HKSAR v. Asif Ahfaq Mehmood and Others

HCCC 138/2020

[2021] HKCFI 3812

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 138 OF 2020

________________________

________________________

Before: Hon Campbell‑Moffat J in Court

Date of Hearing: 22 November 2021

Date of Ruling: 23 November 2021

________________________

RULING

________________________

1.All three defendants are charged, together and with others, with Robbery contrary to s10(1) & (2) of the Theft Ordinance, Cap 210, which reads:

“(1) A person commits robbery if he steals, and immediately before or at the time of doing so, and in order to do so, he uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force.

(2)   Any person who commits robbery, or an assault with intent to rob, shall be guilty of an offence and shall be liable on conviction upon indictment to imprisonment for life.”

Plea to lesser charge

2.This is an application by all three defendants, led by Mr Pannu representing D1, to be allowed, on arraignment, to tender a plea to a charge not on the indictment but which he submits is a lesser offence to the charge of robbery.  The offence to which the defendants previously wished to plead guilty, and indeed offered to plead guilty, was one of Wounding with intent contrary to s17 of the Offences Against the Person Ordinance, Cap 212, but the Court has now been informed that has changed to one of s19 Wounding (“s19 Wounding”).  Section 19 reads:

“Any person who unlawfully and maliciously wounds or inflicts grievous bodily harm upon any other person, either with or without any weapon or instrument, shall be guilty of an offence triable upon indictment, and shall be liable to imprisonment for 3 years”.

Procedure upon arraignment

3.Section 49 of the Criminal Procedure Ordinance, Cap 221 (“the CPO”) governs arraignment and s49(2) requires that the indictment be put and the defendant plead to it.  Currently the indictment contains only the one count of robbery.  Section 50 of the CPO states that a plea of not guilty deems the defendant to have “put himself upon the country for trial”.

4.Section 51(1)(b) allows the defendant to enter a plea of not guilty to the offence specifically charged on the indictment but guilty to another offence of which he might be found guilty on that[1]indictment.  In this case, prima facie, it is accepted this means any offence prescribed as an alternative verdict to robbery as set out in the Schedule to the Theft Ordinance, Cap 210 (the “Schedule”).  Alternative offences include theft, assault with intent to rob, blackmail, handling stolen goods and common assault.  It does not include s19 Wounding.  For his part, Mr Pannu submits the wording of s51(1)(b) also includes ‘lesser’ offences not included in the Schedule and available under common law but does not include wholly ‘separate’ offences available as arising upon the facts.

5.What then is the purpose of s51(2) which states:

“If on the trial of any information, charge or indictment for any offence other than treason it is proved that the accused is not guilty of that offence but the allegations in the information, charge or 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 or of an offence of which he could be found guilty on an information, charge or indictment specifically charging that other offence.[2]” (Emphasis added)

Is s51(2) intended to include offences not within the Schedule?  Is it intended to extend the power of the Court to all lesser offences?  Is it intended to include offences which are neither statutory alternatives nor other lesser offences but which arise upon the facts?  According to Rogers JA in HKSAR v Pham Quang Minh [1999] 2 HKC 793; CACC 111/1998[3],

“It would be inappropriate in this judgment to attempt an exhaustive analysis of the meaning of section 51(2) and in particular as to what is comprehended by the words "amount to" on the basis of dictionary entries. It was argued by Mr. Cheung on behalf of the Prosecution that those words should be read as meaning equivalent in significance. This, in itself, is far too broad an encapsulation. The circumstances where it would be right to hold that the allegations in one charge amount to an allegation of another offence must be far more akin to a situation where the allegations in respect of the first charge constitute the ingredients of the second charge whether directly or by necessary implication. The further words of section 51(2), ‘or include’, clearly indicate that the ingredients of the second charge would fall within the larger category of the allegations in the first charge.”

This was foreshadowed by Macdougall VP in R v Wong Kwong‑Hei [1994] 1 HKCLR 30; CACC 16/1993[4]

“Mr. Cross submitted, and we accept, that the allegations in each of the charges included by implication an allegation of conspiracy to export unmanifested cargo. It seems to us, however, that section 51(2) is designed to cater for those cases in which the prosecution fails to prove the charge on which the accused stands trial but succeeds in proving that he is guilty of another offence which falls within the scope of the allegations in that charge.”

