HKSAR v. CHAN YIK ZEE, ELSIE AND OTHERS

HKSAR v. CHAN YIK ZEE, ELSIE AND OTHERS

Section 70 could not be applied in this trial because the 4th accused (D4) did not have a full opportunity to cross-examine the witness at the committal; accordingly there is an absolute bar to reading the deposition as to D4 and the court retains discretion to refuse admission where admission would deny a fair trial; in the circumstances the court would also refuse admission of the deposition as to D1 and D3 because admission would likely produce a materially unfair trial notwithstanding statutory conditions otherwise being met.

Citation
HKSAR v. CHAN YIK ZEE, ELSIE AND OTHERS
Parties
Prosecution: HKSAR; 1st Accused: CHAN YIK ZEE, ELSIE; 2nd Accused: LEUNG HIU LING; 3rd Accused: WONG SHIU WAI; 4th Accused: WONG HING HANG, MICKEY
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
19 April 2002
Case Number
HCCC282/2000
Procedural Posture
Criminal — Conspiracy to Defraud / Pretrial Application Under Section 70 Evidence Ordinance (prior to Arraignment)
Outcome
Prosecution's application under Section 70 refused
Legal Topics
Section 70 Evidence Ordinance (cap.8), Admissibility of Depositions, Fair Trial and Right to Cross Examine, Severance of Trials
Source Language
EN
Criminal Law Evidence Law Procedural Law Section 70 Evidence Ordinance (cap.8) Admissibility of Depositions Fair Trial and Right to Cross Examine Severance of Trials

Case Brief

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Parties

HKSAR

Prosecution

CHAN YIK ZEE, ELSIE

1st Accused

LEUNG HIU LING

2nd Accused

WONG SHIU WAI

3rd Accused

WONG HING HANG, MICKEY

4th Accused

Procedural Posture

Criminal — Conspiracy to Defraud / Pretrial Application Under Section 70 Evidence Ordinance (prior to Arraignment)

Legal Issues

  1. 1 Whether the prerequisites of Section 70 Evidence Ordinance are satisfied
  2. 2 Whether the word "shall" in s70 compels mandatory admission or allows judicial discretion
  3. 3 Whether admission of the magistrates' deposition would render the trial unfair

Ratio Decidendi

Section 70 could not be applied in this trial because the 4th accused (D4) did not have a full opportunity to cross-examine the witness at the committal; accordingly there is an absolute bar to reading the deposition as to D4 and the court retains discretion to refuse admission where admission would deny a fair trial; in the circumstances the court would also refuse admission of the deposition as to D1 and D3 because admission would likely produce a materially unfair trial notwithstanding statutory conditions otherwise being met.

Court Disposition

Prosecution's application under Section 70 refused

Orders

  • Application to adduce the magistrates' deposition under Section 70 refused
  • No severance ordered to permit admission of the deposition