The Queen v. Li Chi Sing

CACC000077/1985

IN THE COURT OF APPEAL

BETWEEN

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Coram: Hon. Li, V.P., Yang, J.A. & Hunter, J.

Date of Hearing: 25th June 1935

Late of Delivery of Judgment: 25th June 1985

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JUDGMENT

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Hunter, J.:

1. This is an application for leave to appeal against conviction. The whole application turns upon one single paragraph in the Judge's reasons for verdict. The crucial issue before him was who was carrying the yellow plastic bag which contained the drugs. Three police officers gave evidence, that it had been carried at all times up to the point when the defendant and his girl friend arrived to the restaurant, by the defendant. It seems to be a common ground that when they reached the restaurant it was put on a chair. The defendant asserted that it had been carried by the girl friend, and the girl friend gave supporting evidences. Following the defendant's arrest, the girl friend made a statement apparently in writing at the police station. That statement was put to her in cross-examination. Unfortunately that statement was not put in evidence when it was put to her in cross-examination. That is the requirement which was first laid down, we believe, by Channel B in the Queen v. Riley in 1866. The relevant passage from the Learned Judge's judgment is set out in paragraph 4 - 321, of Archbold.

2. The first point that has been taken on behalf of the applicant on this appeal is that no use should have been made of this statement by the Learned Judge unless it was put in evidence. That point seems to us to be well founded. Therefore the Judge was not entitled to conclude as he does in the second sentence of the paragraph of his reasons when he deals with this girl's evidence: "Unfortunately for her she had given an inconsistent statement that evening to the Police". He then goes on and in a much more ambiguous sentence refers to this statement as possibly constituting corroboration. It is, we think, not in dispute that the statement could not be used for that purpose at all, in the sense it could never constitute corroborative evidence as against this accused. The most that this statement could properly have been used for, was to destroy the girl's evidence, and to justify a later passage in his judgment where he described her as "clearly untruthful".

3. It seems to us that there was a defect, and possibly a substantial defect in procedure, when she was cross-examined about a statement albeit perhaps solely to discrecit her, without the document being put in evidence. This on our understanding is the proper practice. We regard that deficiency as fatal and to preclude this Court either from supporting the conviction as it stands or of applying the proviso. Having regard to the weight of evidence however that was being laid before the trial Judge, we think the proper order would be that the application for leave to appeal against conviction is allowed, and this Court should direct a re-trial.

Representation:

Mr. A. Bell instructed by M/s Anthony Kwan for Applicant.

Mr. Jackson, Crown Counsel, for Crowns.