However, in Regina v Wilson [1984] AC 242, Lord Roskill stated that ‘amount to or include’ was clearly disjunctive.  If either limb is satisfied then the stated consequences follow e.g. burglary expressly includes theft, riot impliedly includes common assault etc.

6.The question which arises therefore is whether the charge of robbery amounts to or includes a charge of s19 Wounding.

Amount to or Includes…expressly… another offence

7.In R v Lillis [1972] 2 QB 236 (in respect of s6(3) of the Criminal Law Act 1967 and an offence of burglary), per Lawton LJ, the test is to strike out from the words in the indictment all the averments which had not been proved; and that, if such deletion left particulars of another offence within the jurisdiction of the court of trial which the person charged could immediately defend, the jury should be asked to consider whether the other offence had been proved.  ….The allegation in the indictment expressly included an allegation of another offence i.e. theft[5].

Amount to or Includes…by implication… another offence

8.In R v Wilson [1984] AC 242 affirming R v Lillis, Lord Roskill envisaged four possibilities arising from the subject wording:

“Firstly, the allegation in the indictment expressly amounts to an allegation of another offence. Secondly, the allegation in the indictment impliedly amounts to an allegation of another offence. Thirdly, the allegation in the indictment expressly includes an allegation of another offence. Fourthly, the allegation in the indictment expressly includes an allegation of another offence. If any one of those four requirements is fulfilled, then the accused may be found guilty of that other offence.”

9.I have also considered R v Maxwell [1989] 88 Cr App R 173 and on further appeal in (1990) 91 Cr App R 61, under which the appellant was charged with robbery.  The prosecution case was that he had procured the commission of that offence by others.  The appellant submitted that he had recruited others to commit a burglary with intent to steal and denied having any idea that a robbery would ensue as he had never intended any violence would be used upon the victims.  The prosecution proceeded with the charge of robbery upon which there was evidence of an acknowledgment of possible assault by his co-defendants.  The jury nevertheless asked whether they could convict of a lesser charge than robbery to which the judge answered in the negative.  Mustill LJ, sitting in the Court of Appeal, stated that a judge was not obliged to leave the offence of burglary to the jury just because the defence asked for it even where the case disclosed it as a viable alternative to the offence charged.  However, he noted it was the duty of the judge to use his powers to ensure that the issues left to the jury fairly reflected the issues which arose on the evidence and on the facts of the case procuring the commission of burglary could have been left to them.  He noted that the duty of the jury is, properly directed, to decide the guilt or innocence of the offence charged and, whilst there was argument that a jury might be reluctant to allow a defendant to go free when there is clear evidence of criminal behaviour but perhaps not to the requisite standard, the Court should not assume they will not carry out their duty in accordance with the directions given.  On appeal to the House of Lords, the Court held that it was the responsibility of the prosecution to frame the charge as they thought appropriate and at the end of their evidence to submit that evidence had established a strong prima facie case and that the jury should not be distracted from concentrating on the ingredients of that offence by the introduction into the trial of a lesser offence.  Further, the trial judge was entitled to conclude that the alternative count of theft was so trifling that the jury’s attention upon the essential issue‑ whether the appellant intended violence to be used‑ should not be distracted.

10.Mr Pannu also relied upon R v Maxwell (Nolan) [1994] Crim LR 848.  Unfortunately, the quote he seeks to rely upon is referred to in R v Coutts [2006] 1 WLR 2154; [2007] 1 Cr App R 6; [2006] Crim LR 1065, but cannot be found in the criminal law review report for Maxwell (Nolan) itself.  Coutts was a case of murder where the alternative count of manslaughter was not left to the jury.  That was the narrow question before the House of Lords but the broader question concerned the duties and discretion of trial judges to leave alternative verdicts of lesser included offences to the jury where there is evidence a rational jury could accept to support such a verdict but neither prosecution nor defence seek it.  That of course is not the case here.  Unusually it is the defence who seek the addition of a count for s19 Wounding.  However, Mr Pannu submits there are matters of principle elucidated within the judgment which are apposite to their application before this court.  Firstly, there is a public interest to be served to ensure that defendants should be convicted of offences they have been proved to have committed and not convicted of offences which they have not been proved to have committed.  The interest of justice are not served if a defendant is convicted of a greater offence than he has committed and therefore receives a greater punishment and vice versa.  The objective is to get it right and neither over nor under-convict.  In some cases, where there is sufficient evidence to go before the jury regardless of the stance of counsel for the prosecution and/or defence, if the interest of justice requires it, the jury must be alerted to this principle and that is the responsibility of the trial judge[6].

