THE QUEEN v. LAM CHUN SING AND OTHERS

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H E A D N O T E

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CAUTIONED STATEMENT EVIDENCE ONLY AGAINST MAKER - WRONG TO COMPARE ONE DEFENDANT'S STATEMENT WITH THOSE MADE BY OTHER DEFENDANTS IN ORDER TO SUPPORT FINDING THAT PROSECUTION WITNESS RELIABLE.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 454 OF 1989

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J U D G M E N T

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1. The appellants were convicted by Mr Thomas at Kwun Tong Magistrates Court of false imprisonment, contrary to Common Law. They were alleged to have detained the victim against his will for nearly two hours, while taking him by car to North Point to be identified as a suspected pigeon thief.

2. Only 4th appellant gave evidence. He said that the victim boarded the vehicle of his own accord. That was the real issue in the case.

3. The magistrate found the victim to be a credible and truthful witness. He was impressed by the speed with which a report had been made to the police, which he found inconsistent with a voluntary Journey in the van.

4. The magistrate also noted that the salient points in 4th appellant's evidence had not been put to the victim in cross-examination and discounted them accordingly.

5. The appellants had all made cautioned statements, in which they described the incident. In his Statement of Findings, the magistrate dealt with them thus:-

"I also noted that all the statements were inconsistent to a greater or lesser extent. Thus, whilst I accepted all the statements as "mixed" statements (R. v, Sharpe) as containing both admissible inculpatory and exculpatory evidence, I gave little weight to the exculpatory elements in such statements."

He concluded:-

"Accordingly, I took the view that all the contradictions meant that the evidence of PW1 was not discredited and it reinforced my view that I should accept the witness' evidence."

6. The principal ground of appeal is that this was a material irregularity which vitiates the convictions. The prominence given to the comparison of the statements in a comprehensive Statement of Findings indicates that it was crucial to the magistrate's decision.

7. It is a fundamental rule of evidence that statements made by one defendant, either to the police or to others, (other than statements, whether in the presence or absence of a co-defendant, made in the course and pursuance of a joint criminal enterprise to which the co-defendant was a party) are not evidence against a co-defendant, unless the co-defendant either expressly or by implication adopts the statements and thereby makes them his own: see generally R. v. Rudd (1948) 32 Cr. App. R. 138; R. v. Gunewardene (1951)35 Cr. App. R. 80; R. v. Rhodes (1960) 44 Cr. App. R. 23.

8. Mr Cagney, for the Crown, accepts the validity of the authorities. However he poses the question - how, in the light of R. v. Sharpe (1988)1 W.L.R. 7, which decided that mixed statements - inculpatory and exculpatory - were evidence, for all purposes, of the facts stated therein, is a court expected to deal with mixed statements, except by comparing them with whatever other evidence is available, in order to determine if they are reliable?

9. The answer, I suggest, is that he must not compare the statements in order to arrive at a finding of fact. The contents of each cautioned statement are evidence only for or against the maker of that statement. If there is a doubt as to whether an inference of guilt should be drawn from the cautioned statement, the magistrate should reject it.

10. The appeal is allowed and the convictions quashed. The case is remitted for retrial by another magistrate.