Lee Shu-sun v. The Queen
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CACC000853/1981 IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction) CRIMINAL APPEAL NO. 853 OF 1981 -----------------
----------------- Coram: Penlington, J. in Court Date of Judgment: 30th October, 1981. ----------------- JUDGMENT ----------------- 1. I do not expect the Magistrate's Record of Findings to contain everything that he may well have taken into account in reaching a decision on fact. However, in this case the Magistrate has disbelieved the Appellant on the question of the admissibility of the cautioned statement and it is quite clear that the Crown's case depends on that cautioned statement. He has disbelieved the Appellant on two points. Firstly, the Appellant contradicted himself and secondly, he had admitted that the whole statement was in his hand. There is some doubt indeed on the question of whether he did contradict himself and certainly, as has been pointed out by the Crown, when he says "I did not know which burglary it was", that does seem to indicate that he was referring to the actual cautioned statement, not the narrative which does set out considerable detail about the burglary. Nevertheless I feel that, looking at the Record of Findings, there was some doubt on that first point. 2. On the second point, the Magistrate quite clearly was wrong. Whether he at that stage had simply forgotten that the evidence was that the Constable had written out or not - I do not know. At any event he has found that the whole statement was in the Appellant's hand which it was not. That being so I really feel that one must have some unease as to whether the Magistrate was making his finding upon the evidence as in fact it was given. He certainly was impressed with the Constable and I see nothing wrong in making a note on the record that he was so impressed and may well have admitted the statement in any event. Nevertheless as he may have mistakenly thought that the statement was written by the accused himself which clearly is an important factor, there is a doubt in this matter and I think the appeal must be allowed. The conviction on Charge A is set aside. 3. The principle upon which a Court does or does not order a retrial is fairly well established now. It is not done if it means that the Crown is thereby given a second bite of the cherry, in other words can then go out and get more evidence. I think quite clearly that cannot happen here. It is also, I think, clear that if the Crown's case is weak there should not be a retrial. If the Crown's case is reasonably strong then there should be a retrial unless the charge is of such a trivial nature that is clearly not just to so order. Here if the statement was admitted then the Crown's case clearly was quite strong and a charge of burglary is not trivial. 4. I think the Magistrate has simply made an apparent error on the record, and there should be a retrial. I order the accused be retried before another Magistrate on Charge A on as early a date as possible. If he can be legally represented in that rehearing that clearly would be in the interest of justice.
Representation: Miss Jacqueline Leong (D.L.A.) for the Appellant. Mr. Cross for the Crown/Respondent. |