The Queen v. Cecil James Matthew Cunningham and Another

DCCC000144/1975

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CRIMINAL JURISDICTION

CASE NO. 144 OF 1975

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Coram: Judge Jones, D.J. in Court.

Date of Judgment: 20th October 1975

Mr. Sceats, assistant to A.G., for Crown.

Mr. Hampton of (Gordon, Winter & Hampton) for 1st defendant.

Mr. Gunston of (Gunston & Chow) for 2nd defendant.

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RULING

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1. The solicitors for the two defendants have raised four matters upon which they seek the Court's ruling preliminary to the commencement of the trial which has been provisionally fixed to commence on the 3rd November 1975.

2. I will deal with each of the applications in the order that they were addressed to the Court.

3. The first application is for further and better particulars of the first charge of conspiracy. The Particulars of Offence allege that the defendants being Superintendents of Police in the Royal Hong Kong Police Force on divers dates between the months of July 1971 and February 1974 both dates inclusive in this Colony conspired together with three named Detective Station Sergeants and with other persons unknown to obstruct the course of public justice in that they should act contrary to their police duty as police officers in relation to the administration of the law.

4. In addition to a statement of the specific offence or offences with which the defendants are charged the defendants are entitled to such particulars as may be necessary for giving reasonable information as to the nature of the charge. Rule 5(1) Indictment Rules 1971.

5. It is contended by the defence that the charge as drawn is too vague and lacks sufficient particulars.

6. Mr. Hampton for 1st defendant cited the case of R. v. Hammersley and others 1958 Criminal Appeal Reports Volume 42 at p.207 where the charge of conspiracy was framed in the same way as in the instant case. However, he distinguished that authority on the grounds that particulars of the case to be brought against the defendants had been supplied by the Crown to the defence. Further the defence had had the opportunity of hearing the prosecution's case at the committal proceedings before the justices. Lord Goddard L.C.J. at p.216 said that the indictment contained sufficient particulars in the sense that it stated what was the nature of the conspiracy. Coupled with the particulars supplied by the Crown it was held that no objection could be made although the particulars did not form part of the indictment.

7. In the District Court there are of course no depositions, but a Practice Direction dated 26th November 1971 issued by the then Chief Justice provides that "if a plea of not guilty is entered, Counsel assigned to prosecute will prepare a summary of the evidence the Crown intends to call which will set out the salient points in the evidence of each witness." The summary of evidence is required to be sent to the defence seven days before the date fixed for trial or earlier if possible. In fact the summary of evidence in this case was received by the defence on the date when the present applications were heard so well within the time limit.

8. I have perused the summary of evidence and I consider that it contains sufficient particulars of the case that the Crown intends to bring against the defendants.

9. Together with the particulars of offence as drawn the defendants can be in no doubt as to the nature of the conspiracy with which they are charged.

10. The application for further and better particulars of the first charge is therefore refused.

11. The second application is for the conspiracy charge to be tried separately from the three substantive charges. By the second charge 1st defendant is charged with making a false statutory declaration on the 12th March 1975 contrary to S.36(a) of the Crimes Ordinance and on the same date under the third charge to neglecting or failing to comply with a Section 14(1) (b) Notice contrary to S.14(4) of the Prevention of Bribery Ordinance. By the fourth charge 2nd defendant is also charged under S.14(4) of the Prevention of Bribery Ordinance to having committed a similar offence on the 10th September 1975.

12. It was argued that to try the offences together would be unfair and prejudicial whilst there is a likelihood of inadmissible evidence being received on one or other of the charges.

13. However, as Mr. Sceats submitted for the Crown it is not a case where substantive charges have been brought based on overt acts.

14. The conspiracy charge which is quite clearly the main charge that has been preferred against the defendants has not been added to a substantive offence. The substantive offences are quite separate from the conspiracy charge. They occurred after the period of time covered by the conspiracy charge. The facts relating to the substantive charges arise as a result of the investigations carried out by the I.C.A.C. into the conspiracy charge but they are in no way connected as such with that charge.

15. I agree with Mr. Sceats that the evidence admissible on the conspiracy charge will be admissible on the substantive charges.

16. The application for separate trials is accordingly refused.

17. The third application relates to the summary of evidence that has been supplied to the defence by the Crown.

18. In this case the summary complies with the Practice Direction of the Chief Justice to which I referred earlier in that it sets out the salient points in the evidence of each witness. However, it omits the names, aliases if any and addresses of all the witnesses whom the Crown proposes to call. The defence have applied to the Court for such particulars to be given. As there is no property in a witness the defence said that they wish to exercise their right to interview some of the Crown witnesses. The Crown opposes the application on the basis that if it is granted there is a danger that some of the witnesses will be driven underground and frightened into silence. Mr. Sceats states that he is prepared to divulge the names of the witnesses to the defence the day before they are due to give evidence at the trial.

19. The Practice Direction of 26th November 1971 provides that the witnesses will be named in the summary unless the Crown for good reason does not wish to do so and the Court grants leave accordingly. The summary will include a list of witnesses, probably on the back sheet.

20. It is clear that the defence will be aware of the identity of some of the witnesses merely by reading the summary, but I agree that it is unfair to the defendants that the prosecution should impose a blanket refusal upon the disclosure of the names of all their witnesses.

21. There may be some substance in the reasons but forward by Mr. Sceats, but as they have not been tested they are rather matters of conjecture.

22. I do not therefore consider that the Crown have shown good reason for withholding the names of their witnesses with the result that the summary of evidence must be amended to include this information.

23. This requirement will not however extend to the inclusion of the witnesses' addresses which is not provided for in the Practice Direction. However, I consider that addresses wherever possible should be disclosed by the Crown.

24. If the defence lawyers wish to interview any of the witnesses whom the prosecution propose to call and provided that the witnesses in question give their consent they are at liberty to do so.

25. A defence request for this purpose will be made through the Crown and if the Crown so desires in any particular case the interview will take place in the presence of a Chief Inspector or above.

26. In view of my rulings on the three applications it will not be necessary to refix the provisional dates of hearing for the trial which was the subject of the fourth application. The trial will therefore begin on the 3rd November as originally fixed. However, if the defence finds that they are unable to proceed on that date an application for an adjournment can be made to the trial judge.

Representation:

Mr. Sceats, assistant to A. G., for Grown.

Mr. Hampton of (Gordon, Winter & Hampton) for 1st defendant.

Mr. Gunston of (Gunston & Chow) for 2nd defendant.