The Queen v. Ng Kwok-kuen

CACC000867/1983

BETWEEN:

Coram: Roberts, C.J., Huggins, V.P. & Barker, J.A.

Date: 11th January, 1984.

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JUDGMENT

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Roberts, C.J.:

1. The applicant seeks leave to appeal against his conviction on a charge of wounding with intent. The only substantial evidence against him consisted of a statement, which was admitted by the trial judge after he had followed what is known in the District Court as the 'alternative procedure'.

2. The sole ground of objection advanced on his behalf by his counsel who, very properly in our view, abandoned the others which had earlier been submitted, was that there had been a material irregularity in the course of the trial in that counsel for the Crown, during cross examination of the applicant on the issue of admissibility of the cautioned statement, was permitted to ask questions which were directed, not to the circumstances in which the statement was taken, but to the evidence of the alleged offence of the general issue of guilt.

3. An examination of the record shows that it was made clear, by counsel appearing on behalf of the applicant, that he was calling the applicant as a witness to give evidence on the question of the admissibility of the statement only.

4. In his evidence in chief, the applicant dealt only with the admissibility of the statement, save that in one answer he said " We were there but only three had weapons, not us, and I was told that I had to admit everything."  This reference to the general issue, however, seems to us to be a passing reference and no more than part of his explanation of how he came to make the statement. It was not an attempted incursion by him into tide general issue.

5. Even if it had been, this would not, in our view, have justified the detailed questioning of the applicant upon the general issue, which then followed.

6. For many years it was believed that the law which applied in Hong Kong justified questioning of that nature.  However, in 1979, in Wong Kam Ming⁽¹⁾, the Privy Council made it clear that this was not so, which involved the overruling of R. v. Hammond⁽²⁾, which had approved the questioning of a defendant, on the voir dire in an effort to show that the statement was true and thus more likely to have been a voluntary one.  The rule now is that counsel for the Crown may not, during a voir dire, ask questions of an accused person in such a way as to suggest that the contents of a disputed statement are true.

7. As this court observed in Chung Wing Wah v. R.⁽³⁾, we do not take the view that the mere asking of a question of that nature is sufficient by itself to amount to such a substantial irregularity as to oblige an Appellate Court to upset a conviction. We quote a passage from Huggins, J's. judgment in Fung Chi-keung v. R.⁽⁴⁾, which was quoted in Chung Wing Wah⁽³⁾-

"In our view, where the evidence is that the accused person has denied the truth of the statement, the damage which can have been done is slight and we do not think the fact that there has been cross-examination in breach of the principle now established is sufficient by itself to justify our interfering with the convictions.  It is, however, a factor which may have to be thrown into the balance if there are other matters of complaint which carry weight."

8. In Chung Wing Wah⁽³⁾, we added that we could not imagine that the questions and answers in that case could have had a substantial influence on the judge's mind, and that we were satisfied that he would have reached the same conclusion, whether or not the questions had been asked.

9. In this instance, however, the questions went much. further than the one which elicited an immediate denial in Chung Wing Wah's Case⁽³⁾.They went into some detail as to the circumstances of the attack with which the applicant was charged with taking part, and elicited a number of damaging admissions on the general issue.

10. The judge gave his reasons for admitting the statement in his Reasons for Verdict, not at the end of the Crown case, where he merely recorded that he admitted the statement.

11. The judge does not, in his Reasons for Verdict, make any reference to the answers obtained from the applicant by means of what we have found to be an improper cross-examination. But, nevertheless, we think that there is a real danger that his mind may have been influenced on the question of admissibility by the answers which were extracted from the applicant on the general issue.

12. This case is an illustration of the dangers which can follow if the alternative procedure for voir dires in District Courts and Magistrates Courts is not followed with the greatest possible care.

13. For the reasons which we have given, we are satisfied that this conviction must be quashed, and that the application for leave to appeal against conviction must succeed.

(1) [1979] 1 A.E.R. 939

(2) [1941] 3 A.E.R. 318

(3) Crim. App. 1222/78

(4) Crim. App. 2/79

Representation:

J. Hingorani (H.M. So & Company) for Appellant

J.S. Conyngham, S.C.C. for Respondent