Kong Woon Man v The Queen

Judgment Cited authorities (2) Cited in Precedent Map Related
Judgment Date11 June 1968
Year1968
Judgement NumberCACC152/1968
CourtCourt of Appeal (Hong Kong)
CACC000152/1968 KONG WOON MAN v. THE QUEEN

CACC000152/1968

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 152 OF 1968

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BETWEEN
KONG WOON MAN

Appellant
AND
THE QUEEN

Respondent

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Coram: Hogan, C.J. and Pickering, J.

Date of Judgment: 11 June 1968

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DECISION

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1. We are dealing now with an application made on behalf of the appellant to this court to hear fresh evidence under the provisions of the Criminal Procedure Ordinance, Section 81, sub-section (9) (c).

2. Although we have had no affidavits setting out the nature of the evidence which it is now sought to adduce, counsel has produced to us two documents. One is a letter written by the appellant to a Mrs. Elliott, in which he simply states that he did not commit the crime of which he has been convicted and the other is a lengthier statement setting out in some detail his account of what occurred on the 7th of February, and also setting out the details of what he claimed to be doing on the 2nd of February and the 4th of February, 1968, as well as certain details about what he alleged happened when he was questioned by the police.

3. In support of his application for the admission of evidence of the kind indicated, counsel for the appellant has referred us to the case of Robinson v. R.(1). In that case a letter which had been written by the accused after conviction was admitted in evidence by the Court of Appeal. The letter was a document of a very different nature from that to which counsel for the appellant has made reference in the present case. It was a letter written by the appellant from prison in which he admitted having committed the offence of which he had been convicted, but advanced certain reasons for having done so. Mr. Muir, as he was then, in seeking the admission of the document, drew attention to Section 9 of the Criminal Appeal Act, which contains provisions similar to s.81(9) of our Criminal Procedure Ordinance, and to the fact that the appellant in his grounds of appeal, claimed that the decision in the lower court was against the weight of evidence. Apparently the argument was that the appellant could not possibly sustain this ground of appeal, in that he had, as his letter indicated, committed the crime in question. Subject to the appropriate safeguards, an admission by an accused person is normally admissible. Counsel has been able to produce no case in which a Court of Appeal has ever entertained a letter of the kind now put before us, where the appellant merely repeats subsequently the allegation or contention of innocence which he made when he pleaded not guilty in the court below. The letter, counsel for the appellant says, would be put in as showing consistency of conduct by the appellant in that he is maintaining the same attitude he maintained when he pleaded not guilty; but, apart from other objections, it is not his conduct or attitude at the trial that is in issue. The letter is, of course, purely self-serving and we doubt if it even falls within the accepted categories of what is admissible in the course of criminal proceedings at first instance. We can certainly see no reason for admitting it as further evidence on appeal.

4. Turning to the evidence which counsel would seek from the appellant, if he were allowed to give evidence before this court, counsel has directed our attention to the decision in the case of R. v. Rose(2). In that case, counsel for the appellant sought to call the appellant before the Court of Appeal, on the ground that counsel having, in exercise of his discretion, decided not to call the accused at the trial had not expected the judge to comment so strongly on this, that his client now wished to tell his own story, and that counsel wished to call him for that purpose. Mr. Justice Bray, giving the decision of the court, which consisted of himself, Avory J. and Sankey J., as he then was, said:-

"The rule of this Court is that it will only hear an appellant who did not give evidence at the trial in very...

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