HKSAR v. Tam Tak Chi

DCCC 927, 928 & 930/2020 (Consolidated)

[2021] HKDC 506

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 927, 928 & 930 OF 2020

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RULING ON THE APPLICATION FOR
FURTHER AND BETTER PARTICULARS

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1.The defence raised 3 issues as the preliminary legal arguments before trial proper, and by now I have dealt with the first two issues.

2.The defence maintained their position relating to the application for further and better particulars [re Reformulated Submission for the Defendant on Particulars dated 31 March 2021].

3.This ruling, the third one, now concerns only the issue of the particulars of offence.

The defence’s position

4.The defence complained that the particulars of the charges are virtually the same in each case, and the particulars correspond with the definitions of seditious intentions under s 9(a), (b), (c) and (g) of the Crimes Ordinance.  The particulars gave no indication of the words actually used by the defendant.  It was submitted that the lack of reasonable information as to the nature of the charge contravened the Indictment Rules.  It follows that there can be prejudice or embarrassment in a trial which is unfair to the defendant.  The Prosecution failed to identify the words or phrases uttered by the defendant.

5.The defence further argued that because of the lack of better particulars of offences, the defendant is unable to know what words or phrases that could manifest the seditious intentions.  The defence gave an example.  What if the defence was to deal with the case that they thought was under s 9(1)(a), when in fact the Prosecution considered that the case was under s 9(1)(c). Such uncertainty would prejudice or embarrass the defendant in the preparation of the his defence.

6.The defence even took the trouble to make certain suggestions as to the drafting of the particulars: see para 14 of the reformulated submission of the defence.  Unless the Prosecution can provide particulars ‘expediently’, the defence asked the court to quash the 8 charges, namely, Charges 2, 4, 9, 10, 11, 12, 13 and 14.

The Prosecution’s reply

7.In reply, the Prosecution relied on their original submission from para 18 (b) and (c) to para 29.

8.It was submitted that the particulars of each offence contain the date and location of the offence, hence reasonable information as to the nature of the charges is given and the essential elements of the offence are disclosed [para 21 of the Prosecution’s submission].  The Prosecution said that they have made their position clear in the Summary of Facts which contains a summary of those seditious words and the frequency of the utterances.  There is also video evidence capturing the defendant who was hosting the street booth and in the procession when the seditious words were uttered [para 25].  

9.Based on all these, the Prosecution said it is inconceivable that the defendant does not know precisely the case advanced against him and the case which he has to meet.  The Prosecution will rely on the context and the entirety of the speeches made by the defendant in each incident.

Consideration

10.The Court of Appeal in HKSAR v Tsang Wai Lung, Wayland and others [2013] 1 HKC 389 at 436 made it clear that:–

“the function of particulars ‘is to give such exact and reasonable information to the accused respecting the charge against him as will enable him to establish fully his defence’ as well as to enable the trial court to address the real issues in the case. So where the original particulars of the offence are clarified, whether by further written or oral particulars, in such a way that the accused knows precisely the case advanced against him and the case which he has to meet and is not prejudiced by the nature or timing of such clarification, there can be no justifiable complaint.”

11.Indictment Rules 3(1) states that every indictment shall contain and shall be sufficient if it contains, a statement of the specific offence with which the accused is charged describing the offence shortly, together with such particulars as may be necessary for giving reasonable information as to the nature of the charge.

12.Indictment Rules 4(b) states that the particulars shall disclose the essential elements of the offence, provided that an essential element need not be disclosed if the accused person is not prejudiced or embarrassed in his defence by the failure to disclose it.

13.Under the Indictment Rules 3(3), a judge may order further particulars of an offence to be delivered when the judge deems it expedient to do so.

14.In my view, the whole issue boils down to the question of whether the defendant understands and knows why he was charged so that he can prepare his defence and the defendant would not be prejudiced or embarrassed.

15.The Indictment rules do not require the Prosecution to spell out each and every utterance and/or allegation which makes out the offence.  That is why the Rules only require the Prosecution to provide reasonable, not all, information to the accused.

