Chan Wai v. The Queen
Read the full judgment text of CACC 320/1980 on BabelCite. This Court of Appeal judgment was delivered on 1 May 1980.
1. In this matter the appellant was convicted of the offence of robbery and sentence to imprisonment for 18 months. The conviction rested solely upon the admissions made by the appellant in a cautioned statement which he gave to P.C. 12485 after he had been arrested. There would, but for the admissions contained in that statement, have been no case at all against the appellant. When P.C. 12485 produced the statement while giving evidence the Learned Magistrate said to the appellant "Do you have
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CACC000320/1980 IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction) CRIMINAL APPEAL NO. 320 OF 1980 -----------------
----------------- Coram: Power, J. in Court Date of Judgment: 1 May 1980 ----------------- JUDGMENT ----------------- 1. In this matter the appellant was convicted of the offence of robbery and sentence to imprisonment for 18 months. The conviction rested solely upon the admissions made by the appellant in a cautioned statement which he gave to P.C. 12485 after he had been arrested. There would, but for the admissions contained in that statement, have been no case at all against the appellant. When P.C. 12485 produced the statement while giving evidence the Learned Magistrate said to the appellant "Do you have any objections to the cautioned statement being admitted in evidence?". The appellant is recorded as having replied "No objection to its being admitted". The appellant did not give evidence and the Learned Magistrate understandably, in the circumstances, went on to convict him. 2. In this appeal the appellant has said that the statement was not voluntary as he was threatened by the police and told what to write. He says that he did not object to its admission as he was not aware of his rights in that regard. It is certainly so that a question such as the Magistrate directed towards the appellant would have been quite sufficient in the circumstances where he was represented by a barrister or solicitor. As far as I am aware, however, it is the usual practice when a person is not represented to explain fully to him that if he says that he did not give the statement freely or voluntarily he has a right to object to it and to give evidence in support of that objection. I consider that this is a most desirable practice as an ordinary defendant might well not understand what is really meant if he is simply asked if he has "any objections". I am fully aware of the possibility that the defendant might have understood that he should, at that stage, have raised any complaints that he might have had about the taking of the statement, however, I cannot be sure that he did so understand. Indeed, in the circumstances of the case, it seems to me that he must, at all times, have been intending to ask the Court to have disregard the statement. If this not be so it is difficult to understand why he would have entered a plead of not guilty in the first place. In the circumstances, I am satisfied that I should uphold the appeal and send the matter back to another Magistrate for early retrial.
Representation: Appellant in person Mr J. S. Conyngham, Crown Counsel, for Respondent |