Li Kim Hung v. The Queen
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CACC000704/1968 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CRIMINAL APPEAL NO. 704 of 1968 -----------------
----------------- Coram: Hogan, C.J. and Blair-Kerr, J. Date of Judgment: 25 February 1969 ----------------- JUDGMENT ----------------- 1. The appellant applies for leave to appeal against his conviction and has advanced a number of arguments of which only one requires detailed consideration. 2. The one matter raised by the appellant, which causes us some difficulty, is his complaint that the judge having rejected the cautioned statement which was entered in the notebook of the 6th prosecution witness, detective constable Tang Fuk, should not have admitted the subsequent statements in answer to the formal charges. 3. As grounds for this distinction the judge, when ruling on the matter, said:
4. It is true that in the court below the inspector, Wong Fok Hoi, who made the formal charges, did say: " I offered no inducement or threat to accused" and that nothing quite so explicit was said by detective constable ...(illegible) ang Fuk. ...(illegible) evertheless, the evidence of the latter as to the circumstances in which the cautioned statement in the notebook was made would, we think, have justified its admission as a voluntary statement but the judge's refusal to admit it is not, we think, sufficient to show that his subsequent admission of the statements in answer to the charges was wrong. 5. A point which has, however, caused us some anxiety is the reliance which the judge, in finding the accused guilty on the main issue, has placed on the answers made by the appellant on the voire dire or trial within a trial. 6. There is a decision of the Full Court in Hong Kong, Li Kam Ming and another v. The Queen(1), which suggests, although the point was not directly in issue, that a judge may properly take this course, but the Federal Court of Appeal in Rhodesia and Nyasaland has held in Chitanbala and others v. Reg.(2), when the point was argued and carefully considered, that evidence given by an accused person in the voire dire on the issue of admissibility of a confession must be disregarded in the trial proper on the issue of guilt. 7. It can hardly be questioned that the position contemplated is highly artificial when the judge sits alone. Having heard the evidence on the voire dire, it must be extremely difficult for him to dismiss that evidence from his mind when he turns to the subsequent issue. The position is, of course, very different when he sits with a jury because the jury will not have heard the evidence on the voire dire and indeed the whole purpose of introducing this somewhat cumbersome procedure was to keep knowledge of the statement from the jury until the judge had ruled on its admissibility. That basic reason and justification for a voire dire disappears when a judge sits alone and its retention must introduce an element of unreality into a trial-not least in the eyes of the accused. Whilst there may be justification for framing two issues when there is a jury, leaving it to them to decide on the weight to be attached to a confession after a judge has ruled on its admissibility, to divide these two questions, dependent on criteria so essentially similar, and ask the judge not only to decide them separately but to hear and determine them separately is not merely cumbersome but dangerously artificial. This may explain why this practice is by no means universal. 8. However, where the procedure of voire dire is adopted it seems clear that, for the reasons elaborated in the Rhodesian case(2), the evidence given on the voire dire is not available for or against the accused on the general issue of the weight to be given to the alleged confession. This approach rests on the contention that otherwise the accused would be deprived of his right to remain silent in the face of the prosecution evidence. That right would be impaired, it is said, if the prosecution was free, on the general issue, to rely on evidence which had been given by the accused or his witnesses or indeed the prosecution witnesses on the purely preliminary issue as to the admissibility or otherwise of his statement. 9. In the present case, it is quite clear that the judge did rely on evidence given during the voire dire for his conclusion that the evidence of the accused on the general issue should not be accepted and as this decision was crucial to the issue in the case, which turned so largely on the credibility of the witnesses on either side, we do not think it is a case in which we would be justified in applying the proviso to section 81(2) of the Criminal Procedure Ordinance. Consequently because of this unfortunate error, which is largely due to the artificiality of the situation created by a trial within a trial when a judge sits alone, the conviction must be set aside. We have given careful consideration to the question whether a new trial should be ordered but in all the circumstances do not think that we would be justified in taking that course. 10. A further difficulty emerges from the record in the court below. It appears that, on the general issue, when the accused was asked by counsel for the prosecution why he made a statement to the police admitting the charge laid against him - the statement in question having been ruled admissible by the judge - the accused replied by saying that he did so because he had already made a similar statement to that effect. This apparently referred to the earlier statement which had been ruled inadmissible by the judge. Counsel for the Crown then drew the attention of the accused to differences between the two. Question might well have arisen as to whether these further questions were objectionable and what course should have been adopted when the accused himself chose to refer to a document which, at his request, the judge had ruled inadmissible. It is not a matter on which it is necessary for us to rule in this case and we would propose to leave it for determination, if necessary, on another occasion. We merely draw attention to it so that prosecuting authorities may have an opportunity of deliberating on whether further examination of this kind is appropriate. 11. The application is treated as the appeal and the conviction is set aside. Representation: Appellant in person. Mr. J.D.M. Donnelly on fiat for the crown, the respondent. Judgment read by President (1) (1967) H.K.L.R. 513. (2) (1961) R. & N.L.R. 166. |