HKSAR v. CHAN YIK ZEE, ELSIE AND OTHERS

HKSAR v. CHAN YIK ZEE, ELSIE AND OTHERS

Section 70 could not be applied because D4 had not been present at the committal and therefore had no opportunity to cross-examine PW1; furthermore the word 'shall' in s.70 is not mandatory so the court retains a discretion to refuse admission of depositions where admission would be unfair, and even if statutory conditions were met the judge would refuse the application given the circumstances (witness's voluntary flight, credibility issues and risk of unfairness).

Citation
HKSAR v. CHAN YIK ZEE, ELSIE AND OTHERS
Parties
Prosecution: HKSAR; Accused: CHAN YIK ZEE, ELSIE; Accused: LEUNG HIU LING; Accused: WONG SHIU WAI; Accused: WONG HING HANG, MICKEY
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
19 April 2002
Case Number
HCCC111/2000
Procedural Posture
Criminal (conspiracy to Defraud) / Pre Trial Application Under Section 70 (pre Arraignment)
Outcome
Prosecution's application under Section 70 refused
Legal Topics
Section 70 Evidence Ordinance, Admissibility of Depositions, Right to Cross Examine, Committal Proceedings, Severance, Fair Trial
Source Language
EN
Evidence Criminal Procedure Criminal Law Section 70 Evidence Ordinance Admissibility of Depositions Right to Cross Examine Committal Proceedings Severance +1 more

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Parties

HKSAR

Prosecution

CHAN YIK ZEE, ELSIE

Accused

LEUNG HIU LING

Accused

WONG SHIU WAI

Accused

WONG HING HANG, MICKEY

Accused

Procedural Posture

Criminal (conspiracy to Defraud) / Pre Trial Application Under Section 70 (pre Arraignment)

Legal Issues

  1. 1 Whether section 70 Evidence Ordinance permits mandatory admission of committal deposition where a defendant (D4) was not present at the committal inquiry
  2. 2 Whether the court retains a discretion to exclude deposition evidence to ensure a fair trial
  3. 3 Whether severance would cure the defect for D4 or permit admission for others

Ratio Decidendi

Section 70 could not be applied because D4 had not been present at the committal and therefore had no opportunity to cross-examine PW1; furthermore the word 'shall' in s.70 is not mandatory so the court retains a discretion to refuse admission of depositions where admission would be unfair, and even if statutory conditions were met the judge would refuse the application given the circumstances (witness's voluntary flight, credibility issues and risk of unfairness).

Court Disposition

Prosecution's application under Section 70 refused

Orders

  • Prosecution's application to read the committal deposition under Section 70 is refused
  • No severance ordered to enable admission of the deposition