Tsang Po-man v. The Queen

CACC000948/1979

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Coram: Roberts, C.J. in Court

Date of Judgment: 5 November 1979

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JUDGMENT

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1. This is an appeal by Miss TSANG Po-man, who was convicted by a magistrate at North Kowloon of the theft of $940, the property of a Mr. AU Lap-ming ("the complainant").

2. The appellant was working as a dance hostess at a ballroom, when the complainant visited the ballroom on the 17th July as a customer. The complainant alleged that, after some conversation with the appellant, she had removed $940 in cash from his pocket, had left with it on the excuse of going to the toilet, and had not returned it to him.

3. The appellant admitted having taken the money, which was protruding from his trousers, for a minute or two but insisted that she had returned it before she went to the toilet, which she did, she said, to avoid his attention.

4. The magistrate was faced with the unsupported evidence of the complainant and of the appellant. He therefore had to weigh the respective credibilities of the two witnesses and decide whether he was satisfied beyond reasonable doubt that the complainant was telling the truth.

5. I have no doubt that he approached the matter in the correct way and that he convicted only after satisfying himself that he could accept the version given by the complainant. In arriving at his decision, however, he took into account answers which were secured from the appellant during the course of cross-examination about a statement which she made to a police officer when questioned by him on the evening of the offence.

6. This statement was not adduced in evidence by the Crown. When the prosecutor sought to put questions based on material contained in that statement, the solicitor appearing for the appellant objected. This objection was overruled and a number of questions put to the appellant as to what she had said to the police on the evening in question.

7. These questions revealed inconsistencies between what she had said to the police and the evidence which she gave in court. These inconsistencies are not of a major nature but they clearly did influence the magistrate in reaching this decision. He says in the last paragraph of his statement of findings -

"I have not traversed all of the evidence and facts of this case since these are available on the record of the proceedings and the grounds of appeal are limited to question of the defendant's statement to the police. Suffice it to say that the inadequacies and inconsistencies revealed by the cross-examination of defendant about his previous statement to the police comprised only part of the reasons that I convicted the defendant upon the charge she faced."

8. It may very well be that the magistrate might have reached the same conclusion, even if he had not taken into account the inconsistent answers. There is certainly evidence on the record which would have entitled him to do so. But I cannot feel sure that he would have done.

9. Consequently, I would feel obliged to quash this conviction if I came to the conclusion that the questions based on the statement had been improperly allowed. As to this, I have been referred to the case of SHUM Man-keung v. The Queen⁽¹⁾ in which the same point appears to have been argued.

10. In that appeal, Cons, J., referring to a statement made by the appellant said -

"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 made. Later it was dealt with in more detail when he was cross-examined during the trial proper. On the 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."

11. The judge concluded that the questioning on the basis of that statement which had not been proved by the Crown was improper. He referred in his judgment to the case of The Queen v. Rice⁽²⁾ where it was stated that there was a general principle of practice, though no rule of law, which required all evidentiary matter then available, on which it was intended to rely as probative of the guilt of the defendant, to be adduced before the close of the prosecution's case.

12. It is true that the application of this rule may cause difficulties for the prosecution, since it is not the usual practice of the Crown to adduce, as part of their case, exculpatory statements made by an accused person. Nevertheless, there are dangers in permitting the Crown to cross-examine on statements which are not introduced in evidence as part of the Crown's case because the accused, unless they are so introduced, will have had no opportunity to attack the voluntary nature of those statements.

13. In this instance, it may very well be that a caution should have preceded this particular statement. Certainly, the complaint by the victim to the police had already been made and it is probable that the police officer, at the time at which this statement was taken from the appellant, had decided to bring a charge against her. Therefore if the Crown had sought to adduce the statement in evidence as part of the Crown case, it is possible that the defendant would have succeeded in excluding it.

14. If that were so, it would have been unfair to the appellant to introduce, by way of cross-examination, parts of a statement which might not have been successfully introduced as part of the Crown's case.

15. I therefore have come to the conclusion that the magistrate was wrong in allowing questions to be put about her statement to the police. Because, as I indicated earlier, I do not feel that, in the absence of her answers to questions based on this statement, the magistrate would necessarily have come to the same conclusion, I feel obliged to allow the appeal and quash the conviction.

Representation:

B.K. Ho (H.H. Lau & Co.) for appellant

Whitehouse for crown

(1) Crim. App. 711 of 1978.

(2) (1963) 1 Q.B. 857.