KWAN SIU-HUNG v. THE QUEEN

CACC000504/1975

 

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

 

CRIMINAL APPEAL NO. 504 OF 1975

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BETWEEN
	KWAN Siu-hung	Appellant
	and
	THE QUEEN	Respondent

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Coram: Mr. Commissioner O'Connor in Court.

Date of Judgment: 26th June, 1975.

 

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JUDGMENT

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1. The appellant was jointly charged and tried with another man on a charge of possession of dangerous drugs. The appellant was also tried on a charge of obstructing police officers. The two charges arose out of the same matter. The other defendant who has not appealed gave evidence and at the conclusion of his evidence-in-chief the court adjourned till the following morning when a defence witness was called. The appellant was not given the opportunity to cross-examine his co-defendant.

2. The magistrate in his statement of findings is candid about this error but goes on to say that he would not, in any event, have believed anything that the co-defendant might have said to assist the appellant if the appellant had cross-examined him.

3. One cannot properly take the view that one would not have believed evidence if it had been given, and thereby justify a failure to provide an opportunity for the evidence to be heard.

4. The appeal is allowed and the conviction set aside. I have considered a retrial but in view of the length of the sentence and the time appellant has been in custody I do not order one.

5. I might comment that the record shows that when the appellant finished his evidence-in-chief, he was then cross-examined by the prosecution and later by his co-defendant. The same sequence was followed in respect of the defence witness, i.e. cross-examination by prosecution preceded cross-examination by a defendant other than the one who called the witness.

6. This is not in accord with the usual practice, which may be departed from in the interests of justice, that defence witnesses are cross-examined by the Crown after having been cross-examined by other defendants. The reason is that generally co-defendants have a greater community of interest among themselves than they share with the prosecution.

 

 

	(R. O'Connor)
	Commissioner.

 

Representation:

Appellant in person.

J.W. Dick for respondent.