HKSAR v. N. S. H.

HCCC 15/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 15 OF 2017

____________________

____________________

________________________________

REASONS FOR DECISION

________________________________

1.The defendant faces an indictment containing eight counts. Counts 1 and Counts 3-7 are matters of Criminal Intimidation contrary to s24 (a)(i) and s27 of the Crimes Ordinance, Cap 200 (“Cap 200”); Count 2 is an Indecent Assault contrary to s122 (1) of Cap 200 and Count 8 is a charge of rape contrary to s118(1) of Cap 200. They are said to have occurred on various dates between 10 June and 30 July 2016.

2.There was originally an application by the defendant prior to arraignment to quash the indictment on the basis that Counts 2 and 8 have been misjoined with Counts 1, and 3 to7 and with each other.  Alternatively, if they have not been misjoined, that Counts 2 and 8 should be severed from Counts 1 and 3-7 and also from each other. That application is no longer maintained in the light of the very sensible view taken by Mr Arthur for the prosecution that Counts 1 and 3 to 7 should be severed.  However, the matter having been raised by the defence, I feel it necessary to deal with the issue of misjoinder. I do so because, if I were of my own volition, to take the view that these charges had been misjoined, then some part of the current indictment would be invalid.

Misjoinder

3.Under s18(1) Criminal Procedure Ordinance, Cap 221, (“ the CPO”), charges for more than one offence may be joined in the same indictment if in compliance with the Rules.  Those Rules are given effect by reason of s9 of the CPO and in particular at Cap 221C s7,  the Indictment Rules state[1]:

“Subject to s18 of the Ordinance, charges for any offences may be joined in the same indictment if those charges are founded on the same facts, or form or are a part of a series of offences of the same or similar character.”

4.An indictment which falls foul of the above is invalid and not a nullity: R v Newland [1988] QB 402[2] and may be saved by amendment to delete the offending part.  The proper application by either party is therefore an application to amend the indictment by deleting the offending parts and not an application to quash, which procedure is restricted to three circumstances,[3] which do not arise in the current application.  Where no such amendment is made, an indictment containing misjoined counts remains invalid and any proceedings which flow from it, as to those misjoined counts only, are a nullity and not the whole trial: Smith [1997] QB 837 as followed in Lockley [1997] Crim LR 455.

5.The application before me then must be one to amend the indictment to delete Counts 1 to 7 on the basis that Count 2, the indecent assault and Counts 1, 3-7, the criminal intimidation charges, are different as to their time, place and legal nature so as not to form one series of offences “founded on the same facts or being part of a series of offences of the same or similar character” and are therefore misjoined.  If successful, those counts would be deleted by amendment.  However, there is nothing to prevent the prosecution from seeking leave to prefer fresh indictments out of time, splitting the current indictment into two (or three) parts and thereafter this Court staying the original indictment without either quashing or amending it^[4].  That is, of course, if I were to find that the relevant counts were in fact misjoined.

6.The indictment relates to a relationship between the defendant and his ex‑wife. The couple were divorced in 2011 having been married for approximately eight years and with two children of the marriage.  The relationship between the defendant and his ex‑wife was strained and in 2015 became worse when the defendant came to believe that the ex‑wife had entered into a new relationship.  From mid‑2016, that tension escalated and the defendant allegedly threatened the ex‑wife on 10 June and sexually assaulted her.  Those two matters arose at the same time and in the same place between the same two people.  For the same reason, the defendant allegedly threatened the ex‑wife again on 17 and 20 June, and 15, 17 and 21 July 2016.  The rape allegedly occurred on 30 July 2016 in the home of the ex‑wife and children of the family, and whilst the children were present in another room.

7.The defendant submits that the charges are of a different type and should not be charged together and relies for that argument upon R v Muir [1938] 2 All ER 516. However, that authority was in respect of a charge of rape upon one victim in the same indictment as a charge of indecent assault upon another victim at a different time and in a different place.  This matter is about the same victim, in the same place and for the same underlying reason. As such Muir does not assist me. Nor do the many other cases which involve matters of child sexual abuse with the same offender but different children. The test is, as Mr Tracey has submitted, whether there is sufficient nexus: Ludlow v Metropolitan Police Commissioner [1971] AC 29.  There is clearly a nexus in the circumstances of these proceedings. The facts are intricately intertwined and arise because of the same ongoing dispute.  The issue is actually whether, nevertheless, the matters should be tried on the same indictment where, as both parties accept, the evidence upon the criminal intimidation charges would be inadmissible upon the charge of rape and indecent assault. Would the prejudicial effect of the inclusion of these charges and the evidence to be relied upon in aid of them, as Mr Tracey eloquently suggests, undermine the integrity of the trial upon the rape and indecent assault charges. Submissions before me proceeded on the basis that severance was the preferred course of action.

