Yuen So Keung v. The Queen
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CACC000673/1977
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----------------- Coram: Morley-John, J. Date of Judgment: 15th July, 1977 ----------------- JUDGMENT ----------------- 1. The appellant was found guilty of three offences namely attending a meeting of a triad society, professing to be an office bearer of an unlawful society and allowing a meeting of an unlawful society to be held on premises. He has appealed against these convictions. The main ground of appeal is that the learned magistrate in his Statement of Findings said that he placed a great deal of weight on the statement made under caution by the appellant, a statement that the learned magistrate should never have admitted in evidence in the first place. It is not disputed that there was no evidence before the learned magistrate that the appellant was ever properly cautioned before making the statement as alleged by the Crown. There is evidence that the appellant was told that he was not obliged to say anything unless he wished to do so but there was no evidence to the effect that he was ever warned that anything he might say would be taken down in writing and might be given in evidence. Also the appellant never signed this statement written by the police officer that was put in evidence, and in cross-examination of the police officer who wrote the statement it was put to him that the appellant never said the things recorded by the police officer and that he did not agree with the contents of the statement. It is clear from the cross examination that the defence challenged the admissibility of the statement. However, the magistrate did not hold a separate voire dire, and I agree that it is not mandatory that he should do so. However, the learned magistrate appeared to admit the statement when it was produced by the police officer when giving evidence in chief. In the case of Reg. v. HO Yiu fai and others(1) it was laid down by the then Full Court inter alia that where no voire dire is held a judge sitting without a jury must insure that a ruling on the admissibility of a statement is made at or before the close of the case for the prosecution. Again this was not done by the learned magistrate. In fact at no time in the trial is it recorded that he made an actual ruling on the admissibility of the statement, he merely admitted it in evidence as it was produced. 2. Under all the circumstances of this case especially as the learned magistrate placed a great deal of weight upon the statement and which he also found inter alia corroborated certain accomplice evidence that had been given I find this conviction unsafe and unsatisfactory. The appeal is allowed accordingly, the conviction is quashed and the appellant is discharged.
Representation: Mr. E.C.Mumford, instructed by (Hoosen & Co.) for Appellant Mr. C.M. Hindle, c.c. for Crown/Respondent (1) 1970 H.K.L.R. 415 |