HKSAR v. Tong Ying Kit

HCCC 280/2020

[2021] HKCFI 1644

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 280 OF 2020

________________________

________________________

______________

RULING

______________

INTRODUCTION

1.By a letter dated 6 May 2021 addressed to the court, the Prosecution applied for leave to add Count 3 for the offence of “causing grievous bodily harm by dangerous driving”, contrary to section 36A of the Road Traffic Ordinance, Cap 374 as an alternative count to Count 2 of “terrorist activities” against the Defendant in the present case.

2.In making the application, the Prosecution relies on section 23(1) of the Criminal Procedure Ordinance, Cap 221 which provides that: “Where, before trial or at any stage of a trial, it appears to the court that the indictment is defective, the court shall make such order for the amendment of the indictment as the court thinks necessary to meet the circumstances of the case unless, having regard to the merits of the case, the required amendments cannot be made without injustice”.

3.In support of the application, the Prosecution emphasises that the proposed Count 3 is to be added as an alternative count to Count 2, which means that only if the court is not satisfied as to Count 2 it may then proceed to consider Count 3.  The Prosecution further submits that the purpose of adding the proposed Count 3, putting aside the “terrorist activities” charge, is to properly reflect the Defendant’s criminality and his dangerous act of driving his motorcycle in the way as he did, and that it is plainly in the interests of justice for the count to be added as an alternative.

GROUND 1 OF THE DEFENDANT’S OBJECTION

4.Under Ground 1, the Defendant challenges the proposed addition of Count 3 on the basis that the court consisting of a panel of three judges (the “Court”) “does not have the jurisdiction to hear a case which does not fall under the National Security Law (“NSL”)”. The Defendant further submits that to add a charge, albeit as an alternative, which falls outside the ambit of the NSL is an abuse of process.

5.In this regard, it is important to bear in mind the proper context.  The proper context which falls to be considered in the present case is that the underlying conduct alleged in Count 3 plainly arises out of the same facts charged under the existing NSL offences in Count 1 and Count 2 (ie all arising from the Defendant’s acts and conduct as he drove his motorcycle on the day in question) and, in any event, is added as an alternative count to Count 2.  It cannot be said that the addition of Count 3 introduces to the case any new substantive facts which do not feature in the case against the Defendant under Counts 1 and 2. 

6.Indeed, in the Defendant’s written submissions, it is stated under paragraph 2(a) that: “The Defendant was arrested for ‘furious driving’ on 1 July 2020 and gave a cautioned statement in respect of ‘causing grievous bodily harm by dangerous driving’ as early as on 2 July 2020”.  Plainly, in these circumstances, it could not be, and it has not been, suggested by the Defendant that the proposed Count 3 is a novelty and a complete surprise.

7.Article 46 of the NSL provides that: “In criminal proceedings in the Court of First Instance of the High Court concerning offences endangering national security”[1], the Secretary for Justice may issue a certificate directing that the case shall be tried without a jury, and instead by a panel of three judges.  Significantly, Article 46 does not provide that such a certificate can only be issued in a case which only concerns offences endangering national security.  In other words, even with the addition of Count 3, these proceedings remain to be criminal proceedings concerning offences endangering national security[2] albeit that there is an alternative non-NSL offence on the indictment, and the reasons stated in Article 46 and in the relevant certificate for not having a jury trial still apply.  In our view, Article 46 should not be construed as requiring different tribunals of fact, that is, a panel of three judges and a jury, to be formed in one single set of criminal proceedings to deal separately with NSL and non-NSL offences which could properly be pleaded in one indictment. 

8.Further, on any view of the matter, it would not be in the interests of justice to require Counts 1 and 2 to be tried by the Court, and Count 3, laid as an alternative count to Count 2, by a jury separately, or for that count to be transferred to the District Court to be further dealt with.  By the nature of an alternative count, the issue of guilt or otherwise on Count 3 will only arise if the Court decides to acquit the Defendant on Count 2.  There is no basis in law to suggest that after the acquittal of the Defendant on Count 2 by the Court, a jury should then be empanelled or a District Court judge should then be engaged to try the alternative Count 3, when a plea of autrefois acquit might be available to the Defendant.

9.The complaint by the Defendant of lack of jurisdiction has no merit.

10.Moreover, in the context of the present case, there can be no question of an “abuse of process”, bearing in mind the close factual nexus between Count 3 and the existing Count 1 and Count 2.

11.We accept the Prosecution’s submission that it would be absurd to suggest that simply because Count 3 is not an offence concerning national security, that per se mandate a separate trial for Count 3.

12.Further, section 23(1) of the Criminal Procedure Ordinance has been construed in wide terms.  See: Criminal Procedure - Trial on Indictment, by Andrew Bruce SC, Part V [553].  For example, it has been construed to include cases in which the indictment does not accord with the evidence adduced in the depositions, either because of inaccuracies or deficiencies in the indictment, or because the indictment charges offences not disclosed by that evidence or fails to charge an offence which is so disclosed. 

13.The point can be further tested this way.  Section 51(1)(b) of the Criminal Procedure Ordinance provides that: “If a person is arraigned on an indictment, he may plead not guilty to the offence specifically charged in the indictment but guilty to another offence of which he might be found guilty on that indictment”.  Similarly, section 51(2) of the same Ordinance provides that: “If on the trial of any…indictment for any offence…it is proved that the accused is not guilty of that offence but the allegations in the…indictment amount to or include, whether expressly or by implication, an allegation of another offence falling within the jurisdiction of the court of trial, he may be found guilty of that other offence…”.

14.If the defence were right in their submissions on Ground 1, it would mean that even if this Defendant chooses to plead not guilty to Count 2 but pleads guilty to the offence of causing grievous bodily harm by dangerous driving (which, as accepted by Mr Grossman SC, is a proper alternative to Count 2), the Court cannot enter that plea.  This view of the matter would seem even more objectionable if, during the investigation stage, the Defendant has already made an admission in relation to the dangerous driving offence, thus bringing section 51(2) of the Criminal Procedure Ordinance into play.

15.It is also absurd for the defence to suggest that section 51(1)(b) is not applicable merely because the Court is a specially constituted court.  The fallacy is apparent when one considers that a defendant facing a NSL offence and tried before a jury would be able to invoke section 51(1)(b), whereas one facing the same NSL offence and tried before a panel of three judges would not be able to do so.  Clearly, this goes contrary to the terms of Article 41 of the NSL.[3]

GROUND 2 OF THE DEFENDANT’S OBJECTION

16.Under Ground 2, the Defendant complains that the late introduction of the amendment 10 months after his arrest is unfair.

17.As far as we can discern, the Defendant’s complaint relates mainly to the late service of documents, additional evidence, translation of witness statements and unused materials.

18.In this regard, we agree with the Prosecution that there has not been a substantial addition of evidence or materials going to the proposed Count 3 which has/have not already been provided to the Defendant. Rather, the recent filing of additional evidence for the present case are, on a fair and objective view, substantially related to the existing counts under the NSL rather than the proposed Count 3.  Accordingly, the Defendant’s reliance on this complaint is without merit and cannot assist in his objection to the present application.

CONCLUSION

19.For the reasons set out above, we consider that the amendment sought is necessary to meet the circumstances of this case with no injustice caused.  We allow the Prosecution’s application to amend the Indictment as per the Amended Indictment lodged together with the said letter dated 6 May 2021.

Mr Anthony Chau, DDPP(Ag) of the Department of Justice, for HKSAR

Mr C S Grossman, SC, leading Mr Lawrence Lau (both assigned by DLA) and Ms Tessa Chan, instructed by Messrs Bond Ng Solicitors, for the defendant