The Queen v. Yuen Ching Kin

CACC000179/1991

BETWEEN

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Coram: Hon Kempster, Power and Macdougall, JJA

Date of Hearing: 17 December 1991

Date of Judgment: 17 December 1991

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JUDGMENT

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Kempster, JA:

1. On 21 March of this year, on the verdict of a jury, Yuen Ching-kin was convicted by HH Judge Daniell, sitting as a Deputy Judge of the High Court, of possessing arms and ammunition without a licence. Against that conviction he seeks leave to appeal on the basis that the trial was a nullity.

2. Section 17 of the Criminal Procedure Ordinance (Cap 221) provides that:

"Every indictment shall be signed by the Attorney General, and shall bear date on the day when it is signed."

That is subject to any special instructions of the Governor.

3. This responsibility is delegable to a "Legal Officer" pursuant to s 7 of the Legal Officers Ordinance (Cap 87). "Legal Officer" is defined in s 2 which in turn refers to a schedule of officers ranging from Law Officer to Assistant Crown Counsel and includes a Senior Assistant Crown Prosecutor. It does not include counsel prosecuting on fiat.

4. As appears from an affirmation of defending counsel which, together with a letter written by Mr Hoosen who appeared at the trial on fiat for the Crown, we admitted pursuant to s 83V of the Criminal Procedure Ordinance an indictment charging both the applicant and another with distinct and separate offences under the Firearms and Ammunition Ordinance (Cap 238) was signed on 5 March 1990 by a Senior Assistant Crown Prosecutor to whom, as is common ground, the Attorney General's material power and authority had been delegated. Both accused pleaded "Not Guilty" to the respective charges brought against them on 14 March and on 18th of that month the other accused was acquitted following the hearing of a voir dire.

5. The jury which returned the verdict of "guilty" as against the applicant was empanelled on the following day and he was tried on the count in the indictment applicable to him to which he had pleaded on the 15th; just as if an order had been made under s 23 (5) (b) of the Criminal Procedure Ordinance.

6. The count was set out in a document which had been signed by Mr Hoosen on 18th of March and which, whatever he thought, constituted no more than an accurate abstract or summary of the material part of the indictment which had been signed by the Senior Assistant Crown Prosecutor. It had been seen by counsel representing the applicant who raised no objection.

7. There is always a danger that documents put before a jury may be found misleading by reason of their content or of material which they do not contain. That is why the courts scrutinise them with great care. No complaint in relation to content is made in the instant application.

8. In the circumstances we feel it necessary only to add that the document which Mr Hoosen had signed and which was neither filed, endorsed nor served in accordance with ss 26, 27 or 28 of the Criminal Procedure Ordinance did not constitute an indictment. It is clear beyond peradventure that the applicant was tried on the properly constituted indictment signed on 5 March 1990 and that the document impugned by Mr King for the applicant, loyally advancing an argument prepared by Mr McCoy, had no legal effect at all and in no way impaired the proper hearing of the charge against the applicant. In the event there is nothing in the suggestion that the trial was a nullity, for want of a properly signed indictment. No such point was taken at trial.

9. At an early stage of this hearing we were concerned as to whether, due to the fragility of the ground of appeal, the applicant should forfeit time but reflecting that counsel acting for the Crown at trial himself appears to have misunderstood the relevant law, we have decided only to order that the application for leave to appeal against conviction shall stand dismissed.

Representation:

G.J.X. McMcoy & A.S. King (M/s J.N. Karbhari & Co) for Appellant

A.A. Bruce (Crown Prosecutor) for Respondent