Lam Sang and Another v. The Queen
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CACC000212/1968 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 212 OF 1968 -----------------
----------------- Coram: Rigby, S.P.J. Date of Judgment: 10 June 1968 ----------------- JUDGMENT ----------------- 1. The two appellants were separately charged but jointly tried upon the three charge sheets preferred against them. They now appeal against their convictions. 2. On the facts, there is really no merit in these appeals. The very brief facts were that in the early hours of the morning of the 23rd February a party of three plain-clothes policemen were on patrol duty in Prince Edward Road near Kadoorie Avenue, Kowloon. They saw a car draw up and stop and three persons get out of the car. One of those police officers knew one of those three persons and as a result it was thought desirable to follow these three persons who had got out of the car. They were seen to enter a house and the police officers followed them into it. They proceeded upstairs to the third floor. The police officers followed them there at a distance. There, on the third floor they were seen outside the grille door of a flat on that floor. The police officers noticed that one or more of these three persons were wearing white gloves and one of them had a torch in his hand and that he was shining upon the grille door. These three persons then saw the police and started to run away. They were apprehended and all three of them were found to be wearing white gloves. The first appellant was found in possession of two skeleton keys, the second appellant a jemmy and the third accused, who has not appealed, a bundle of keys. 3. In their defence they put forward a story that all three of them were in a car driven by the third accused and that they were stopped by the police when proceeding in the car, and stopped for no reason whatsoever. 4. Those were the facts before the learned Magistrate and upon those facts he convicted each of the three appellants upon the two charges contained in each charge sheet as separately preferred against each of the appellants. The two charges were in fact possession of housebreaking implements and loitering at night. 5. As I have said, the facts of the case really present no difficulty. The only doubt in my mind, and it is indeed a substantial doubt, is as to the propriety of the procedure adopted in this case. It would appear that the two appellants - together with the third accused - were originally jointly charged with the offence of attempted burglary. I am informed that the learned Magistrate, presumably after he had heard the opening statement by the prosecuting officer, was of the opinion that the facts alleged were not sufficient to constitute the offence of attempted burglary and that he then, of his own motion, thought it right that these separate and distinct charges alleging in each case possession of a housebreaking implement and loitering at night, should be substituted for the original charge. That course was then adopted by him and the fresh and separate charges preferred against each of the appellants. Each of them pleaded not guilty to those separate charges and the learned Magistrate then enquired whether they had any objection to a joint hearing of the charges, and each appellant is recorded as having said he had no objection. 6. Now Section 10 of the Magistrates Ordinance (Cap.227) specifically provides that in certain circumstances the trial at the same time of different charges may be heard against the same offender. There is however, curiously enough, no provision in that Ordinance enabling the trial of joint offenders charged with the same offence committed at the same time. It is no doubt a common practice, and a proper practice, for offenders jointly accused of the same offence committed at the same time to be tried in a joint charge, although, as I have said, there is no specific provision in the Ordinance enabling that to be done. 7. The proposition in this case, however, goes a good deal further. The question is whether separate charges in separate charge sheets against separate offenders may be tried at one and the same time, albeit though such offences were in fact of a similar nature and committed by those offenders in the course of the same transaction. Now there is clear authority that in so far as the superior courts are concerned, persons separately indicted cannot be tried together even though such indictments in fact relate to the commission of the same offence. The case of Crane v. The Director of Public Prosecutions(1), a decision of the House of Lords, is authority for this proposition. Such a trial constitutes a nullity. 8. It is equally clear that such a trial cannot take place even with the consent of the accused persons. The case of R. v. Dennis and Parker (2) is clear authority for that. In that case Avory J., giving the judgment of the Court, and after referring to the decision of the House of Lords in Crane's(1) case, went on to say:-
