THE QUEEN v. LEE CHI WAI

IN THE SUPRENE COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 1199 OF 1986

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Reasons in writing handed down: 5th January, 1987

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JUDGMENT

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1. The appellant pleaded not guilty to a charge of attempted theft but was found guilty in the Magistrates Court after trial.

2. He relied on several grounds of appeal but the only ground with which it is necessary to deal is ground (2). That ground reads as follows:-

"There was a material irregularity during the voire dire in respect of the Appellant's alleged confession statement in that the Appellant "who was unrepresented" was not asked whether he had any submissions to make and was not told that he had the right to make a submission before the Court ruled on the admission of the statement."

3. The Appellant stood trial jointly charged with three others. All challenged the admissibilities of confession statements. The record shows that before embarking upon voire dire proceedings the learned magistrate "explained the voire dire procedure". There is no indication that any defendant was informed of his right to address the court at the conclusion of the voire dire. At the conclusion of notes of evidence on the voire dire, there is a note to the effect that the case for the defendant on the voire dire is closed followed by a note of the court's ruling in respect of the statement. There is no indication that any defendant and, in particular, that the appellant was given the opportunity to make a submission on the question of admissibility. There is, however, a note indicating that he was given the opportunity at the close of all the evidence to address the court on the general issue.

4. In Yu Woon v. R. (Crim. App. 58/71) the magistrate's record did not explicitly state that the appellant had been informed of his right to call witnesses. In that Case, the appellant was represented and it was a reasonable inference from the submissions made by his solicitor at the close of the prosecution case that the appellant was aware that he had such a right and was electing not to exercise it. Nevertheless, because the record did not explicitly show that the appellant was aware of the right the conviction was quashed. No retrial was ordered.

5. In Siu Yeung Lung v. R. (Crim. App. 444/83), the conviction was quashed on the grounds that an unrepresented defendant was not informed by the magistrate of his right to make speeches at the end of his case and in mitigation. A retrial was ordered.

6. In R. v. Man Cham-boo (Crim. App. 851/86), there was no indication on the record that the magistrate afforded defence counsel an opportunity to make a closing speech. The conviction was quashed but a retrial was ordered.

7. Where the impression may be created from the way proceedings have been conducted that a tribunal of fact has reached a final decision on a contested issue of fact before hearing submissions from interested parties as to what that conclusion should be then justice has not been "seen to be done". (R. v. Lai Chuk-ting, [1978] HKLR 402).

8. In this case the impression is created that the Appellant was not given the opportunity at the conclusion of the inquiry on the voire dire to make submissions to the court with a view to persuading it to reach an answer in his favour. There is merit, therefore, in this ground of appeal and the conviction must be quashed.

9. I think that the interests of justice require that there should not be a retrial in this case.