WONG SHI-CHIU v. THE QUEEN

bjbj CACC000119/1972 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CRIMINAL APPEAL NO. 119 OF 1972 ----------------- BETWEEN WONG Shi-chiu Appellant The Queen Respondent ----------------- Coram: Leonard J. in Court. Date of Judgment: ----------------- JUDGMENT ----------------- This is an appeal against conviction on three charges the first a charge of unlawful possession, the second a charge of possession of instruments fit for an unlawful purpose and the third a charge of burglary, and the record leaves me in little doubt that the appellant was guilty not only of the second but also of the third of these charges. Unfortunately there are irregularities disclosed by the record which compell my interference. The first charge was of unlawful possession at the time and place of his arrest of a necklace with a jade pendant. This charge was amended in the Court below to a charge of theft of the necklace. At some time undisclosed in the record the learned Magistrate appears to have restored the original charge. He certainly convicted for it. It appears from the record that at the time of his arrest the accused was not in possession of the necklace although he had a pawn ticket relating to it and must have had unlawful possession of it before he pawned it. He was however convicted for possession of it at the time and place of his arrest. The conviction obviously cannot stand. With regard to the charge of possession of instruments fit for an unlawful purpose, the appellant was found to be in possession in the street, at night, of 1 chisel and 1 electric torch. He gave no satisfactory explanation for his possession of these articles on his arrest nor did he give any satisfactory explanation of his possession of them to the Magistrate. That conviction and the sentence for it was unexceptionable. The third charge against the appellant was one of burglary. The appellant at the time of his arrest was in possession of a gold finger ring which did not fit him. He was questioned about this and made a statement to the police in regard to it. He challenged the statement in the Court below suggesting that it has been obtained as a result of beating and threats. I must say at once that a careful consideration of the record did not lead me to suppose that there was anything whatsoever in his suggestion but the manner in which the Magistrate dealt with the issue of admissibility was unfortunate. His note when the question as to whether or not the statement to the police was admissible arose reads "Court reserves the question of the admissibility of PP8"(the statement) "and explains to the defendant the purpose of cross-examination and that there were two issues, explains voire dire and general issue". The learned Magistrate did not hold a "voire dire". Presumably he intended to decide on the general issue as to whether there was a case to answer and on the admissibility of the statement at the conclusion of the prosecution case, rather than to hold a trial within the trial as to the admissibility of the statement. It is quite clear from Ho Yiu-fai & ors. v. Reg. ([1970] H.K.L.R. 415) that it is not mandatory in the District Court (presumably in the Magistrates Courts also) to hold a "voire dire". But if it is decided not to hold a "voire dire" it is vital that the defendant be afforded an opportunity of giving evidence on the issue of admissibility and that a ruling on admissibility be made before the close of the case for the prosecution. Otherwose the accused before he embarks on his defence may not know the entirety of the case against him. This requirement is explained in Ho Yiu-fai & ors. v. Reg. (supra). In this case the learned Magistrate apparently considered there was a prima facie case on the burglary charge even without the statement although there was nothing except possession of the finger ring stolen in the burglary to connect the appellant with that offence. He did not at the close of the case for the prosecution indicate whether the statement admitted or not but called on the appellant for his defence without deciding that issue. Indeed he did not admit the statement until after the defendant had given evidence in his defence. He records himself at the close of the appellant's case as follows:"Court: (Reasons) Not accept allegations made by defendant. I am satisfied PP8 made voluntarily by the defendant and admit PP8 and PP8A in evidence." The statement cannot have affected the guilt or innocence of the appellant insofar as the charge of possession of the chisel and the torch were concerned. There was ample evidence to support this charge and the statement made no difference to it one way or another. The statement however was an essential part of the proof of the charge of burglary. The conviction for this charge therefore cannot stand. I have considered whether or not it would be proper for me to order a new trial in respect of it. Having regard to the time which has passed I consider that it might cause injustice so to do. The net result is that the appellant's convictions on the first and third charges must be quashed. As the appellant was sentenced on the 24th December, 1971 to 2 months imprisonment only on the second charge, he is accordingly entitled to be now discharged. (P.F.X. Leonard) Puisne Judge. Representation: PAGE - PAGE \* MERGEFORMAT - &`#$ CACC000119/1972 WONG SHI-CHIU v. THE QUEEN Normal Microsoft Word 9.0 Judiciary Hong Kong SAR Judiciary Hong Kong SAR CACC000119/1972 WONG SHI-CHIU v. THE QUEEN Title Microsoft Word Document MSWordDoc Word.Document.8 CACC000119/1972 WONG SHI-CHIU v. THE QUEEN Normal Microsoft Word 9.0 Judiciary Hong Kong SAR Judiciary Hong Kong SAR CACC000119/1972 WONG SHI-CHIU v. THE QUEEN Title