The Queen v. Wong Yuk Lam

CACC000493/1984

BETWEEN

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Coram: Hon. Li, V.-P., Yang & Barker, JJ.A.

Date of hearing: 13th February, 1985.

Date of delivery of judgment: 13th February, 1985.

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JUDGMENT

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Yang, J.A.:

1. This is the Applicant's application for leave to appeal against his conviction as well as sentence. For reasons which will become clear we are now concerned only with his application for leave to appeal against conviction. The facts are relatively simple.

2. On a certain evening the victim and his wife were having noodles when a person rushed upon them and attacked the victim with a knife, causing injuries. It was suggested that there were a number of discrepancies given in the evidence of the victim and his wife. More importantly, an attack has been made upon a cautioned statement allegedly made by the Defendant. Only one particular matter requires attention and that is that the Judge in considering the cautioned statement came to the view that the style and language of the cautioned statement were markedly different from the preamble written by the police officer who took the statement. By implication therefore the Judge rejected the Applicant’s complaint-that the statement was dictated to him by the statement taking officer. This is the point that was not taken by Counsel on either aide in the court below but was a point which the Judge took it upon himself to consider.

3. Having looked at both the original version of the statement in Chinese as well as the translation, we are unable to say that there visa the kind of marked difference between the preamble and the cautioned statement as suggested by the trial judge. It would therefore appear that the Judge misdirected himself on a question of fact. To what extent this misdirection might affect his ruling on the voir dire is difficult to say. Nevertheless, a serious doubt does exist in our minds as to the correctness of that ruling.

4. We have considered all that has been said by Miss Sze Kin on behalf of the Applicant. We feel that as we are about to order a new trial, it would not be necessary, and indeed unwise, for us to deal with all the points that she raised. Suffice it to say that we allow the application for leave to appeal against conviction, treat the application as an appeal, and allow the appeal on the ground that the Judge had misdirected himself on a question of fact when considering the matter about the cautioned statement.

Representation:

Miss Sze Kin (K.Y. Woo & Co.) for the Applicant.

Mr. F.C. Whitehouse, Crown Counsel for Respondent.