Is s19 Wounding a lesser offence to robbery or is it simply another offence? Does that make a difference?

11.Whilst s19 Wounding is not an alternative charge available within the Schedule, the requirement for the use of force may impliedly, in some cases but not all, include s19 Wounding which requires the actus reus of wounding or inflicting grievous bodily harm.  If I am wrong in that, it clearly arises out of the facts of the case.  This Court will not and should not interfere in order to force the prosecution to proceed upon a charge it has chosen not to proceed upon.  This does not mean that an amendment to the indictment cannot be made at some subsequent juncture, in appropriate circumstances after having heard all parties as to the advisability of such a course but I do not believe the Court should order such amendment at this stage under s23 of the CPO as Mr Pannu submits.

Should the jury be told of the defendant’s plea at this stage?

12.According to paragraph 10 of Mr Pannu’s submissions, what the defendants actually seek to do is to identify a charge of their own choosing to which they have indicated a willingness to plead and then ask the Court to place it before the jury either as one to which the defendants on an amended indictment can enter a plea of guilty (even though the prosecution has said it will not accept it) or, in the absence of an amended indictment, allow the jury to be aware of their wish to plead to some other charge not proceeded with or relied upon by the prosecution.  That is not appropriate at this juncture.  As I have said, it is for the prosecution to choose how they wish to proceed and for the prosecution to prove their case.  I do not understand Mr Pannu’s comments at §11, when he goes on to submit that the defendant (D1) wishes to give the jury an opportunity to convict him of wounding.  That cannot be right, if I have understood his application correctly.  He wishes to have the indictment amended and he wishes to plead to s19 Wounding not have the jury convict him of it.  If he cannot do that, and it is not added to the indictment by way of amendment, it follows from §11 that he believes it should be open to the jury to find him not guilty of robbery but guilty of s19 Wounding on the basis that it is a lesser offence or by way of later amendment to the indictment under s23 of the CPO.

S65C

13.Mr Pannu submits that the jury should be aware of the defendant’s desire to enter a plea.  He suggests that this could be done by way of s65C.  S65C of the CPO provides for the admission of ‘any fact of which oral evidence may be given in any criminal proceedings’.  It is trite law that such evidence must be relevant and admissible.  The charge is one of robbery.  The discussions, negotiations and/or intimations by legal representatives to the Department of Justice or to the Court are hearsay.  The plea tendered on arraignment and not accepted is a nullity.  How then is it said to be relevant to the defence case in answer to a charge of robbery other than a consistent out of court statement?  Under what rule of evidence do the defence say it is admissible?  Even if, as Mr Tracy suggests, he could adduce the evidence through an instructing solicitor, surely that opens the door to the reasoning of the prosecution in rejecting the offer and in any event is a wholly collateral issue.  I believe this suggestion is misconceived.

Prejudice

14.As for the argument that it will be highly prejudicial for D1 if there is only an option of robbery and no other charge, I am cognisant of the arguments in Maxwell; Coutts etc supra but that is not quite correct.  There are several arguments going both ways. But to state the obvious, first and foremost, as the indictment currently stands, it is open to the jury, properly directed, to find D1 not guilty of robbery, at which point he will be acquitted and not at risk of any other charge.  Second, it is in the nature of criminal prosecutions that the allegation against an accused is, in and of itself, prejudicial.  That is why there are multiple safeguards to ensure that the mere fact of being proceeded against is outweighed by the directions given by the trial judge in summing up.  That was alluded to by Mustill J in Maxwell.  The issue, having been raised and declined by the prosecution many months ago, can be revisited at an appropriate stage perhaps prior to speeches and the summing up.  If the prosecution wishes to proceed as they have chosen to do, on robbery alone, it will, at the very least as it now stands, be made clear to the jury that the defendants are not to be convicted on the basis that they intended either individually, or with others, to wound the victim but that they joined an enterprise with others to steal money which included the use of force evidenced by the wounding[7].

