Wong Kam-ming v The Queen
| Jurisdiction | UK Non-devolved |
| Judgment Date | 1979 |
| Date | 1979 |
| Year | 1979 |
| Court | Privy Council |
Crime - Evidence - Confession - Admissibility - Voir dire - Defendant cross-examined as to truth of statement and admitting participation in offence - Whether cross-examination proper - Statement ruled inadmissible - Crown adducing evidence of and cross-examining, on defendant's admissions in voir dire - Whether permissible
A group of men attacked the manager of a massage parlour. They killed him and wounded two others. The defendant was one of six charged with murder and malicious wounding. The only evidence connecting him with the attack was his own signed statement given to the police to the effect that he had been present at the scene and had there “chopped” someone with a knife. At the start of the trial the defence challenged the admissibility of the statement on the ground that it had not been made voluntarily. The judge dealt with that issue in the absence of the jury by a voir dire. The defendant gave evidence on the voir dire and testified that he had made the statement but had not been cautioned, that the police had offered inducements to him to make it and that he had been forced to copy out and sign it. Cross-examined by the Crown the defendant admitted that he had been present at the scene and involved in the attack. The judge ruled the statement inadmissible. The trial of the general issue continued and in order to establish that the defendant had been at the scene counsel for the Crown called the two shorthand writers who had recorded the voir dire to testify that in that proceeding the defendant had admitted being present. The defence objected. The judge ruled that the shorthand writers' testimony was admissible and rejected a submission that there was no case for the defendant to answer. The defendant gave evidence and was cross-examined as to discrepancies between his evidence and what he had said at the voir dire. The defendant was convicted of murder and malicious wounding. The Court of Appeal dismissed his appeal against conviction.
On the defendant's appeal to the Judicial Committee: —
Held, allowing the appeal, (1) (Lord Hailsham of St. Marylebone dissenting) that on a voir dire as to the admissibility of a defendant's challenged statement the prosecution should not ask questions in cross-examination of the defendant with the object of establishing the truth of the statement and that accordingly the Crown's cross-examination on the voir dire was improper (post, pp. 85G–H, 86H–87A).
(2) That, where on a voir dire a defendant's statement had ruled inadmissible, the prosecution was not entitled at the trial of the general issue to adduce evidence as to what the defendant said during the voir dire or to cross-examine him on the basis of what he said; that, accordingly, the calling of the shorthand writers and the Crown's cross-examination were substantial irregularities which resulted in evidence being wrongly placed before the jury without which they could not have convicted and that, therefore, the defendant's convictions on all counts should be quashed (post, pp. 87H–88C, 89B–D, 90A–D, H–91G).
Per curiam. Where an impugned confession is ruled admissible and the defendant elects to give evidence on the general issue testifying as to the reliability of the confession (as opposed to it voluntariness) and in so doing gives answers markedly different from his testimony on the voir dire there is no justification in legal principle or any other ground which renders cross-examination on the basis of the discrepancies impermissible (post, p. 89D–F).
The following cases are referred to in the judgments:
Chan Wei Keung v. The Queen [
Chitambala v. Regina [
DeClercq v. The Queen (
Director of Public Prosecutions v. Ping Lin [
Ibrahim v. The King [
Li Kim-hung v. The Queen [
Ng Chun-kwan v. The Queen [
Reg. v. Hnedish (
Reg. v. Wright [
Rex v. Hammond [
Rex v. Treacy [
The following additional cases were cited in argument:
Harris v. Director of Public Prosecutions [
Jeffrey v. Black [
Reg. v. Abbott [
Reg. v. Erdheim [
Reg. v. Garside (
Reg. v. Gauthier (
Reg. v. Harz; Reg. v. Power [
Reg. v. McGregor [
Reg. v. Murphy [
Reg. v. Rice [
Reg. v. Roberts (
Reg. v. Van Dongen (
Reg. v. Wray [
Rex v. Power [
Wan v. United States (
APPEAL (No. 21 of 1978) by Wong Kam-ming, the defendant, from a judgment (July 12, 1977) of the Court of Appeal of Hong Kong (Briggs C.J. and Huggins J.A.; McMullin J. dissenting) dismissing his appeal against his conviction on October 1, 1976, before Commissioner Garcia and a jury of the murder of Lam Shing alias Lam Chung and malicious wounding on December 28, 1975.
The facts are stated in the judgment of the majority of their Lordships.
Charles Fletcher-Cooke Q.C., William Glossop and George Warr for the defendant.
John Marriage Q.C. and Daniel Marash (Crown Counsel, Hong Kong) for the Crown.
December 20. The judgment of the majority of their Lordships was delivered by LORD EDMUND-DAVIES.
This is an appeal by special leave granted by this Board from a judgment of the Court of Appeal of Hong Kong, dismissing the appeal of the defendant. Wong Kam-ming, against his conviction in October 1976 of the murder by the Supreme Court (Commissioner Garcia and a jury). The indictment charged the defendant and five other males upon counts of murdering one man and of maliciously wounding two others. The case for the Crown was that the accused men were part of a gang who went to a massage parlour in Kowloon and there fatally attacked the manager and wounded others in retaliation for an earlier attack on one of their number. Four of the accused were acquitted on all charges, while the other two (including the defendant) were convicted on each.
When the trial opened, the only evidence implicating the defendant consisted of a signed statement which he had given to the police. In this he admitted being one of those present in the massage parlour, that at one stage he had a knife in his hand, and that he had “chopped” one of those present. Defending counsel having intimated to the court that he challenged the admissibility of this statement on the ground that it was not voluntary, before the Crown opened its case the judge (in the absence of the jury) proceeded to deal with the issue of admissibility on the voir dire. After two police witnesses had testified to its making, the defendant gave evidence that he was never cautioned, that he was questioned at length while in custody, that he was grabbed by the shirt and shaken, that an inducement was offered that if he confessed his “sworn brother” would not be arrested, and that he had been forced to copy out and sign a statement drafted by the police. Under cross-examination he was asked a series of questions based on the detailed contents of the statement, and directed at establishing its truth. At this stage it is sufficient to say that, at the conclusion of the voir dire, the trial judge excluded the statement.
This ruling placed the Crown in dire difficulty, for it is common ground that without it they could not establish even that the defendant was present in the massage parlour at any material time. Finding themselves in that situation, they resorted to a course of action which none of their Lordships had hitherto ever heard of. Prosecuting counsel indicated to the trial judge (in the absence of the jury) that he proposed to establish, by reference to what had transpired in the voir dire, that the defendant had:
“… in circumstances where there is no question of involuntariness, admitted he was present and involved in the incident with which we are concerned.”
As authority for submitting that he should be allowed to prove such admission by calling the shorthand writer present during the voir dire he cited Reg. v. Wright [
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