Wong Chi-hung v. The Queen

CACC000145/1972

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 145 OF 1972

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Coram: Rigby, C.J.

Date of Judgment: 23rd May, 1972.

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JUDGMENT

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1. Crown Counsel concedes that these convictions cannot stand and that the proceedings before the magistrate were a nullity. I agree.

2. The appellant was charged with two offences of robbery allegedly committed on the 7th and 8th February. Combined with these charges and on the same charge sheet were two further charges in respect of offences of an entirely different nature, allegedly committed over a month previously, to wit, two charges of carnal knowledge of a girl under the age of 16 on the 30th November and the 3rd December.

3. Joinder of charges for the purposes of trial in the Magistrates Courts are not permissible except in the instances expressly provided for in Section 10 of the Magistrates Ordinance. Joinder of charges of robbery and sexual offences committed on entirely different occasions and totally unconnected clearly do not fall within the exceptions provided for in Section 10.

4. The appellant was represented in the trial court by counsel. It is, indeed, remarkable that neither counsel nor the magistrate himself, on reading the charge sheet, should not at once have seen that the charges could not conceivably be tried together and that separate trials were required. The authorities make it abundantly clear that a trial conducted in such circumstances is bad ab initio and constitutes a nullity. The fact that half way through the trial - which carried on over several days - the appellant pleaded guilty to the two charges of carnal knowledge, does not alter the position.

5. The convictions on all charges must be quashed and the sentences set aside. The effect of the proceedings being declared a nullity is, of course, that the Crown is entitled to reinstitute proceedings on separate charge sheets in respect of the same offences. In this case, Crown Counsel, in my view rightly and properly, has said that in view of the length of time the appellant has already been in prison serving his sentences consequent upon his convictions on these charges - that is to say, the 11th January, 1972 -it is not proposed to institute further proceedings.

6. Before departing from this case there are one or two matters which require some comment. At the time of giving evidence the girl in question was just over 15 years of age. From the outset of her evidence it was apparent that the girl was a reluctant witness. The prosecution applied "to clear court" and the magistrate acceded to that request. That, in the exercise of his discretion, the magistrate was perfectly entitled to do provided that the clearing of the court did not exclude bona fide representatives of the press. (Section. 20 Juvenile Offenders Ordinance, Cap. 226).

7. The girl still remained a reluctant witness so the magistrate then took the course of adjourning the court for 15 minutes. What was the purpose of that adjournment is not apparent.

8. However, on the resumption of the proceedings the girl's apparent reluctance to give evidence had not been overcome. The magistrate then took the somewhat unusual course of adjourning the case into his Chambers. Since the court had already been cleared and was sitting in camera it is difficult to understand or appreciate the purpose of adjourning the case into the Magistrate's Chambers. It is true to say that in his Chambers were the magistrate himself, the court interpreter, the prosecuting police inspector, the girl, her mother, defence counsel and the defendant himself. However, the matter does not end there. In Chambers the girl was still reluctant to say what had happened. The court record as to what she then said reads:-

"I went to Mei Fong Apartment with defendant. Something happened there which I do not wish to put into words. If Court puts it into words I would indicate whether Court's guess is correct or incorrect."

The next sentence on the record reads:-

It seems to me unfortunate that the magistrate should at once have made the suggestion of sexual intercourse. "Sexual intercourse" for the purpose of a criminal charge has a definite meaning and conclusion in law. No attempt appears to have been made to explain to the girl what "sexual intercourse" in fact meant. There were a number of things which could have happened short of sexual intercourse. It is to be observed that the appellant himself did not plead guilty to the two charges of sexual intercourse until a much later stage in the proceedings.

9. In my view, the course taken by the magistrate was, to say the least of it, unfortunate even if it was not wholly irregular.

10. For the reasons already given the proceedings were a nullity; the convictions must be quashed and the sentences set aside.

Representation:

A.J.J. Sanguinetti assigned for Appellant.

Caird, C.C. for Crown/Respondent.