The practical reality - going forward

15.If an accused is arraigned on a count to which the jury could find him guilty of a lesser offence, he may offer a plea of not guilty as charged but guilty to that lesser offence[8].  Of course, the prosecution do not have to accept that plea[9] and if that is the case then the plea which has been entered on that basis is a nullity or has been deemed to be withdrawn[10].  Not as Mr Pannu suggests a nullity at some later stage.  The jury are not in charge of that plea.  They have no duty to return a verdict upon it as it is not before them.  The prosecution must proceed upon the charge as indicted but they lay themselves at risk of a complete acquittal.  If that were to happen, the plea to the lesser charge cannot be revived[11].  The Court cannot stop the defendants seeking to indicate to the Court, at the time of their arraignment upon the indictment that they wish to plead guilty to s19 Wounding.  But, having done so, and the offer having not been accepted, that is the end of the matter.  That offer is a nullity.  Were the jury to find the defendants, or any one of them not guilty of robbery, it would not be open to the Court to then sentence them upon the plea to s19 Wounding as sought to be entered upon arraignment[12].

16.Mr Pannu nevertheless submits that the jury should be made aware of those pleas to s19 Wounding at the outset.  There is no basis in law for this submission.  It is for the prosecution to decide how they wish to proceed, upon what charge or charges and upon what evidence.  If they do not accept a plea of guilty to an offence not on the indictment then that is the end of the matter.  The offence upon which the defendants seek to enter a plea is not before the jury and cannot be before the jury as it is not a matter for them to resolve.  They have not been put in charge of it.  There is no means by which this Court can require the prosecution to lead it as part of their case.  The defence seek to do so by asking the prosecution to admit it as part of their case.  If it were admissible at all it could only be appropriate within the defence case.  However, on the basis that during argument it was suggested that the defendants may also seek to plead to common assault which is clearly an alternative offence, Mr Percy for the prosecution has indicated that he would mention any such plea on the part of D3 in his Opening subject to any objection by D3 but he would not allude to any such plea from D1 or D2.  These are all matters for Counsel.

Conclusion

17.As was stated by Ma CJ in HKSAR v Chau Yui Ming [2019] HKCFA 39[13]:

“There are a number of important connected features of a criminal trial that ought to be reiterated in the present case. First, most important of all, is the public interest in ensuring a fair trial and the primary responsibility for this rests with the trial judge. Fairness applies to both the defence and the prosecution. Secondly, the defence must be free to conduct its defence as it sees fit in the way the evidence is treated and the way the defence is presented to the court, provided this is done reasonably and properly. Thirdly, the prosecution must also similarly be free to conduct the prosecution as it sees fit. All of this is of course subject to professional obligations and overriding duties owed to the court and the administration of justice.”

18.The Court in Chau supra was not asked to consider authorities other than those dealing with a situation where there was an alternative or lesser offence.  The Court in Chau was in fact dealing with a question of whether the indictment should have been split into different counts.  Even on that basis Ma CJ noted there were no authorities to support the application of the principle which they were considering to such a scenario.  The same situation pertains before this Court at this time.

19.At present this Court does not believe it can or should direct the prosecution to proceed upon a separate charge which it has already considered and taken the view it does not wish to include in the indictment. That would be to tie the hands of the prosecution and it is a step too far even if s23 of the CPO allows for it.  The defendants must enter whatever pleas they believe appropriate and it is for the prosecution to decide if they wish to accept those pleas.  If they do not, then that is the end of the matter and the jury will not know of those pleas without a further application being made. All of the defendants have indicated that no such attempt will be made during cross-examination of the prosecution witnesses.  Nor does this Court accept that it would be proper for the entry of any plea on arraignment or indication of any plea prior to arraignment be the subject of a s65C admitted fact.

20.However, in the interests of justice, the Court does not shut out the defence from making a future application in respect of the indictment if the evidence is sufficient to make such an application a proper one to make at the appropriate time.

Mr Duncan Percy, counsel on fiat, for HKSAR

Mr Peter Pannu, instructed by Eric Cheung & Lau, assigned by the Director of Legal Aid, for the 1^st defendant

Mr Maurice Tracy, instructed by Chaudhry Solicitors, assigned by the Director of Legal Aid, for the 2^nd defendant

Mr Newman Wong, instructed by Francis Kong & Co, assigned by the Director of Legal Aid, for the 3^rd defendant