kong Electric Company revealed an unauthorised connection from the mains supply to the premises of which the appellant was principal tenant. The mains meter had been removed and individual meters installed in the subtenants' cubicles.

3. The appellant did not live on the premises and there was very little direct evidence linking him to the offence. One of the subtenants said the appellant charged her according to what was shown on her meter. Another said 'The meter is read by defendant, sometimes by me.'.

4. The appellant said in evidence that he paid the bills as they came in and he collected from the tenants. He knew nothing about any dishonest connection.

5. However he made a cautioned statement to the police, in which he said, 'Because of no electricity I connected the wires.' The defence objected to the admission of this statement on the grounds that the appellant was told by the police that, if he paid $300 and signed the document, he could leave the police station. The appellant gave evidence on the voir dire to this effect and also said that he was not cautioned, the statement was not read over to him, and he did not know what he was signing. He was aware of the damaging sentence, however, because he said he wrote this at the Detective Constable's dictation. It was put to him in cross-examination that the contents of the statement were true, which he denied. It appears that the $300 was bail money, but the appellant did not understand this.

6. The magistrate then made this ruling: 'The Court will admit the statement as the defendant is likely to have told the truth. He is not formally well educated but is a bright and intelligent man and is not at all likely to be unaware of cautions and the like.

7. Assuming that the magistrate was referring to the truth of the statement and not of the defendant's evidence, this ruling was fundamentally in error. The issue was one of admissibility. The magistrate had to decide whether the statement had been made voluntarily and not as the result of an inducement. Whether or not it was true was, at that stage, irrelevant and the question in cross-examination should not have been allowed. WONG Kam-ming v. R.⁽¹⁾

(1)    1979 1 AER 939 PC

8. It was held in DPP v. Ping Lin⁽²⁾ that, on appeal against a judge's decision to admit a confession as having been made voluntarily, the Court should not disturb the judge's findings of fact, on apparently similar evidence, in other reported cases, but should only do so if satisfied that the judge had made a completely wrong assessment of the evidence or had failed to apply the correct principle.

9. The magistrate apparently failed to apply his mind to the question of an inducement, which was crucial to the issue, and therefore failed to apply the correct principle. Consequently I felt obliged to set aside his ruling.

10. Counsel for the Crown submitted that, quite apart from the cautioned statement, the evidence of the prosecution witnesses provided a sufficient basis for the conviction. I do not agree. The magistrate does not say why he infers guilt. He says in his Statement of Findings, 'The Court was entitled easily to infer from the surrounding circumstances that the defendant had a vested interest in cutting out the meter so that power would flow free into what were essentially his premises'.

11. That may be so but, because he had an interest in by-passing the meter, does not prove that that is what he did. The fact that the meter had been removed is suspicious, but it does not exclude the inference that it had been done by someone else, or that it had not been done dishonestly. Ignoring the cautioned statement, the magistrate could not therefore have been satisfied beyond reasonable doubt that the appellant was guilty.

(2)    1975 3 AER 175 HL

12. For these reasons I allowed the appeal and quashed the conviction.

Representation:

Mr. John Hammond, Crown Counsel, for the Respondent.

Mr. Michael Poll (instructed by Deacons) for the Appellant.