The Queen v. Lau Hay Tong

HCMA000030/1984

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 30 OF 1984

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BETWEEN

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Coram: Deputy Judge O'Dea in Court.

Date: 16th February 1984

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JUDGMENT

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1. This appellant was convicted of one offence of theft and fined $1000.

2. It is clear from the Statement of Findings that the learned Magistrate in reaching his decision placed considerable reliance on a caution statement made by the appellant shortly after his arrest and it is the procedures adopted by the trial magistrate in admitting this statement into evidence that constitutes the only remaining ground of appeal.

3. After being informed that the defence were raising a number of objections to the statement's admissibility evidence was adduced by the Crown as to the manner in which the statement was taken and the appellant also gave evidence. Without inviting or hearing any submissions from Crown Counsel or the Solicitor representing the appellant the magistrate then immediately recorded a ruling to the effect that he found the statement was made voluntarily and was admissible.

4. The Crown then recalled one of its witnesses to give brief evidence on general issues after which it appears from the record the magistrate asked if there were any submissions. A reasonably lengthy submission was then recorded from the Solicitor representing the appellant which is clearly directed towards the question of admissibility of the statement. No further ruling from the magistrate seems to have been made and the prosecution's case continued.

5. It is contended on behalf of the appellant that the learned magistrate has ruled the statement as being voluntary and admissible before giving the appellant's solicitor the opportunity to make submissions on the evidence.

6. Counsel for the Crown has sought to distinguish this case from the circumstances considered by the Court of Appeal in Lai Chuk-ting and Others v Reg (1978) H.K.L.R. 402 where the judgment that was delivered was written before Counsel for one of the defendants had made his final address to the Court. It was suggested here that the ruling on the admissibility of the caution statement did not preclude the trial magistrate at a later stage from reassessing his view of the statement in the light of the defence submissions.

7. In delivering the judgment of the Court of Appeal in Lai Chuk-ting's case, Huggins J. A. had this to say:-

"Now there are, of course, two conflicting principles here. We should not too readily assume that a judge, and particularly a judge of this experience, would make up his mind finally before hearing the address of a defendant's counsel. However, with some reluctance, we have come to the conclusion that the other principle outweighs that, and that principle is that justice must manifestly be seen to be done, and it is possible that the Defendant and his counsel would be aggrieved and believe that the learned judge may not have given proper weight to the address which was made to him."

8. In adopting this passage I am of the view that whatever options were open to the learned magistrate after he made his ruling, nevertheless, the appellant could well nurse a justifiable grievance as to the procedure adopted and to overcome any sense of injustice that may have been caused I propose to allow the appeal and quash the conviction.

Representation:

Mr. W. Lau instructed by Chung, Kwan, Chan & Evans for Appellant.

Mr. T. Jenkyn-Jones C.C. for Crown.