Kwok Lin Hoi v. The Queen
|
CACC000750/1974 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 750 OF 1974 -----------------
----------------- Coram: McMullin, J. Date of Judgment: 26th September, 1974. ----------------- JUDGMENT ----------------- 1. The appellant in the present case was one of five persons four of whom were tried together before the magistrate charged with the offence of claiming to be a member of a Triad Society. The Crown does not seek to support the conviction in the present case and I should state very briefly the reasons for that stand. 2. It appears that the note of the record which is before this Court in typescript is not a true representation of the magistrate's hand written note. How that comes to be is not clear and I should observe that it is desirable that records of this sort should be checked, before being sent out, against the actual note of the magistrate so that such irregularities do not occur. In the present case the difference between the actual note taken by the magistrate and the note which appears now in typescript is vital. I should say that the only evidence against the appellant (because I am not concerned with the evidence against the other accused) consisted of an alleged voluntary confession to membership of the Triad Society. That was tendered in evidence and objection was made on behalf of the defence. On the record before this Court the note is as follows:-
After that note there is a further note stating "Cross-examination: Nil for D2 and D3". The present appellant is D2, and he and D3 were represented by Counsel at the trial. What happened after that was that the magistrate purported to try the separate issue although in fact this is a confusion in terms since no voire dire, properly speaking, was held and what is meant, I think, is that the trial continued with the ruling upon admissibility deferred to the end of the trial. It seems obvious to me, and I think the point was obviously going to be taken by the Crown, that if the true note of the record was what appeared on the typescript the appellant would be in grave difficulty in making the complaint which he at present does. That complaint is that the prosecution failed to prove affirmatively that the appellant's statement was freely and voluntarily made. The substance of the complaint, as I understood it upon the original reading of the record, was that a person, said to have been in the presence of the officer who too the statement, was alleged to have ill-used the prisoner and that the confession must therefore not be avoluntary confession. If that had been the alleged state of affairs, one would certainly have expected that there would have been cross-examination of the witness on those lines while he was still in the box for, if such a thing had happened, it could not have been done without the knowledge of the officer who actually took the statement of Lam Ping Fai. Since there was no such cross-examination it looked as though the defence, while making the allegation of impropriety, was not prepared to challenge the prosecution witness on it. At the commencement of the appeal, however, Miss Tam informed me that Mr. Mayne (who appeared for the prisoner upon the trial) had approached her and informed her that the note in the record is wrong and that what should appear was to the effect that a named officer, Lin Fung-ying, had threatened the appellant before the confession statement was taken i.e. presumably not in the presence of the witness. I have consulted the magistrate's actual note of what was said by Mr. Mayne and although it differs from the typescript it does not disclose any such allegation. Crown Counsel, however, accepts, through Miss Tam, Mr. Mayne's assurance that he did allege that the alleged threats occurred before the taking of the statement and not in the witness's presence. That, of course, would lay open a very different ground of appeal. It has been said by this Court on more than one occasion that where such an allegation is made, and even although the prisoner himself does not give evidence upon the issue, and when the allegation is that at some point during his custody pressure had been exerted upon him by someone other than the officer who took the statement it is incumbent upon the Crown at least to make available that person, if named, for cross-examination; if no person is named and if it is the prisoner's case that he cannot name the person who ill-used him, then it is incumbent upon the Crown to offer some evidence to cover such period of custody as cannot be dealt with by the officer actually taking the statement. 3. Since it would appear, therefore, that it is now conceded that the allegation made at the time was that the prisoner had been ill-used and threatened by some police officers before the confessional statement had been made and that this is what was put to the magistrate and that this was the information in the possession of the Crown at the time of the trial, I am in agreement with Mr. Stapp that a vital gap does exist inasmuch as evidence which ought to have been made available upon the issue of admissibility was not produced and I am satisfied that he quite properly withdraws the Crown's support for the conviction in this case and that it must therefore be set aside.
Representation: |