Shum Man-keung v. The Queen
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CACC000711/1978
----------------- Coram: Cons, J. Date of Judgment: 23rd August, 1978. ----------------- JUDGMENT ----------------- 1. The appellant was convicted of two charges:
2. The key was said to have been found on him by two police constables, both of whom gave evidence. The learned magistrate totally disbelieved their evidence as to the circumstances which led up to the key's being found and to some extent as to the circumstances in which it was found. But he was satisfied that the appellant had actually been in possession. In reaching this conclusion he was "much assisted", as he put it, by three matters. 3. The first was a statement made by the appellant that he had bought the key from a man named To Lo-fai for the sum of $1,000, which was to be paid a few days later. The learned magistrate relied on this statement, not for the truth of its contents, but because of their nature. He felt the words used were an attempt to explain away the fact that the appellant had been caught red-handed. I am not sure myself that that is their correct interpretation, but in any event the words are clearly indicative of guilt. 4. That statement had, I understand, been reduced to writing, but was not proved as such. It was first introduced briefly in the cross-examination of the appellant when he gave evidence on the voir dire held in respect of another statement that he had made. Later it was dealt with in more detail when he was cross-examined during the trial proper. On this second occasion the solicitor representing the appellant objected. I do not think the objection can have been very clearly worded for it led the magistrate to think it was a matter for section 14 of the Evidence Ordinance. That was an error. Section 14 is concerned with discrediting witnesses generally by reference to previous contradictory statements. It is not concerned with statements made by a defendant which are probative of the main issue. 5. The objection should have succeeded for two reasons. Firstly, because of Reg. v. Rice(1). The headnote correctly reflects the comments of the Court of Appeal:
Recently the principle has been qualified to some extent by Reg. v. Halford(2). The qualification has no relevance to the present instance. Crown counsel suggests that failure to observe the principle is no more than an irregularity which is cured by the appellant's acknowledgement that he made the statement. That cannot be a sufficient answer. The acknowledgement goes only to the fact of making. Other matters would have been raised if the statements had been introduced at the proper time. There was no justification for delaying that time as there had been in Rice itself. 6. The second reason is Reg. v. Cheng Chung-yat(3). There the Full Court was dealing, as I am here, with remarks contained in what is commonly called an antecedents statement, that is, a statement made in response to questions put by a police officer as to the defendant's educational and family background, his work history, and so on. The Full Court, after some discussion of the principles involved, used these words:
"So obtained" relates back to earlier words:
In the present instance, so far as I can make out, and despite a remark by the appellant to the contrary, the appellant had not yet been charged when he made the statement. But then, as I see it, all investigative processes were already at an end, apart from action which did not involve the appellant. I consider myself bound by the words of the Full Court. 7. Crown counsel argues that the prosecutor did not use the statement as such; that he only put certain suggestions to the appellant and that it was not he who revealed to the learned magistrate that the source of the suggestions was a statement made by the appellant; that was done by the appellant's solicitor when he made his objection. It is an ingenious argument but I do not think it can succeed. The prosecutor prefaced the suggestions with the question "Did you ever give information to the police about the key?" Further, the suggestions related back to earlier evidence of police activity undertaken "because of something the defendant had told us during the investigation". 8. Crown counsel asks me to say that despite these matters there was in fact no real miscarriage of justice. In the circumstances I am not prepared to go that far. Two things must be mentioned. First, it is certain that if the Crown had sought to introduce a statement in the proper manner, objection would have been taken that it had been improperly obtained, as objection was taken to the other statement made by the appellant. So far as that objection included any allegation of severe beating I am sure the magistrate would have come to the same conclusion as he did on the first, that is that the allegation was untrue. But there may well have been other circumstances as, for example, lack of a proper caution, for the learned magistrate to consider. Secondly, the learned magistrate relied heavily on the evidence of the appellant's colleague that he had heard the appellant say that the thing did not belong to him. The learned magistrate inferred that he was speaking of both the meter-key and a pocket knife that had been upon him. There may have been some misunderstanding here. The evidence of the colleague records a denial in the singular and there was, in any event, no dispute that the knife had been found upon him. His colleague confirmed that the appellant gave an immediate explanation. Then, the learned magistrate appears to have overlooked that the colleague said these particular words were spoken not on the first search, when the knife and other things were found, but on a subsequent search after the police had withdrawn for a short consultation between themselves. This is absolutely consistent with the appellant's allegation that it was on this second search that the police "planted" the key on him. 9. For these reasons the appeals must be allowed the convictions quashed and the sentences set aside. I would like to add if I may without appearing to condescend a word of commendation for the learned magistrate. He adopted a highly conscientious approach to what must have been a most difficult and trying case. Representation: Mr. Y.H. Lau of (H.H. Lau & Co.) for the appellant. Mr. B.M. Ryan, Crown counsel, for the respondent. (1) 1963 1 Q.B. 857 (2) Times Newspaper, 11th April 1978 (3) 1970 H.K.L.R. 269 |