Chiu Yan on v. The Queen

HCMA000948/1987

IN THE HIGH COURT OF HONG KONG

( APPELLATE JURISDICTION )

MAGISTRACY APPEAL NO. 948 OF 1987

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BETWEEN

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Coram: de Basto, J.

Date of hearing: 7th January, 1988.

Date of delivery of judgment: 23 FEB 1988

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J U D G M E N T

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1. The appellant was convicted of having in his possession an offensive weapon, namely, a 14 inch knife without then being able to give a satisfactory account of his possession thereof.

2. The Crown called only one witness, a police constable ("the constable"). I need not refer to all his evidence except to say that he found appellant had a 14 inch knife wrapped in paper tucked behind him in the waist band of his jeans. When asked what he was doing with the knife the appellant replied, "Ah Sir, because my friend Ah Ming was assaulted by someone last week, I took this knife with the intention to scare the people who assaulted Ah Ming. Since I cannot locate them, can you give me a chance?" The appellant was then taken to the police station where the constable took a post-recorded statement from the appellant under caution. The admissibility of the statement was disputed and a voir dire held after which the learned magistrate ruled the statement admissible as having been made voluntarily.

3. In the voir dire the constable, in his evidence in chief, said that at the station he realized that the appellant was 16 and his father was asked to come to the station. The father arrived at about 4.10 p.m. before the commencement of the statement. The constable testified that the appellant's father was present throughout the taking of the statement. However, while being cross-examined the constable was asked : "You had almost completed the statement when the father appeared ?" and he replied, "Yes." This was an obvious and significant discrepancy.

4. Both the appellant and his father testified in the voir dire that the father was only present at the end of the taking of the statement. After a submission regarding the admissibility of the statement the learned magistrate found that the credibility of the constable "was in no way impugned by the cross-examination" and that the statement was voluntarily made by the appellant "in the presence of his father through-out" and in his Finding of Facts he found beyond reasonable doubt that "the whole" of the constable's evidence was true. On the face of the transcript this could not be correct - they were two conflicting statements as to whether the father was present throughout the whole of the taking of the statement.

5. This glaring discrepancy, which was the only arguable ground of appeal, caused me some concern.

6. However, as I was about to dictate my judgment, I called for the magistrate's notes and found that the answer "Yes" by the constable (on page 11 of the transcript) was, in fact, "No" (see page 7 of the magistrate's record). It was a typographical error which, unfortunately, the learned magistrate missed.

7. The learned magistrate found the defence evidence to be "a complete fabrication". On the other hand he found the whole of the constable's evidence was true. That being the case, there was ample evidence for the learned magistrate to come to the conclusion he did and the appeal is dismissed.

8. This case illustrates the importance of ensuring the accuracy of the transcript before an appellate court.

Representation:

Mr A. Bruce, Senior Crown Counsel for Crown.

Mr Joseph Tse instructed by Messrs. F.H. Ho & Co. for appellant.