LAM KWOK WAI and Another v. R.

LAM KWOK WAI and Another v. R.

The conviction of the 1st appellant was upheld because the trial court properly admitted and relied on his voluntary cautioned statement after reasonably refusing access to his chosen solicitor due to a bona fide suspicion of conflict and providing alternatives; the conviction of the 2nd appellant was quashed because there was insufficient independent evidence against him, the cautioned statement of D1 could not be used as evidence against D2, and it was improper to rely on s.26 to draw adverse inferences where the prosecution had not established a case from which a compelling inference of guilt could alone be drawn.

Citation
LAM KWOK WAI and Another v. R.
Parties
Respondent (crown): The Queen; 1st Appellant: Lam Kwok-wai; 2nd Appellant: Shum Leung-him (Stephen Shum)
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
19 August 1996
Case Number
HCMA35/1996
Procedural Posture
Criminal Appeal (magistracy) / Appeal Hearing and Judgment (appellate Jurisdiction)
Outcome
1st Appellant's conviction and sentence upheld; 2nd Appellant's conviction quashed and sentence set aside
Legal Topics
Accepting/offering Advantage, Admissibility of Cautioned Statements, Right to Legal Advice, Use of Co Accused Statements, Adverse Inference for Failure to Testify, Sentencing and Restitution Under Prevention of Bribery Ordinance
Source Language
EN
Criminal Law Anti Corruption/bribery Law Evidence Law Procedure Accepting/offering Advantage Admissibility of Cautioned Statements Right to Legal Advice Use of Co Accused Statements +2 more

Case Brief

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Parties

The Queen

Respondent (crown)

Lam Kwok-wai

1st Appellant

Shum Leung-him (Stephen Shum)

2nd Appellant

Procedural Posture

Criminal Appeal (magistracy) / Appeal Hearing and Judgment (appellate Jurisdiction)

Legal Issues

  1. 1 Whether the cautioned statement of D1 was properly admitted despite refusal to allow choice of lawyer
  2. 2 Whether refusal to allow access to chosen lawyer violated rights and rendered statement inadmissible
  3. 3 Whether D1's statements and in-court evidence could be used against D2

Ratio Decidendi

The conviction of the 1st appellant was upheld because the trial court properly admitted and relied on his voluntary cautioned statement after reasonably refusing access to his chosen solicitor due to a bona fide suspicion of conflict and providing alternatives; the conviction of the 2nd appellant was quashed because there was insufficient independent evidence against him, the cautioned statement of D1 could not be used as evidence against D2, and it was improper to rely on s.26 to draw adverse inferences where the prosecution had not established a case from which a compelling inference of guilt could alone be drawn.

Court Disposition

1st Appellant's conviction and sentence upheld; 2nd Appellant's conviction quashed and sentence set aside

Orders

  • 1st Appellant's appeal against conviction dismissed.
  • 2nd Appellant's appeal against conviction allowed; conviction quashed and sentence set aside.