Kwan Wai-hung v. The Queen
Read the full judgment text of CACC 452/1976 on BabelCite. This Court of Appeal judgment was delivered on 14 May 1976 before McMullin J..
Criminal law – appeal – admissibility of statement – voir dire procedure – magistrate – failure to make finding before accused called upon – grave irregularity – triad society – only evidence – appeal allowed – conviction on triad charge set aside
Legal issues: Admissibility of statement - timing of finding
Outcome: Appeal allowed; conviction and sentence on the second charge (triad society) set aside.
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CACC000452/1976
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----------------- Coram: McMullin J. in Court Date of Judgment: 14 May 1976 ----------------- JUDGMENT ----------------- 1. The appellant in this case was convicted after trial upon charges of trafficking in dangerous drugs and being a member of the triad society. 2. So far as the major charge is concerned there was abundant evidence to support the conviction in that the Crown was able to produce a police witness who had gone, upon information, to the scene of the arrest in Pratas Street where the appellant approached him and offered him dangerous drugs for sale. The appellant was arrested immediately after the money had changed hands. Following his arrest the appellant was taken to the police station and there he was cautioned and a statement was taken from him. This statement was tendered in evidence by the Crown since it contained admissions relating both to the drug offence and to the offence of being a member of an unlawful society. The only question arising upon the hearing of this appeal concerns the admission of this statement in evidence. On the statement being tendered by the first prosecution witness, D.C. 11518, the court ordered that the entry in the note book relating to these matters should be read over to the defendant. Thereafter the note upon the record appears as follows :
These exchanges, and the note concerning the provisional nature of the exhibit, seem to indicate that the magistrate had decided to embark upon an enquiry as to the issue of admissibility. Unfortunately he failed to make any finding upon that issue until after the appellant had been called upon to give evidence. At page 5 of the record, after the cross-examination of the defendant, who gave evidence in his own defence, it is noted that he had no witnesses to call and there then appears the following :
It was pointed out by the Full Court in HO Yiu-fai & Others v. The Queen(1) that while it is open to a District Judge to adopt either the normal voir dire procedure on the trial of the issue of admissibility of any statement or else to adopt what has become known as the alternative procedure whereby the matter is dealt with not as a separate issue but as part of the general evidence, he must nevertheless, as an irreducible minimum of formality prerequisite to admitting such a statement in evidence, make a finding as to its admissibility before the accused is called upon to make a defence as otherwise an accused person will not know the extent of the evidence against him when he comes to give evidence on his own behalf. This rule is equally binding upon a magistrate. The failure to observe this procedure was a grave irregularity in the present proceedings and the statement which was relied upon was the only evidence supporting the Triad Society charge. For these reasons the appeal was allowed and the conviction and sentence on the second charge were set aside.
Representation: (1) (1970) H.K.L.R. 415. |