The Queen v. Kwong Yuk-man
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CACC001336/1983 Failure to rule on admissibility of confession statement before close of prosecution case fatal to conviction. IN THE SUPREME COURT OF HONG KONG
BETWEEN THE QUEEN and KWONG YUK-MAN Coram: Bewley, J. in Court Date: 30th November, 1983 ______________ J U D G M E N T ______________ 1. The appellant appealed against his conviction on seven charges of theft. The main ground of appeal was that the learned magistrate failed to rule upon the admissibility of seven cautioned statements before the close of the prosecution case. 2. Counsel for the Crown conceded that this was a fundamental error and did not seek to sustain the convictions. As the appellant had already been in custody for two months, he submitted that it was not a proper case for re-trial. In the circumstances, I allowed the appeal and quashed the convictions. 3. The evidence was that the thief surprised each victim on a staircase, snatched her handbag and quickly disappeared down the stairs. Consequently none of the victims was able to identify her attacker. 4. On the day after the last attack, the appellant was arrested at home at 2 a.m. At the police station he was formally cautioned in respect of each offence and, between 2.10 a.m. and 5.30 a.m., made a succession of short written confessions. The gist of these was that he had spent all the stolen money and had thrown away the other articles, with the exception of a calculator, which was one of the articles stolen from the victim of charge A. He was taken back to his home where he produced a calculator. 5. All seven victims gave evidence. Five of them, including the victim of charge A, had attended an identification parade without identifying the appellant. She was shown the calculator in court and said she could identify it by means of a slight dent on the corner. It is true that there is a very small dent on one corner, but it is the sort of thing that one would expect to see as the result of normal wear and tear. In his reasons for findings, the learned magistrate said:
6. Counsel for the Crown conceded that, in view of the weak evidence of identification of the calculator, plus the two weeks lapse of time since the theft, no adverse inference could safely be drawn from its presence in the defendant's room. 7. The only other evidence against the appellant lay in the confession statements. When the officer who took the statements sought to produce them, the appellant alleged that they had not been made voluntarily. He said the witness made him copy them down from a piece of paper. At this stage the statements were admitted provisionally. The prosecution then closed its case and no ruling concerning the statements was made before the appellant gave evidence. 8. The learned magistrate first heard his evidence concerning the statements. He then ruled that they were admissible, before continuing to hear the appellant on the general issue. He was then cross-examined. It is to this procedure that objection is taken. 9. In HO Yiu-fai and others and The Queen (1), it was held that:
10. Here the learned magistrate did deal with the admissibility issue before that of the general issue, but only after the close of the Crown case, and when the appellant was in the witness-box and subject to cross-examination on all aspects of the case. 11. Had the learned magistrate dealt with the admissibility issue at the proper time and had ruled in the appellant's favour, there would have been no case to answer in respect of charges B to G. It is to guard against this danger that the rule exists. 12. I would add that the record fails to indicate whether or not the appellant was informed of his right to give evidence or to remain silent.
(1) 1970 Hong Kong Law Reports 415 Representation: Mr. M. Jennings, Senior Crown Counsel for the Crown Mr. Mackenzie Ross (D.L.A.), Counsel for the appellant | ||||||||||||||||||||||