Wong Ka Yin v. The Queen
Read the full judgment text of CACC 1049/1980 on BabelCite. This Court of Appeal judgment.
1. With able assistance from both counsel, in the end I find that I need not call upon Mr. Eddis to reply. The appellant Madam WONG Ka-yin was charged with one count of theft of 12 million yen on the 31st May, 1980. In the course of the proceedings, there was an allegation of a further million yen to be accounted for, but the subject-matter broached did not fall properly within the four corners of the charge. The appellant was convicted on the 5th November, 1980 after fairly protracted proceedin
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CACC001049/1980
----------------- Coram: Liu, J. in Court. Date of Judgment: 31st December, 1980 ----------------- JUDGMENT ----------------- 1. With able assistance from both counsel, in the end I find that I need not call upon Mr. Eddis to reply. The appellant Madam WONG Ka-yin was charged with one count of theft of 12 million yen on the 31st May, 1980. In the course of the proceedings, there was an allegation of a further million yen to be accounted for, but the subject-matter broached did not fall properly within the four corners of the charge. The appellant was convicted on the 5th November, 1980 after fairly protracted proceedings which I also need not go into. 2. The first ground advanced on behalf of the appellant by her counsel to-day is in substance based on section 31 sub-sections (2) and (4) of the Theft Ordinance which necessitate the giving of consent by the Attorney General for the institution of legal proceedings against a suspect in an alleged theft from his/her spouse. By agreement, the first ground of appeal was to be taken and disposed of first. 3. I need not go into the full circumstances leading to the appellant being charged. Perhaps, I should not leave these proceedings without saying that just as the unusual course in which these proceedings took before reaching the learned magistrate, the incident in question was certainly uncommon and a little out of the ordinary. It is common ground that the appellant and Mr. Yoshie, were lawfully married. It was alleged by Mr. Yoshie that the parties parted company by a lawful divorce thereafter. A document comprising some pages was produced without objection, and it would seem from the record of appeal that such production was subsequently affirmed by counsel then acting for the appellant who is not counsel before me to-day. The document, marked "P1", purports to have been signed by a person by the name of Amano Koichi bearing the designation of District Office, Oda-ku, Tokyo. It is only too true that the document, time and again, refers to "notification for divorce" as well as "divorce by agreement". In the document itself, neither the capacity of Amano Koichi nor his authority is shown, and these matters were left unestablished during the course of the proceedings. 4. The appellant disputed that she was divorced from Mr. Yoshie. She admittedly signed one page of "P1" in blank. The Japanese gentleman told the learned magistrate that the parties went before the District Office, presumably in Tokyo. Be that as it may, the document "P1" was produced and admitted in circumstances specified at pages 5 and 32 of the record of appeal. 5. It is no more than fundamental that a document may be adduced and accepted by the court for a great variety of reasons. From the tenor of the appellant's allegations in the court below as well as submissions then made on her behalf, it is evident that the document was challenged as to whether in fact it emanated from the proper Japanese authority from whom a divorce might legally be obtained. The legal effect of the contents of "P1" signed in blank was also a matter controverted; so was the effect of an alleged deception. 6. Counsel for the Crown before the learned magistrate, who is also not counsel before me to-day, sought leave to adduce expert evidence presumably in Japanese law, but his application was not favourably received and was rejected by the learned magistrate. The upshot of all this was that no expert evidence in Japanese law on the legal effect of as well the contents of "P1" as the alleged deception was placed before the learned magistrate. There was also no expert evidence on Japanese divorce. 7. In his Statement of Findings at page 37 of the record of appeal, the learned magistrate had this to say:
8. In order to dissolve an admitted lawful marriage by an alleged Japanese divorce, it would be incumbent on the Crown to adduce expert evidence on Japanese law in relation to the various matters to which I have alluded. In my view, none of the appellant's objections raised, explictly or by implication, before the learned magistrate was successfully met by the prosecution, and the consent of the Attorney General was necessary for the proper institution of the prosecution against the appellant as spouse in the instant case. 9. This appeal falls to be decided on this short point. I have come to the conclusion that the submissions advanced on behalf of the appellant are in substance unanswerable. Consequently, for all the eloquence of Mr. Noble I must accede to the relief sought on appeal. The conviction of the appellant must, for all these reasons, be quashed and her sentence set aside. 10. I order accordingly.
Representation: Mr. F. Eddis instructed by Messrs. Robin J. Oliver for Appellant. Mr. Noble, counsel for the Respondent. |