The Queen v. Chan Wai-sang

CACC000296/1986

IN THE COURT OF APPEAL

BETWEEN

Coram: Hon. Huggins, V.-P., Kempster, J.A. & Macdougall, J.

Date of Hearing: 15th August 1986

Date of Judgment: 15th August 1986

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JUDGMENT

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Kempster, J.A.:

1. On 12th May of this year at Kowloon District Court Chan Wai-sang was convicted by Deputy Judge C.Y. Wong of burglary and sentenced to imprisonment. Against that conviction he seeks our leave to appeal.

2. The matters disclosed by witnesses called on behalf of the Crown were to the effect that when, on the morning of 9th October 1985, the Supervisor of City Chain Watch Shop in Mut Wah Street, Kwun Tong came to the premises he found the padlock on the front iron grille missing and the place ransacked. A number of wrist-watches had been taken from various showcases. The police were called and discovered that entry had been effected through a hole drilled through an iron door. The insurance adjuster ascertained that the value of missing stock amounted to over a million dollars.

3. On 16th January of this year the applicant was arrested and made three statements under caution. An issue arose at trial as to the voluntariness of those statements. After hearing evidence from the Crown and from the applicant the Deputy Judge ruled two of the statements inadmissible as involuntary and one as admissible. Rather unusually he saw fit to give a ruling in relation to the statements running to 14 pages of foolscap. This is not a course which this Court has commended.

4. In the course of his ruling the Deputy Judge said that he had no hesitation in rejecting the evidence of the applicant who, he explained, had not impressed him as a witness of truth whilst giving evidence. By comparison he found the prosecution witnesses who had given evidence as to the manner in which the statements were taken to be honest and reliable.

5. In the face of those statements Mr. Polson, on behalf of the applicant, has argued forcefully that any reasonable defendant would be so discourage by such an expression of opinion at that stage of the trial as, in effect, to throw in the towel, as in fact happened in the instant case. He says that the judge went too far in making explicit what, in the normal event, would be implicit. We, of course, accept the proposition that justice must not only be done but manifestly be seen to be done but honouring that principle to the full are satisfied that the only effect of the judge's long ruling would be to make clear to the applicant that, in relation to the circumstances surrounding the taking of the statements only, the evidence called by the Crown was believed and his was disbelieved. This is something which occurs de die in diem in criminal proceedings.

6. We find no merit in this application which is dismissed.

Representation:

Mr. I. Polson (W.K. To & Co.) for Applicant

Mr. K. Egan (Crown Prosecutor) for Respondent