The Queen v. Ho Siu Fei and Others
Read the full judgment text of CACC 94/1975 on BabelCite. This Court of Appeal judgment.
1. This case raises a short point and comes to this Court upon a reference by a judge of the High Court under s.81(1) of the Criminal Procedure Ordinance.
Cited by 2 cases
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CACC000094/1975
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----------------- Coram: Briggs, C.J., Huggins & Pickering, JJ.A. Date of Judgment: 3rd March 1976. ----------------- JUDGMENT ----------------- Huggins, J.A.: 1. This case raises a short point and comes to this Court upon a reference by a judge of the High Court under s.81(1) of the Criminal Procedure Ordinance. 2. The seven Defendants are standing their trial upon an indictment the particulars of which are not relevant for present purposes. The trial having proceeded for about a week, counsel for the Defendants seek to prevent the prosecution from adducing evidence of a number of confessions alleged to have been made by the Defendants. This is not a mere objection that the statements are inadmissible on the ground that they were not voluntary but one based upon an alleged defect in the committal proceedings. Before the magistrate the Crown sought to put in, under s.81A of the Magistrates Ordinance, the written statements of the police officers who received the alleged confessions, notwithstanding that those officers were not called as witnesses to give oral evidence. Each of the officers' statements was sufficient to establish prima facie that the alleged confessions were made voluntarily. No written notice was delivered to the magistrate under sub-s.(7) nor was the magistrate otherwise asked to order the attendance of the officers to give oral evidence. The provisions of sub-s.(2) were complied with. However, the magistrate went on to ask each Defendant whether his confession was voluntary and each replied that it was not. In respect of some of the Defendants on some of the counts in the indictment the alleged confessions were the only evidence available. 3. The two counsel appearing for the various Defendants contend that the magistrate should not have admitted the statements of these police officers in evidence when he knew that the Defendants alleged that the confessions were not voluntary but should have insisted on their giving oral evidence. They rightly point out that the rules as to the admission of evidence are the same in the magistrate's court upon a preliminary enquiry into an indictable offence as in any criminal trial. If the Defendants had wished they could at the preliminary enquiry have challenged the admissibility of the police officers' evidence relating to the alleged confessions and, had they done so, the magistrate would have had to hear such evidence as might be adduced on either side and to decide whether he was satisfied that the confessions were voluntary. However, once the statements of the police officers were admitted as part of the evidence without objection there was not only prima facie evidence that the confessions were voluntary but there was an implied acceptance, for the purposes of the preliminary enquiry, that they were in fact voluntary. It is, as has been pointed out in argument, common practice for defendants to reserve their objection to the admissibility of evidence until the trial unless they see a reasonable prospect of obtaining their discharge without committal. We were in fact told that some magistrates advised unrepresented defendants to reserve their objections until the trial. Speaking here entirely for myself I doubt the propriety of such gratuitous advice, although it would not be improper to inform an unrepresented defendant of the possible courses open to him in respect of an alleged confession. What is important for our purposes is that under our legal system it is necessary that a defendant's case should be put to the prosecution witnesses where an issue is to be decided, so that once the police officers' statements were admitted in evidence without objection it would have been improper for the Defendants to give evidence which was inconsistent with those statements. 4. The fallacy in the argument addressed to us can be seen when one looks at sub-s.(4) of s.81A:
It was said that the magistrate failed to comply with this sub-section and did not receive the evidence necessary for a decision whether to allow or disallow "the objection". The short answer is that there was no objection within the meaning of that sub-section and such objection as there was related not to the statement of the witness but to the exhibit about which he desired to speak. 5. The point raised is squarely founded upon an alleged failure to comply with the statutory provisions of s.81A. In our view there was no failure to comply with the provisions of either sub-s.(4) or sub-s.(6) - or, indeed, of any other sub-section - and the committals were valid. It may be added that the only good reason the magistrate may have had for asking the Defendants whether their alleged confessions were voluntary once they had indicated that they did not oppose the admission of the police officers' statements was to give an indication to the court of trial whether objection would then be taken to the admissibility of the alleged confessions and, in consequence, of the probable length of the trial. 6. The case is remitted to the High Court with this expression of our opinion. 3rd March 1976. Representation: |
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