R. v. WONG CHING YIN and Another

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1447 OF 1996

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J U D G M E N T

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1. Both the appellants were convicted after trial on 8th November 1996. The 1st accused of counselling and procuring common assault and the 2nd accused of common assault. In the trial below, the appellants conducted their own defence and were unrepresented.

2. The first ground of appeal is that the magistrate did not give the 1st appellant sufficient assistance in conducting his defence in as much as she failed to explain the appellants' rights in the matter of the voluntary character of an oral statement proposed to be put in the evidence by the prosecution which she should have done before the trial began and further, that when matters arose in the cross-examination by the 1^st appellant of one of the prosecution witnesses, the issue of the admissibility of the statements again arose and at that point she should have either made an inquiry of the appellant to ensure that he understood the issue of admissibility or should have held a voir dire.

3. As to the first part of this ground of appeal, I am satisfied there is nothing in it. At the beginning of the trial there is this in the record :

"Defendants both admit to giving statements voluntarily. Admissibility not challenged."

For the magistrate to have ascertained that both of the appellants admitted giving statements voluntarily and that they did not challenge the admissibility, she would have had to determine that they agreed the voluntariness of the statement, they were aware that the admissibility could be challenged and they elected not to mount such a challenge.

4. There is however greater difficulty in the second part of the ground of appeal in respect of the 1^st appellant. During cross-examination by the 1^st appellant of the officer who took the statement, these exchanges took place :

"Q. You told me LAM had been arrested?

A. No.

Q. I had been drinking and didn't know what I was saying?

A. He was not drunk at the time.

Q. Did I appear to have been drinking?

A. I don't think so, no, nothing to indicate so.

Q. Did I appear unaware of what was happening?

A. No, you were very clear."

As to the first part of the cross-examination, the reference to Lam who was another participant in the incident who had been arrested and dealt with earlier, I draw no inference and do not suggest that the magistrate should have drawn any inference. But the second topic dealt with in the cross-examination was the allegation that the witness was so influenced by drink as to be incapable of properly exercising his rights at the time the statement was given. This is a matter which the magistrate, with respect, should have explored either by holding a voir dire or by inquiring of the appellant whether he understood the issues of admissibility in those circumstances and determining whether a voir dire should be held. I am referred to the case of Ajodha v. The State (PC) [1982] AC 204 at p.206 :

"A trial judge should hold a voir dire as soon as he appreciates from the nature of the defendant's case that there is a challenge to admissibility. He may be alerted to the issue either by the nature of the defendant's evidence or by the thrust of the cross-examination."

The situation in this case was compounded by the fact that the appellant was unrepresented and in my view at least an inquiry ought to have been made by the magistrate in those circumstances.

5. The second ground of appeal in respect of the 1st accused does not fall to be considered because I am prepared to allow the appeal against conviction of the 1st appellant in respect of the first ground. However, had I to consider the second ground which was that whilst the magistrate had before her evidence from the statement of the 1^st appellant which was adopted by him as being true and if she relied upon that had sufficient evidence to convict him, she still ought to have stated in her findings that she did not rely upon the contents of the statement of the 2^nd appellant. The complaint is that although the magistrate nowhere indicated she relied upon the statement of the 2^nd appellant in convicting the 1^st appellant, she ought to have said that she did not. I do not accept this as a proposition of law. A professional magistrate need not set out every matter which she considers in the coming to her decision. Matters of basic law are not matters which need be set out. I would not have allowed the appeal on that basis.

6. The 2^nd appellant appeals, adopting the grounds of appeal of the 1st appellant in part. He says that if he had appreciated the meaning of voluntariness, then he would have objected to the admissibility of his statement.

7. I have found from the record that admissibility and voluntariness must have been explained to him at the beginning of the trial. There is nothing in his conduct of the case nor in the case generally to alert the magistrate to a possible issue of admissibility in respect of his statement. The fact that it was raised by the 1^st appellant does not apply to the 2^nd appellant as their cases must necessarily be considered separately. There is nothing in this ground of appeal for the 2^nd appellant.

8. He also alleges that after the trial he found discrepancies in statements of the prosecution witnesses, these were not matters raised at trial but were available to him at the time of the trial. There is nothing in this ground of appeal. He also says that the first prosecution witness in this case believed that he was trying to rob her and that she did not testify that he attempted to assault her, thereby, he says, not fulfilling the definition of assault. However, in a robbery, there is implicit the use of violence either at the time of the effecting of the robbery or in order to effect the taking.

9. I am satisfied, having considered all the evidence, that there is sufficient, in the evidence of the first prosecution witness, to make out the charge. In doing so, I do not rely upon a proviso because I am satisfied that the learned magistrate properly considered and also made that finding.

10. The appeal of the 1^st appellant is allowed and the conviction set aside. The appeal of the 2^nd appellant is dismissed.