The Queen v. Lee Chi Wai
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CACC000097/1973 IN THE SUPREME COURT OF HONG KONG CRIMINAL CASE NO. 97 OF 1973 -----------------
----------------- Coram: Trainor, J. Date of Judgment: 1st November, 1973. ----------------- JUDGMENT ----------------- 1. The accused in this case was charged with murder. Before the trial proper commenced a voir dire was held as to the admissibility of a statement made by the accused, and on it being held to be admissible the Crown led evidence. The first witness was called and during his cross-examination it was put to him that something he had said in direct examination was in conflict with what was recorded as having been said by him before the examining magistrate. He denied that he had said to the magistrate what was put to him. This matter, which was of vital concern to the defence, was again put to him but he persisted in that he had not said it at the preliminary enquiry. The original of what was recorded was produced and it transpired that the witness had never signed it. His purported deposition was stamped: "Read and explained to witness in the ___ dialect", and signed by the magistrate, the word "Punti" being written in before "dialeot". After the signature there was a further endorsement written and signed by the magistrate:
2. An examination of the deposition of the only other witness in the court below was stamped and endorsed identically. 3. Argument was heard in the absence of the jury as to the effect on the committal proceedings of the deposition of the witness in the box, and the next one to be called, not being signed. It might be noted that these were the only two witnesses in a position to associate the accused with the crime, and, apart from the challenged record of a conversation with a police officer, the only evidence against him. 4. The legislation pertinent to the matter is s.81 of the Magistrates Ordinance (Cap.227). This deals with the taking of depositions at committal proceedings and subsection (2) reads as follows:
Although counsel for the Crown would argue that the requirement of the witness's signature is merely directory, and adopted what is said in Archbold 38th Edition paragraph 451 (a) and cited the case therein referred to, R. v. Holloway (1901) 65 J.P.712, in support he was inclined to the view that in Hong Kong the words are mandatory. Counsel for the defence contended that the words are mandatory and cited the case of:
and distinguished the facts in the Holloway case from those here. 5. In the Holloway case it was held by Wills, J. that the deposition of a deceased witness, although not signed by her, owing to injuries to her hands which were heavily bandaged at the time of the taking of the deposition, should be admitted, it having been proved that the deposition had been read over and assented to by her. He held that the statutory provisions requiring the witness's signature were directory and not mandatory. Mr. Mumford argued that the position here is completely different. In the Holloway case the necessity for signature was in full contemplation of the Justice and there was evidence that the deceased indicated her assent some way other than by signing whereas there was no suggestion in the present case that the learned magistrate had adverted to the requirement for the witness to sign. 6. Having heard counsel I held that the committal of the accused for trial was a nullity and ordered that fresh committal proceedings' be held. I briefly gave reasons for doing so and I indicated that I would hand down ay considered reasons later. This I now do. 7. I do not consider the Holloway decision is of any great help as the law which Wills J. was interpreting then is quite different to what it is here now. Wills, J. was there considering the admissibility of a deposition of a witness who had died since making it; a position .governed by the Indictable Offences Act, 1848 (11 and 12 Victoria C.42), S.XVII whereof provides for the taking of depositions. It provides that the Justice or Justices before committing a person for trial "shall, in the Presence of such accused Person, who shall be at liberty to put Questions to any Witness produced against him, take the statement on Oath ..... of those who shall know the Facts and Ciroumstances of the Case, and shall put the same into writing, and such Depositions shall be read' over to and signed respectively by the Witness .... and shall be signed also by the Justice or Justices taking the same". 8. In my opinion two things are indicated there:
In my opinion these two things are not of equal importance. The comma after "writing" has, in my opinion a disjunctive effect separating essentials from formalities. 9. The section continues:
As I said earlier, the essentials to the depositions on which an accused may be committed for trial are contained in the first part of the section of the act that I have quoted. The formalities that follow are not essential and only came into question if it is sought to put in the deposition of a deponent who is not available. For it to be put in all that is essential is proof of the unavailability of the deponent, and that the deposition was taken as directed. Indeed, the only basis on which the deposition might be challenged is that the purported signature of the justice was not his. Clearly, in my view, the section of the act is directory only as to the signing by the deponent and I would respectfully agree with Wills, J. in so finding. 10. But the position in Hong Kong is very different. 11. I do not think that it requires any argument to support the principle that when a deposition is being taken at committal proceedings the accused or his counsel has the right to put questions to the deponent and that refusal to allow them so to do would be fatal if, in the circumstances, the accused were returned for trial. The relevant subsection of the Hong Kong Ordinance, part of which I have cited, having expressed that right of the accused to question a deponent continues:
