刑事檢控科各律師/高級律政 - Department of Justice

25appeared to refer to the Summary of Facts upon which Stella hadpleaded guilty to the first and second charges.It was an agreed fact that Irene and Donna testified underimmunity. It was not disputed that the terms of the immunity werenot disclosed to the magistrate.On appeal, it was submitted, inter alia, that the magistrateerred in taking account of the ‘pre-trial admission’. Theadmission was never tendered and would not be evidence againstthe Appellant. Stella was not cross-examined on the admission.The magistrate mentioned his reliance on the pre-trial admissionfor the first time when he considered the verdict, thus not availingdefence counsel of the chance to cross-examine Stella on a‘previous inconsistent statement’, and/or to make submissions. Itwas said that the theory of the magistrate (ie scaling down ofinvolvement) was entirely speculative as Stella was not given thechance to answer this criticism. That theory was only one of thepossibilities and it was also possible that her ‘pre-trial admissions’were untrue. It was also contended that for a defendant whoawaited sentence to testify before the magistrate in a mannerapparently inconsistent with the ‘pre-trial admission’ was hardlycalculating to reduce the sentence.The Appellant, in the second ground of appeal, contendedthat the witness must be shown to be aware of the terms of thedocument of immunity: R v McDonald (1983) 77 Cr App R 196.It was also said that the terms of the immunity must be disclosedto the triers of fact: R v Tsui Lai-ying [1987] HKLR 857, R v HwaTak-ming [1996] 2 HKC 62.Held :(1) It was quite clear that the magistrate had wrongly used the‘pre-trial admission’ of Stella. An important issue at trial waswhether the Appellant knew the purpose of the payments andwhether he had agreed to them as co-conspirator. The Appellantwas not present when the two payments were made. His evidencethat he did not know of the status of the recipient of the paymentsclashed with that of Irene and Donna. Stella provided evidence ofpayments made but also contradicted the evidence of Irene andDonna. It appeared the only reason the magistrate gave forpreferring the evidence of Irene and Donna over Stella where therewere conflicts was upon his theory of Stella ‘trying to scale down’her involvement. It could not be said that had the magistrate notcommitted the error of relying on the ‘pre-trial admission’ ofStella, he would undoubtedly have entered the same verdict;(2) There was nothing before the magistrate to indicate that