The Queen v. Lai Chi Shing
Read the full judgment text of CACC 523/1986 on BabelCite. This Court of Appeal judgment.
1. This is an application for leave to appeal from the decision of His Honour Judge Sharwood in the Kowloon District Court whereby he convicted the Applicant on one charge of handling stolen property.
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IN THE COURT OF APPEAL 1986, No. 523 Headnote Evidence given on a voir dire by witnesses other than the defendant may be taken into consideration by a judge sitting without a jury when considering the general issue. Note research since the delivery of this judgment has revealed F. (An Infant) v. The Chief Constable of Kent [1982] Crim. Law Review, to similar effect. IN THE COURT OF APPEAL 1986, No. 523 BETWEEN THE QUEEN and LAI CHI SHING ____________________ Coram: Hon. Cons, V.-P., Silke & Clough, JJ.A. Dates of hearing: 3rd December, 1986 and 4th February, 1987 Date of delivery of judgment: 4th February, 1987 ____________________ JUDGMENT ____________________ Cons, V.-P. delivered the judgment of the Court: 1. This is an application for leave to appeal from the decision of His Honour Judge Sharwood in the Kowloon District Court whereby he convicted the Applicant on one charge of handling stolen property. 2. On the night of the 16th/17th June last year an optical shop in Nathan Road was broken into. A large quantity of spectacle frames; spectacle lenses and some other items was stolen. On the 26th of the same month a party of police called at a flat on the 13th floor of 259A Temple Street. Evidence was given by one of the party that the door of the flat was opened by the Applicant who was, of course, the Defendant in the court below. Inside were also found a woman and a boy aged about 1 year. There was at that stage no evidence to indicate any connection between the Defendant and the woman and the boy or to show why the Defendant was there or to whom the flat belonged. The Defendant consented to a search of the premises. The officer giving evidence said that he found the stolen goods in the flat contained in red, white and blue plastic bags. There were 3 bags in the sitting room and 2 inside one of the two bedrooms. He produced a sketch plan, prepared by one of his colleagues, which indicated however 8 bags in what seemed to be prominent positions in the sitting room, with none in either bedroom. The officer however did not testify as to the accuracy of the sketch. 3. When the prosecution evidence concluded no submission of no case was made and the Defendant elected to give evidence. He said that the goods had been left with him the day before by a man with whom he did occasional business and who needed somewhere to store the goods for a few days whilst his own premises were being redecorated. The Defendant denied any knowledge that the goods were stolen. 4. The judge did not believe his story. He said -
And later on the judge added -
5. When this application was first argued before us the submission for the Applicant was based on the presumption that the only evidence of the Crown was the evidence that we have just recited. It was suggested, and we would agree, that such evidence was not sufficient to found a conviction. It indicates no more than presence together with the goods. It does not indicate possession. A submission of no case in those circumstances would inevitably succeed in a court of first instance, or if it were rejected, this Court would interfere. 6. However, as we have indicated, no submission was made in the present instance. The application therefore raised an interesting question of principle: Should this Court nevertheless still interfere, the Defendant having subsequently made good what was lacking in the prosecution case? Or to put it another way: Should the Court at first instance have raised the question itself, the judge being under a duty, in the circumstances, to stop the case? 7. The authorities in England give a negative answer to that queshon: R. v. George[1] and R. v. Juett[2]. On the other hand a dictum of this Court suggests a different approach: R. v. Yip Chi Yung[3]. 8. It was on this point alone that we thought the application would turn and we felt we needed time to consider. However in the course of our deliberations it occurred to us that the evidence we have just recited may not have been the only evidence which was available for the judge's consideration. Counsel for the Crown had sought to adduce through the constable, who was giving evidence, a statement made by the Defendant at the time of the police visit. Objection was taken to its admissibility and after holding a voir dire the judge upheld the objection. He declined to admit the statement. 9. However during the course of the voir dire certain evidence had been given which is relevant to the present discussion. It appears at p.15 of the record and is in these terms -
