Tsang Hin-lam v. The Queen

CACC001097/1981

BETWEEN

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Coram: Silke, Barker JJ.A. and Jones J.

Date: 14 September 1982

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JUDGMENT

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Silke J.A.

1. The appellant was convicted of robbery and sentenced to a period of four years' imprisonment.

2. It was, briefly, the case for the Crown that he was the driver of the getaway car. The physical robbery was perpetrated by two other men who entered a plumbers shop, one with a knife, blind-folded and tied up the occupants.

3. The main evidence in respect of the appellant's participation came from PW3, Mr. Lam Ching, the effect of which was to place him as the driver of the carinwhich the two robbers made their escape. This was supported, to some extent, by the contents of a statement made by the appellant under caution.

4. In the course of tae trial and after a voire dire the appellant discharged his solicitor, apparently because the solicitor failed to call available medical evidence which might have been material to the determination of the issue of admissibility. He asked for a retrial but this application was rightly refused by the trial Judge who adjourned the matter giving the appellant an opportunity to find other legal representation.

5. At the resumption of the trial another solicitor represented the appellant and he made an immediate double barrelled application the first to recall a prosecution witness for further cross examination in relation to an incident said to have occurred during the period of the adjournment and further to be allowed, in effect, to reopen the voire dire - something which lay within the power of the trial Judge to permit - and make reference to the visit of the appellant to hospital and, in the alternative, for a trial de novo. The then Counsel for the Crown "formally objected" to the application and the trial Judge adjourned the application until he had heard the evidence in toto.

6. The trial continued.

7. At the conclusion of the evidence called by the defence a further application was made for the revision of the ruling on the voice dire, for the recalling of a prosecution witness and, alternatively, for a new trial. The trial Judge ruled that "both applications are dismissed".

8. We do not wish to go into greater detail as to the facts of the case in view of the course we intend to adopt - save to say that it could be that there was sufficient evidence upon which, if believed, a verdict of guilty might properly be founded but that the cuality of that evidence is a matter which remains untested in certain aspects because of the refusal of the application.

9. We think, in the particular circumstances of this case the discretion of the trial Judge was wrongly exercised so as to occasion a possible miscarriage of justice.

10. But that is not, in any way, to suggest what the final verdict should be.

11. We have heard Mr. Sedgwick in relation to the basic ingredients of an order for a retrial. Matters to be taken into consideration are certainly the possibility o￡ conviction, the seriousness of the actual offence charged and the length of time that the appellant has already spent in custody. To these we have given consideration but we think that the proper order here, and the interests of justice so demand, be that there be a retrial on the same indictment and that the appellant be placed on bail pending the new hearing.

12. The conviction is quashed and the sentence is set aside.

13. Retrial ordered.

14. Bail to attend upon retrial when so directed granted on terms.

Representation:

A.W. Sedgwick Esq. and Miguel Degado Esq. (D.L.A.) for Appellant.

D. Fitzpatrick Esq. for Crown/Respondent.