THE QUEEN v. KWOK CHI-LEUNG

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JUDGMENT

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Yang, J.A.:

1. It is not necessary to trace in detail the complicated history of the legal procedure and negotiations between lawyers that finally led to the trial of the applicant upon a trial of murder. Suffice it to say that the applicant, one Lee Shek-ching and his wife Ng Kit-ching were implicated in the murder of one Lee Wai on the 15th day of January 1982. At one point it was the Crown's desire to have the applicant tried separately because in a joint trial with Lee Shek-ching, Ng Kit-ching (who had earlier been discharged in committal proceedings) would neither be competent nor compellable to give evidence against her husband, whereas in a separate trial she would be a competent and compellable witness for the Crown against this applicant.

2. On the 30th November 1984, some months before the applicant's trial, Crown Counsel wrote to applicant's counsel. The letter, headed "without prejudice" is in the following terms:

"Dear Sir,

R. v. KWOK Chi-leung

        HC No.258/84     

 

                 This will serve to confirm my telephone advice to you this afternoon.

 

                The Crown is willing to offer No Evidence against the abovenamed on the count of murder subject to your client agreeing to the following :-

 

 

                 I undertake now that this statement will not be used in any legal proceedings which are now instituted or may be instituted against your client in the future. I have instructed the police to enter this fact as a preamble to the statement.

 

              If your client is not willing to accept this offer then I propose to apply for a joint trial of his matter along with that of LEE Shek-ching. "

3. It was upon acceptance of these terms that the applicant made an uncautioned statement on the evening of the 30th November admitting to grabbing hold of the deceased whilst Lee Shek-ching hit him. The understanding was therefore that the applicant would plead to the two lesser charges suggested by Crown Counsel. However when the matter reached the High Court for trial, Addison J., took the view that the lesser charges were unacceptable and that the murder charge should proceed. The result was that the trial took place before de Basto, J., during which Ng Kit-ching gave evidence for the Crown against the applicant.

4. The applicant was convicted of murder. He now applies for leave to appeal against his conviction.

5. Without in any way intending to be disrespectful to counsel for the applicant Mr. Thomas, who argued several grounds of appeal before us, we think only one point needs to be dealt with. Clearly by accepting the terms suggested in Crown Counsel's letter of the 30th November the applicant acted to his detriment in that Ng Kit-ching now was able to give evidence for the prosecution against him. Indeed during the trial the Crown relied on three pieces of evidence, namely, Ng's evidence, the applicant's cautioned statements and the evidence of the forensic pathologist. It had never been part of the agreement that the implementation of its terms was dependent upon the consent of the trial judge. If, as Mr. McNamara suggested, that was the intention of the Attorney it should have been made explicit by the written terms. We cannot therefore agree with counsel's contention that this was not an "immunity-offer" situation at all. In truth it was, and the proper course was to enter a nolle prosequi and to pursue the applicant separately of the offences to which he had expressed himself ready to plead guilty. Although the Crown would then have lost its bargaining power it would still have been open to the prosecution to call the applicant for the Crown in the trial of Lee Shek-ching, although it is true the prosecutor might well have felt himself to be inhibited from doing so in view of the attitude of the trial judge.

6. It is for this simple reason that in our judgment it was unfair for the murder trial to proceed when, in the faith of the position the Crown took, the applicant acted to his own detriment.

7. We would allow the application, treat it as an appeal and allow the appeal. The conviction is accordingly quashed and the sentence set aside.