And the Court then ordered in that case a venire de novo on the grounds that the trial was a nullity. 9. By analogy it would certainly seem to me upon first considerations that precisely the same principles should apply in the lower courts as in the superior courts and that where persons are separately charged, even though the facts of such charge in each case are identical and the offence alleged arises out of the same transaction, that such separate charges can not be tried together even with the consent of the accused persons. 10. However, Mr. Duckett has referred me to the case of Taylor's Central Garages (Exeter) Ltd. v. Roper.(3) It is unnecessary to consider in any detail the facts of that case. It is sufficient to say, and I quote from the headnote, that the appellants were charged with permitting the use of a public service vehicle without a road service licence contrary to Section 72(10) of the Road Traffic Act, 1930. The Justices of the Peace had first heard an identical information against the hirer of the vehicle for using the vehicle without a licence and upon the evidence given had convicted the hirer of the offence charged. When the information against the appellants then came before them immediately following upon the conclusion of the earlier case, the Justices took the view that in order to save repetition they were entitled to act upon the evidence already given in the preceding case, and acting upon it they then convicted the appellants. Upon appeal the Divisional Court held, and indeed it must surely be obvious, that the Justices were not entitled to act upon the evidence given in the earlier case and the conviction was quashed. In the course of the hearing of that appeal Hilbery J., after referring to the circumstances of the case, said this:-
That expression of opinion by Hilbery J. is referred to in Stone's Justices' Manual, 1967, Volume 1, page 278, in these terms:-
That is, of course, perfectly obvious, but the publication then goes on to say, and of course it relies upon the dicta of Hilbery J.:-
The authority for that statement contained in Stone's Justices' Manual is then given as Taylor's Central Garages case(3) to which I have referred. For myself, I still have the gravest possible doubt as to whether that expression of opinion can justify the propriety of the procedure adopted here of trying three separate and distinct charges against different accused persons, even though that course of procedure is followed with the consent of the accused. For myself, I would have been disposed to take the view that, in the absence of express statutory authority, a criminal court, whether it be a magistrate's court on a superior court, has no jurisdiction to try two separate charges against two accused at one and the same time, even with the consent of Counsel for the prosecution and Counsel for the defence. The decision of the House of Lords in Crane's case (1) and the decision of the Court of Criminal Appeal in the case of R. v. Dennis and Parker(2) seem to me ample authority for this proposition. However, I am informed that this practice has from time to time been followed by the magistrates for some considerable time past. I have had the advantage of consulting my brother judge, Huggins J., and he informs me that he has in the past relied specifically upon this expression of opinion by Hilbery J. to support and justify procedure of the kind followed by the Magistrate in this case. 11. In those circumstances, albeit with very grave doubt, I have come to the conclusion that I ought not to allow this appeal on this point of law. I come the more readily to that conclusion for the purely practical reason, although I must confess it is not a very good reason in law, that if I were to allow this appeal the only order I could make would be to set aside this trial as a nullity and that would presumably result simply in the inconvenience and expense of a fresh trial against the appellants, either upon a joint charge sheet including all of them in the charges as framed by the learned Magistrate or, alternatively, upon the original charge of attempted burglary. 12. In conclusion I would only say this, that it seems to me that in the absence of any statutory provision enabling the course taken by the magistrate in this case to be adopted, it seems to me quite clearly a course which ought to be avoided. I understand that there is upon the stocks a new Magistrates Ordinance and I would express the opinion that it would seem to me highly desirable that provision should be made not only for the trial, as at present exists, of an offender upon different charges, but also for the joint trial of different offenders upon the same charge or charges, and indeed if necessary, as in this case, provision for the trial of separate offenders upon separate charge sheets where the offences so charged are of a similar nature and were committed in the course of the same transaction, providing, of course, that the persons so separately charged agree to the charge sheets against them being so jointly tried, and of course that the prosecution also so agrees. 13. For these reasons this appeal, albeit with considerable doubt on my part on the point of law involved, is dismissed. 10th June 1968. Representation: Both Appellants in person. Duckett, C.C. for Crown/Respondent. (1) 15 C.A.R. p.23 and 183 (2) 18 C.A.R. p.39 (3) 1951 J.P. Reports p.445 |