Wong Kam-ming v The Queen

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 [1969] S.A.S.R. 256, to which reference must later be made. Defending counsel's objection was overruled, the trial judge holding that Reg. v. Wright was good law, and expressly refusing to exercise in favour of the defendant any discretion he might have to exclude the proffered new evidence. Two shorthand writers were then called to produce extracts from their transcripts of what the defendant had said during the voir dire, and this despite a renewed objection by defending counsel. A submission of “no case” was likewise overruled, the trial judge saying: “The main point here is presence at the scene at the relevant time.” Defending counsel thereupon called the defendant. Following his evidence in chief, he was closely cross-examined by reference to the shorthand transcript of what he had...