Lau Pui-man v. The Queen
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CACC000561/1981 Headnote Use of accused statement in cross-examination - permissible if statement clearly voluntary - Crown must produce statement if it wishes to show contradictions between statement and evidence given at trial. IN THE SUPREME COURT OF HONG KONG HIGH COURT APPELLATE JURISDICTION Criminal Appeal No. 561 of 1981 (On Appeal from North Kowloon Magistracy Case No. NK 18494 of 1980) -----------------
Coram: Penlington, J. Date of Judgment: 10th August 1981 ----------------- JUDGMENT ----------------- 1. There were five grounds of appeal filed but at the hearing Counsel for the appellant abandoned the first two. These were that the Magistrate should not have allowed the prosecutor to put to the appellant when he gave evidence certain statements which the appellant had made to officers of the Complaints Against the Police Office (CAPO). Counsel conceded, and I think quite rightly, that statements which by their very nature must be voluntary can be used to challenge the credit of a defendant if he chooses to give evidence and it is only statements which may not have been voluntary which can't be so used. 2. What is, however, submitted on behalf of the appellant is that was as the prosecution did not produce the statements made to CAPO, the Magistrate was not entitled to dismiss the appellant's evidence because the prosecutor suggested that it conflicted with those statements. 3. Section 14 of the Evidence Ordinance, Cap. 8 reads as follows:-
4. If a witness answers in cross-examination which are contrary to a previous written statement, the cross-examiner must accept those answers unless the previous statement is shown to the witness. If he still does not admit the inconsistency, the statement must be produced in rebuttal. In R v Cheng Chung Yat 1970 H.K.L.R. 269 the Full Court said, at P. 271,
5. In this case the prosecutor had the accused's statement made to CAPO - and I see nothing at all improper in that though the Magistrate seemed somewhat surprised. It was put to the accused that some of his answers were inconsistent with that statement. The accused denied that and said that what he was now saying particularly as to his reason for being in Shamshuipo on the evening in question were the same as he had told CAPO. I think the authorities are clear that if the prosecutor did not wish to rest content with those answers he had to call the officer who took the statement to produce it. That he did not do. If he had done so the appellant could have objected to its production on the ground that it was not voluntary (which seems very unlikely in this case) or was not an accurate record of what he said. 6. The Magistrate found that the prosecution witnesses were honest and reliable. He accepted their evidence. He did not accept the evidence of the appellant because "of the inconsistencies thrown up between what he told CAPO and what he told the Court". As the CAPO statements were never admitted in evidence, he was not entitled to reject the appellant's evidence for that reason. 7. It was suggested that even if there was a failure to follow the correct procedure, I should apply the proviso as the Magistrate had accepted the Crown's evidence. I do not think I can say that the Magistrate must have come to the same conclusion even without the CAPO statements and therefore this is not a case to which the proviso should be applied. In view of the minor nature of the offence and the time which has now elapsed I also do not consider there should be a re-trial. The conviction is therefore quashed.
Representation: A.J. Corrigan (D.L.A.) for Appellant J.W. Dick, S.C.C., Counsel for Respondent |