Wong Yin v. The Queen

CACC000547/1980

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Coram: Power, J. in Court.

Date of Judgment: 5th August, 1980.

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JUDGMENT

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1. The Appellant now appeals against his conviction on two charges of blackmail and one of theft. He was found guilty of all three charges after trial. He was acquitted on a fourth charge of claiming to be a member of a triad society. P.W.1, the victim, gave evidence in which he said that on 20th April 1980, the date of the first blackmail charge and the theft charge, he was working in his father's store, the Wai Hing Store, with his elder brother at about 3 p.m. when two Chinese males, one of whom was the Appellant, entered the store. He said that the Appellant said: "I want $300. My group of brothers are in a difficult position. They have to run away." He said that the Appellant then threatened him and that he gave him $300 because he was frightened. He said that on 1st May he was again working in the store when the Appellant entered and said that since his younger brother got $300 he wanted $400 because he was older and wanted to save face. He said that the Appellant said he would have to take a knife to chop or kill if he was unable to get $400.

2. The Appellant made a cautioned statement which was admitted and marked Ex. 1. This statement was, as far as the blackmail and theft charges were concerned, exculpatory. In it he said that he had not gone to the store on 20th April and that on 1st May he had only gone to the store to borrow money. He said that he knew of the incident on 1st April only because P.W.1 had told him of it.

3. The Appellant gave evidence in which he said that at 3 p.m. on 20th April he was watching mahjong in a Chiu Chow Opera Theatre. He said that on 1st May he went to the store to borrow money from the proprietor and that he did mention to P.W. 1 that he intended to borrow a few hundred dollars for expenses from his father.

4. A perusal of the learned magistrate's notes of evidence in this matter reveals several unusual features. The Appellant was originally represented by a Mr. Pang. At the commencement of the trial Mr. Pang announced that he had "now received two different sets of instructions" and applied for, and was granted, leave to withdraw. The learned magistrate noted "Leave granted in the circumstances to withdraw on advice that one set of instructions must be false". In such circumstances it would have been quite proper for the learned magistrate to recuse himself. It would have been equally proper for him to have continued with the trial having ascertained from the Appellant that he had no objection to his so doing. While it might be suggested that it would have been preferable to follow one or other of the two courses outlined above it would not, in my view, have been improper for the learned magistrate to have continued without seeking to ascertain that there was no objection to it from the accused as long as he was quite satisfied that he would, in no way, be influenced by what had transpired. Indeed such a course is sometimes forced upon a magistrate when there is no one else available to take the trial. Bearing in mind that justice must be seen to be done it is suggested that when this occurs the face of the record should make it quite clear that the magistrate has warned himself of the danger of being influenced by what has transpired and has put the possibly prejudicial matter completely from his mind. In the present case nothing of this nature appears either in the notes of evidence or in the statement of findings.

5. It is not necessary for me to decide whether this irregularity standing alone would have been sufficient to require me to interfere with the convictions as there were other matters, which I will deal with below, which necessitate the quashing of the convictions.

6. The statement, Ex. 1 to which I have referred, was exculpatory as far as the blackmail and theft offences were concerned and the learned magistrate does not appear to have made any use of it in coming to his conclusion as to guilt on those charges. It was however clearly inculpatory as regards the offence of claiming to be a member of a triad society as the Appellant said in it that he belonged to the "Yu Kwan" Triad Society. At the time when the statement was tendered it appears, from the record, that the Appellant was not asked whether he had any objection to its admission in evidence. He should have been asked whether he objected to the admission of the statement and told that he was entitled to object if he said that it was not a free and voluntary one. Such a question would, clearly, have brought forth an objection as his first, and only, question to the police officer who took the statement was: "In order to protect my safety I had to make this statement at the police station."

7. If an objection had been made it would have been open to the learned magistrate to hold a formal voir dire or to use what is referred to as "the alternative procedure". Whichever procedure a magistrate adopts he must, at some stage, rule as to the admissibility of the statement. In the present case it is not clear that either course was adopted and nowhere in the record is there any ruling as to the admissibility of the statement. In his evidence the Appellant said that he was made to give the statement and that he had said anything at random.

8. As I have already indicated the statement was not used by the learned magistrate when convicting the Appellant on the charges the subject of these appeals. I need not therefore concern myself with this matter further other than to remark that the learned magistrate should have asked the Appellant did he have any objection to the statement being admitted and, when it was forthcoming, as it would have been, have held a formal voir dire or followed the alternative method and have, finally, specifically ruled as to the admissibility of the statement.

9. The note of evidence contains the following paragraph at the end of the evidence of the Appellant:

"I have a witness to prove I was not there on 20.4.80. Witness present in Court throughout the proceedings. Witness claims Defendant is always there in Theatre where he (witness) is an actor. He claims he does not know Defendant's name but that he saw Defendant arrive shortly after 11 a.m. on 20.4.80 and again after 1 p.m. sleeping there. I have no idea whether the Defendant was there later or not because I was not present in the theatre all the time."

I am unable to comprehend what this part of the note of evidence means. The person referred to as the "witness" appears to have made a statement to the court. However there is no record of his having been sworn or affirmed nor is there any cross-examination. It would seem that at the conclusion of the evidence of the Appellant he indicated to the learned magistrate that he wished to call an alibi witness who had been sitting in the body of the court throughout the proceedings. It seems that the learned magistrate then elicited from this person an outline of the evidence which he would have been able to give. His evidence would have been of importance to the defence as one of the matters, that he would, it seems, have sworn to was that the Appellant went to the Chiu Chow Opera Theatre at about 1 p.m. on 20th April and then went to sleep.

10. The learned trial magistrate did not refer at all to the above passage or the existence of the person referred to as the "witness" in his statement of findings. The reason why the "witness" was not called to give evidence is not clear however it does seem clear that the Appellant wished to call him. It may be that the learned magistrate took the view that the credit of this person was so affected by the fact that he had been present in court during the giving of other evidence that there was no point in allowing him to be called to give evidence as no weight could be attached to anything he said. Such an approach would be wrong. The fact that a witness has been in court during the giving of other evidence goes only to the weight of the evidence which he gives. The court must, hear his evidence and then decide, in the light of all of the relevant matters, including the fact that he heard the evidence of other witnesses, what weight should be given to it.

11. Whatever may be the reason that this person was not called I am satisfied that he was a material witness for the defence and I have no doubt that the Appellant wanted him to give evidence in the trial. In such circumstances the convictions cannot stand. The convictions are quashed. The Appellant is ordered to be retried on all three charges by another magistrate. The Appellant is remanded in custody. The retrial is to be fixed at the earliest possible date.

Representation:

Appellant in person.

Mr. Martin, S.C.C. for respondent/Crown.