Chan Chun Ming v. The Queen

CACC000452/1980

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Coram: Liu, J.

Date of Judgment: 14th October, 1980

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JUDGMENT

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1. The appellant was charged with indecent assault on a female aged 15, in April, 1979. After trial, he was convicted and sent to a Training Centre, and he has been so detained for a period of approximately three months.

2. At the trial, the girl Miss Tam was called. Acting on one statement disclosed by the prosecution, the learned magistrate declared her hostile, and leave for cross-examination was granted. It was fairly conceded by Mr. Cagney appearing for the Crown that the lack of reference to three other statements by the prosecuting officer was irregular and tantamount to a technical error. But counsel hastened to add that as the learned magistrate evidently disregarded the evidence of the witness so declared hostile, the appellant could not be said to have endured any prejudice. I accept counsel's analysis in his submission.

3. The conviction of the appellant was based wholly on his own confessional statement. As it appears from the record, on an enquiry being made by the learned magistrate, the appellant raised no objection to its production. Evidence had previously been led by Detective Constable Wong that he had administered the usual caution to the appellant in Punti. It is trite law that in the absence of any objection from the defence, a scintilla of evidence is sufficient to establish voluntariness.

4. In the case of CHAN Wai v. The Queen⁽¹⁾, judgment of which was given on the 1st of May, Power J. emphasized the necessity of reminding an unrepresented accused person of his right to object to a statement if it was not given freely and voluntarily and the magistrate's duty to make a specific finding on the very issue. The meticulous exercise of such functions will all the more be desirable in the case of an accused person unrepresented, and guidance so given should best be taken heed of.

5. Mr. Cagney on behalf of the respondent submitted that strict adherence to such guidelines would cast an unnecessarily heavy burden on magistrates. Counsel further submitted that the state of the records kept by the learned magistrate in this case certainly left room for argument that proper procedure had not been overlooked.

6. The appellant pleaded not guilty. During the course of the proceedings, he indicated that he had no objection to the production of his statement. But what deserves a closer examination is the subsequent accusations made by the appellant in his evidence following immediately thereafter. In his defence, the appellant testified that he denied the admission of guilt contained in his statement, and he proceeded to give his own version of the circumstances which are matters clearly germane to the question of voluntariness.

7. There has been a recent decision in the Court of Criminal Appeal in England, The Queen v. Watson⁽²⁾. The question of voluntariness was raised by one of the accused, and in a voir dire, his confession was held voluntary. The circumstances did not impel the trial judge to exclude the same in the exercise of his judicial discretion. After admission of the statement, and in the presence of jury, counsel for the co-accused put certain questions which were regarded by counsel for the confessing accused as inconsistent with the evidence of the police constable given in voir dire, and as strengthening his case on the allegation of involuntariness. The trial judge was thereupon invited to reconsider the issue of admissibility. The invitation was declined by reason that the court had exhausted its jurisdiction in the matter.

8. Before the English Court of Appeal, it was held that a judge retains control over the evidence throughout the trial, and therefore, may reconsider the issue of admissibility at any stage if further relevant evidence emerges.

9. In the case before the learned magistrate, the appellant was not briefed as to his right to seek a reconsideration by the court of the issue of voluntariness; it does not appear from the record that the learned magistrate had considered the case of Watson⁽²⁾ or at any time sought to apply the principles enunciated therein.

10. The appellant pleaded not guilty and was acting in person. No sooner had he consented to the production of his confession than he broached the unpleasant subject of unfair tactics. Even if the appellant's right of objection had been fully explained to him, his immediate complaint was clear enough indication that he remained oblivious of the subtle distinction between production and admissibility. In view of The Queen v. Watson⁽²⁾, the issue of voluntariness ought to have been re-ventilated. It is on this ground alone that I choose to base my decision in allowing the appeal.

11. Counsel for the appellant submitted that since the appellant has been detained for approximately three months in a Training Centre, it would cause undue hardship to compel him to relive the agony and anxiety of a retrial. Counsel for the Crown explained that by reason of the distant date of the alleged offence and in the somewhat special circumstances of these proceedings, it would be inappropriate for him to seek a trial de novo. I accept the submissions of both counsel. Consequently, I am not prepared to and do not order a new trial in this case.

Representation:

Ms A. Eu instructed by Director of Legal Aid for Appellant.

Mr. Cagney, counsel for the Crown/Respondent.

(1) Criminal Appeal 320 of 1980

(2) [1980] 2 All E.R. 293