THE QUEEN v. LIU YU-NGOR AND OTHERS

IN THE SUPREME COURT OF HUNG KONG

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 333 OF 1989

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BEWEEN

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J U D G M E N T

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1. The 1st, 2nd and 4th appellants were convicted of assault occasioning actual bodily harm the 3rd appellant of two charges of common assault and the 4th appellant also of common assault.

2. The appeals are against those convictions.

3. The ground of appeal is that the learned magistrate erred in law in refusing to allow the appellants' counsel to adduce evidence of statements made by the appellants to the police rendering the verdict unsafe and unsatisfactory. The statements were wholly exculpatory.

4. Mr W. Howard for the defense cross-examined a police officer as to whether he had taken a statement from the 1st appellant. The magistrate then said, "If it is sought by Cross-examination to introduce exculpatory statements by cross-examination can I allow that ?" (my emphasis). Mr Howard replied in the affirmative and said, in effect, that he relied on R v Sharp, (1988) 1 W.L.R. 7.

5. The Crown submitted that the evidence sought was inadmissible as the statements were exculpatory and relied on the Privy Council decision in LEUNG Kam-kwok and The Queen (1985) Cr. App. R. 83.

6. The defence said they were entitled to ask the officer what he had said to the accused arid what the accused had said to him. The magistrate said, "That would let in the exculpatory statement by cross-examination" (my emphasis).

7. Mr Howard : "If a policeman goes up and, says (to a suspect) ' I've reason to believe you committed murder and the suspect says, 'No I haven't' surely that cannot be excluded?

8. The magistrate ruled :

" I do not propose to allow the production of exculpatory statements by cross-examination nor do I propose to allow the introduction of such contents of exculpating statements by verbal replies to cross-examination about the contents of such statements or by cross-examination about what a defendant may have said when questioned later by police officers in the absence of the Crown leading evidence of such matters. R v Sharp to which I have been referred by the Defence is not authority for the proposition that exculpatory statements can be adduced into evidence by cross-examination but deals with mixed statements." (my emphasis)

9. The defence informed the magistrate that all the accused had made statements and asked the magistrate if he would rule the same way in respect of all the statements as they were all exculpatory. The magistrate replied, "That is correct; I would so rule". Mr Derek Pang for the Crown suggested to this court that the defence should have perservered in trying to persuade the magistrate. I do not agree. It was luminously clear that the magistrate was not going to allow the defence, by way of cross-examination, to adduce any evidence of what the accused had said to the police.

10. The identical situation arose in R v LI Siu-lam, heard in the District Court (DCC 401 of 1988 heard on 5th September, 1988). Mr Howard, for the defence, had asked a police officer in cross-examination to produce all the statements made by the accused. The Crown, as it did in the instant case, objected. The judge admitted them in evidence. He said they were relevant to the attitude of the accused at the time he made them, in order to provide a balanced picture and in order to put the interviews the accused had had with the police in context. The Court of Appeal in Attorney-General and LI Siu-lam, Cri. App. No. 527 of 1988, agreed with the judge. The magistrate did not have the benefit of that judgment as it was delivered in June 1989. Exculpatory statements are admissible, apart from the question of res gestae and to rebut an allegation of recent invention, to show the reaction of an accused to police enquiries. The Court quoted R v McCarthy (1980) 71 C.A.R. at 145 :

"    One of the best pieces of evidence that an innocent man can produce is his reaction to an accusation of a crime."

11. The magistrate was in error in excluding relevant and admissible evidence in the form of exculpatory statements made by the appellants and the appeals must be allowed.