16.The Prosecution asserts that they are not just rely on the written words disclosed in the particulars of offence, but also the video footage and the Summary of Facts.  Despite what was said by the Prosecution, the defence insisted that without further particulars delivered, the defendant “is unable to know what words or phrases are alleged to manifest which of the seditious intentions”, and parties, including the Judge, might get it wrong [para 8 of the defence’s submission].

17.As I said, the Indictment Rules do not require the Prosecution to spell out the allegations in detail but just to deliver reasonable information.  In fact, given the nature of the sedition offence, I am of the view that it is not practical, and also undesirable, to have a lengthy and complicated particulars of offence which could cause confusion or even misunderstanding.

18.Drafting of the particulars of offence often requires prosecutorial experience, legal skills and drafting techniques.  The Indictment Rules aim at providing a broad outline as to the way the particulars should be delivered, and there is a need to balance the interests of the defendant and the public.  Hence it comes the proviso under Rule 4 (b) which states that “provided that an essential element need not be disclosed if the accused person is not prejudiced or embarrassed in his defence by the failure to disclose it”.

19.The issue here is: will the defendant be prejudiced or embarrassed by the alleged lack of further particulars delivered by the Prosecution in this case?

20.The answer must be in the negative.  There is a need to understand what was uttered by the defendant at the material time and location in the whole context of the circumstances.  One also has to take into account of the cultural setting, social and political environment at the material time.  As I mentioned earlier, when one said ‘Thank you’ to another person, depending on the tone of the speaker, the emotion of and the dialogue between the parties at that moment, the message or impression so conveyed can be polarized and can lead to two different results.

21.By referring to the Summary of Facts, it is not difficult to see the position of the Prosecution.  The Prosecution alleged that the entirety of what was said by the defendant and his conduct, together with all the other paraphernalia, if any, made out the offence of sedition.  It was alleged that the defendant has exhibited the relevant seditious intentions under s 9 of the Crimes Ordinance.  Relevant video footages, together with seizure of other exhibits, will be tendered to support the allegations.  And after presenting all the evidence, it remains to be decided if the utterances and/or conduct amount to seditious intention under various subsections of s 9.

22.In this regard, it is difficult for the defence to say that the defendant did not know what allegations were advanced against him.

23.On the other hand, I can also see the difficulty in narrating all the utterances made by the defendant in the particulars as this will inevitably make the particulars of offence too cumbersome, fragmented and lengthy.  For instance, as stated at para 11 in the Summary of Facts, the utterance relating to Charge 4, if just confined to Chinese, are about 11 lines long, which include some Cantonese foul languages.  The utterance relating to Charge 9, if just confined to those Chinese words mentioned at para 17 in the Summary of Facts, are about 14 lines long.  These are just a rough estimate.

24.In fact, it is not unusual that the Prosecution can just narrate the nature of the offence without specifying the criminal conduct in the particulars of offence.

25.One classic example is the charge of indecent assault, contrary to s 122 of the Crimes Ordinance.  The usual particulars of offence reads, “AB, on the __ day of 2021, at certain location, in Hong Kong, indecently assaulted X” [see also the sample indictment at para 21-144, Archbold HK 2021].  It is the usual practice that there is no mention of the act of indecency alleged by the Prosecution in the particulars, and the accused person would have to rely on the evidence of the victim and/or the Brief Facts to get the reasonable information.  The same applies in many sexual offences.

26.In my view, this practice also applies in the present case.  It is my ruling that the particulars of offence delivered by the Prosecution, together with the Summary of Facts and the video footage, is sufficient to deliver reasonable information to the defendant so that the latter would not be prejudiced or embarrassed.  It is then up to the tribunal of fact and law to decide if the utterance and/or conduct would exhibit seditious intentions to make out the offence.

27.That said, I am of the view that there is room for improvement for the Prosecution to draft the particulars of offence relating to those s  10 offences.  For instance, the Prosecution can allege that the target of the seditious words was the Hong Kong police instead, even though the government of HKSAR definitely encompasses the Hong Kong police.

28.To conclude, I rule that the Prosecution has complied with the Indictment Rules and has delivered reasonable information to the defendant in the particulars of offence relating to the 8 Charges.