Leung Kwok-on and Another v. The Queen
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CACC000951/1978
Coram: Huggins, J.A., Leonard & Trainor, JJ. Date of Judgment: 28 September 1979 ----------------- JUDGMENT ----------------- Trainor, J.: 1. Leung Kwok-on and Mok Kwong-yuen were charged with the murder of a Mrs. Boycott. The jury found Leung Kwok-on guilty of manslaughter and Mok Kwong-yuen guilty of murder. The formen applied for leave to appeal against sentence and the latter applied for leave to appeal against conviction. The application of the first applicant has already been disposed of and we are now only concerned with that of the second applicant. 2. Very briefly, the facts are as follows: The two applicants acquired knives to help them, as they said, to frighten persons that they might try to rob. On the 3rd February, 1978 they decided to investigate a block of flats to see what they could find there. They eventually found themselves in the then empty flat in which Mrs. Boycott lived with her husband. The first applicant coming to the door of the flat after being inside for a short time found himself face to face with Mrs. Boycott and he ran away to the nearby garage. A short time later the second applicant found himself face to face with Mrs. Boycott and there was an encounter between them as a result of which Mrs. Boycott received a fatal wound. For the purposes of this application we think that those are sufficient facts. 3. In the course of the prosecution case the Crown sought to introduce in evidence a statement made by the second applicant. Objection was taken to it on the ground that the statement was not made voluntarily and a voir dire was held. 4. The trial was held shortly before the Judicial Committee of the Privy Council gave judgment in Wong Kam-ming v. R.(1) over-ruling Hammond. No doubt in reliance upon the decision in Hammond(2) and what had become a well established practice in Hong Kong, and indeed in England, the trial judge allowed cross-examination of the applicant when he was giving evidence in the voir dire in support of the objection as to the truth of that statement. Such cross-examination was held by the Privy Council to be improper and to constitute a "substantial irregularity". We have to ask ourselves, therefore, whether the judge would inevitably have ruled the confession to be admissible if the irregularity had not occurred. 5. In his ruling admitting the statement the learned judge emphasized that he had particularly considered the demeanour of the witnesses who had given evidence before him, and that must have included the demeanour of the appellant when he was answering the questions which ought not to have put to him, and we are satisfied that it is impossible to say that the judge would necessarily have come to the same conclusion had those questions not been asked. Had those questions not been asked the learned trial judge might well have rejected the statement of the applicant. It follows that the conviction of the appellant can stand only if we are satisfied that the jury would inevitably have returned the same verdict if the statement had not been admitted. 6. The confession statement in question was clearly evidence which could seriously influence the jury in their deliberations. If it had not been admitted we cannot say the jury would inevitably have found that the appellant intended at least to do grievous bodily harm to the deceased. The jury by finding the first applicant not guilty of murder but guilty of manslaughter clearly indicated their opinion that when the two applicants entered the premises of Mrs. Boycott they did not have the common intention to kill, or at least to inflict grievous bodily harm; had they thought otherwise they must have found the first applicant guilty of murder also. It would seem to follow, though not necessarily, that the jury concluded that the second applicant formed the intention to kill Mrs. Boycott, or at least to inflict grievous bodily harm, sometime after he was confronted by her. We cannot say that the jury inevitably would have found that the applicant formed that intention, and consequently was guilty of murder, if the statement had not been admitted. 7. In the circumstances we cannot apply the proviso. Treating the application as the appeal, the appeal must be allowed. This is a case where we are left in no doubt that there should be a retrial. Representation: Mr. K. Bokhary & Mr. R. Barretto (D.L.A.) for 2nd appellant. Mr. J. Duffy, Senior Crown Counsel, for Crown/Respondent. (1) (1979) 1 ALL E.R. 939; [1979] 2 W.L.R. 81. (2) 28 C.A.R. 84. |