Severance

8.If, as I find, there is sufficient nexus to warrant all counts being properly laid against the defendant in the same indictment, it follows that the indictment is not invalid.  However, the defendant submits that Counts 1‑7 should nevertheless be severed from Count 8 under s23(3) of the CPO, which states:

“Where, before trial or at any stage of a trial, the Court is of the opinion that a person accused may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same indictment, or that for any other reason it is desirable to direct that the person should be tried separately for any one or more offences charged in an indictment the Court may order a separate trial of any count or counts of such indictment.”

9.For these purposes the application must be made in two parts as the defendant submits all seven counts should be severed and that as between each other, Count 2 should be severed from Counts 1 and 3 ‑7.  Mr Arthur on behalf of the prosecution accepts that Counts 1 and 3‑7 should be severed and makes an application to do so, preferring a fresh indictment for those counts out of time with the leave of the court.  However, he submits that the charge of indecent assault at Count 2 should not be severed as it forms part and parcel of a series of events arising out of the same factual scenario, is sufficiently close in time. He accepts   the evidence upon the indecent assault is not admissible against the defendant upon the charge of rape.  Any prejudice arising can be properly met by a sufficient direction to the jury by the court. I have to say that I believe that the same argument must be valid for the charge of criminal intimidation arising on the same day and on the same occasion as the indecent assault for, if his argument is correct, it would be very difficult to divorce the facts of one from the other. However, both Counsel ask me not to direct that Count 1 should remain with the charges of indecent assault and rape.

10.It is not in dispute that a judge must exercise his or her discretion in deciding whether any given indictment should be severed.  Lord Taylor of Gosforth in R v Christou [1997] AC 117 in considering a line of cases in which several child complainants were giving evidence in the same trial, maintained that a judge taking into account “all things he should”, that those things will “vary from case to case, but the essential criterion is the fair resolution of the issues.  That requires fairness to the accused but also to the prosecution and those involved in it.  Some, but by no means an exhaustive list, of the factors which may need to be considered are: - how discrete or inter related are the facts giving rise to the counts; the impact of ordering two or more trials on the defendant and his family, on the victims and their families, on press publicity; and importantly, whether directions the judge can give to the jury will suffice to secure a fair trial if the counts are tried together.  In regard to that last factor, jury trials are conducted on the basis that the judge’s directions of law are to be applied faithfully.”

11.Lord Hope of Craighead also proffered the position in Scotland.  In support of the view above he said:

“...the practice of trying all outstanding charges against the accused has been established for a long time. It is seen to be in the public interest as well as that of the accused, in order that justice may be done expeditiously. It is inevitable, if a series of unconnected charges are allowed to go to trial at the same time, that evidence will be led in regard to one charge which is inadmissible in regard to another. A material risk of prejudice to the accuse dis not thought however to arise merely because the charges relate to different kinds of crime committed at different times in different places and under different circumstances. Experience has shown that under proper directions juries are well able to consider each charge in an indictment separately. Their verdicts demonstrate time and again that they have done so. In practice motions for separation of charges are granted only in very clear cases, where fairness to the accused makes this necessary.”

12.As it is, there will be at least two trials taking place in which the defendant and the complainant are the same. If Mr Tracey were to succeed in his primary submission, there would be three. These parents will, regardless of the outcome of these proceedings, need to find a way forward which will, as far as possible, resolve the matters between them but which will also expedite a relationship which will cause as little harm to the children of the family as possible.  No matter what the outcome, the defendant is still the father of two young girls. There is considerable prejudice to the children of this marriage the longer these proceedings take to come to a resolution.  I do not accept that the prejudice to the complainant can be minimised by the use of the screen; the relative shortness of two or three trials rather than one long one or the institution of the Family Court injunction.  Each separate trial adds pressure upon both the defendant and the complainant and, most importantly, the children. Nor is it in the interest of justice to have several small and distinct trials which cause greater pressure upon the public purse than one longer one, as experience shows that they are likely, cumulatively, to take up more time and not less.  My discretion must be exercised taking into account all these factors and balancing them fairly as between the parties.

Conclusion

13.The current valid indictment is to be severed. I give leave  for the prosecution to prefer two fresh indictments, one containing the criminal intimidation charges under Counts 1 and 3 to7 of the current indictment and one containing Counts  2 and 8.   This matter will proceed initially upon Counts  2 and 8 as reflected in the fresh indictment presumably re drafted as Counts 1 to 2 i.e. the  indecent assault of 10 June 2016 and the rape on 30 July 2016.  The second indictment containing the counts of criminal intimidation will remain in the High Court to be listed thereafter for trial if the defendant is found guilty upon either of the indecent assault or the rape charges so that the same tribunal will be in a position to sentence him for all matters once the remaining charges of criminal intimidation have been dealt with by jury trial if they are proceeded with.  If the defendant is found not guilty of all of the charges on the first trial, I give leave for the prosecution to apply to have the criminal intimidation charges transferred to a lower court to be dealt with and a further hearing will be fixed to hear that matter if it becomes necessary.

Mr Michael Arthur leading Mr David CW Cheung, counsel‑on‑fiat, for the Department of Justice

Mr Maurice Peter Tracy, instructed by L & L Lawyers, assigned by Director of Legal Aid, for the defendant