There is nothing disjunctive there, in my opinion. The words "and further", make the signing of the depositions by the witness as essential as the granting to the accused the right to ask questions. 12. The position is perhaps not quite analogous but it might be of interest to consider the provisions of section 39 of the Evidence Ordinance (Cap.8) which govern the admissibility at a trial of the deposition of a person who is unavailable to give evidence. In such circumstances:
It is, I think, clear from that that the Legislature intended to make the signing of a deposition by the witness obligatory and his failure so to do would render it inadmissible as evidence at the trial. The wording in that section is very different in its emphasis to that used in the section Wills, J. was considering in the Holloway case. 13. One of the purposes that a deposition serves is to inform the accused of the evidence that will be given against him at his trial. He must be in a position to challenge at the trial as to his veracity, recollection or reliability, any witness on whose evidence his committal is based. This he may do by confronting the witness with the deposition he signed in the committal proceedings. This is a powerful confrontation and the witness's answer must weigh very heavily with the jury. If he denies he said something in face of his own signature it must, one would think, shake considerably the jury's confidence in that witness's truthfulness or reliability. Were evidence to be heard to prove that the witness did say what was in the unsigned record would leave an issue to be considered by the jury that should never have to be left to them. The accused should be in the position to have left to the jury the evidence of the witness on the one hand and the deposition signed by him and countersigned by the magistrate on the other for them to consider how far they can rely on the witness's evidence. To do otherwise and compel the accused to call evidence to establish that the witness said what is recorded would cut into the rights of the accused in making his defence. To leave the unsigned deposition with the jury is unthinkable. If I may use the words of Wright, J. in R. v. Cockshott (1898) 1 Q.B.582 "I think it would be wrong to fritter away the protection which the section intends to give to accused persons .....". 14. The case of CHAN Kam-chan and another v. R., 1971 H.K.L.R.383 was cited to me. That was a case where a magistrate failed to record that the offences with which the accused were charged, robbery, and the ingredients which constituted the offences were not explained to the accused before their pleas of guilty were accepted and they were committed to the Supreme Court for sentence. On appeal to the Full Court against sentence it was held that such a breach of a statutory condition invalidated the committals. 15. The facts and circumstances are different in that and the instant case and are only similar in that a condition of an ordinance has not been observed. I do not think it could be maintained that because the Full Court held the condition of the section of the Magistrates Ordinance with which it was concerned was mandatory that a condition in another section was equally so; but that case established that where an accused has been deprived of a right, even if it was in circumstances which his counsel would concede were only technical, the court will preserve that right. I think some help can be derived from the decision in the case of R. Gee (1936) 2 A.E.R.89 referred to in the Full Court's decision. In that case the procedure adopted in the committal proceedings was as follows: The clerk of the Magistrate's court was in possession of a statement, taken in the absence of the accused, of what each witness would say on oath. The clerk checked the questions put to and the replies of each witness to see if they agreed with the statement already made. The accused was then afforded the opportunity of questioning the witness after which the statement, I presume amended if necessary, was read over to the witness in the presence of the accused and the witness then signed it. 16. This was a procedure which had been followed for years previously but the Criminal Court of Appeal held the accused had not been properly committed for trial. 17. In the Gee case all that was on record in the "deposition" had been acknowledged by the witness to be correct as evidenced by his signature. In the instant case the witness who was under examination not only had not acknowledged by his signature what was written by the learned Magistrate but denied that he had ever said it. 18. I am satisfied, and hold, that the requirement of section 81(2) of the Magistrates Ordinance that a witness in committal proceedings sign his deposition is mandatory. It occurs to me that in the circumstances it would be futile to stipulate that the deposition "shall ..... be ..... signed by the witness ....." if this were merely directory. If it were not mandatory there is no means that I can think of whereby the witness could be compelled to sign should be refuse so to do. 19. In conclusion I would suggest that in the future magistrates at the conclusion of a witness's examination in committal proceedings should add "no questions" if such be the case and add some such formula as: "Read over to and signed by the witness in the presence and hearing of the accused and me.
mutatis mutandis where corrections or alterations have been made.
Representation: Corrigan, S.C.C., for the Crown Munford (D. L. A.) assigned for the accused |