Lam Shui-ching v. The Queen
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CACC000619/1977
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----------------- Coram: Cons, J. Date of Judgment: 5th July 1977. ----------------- JUDGMENT ----------------- 1. In this case the appellant was convicted on his own confessions. They were written in a police notebook produced at the trial by a police constable. The appellant was not then represented and raised no objection when the notebook was first introduced into evidence. The learned magistrate did not at that stage ask him whether he wished to do so. The law does not require that the magistrate should: Reg. v. Wong Hing-chung(1). This does not mean of course that a magistrate may not do so if in the particular circumstances he thinks it fit. With every respect to the Full Court the appropriate questions do not necessarily invite perjury and may sometimes save later expense and trouble. 2. Half way through his examination of the police constable concerned the appellant asked a question which perhaps indicated a contention that his confessions were not voluntary. The magistrate made a comment which I think was intended to elucidate whether this was so or not but the appellant possibly did not understand. Later in cross-examination he put a direct allegation of violence on his refusing, so he said, to copy the pre-written paper into the notebook. 3. The appellant elected to give evidence after the prosecution closed its case. He was brief and made no reference himself to the confessions or to their being involuntary. When cross-examined he simply said that the constable had ordered him to copy into the notebook. 4. It may be that that no practical harm has resulted to the appellant. The magistrate did later specifically consider the nature of the confessions and he came to the conclusion that they had been voluntarily made and were true. However I do not think it is a case where I should, as it were, apply the proviso. The case turned solely on the confessions. Once it became apparent to the magistrate that an allegation was made that they were not voluntary he should in my view have adopted one of the accepted procedures for determining that question. The matter would then have been thoroughly and properly canvassed in evidence. 5. For this reason I remit this case to the trial court with a direction that it be tried de novo before another magistrate. Representation: Appellant in person. Miss Beeson, Crown Counsel, for the respondent. |