10. There was also further evidence from the constable that the woman and boy found in the flat were in fact the wife and son of the Defendant. 11. Now if, firstly, in the absence of any explanation by the Defendant - which of course would be the position when no case to answer would have been submitted, - the possession of those keys and the presence of his wife and son were sufficient to establish such a connection with the premises as would bring him into at least prima facie possession of what was so obviously contained in them; and if secondly, that evidence, even though it had been given on the voir dire, were available for the judge's consideration, then the question we earlier reserved for our consideration would no longer require an answer. We therefore restored the application for further hearing today and we invited counsel to make whatever submissions they thought fit for our assistance. We are grateful for Mr. Chan’s assistance. We have not thought it necessary to call on Mr. Macleod. 12. In the case of R. v. Wong Kan Ming[4] the Privy Council decided that where a confession was found upon a voir dire to be inadmissible what the Defendant had said upon those proceedings should play no further part in the continued trial. That case however did not deal with what other witnesses, in particular those for the prosecution, had said. 13. In Ho Yiu Fai[5] the Full Court gave approval to what had by then become a common practice in the District and Magistrates Courts and is now usually called the "alternate procedure". In that case the court does not stop and enter upon separate voir dire proceedings, but merely notes the objection that is taken to the proffered statement and continues with the trial. The evidence as to the admissibility of the statement is taken, as it were, in parallel with the evidence upon the general issue. At some suitable stage, usually the close of the prosecution evidence, the defendant is given a chance to give his evidence and to call his witnesses in relation to the proffered statements alone. The ruling of the court upon the admissibility of those statements will be made at least before the defendant is required to answer, if necessary, upon the general issue. 14. In its judgment the Full Court expressly decided that although in the event the statements were not admitted the judge nevertheless would be entitled to rely upon the evidence given by the prosecution witnesses. Is the position then any different where the alternate procedure is not followed, but the single judge does enter upon a voir dire? 15. In principle we can see no distinction. It seems to us to make no difference whether the evidence is given in what might be termed “parallel proceedings” or in proceedings which are in one sense distinct and separate. The reason why there can be no repetition of the defendant's evidence is that he is, in effect, forced to give evidence on the question of admissibility. If he were not given protection against repetition on the general issue he would be improperly deprived of his right to silence. But other witnesses have no right to silence. They do not need to be protected from the repetition of their evidence, nor can we see any reason why the Defendant should be so protected. It would in our view be absurdly technical to exclude evidence which the judge has already heard, in some cases only a short while before. Even if voir dire proceedings are proceedings separate from the general issue, they are proceedings in the same litigation, between the same parties and before the same judge or magistrate. 16. It is comforting to find our view confirmed by a comment of Lord Fraser in R. v. Brophy[6]. There, in proceedings before a single judge, the shorthand writer had been called to prove the evidence given earlier on the voir d1re. Lord Fraser said[7]
17. The second question, whether the evidence was sufficient to found possession, is not capable of much elaborate or technical argument. With every respect the case of R. v. Cavendish[8] is of no assistance. Then our attention was drawn by Mr. Chan to the fact that the constable accepted there to have been a tenant of one of the bedrooms. We do not think that takes the matter any further. Some of the bags were in the sitting room. We are satisfied that, in the absence of explanation by the Defendant, there was sufficient evidence to show that he was in possession of those bags. 18. We may observe that the same view was apparently taken by those representing the Defendant at the trial, for it was suggested on the voir dire that since there was already ample evidence against the Defendant, the taking of a statement at the premises can only have been an improper attempt to obtain yet further evidence: see page 22 of the record. That of course cannot influence our judgment, but it is some comfort to find that our view is not in isolation. 19. There remains only one other point to mention. It has been faintly suggested that even so ten days is not a time which can properly be called "recent", as far as the doctrine of recent possession is concerned. Nowhere of course is it laid down what is recent in terms of days or any other period of time. It is something that must depend upon the individual circumstances of each individual case. One of the matters for particular consideration is the nature of the goods which are concerned. In this case they were of an unusual nature. In the circumstances we are satisfied that the judge was entitled to take the view that possession was recent. He does not explicitly put it that way, but the finding is implicit in the whole tenor of his judgment. 20. For these reasons were leave given to appeal, the appeal would inevitably fail Therefore this application is refused.
Anthony K.K. Chan (M/s Alick Au & Massie) for Applicant H. Macleod Crown Counsel for Respondent [1] (1908) 1 Cr.App.R. 168 at 170 [2] [1981] Crim.L.R. 113 [3] unreported Criminal Appeal 532 if 86, 20th November 86 [4] [1980] A.C. 247 [5] (1970) H.K.L.R.415 [6] [1982] A.C. 477 [7] at page 480 [8] [1961] W.L.R. 1083 |
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