THE QUEEN v. CHAN YIN ON

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1156 OF 1990

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BETWEEN

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JUDGMENT

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Sir Ti Liang Yang, CJ :

1. Grounds 1 to 3 are jury questions and these the learned magistrate deals with fully and fairly in his Statement of Findings. In my judgment there is nothing in those three grounds of appeal.

2. As to Ground 4, it is correct that PW2 was not questioned in cross-examination as to whether PW1 had been shown PW2's statement but it is incorrect for the magistrate to state that that issue was dropped by the defence by the time PW2 gave evidence, for defence counsel in his final submission referred to this matter. But the magistrate deals with it as a defence in the appellant's case. In my view, nothing turns on this ground. In the circumstances of this case, there is nothing in this ground that causes me concern.

3. Ground 5 complains that PW2's statement to the police was shown to PW1. It is common ground that this would be an irregularity had it been committed here. The magistrate deals with the matter in the last paragraph at page 2 of his Statement of Findings, and also in the first paragraph at page 3 and the final paragraph at page 6 of his Statement. It is the appellant's case that justice was not seen to be done here. R v Winston Smith (1975) 61 C.A.R. 128, 130, and R v Sussex Justices (1924) 1 KB 256, 259, were cited in support. On this point there is no evidence coming from any witnesses that PW1 had read PW2's statement. Indeed the case for the defence, explained to me today, was that whilst there was no direct evidence on such, the opportunity was there for PW1 to read PW2's statement and since PW1 did not mention "a hard object" or "the middle of the buttock" in her statement, PW2's statement did make reference to them, and PW1 in her evidence also referred to them, thereby giving risk to the proper inference to be drawn that PW1 had in fact read PW2's statement. The magistrate probably misunderstood the line of defence adopted, for he did deal with the matter as if PW1 had in fact read PW2's statement. Nevertheless the crucial point is that the magistrate found that PW1 had mentioned these matters in her evidence because they had occurred, and not because of any collusion between her and PW2. On the evidence there was nothing for the magistrate to suspect that PW1 might have read PW2's statement, and the whole basis of Ground 5 therefore must fail. The question as to whether PW1 could be believed is again a jury question which the magistrate is well qualified to answer.

4. There is in the circumstances nothing in the last ground of appeal. The appeal is accordingly dismissed.