The Queen v. Law Chi-chung and Another

DCCC000327/1974

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT KOWLOON

CRIMINAL JURISDICTION

CASE NO.327 OF 1974

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Coram: Sd. E. de B. Bewley, Sd. E. de B. Bewley

Date of Judgment: 19 February 1975.

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EXTRACT FROM REASONS FOR DECISION

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Mr. Lau then indicated that he proposed to call alibi evidence in respect of 2nd accused. To this Mr. Willis objected on the grounds that the provisions of section 65D of the Criminal Procedure Ordinance, Cap. 221, which he submitted applied to the District Court, had not been complied with. After hearing argument I ruled that section 65D did not apply to trials in the District Court and that, if I were wrong in so holding, I would nevertheless exercise my discretion under the section in favour of the defence.

Section 65D provides, inter alia,

"(1) On a trial on indictment the defendant shall not without the leave of the court adduce evidence in support of an alibi unless, before the end of the prescribed period, he gives notice of particulars of the alibi.

(2)Without prejudice to subsection (1), on any such trial the defendant shall not without the leave of the court call any other person to give evidence in support of an alibi unless-

(3)The court shall not refuse leave under this section if it appears to the court that the defendant was not informed in accordance with the provisions of section 82 of the Magistrates Ordinance of the requirements of this section."

Mr. Lau wrote to the Attorney General giving the name and address of the alibi witness but omitting particulars of the alibi. He told the court that he was not purporting to comply with the section but was anxious that the Crown should not be taken by surprise. Mr. Lau wrote the letter a day or two after he had interviewed the witness but the statutory period for giving notice had by then expired.

Mr. Willis based his argument on section 79(1) & (2) of the District Court Ordinance, Cap. 336 which provide: -

"79(1) Subject to the provisions of this Ordinance and as may be prescribed, the procedure and practice for the time being in force in the Supreme Court in relation to criminal proceedings therein shall, so far as the same may be applicable, be followed as nearly as may be in criminal proceedings in the Court; and where it is necessary for the purpose of rendering such procedure and practice conveniently applicable, "indictment" and "count" shall be understood to refer to "charge sheet" and "charge" respectively.

(2) Notwithstanding the provisions of subsection (1), none of the provisions of the Criminal Procedure Ordinance in Part I of the Second Schedule particularized shall be applied to proceedings in the Court."

Part I of 2nd schedule of Cap. 336 lists those sections of Cap. 221 which shall not apply to proceedings in the District Court. Section 65D does not appear in the schedule. This section was enacted in 1967 and the schedule was amended in 1971 and again in 1972. Thus, Mr. Willis submitted, the legislature had ample opportunity, if it so desired, to include the section in the amended schedule. Failure so to do, he argued, showed a clear intention that the section should apply to District Court proceedings.

This is a valid argument but it may be countered by evidence of contrary legislative intention. Section 79(2) of Cap. 336 does not state that all other sections of Cap. 221 shall apply to the District Court.

It is of the highest significance in my opinion that, while s.82(4) of the Magistrates Ordinance, Cap. 227, directs that the magistrate when committing an accused person for trial shall inform him that he must comply with section 65D if he wishes to call alibi evidence at his trial, s. 88, s.89 and s.90 of Cap. 227, which deal with the transfer of cases from the Magistrates Court to the District Court, contain no equivalent provision. As Mr. Lau pointed out, the defence is in a more favourable position in the Supreme Court as it is aware from the depositions what evidence will be led by the Crown. There is therefore no great hardship in being required to provide particulars of alibi evidence and there is, moreover, adequate time in which to do so. In the District Court, on the other hand, there are no depositions; the summary of evidence supplied to the defence by the Attorney General is not mandatory, it is not binding on the Crown and it need be served only 7 days before the trial. To comply with the provisions of section 65D in these circumstances might be difficult and might also result in hardship. Why, argues Mr. Lau, should the accused be worse off in the District Court than in the Supreme Court?

Section 74-79 of Cap. 336, which deal with criminal jurisdiction and procedure, are also silent as to the need to give notice of alibi evidence. Though section 71(1) states that, when applying the practice and procedure of the Supreme Court, the word 'indictment' shall be understood to refer to 'charge sheet', it is significant that section 75(1) uses in contradistinction the term 'trial on indictment'. This sub-section reads: -

"75.(1) Where a charge or complaint has been transferred to the Court by a magistrate in accordance with the provisions of Part IV of the Magistrates Ordinance, the Court shall have jurisdiction and powers over all proceedings in relation to the offence therein alleged similar to to the jurisdiction and powers the Supreme Court would have had if the accused person had been committed to that court for trial on indictment, save that nothing in this section shall be deemed to give jurisdiction to hear and determine such charge or complaint."

I bear in mind that s.79(1) does not direct a District Judge to substitute 'charge sheet' for 'indictment' wherever the latter word appears in Cap.221. He must do so only 'where it is necessary for the purpose of rendering such procedure and practice conveniently applicable.'

Sections 65A, 65B and 65C were enacted at the same time as s. 65D. They deal with other matters but at the end of each section it is expressly stated that 'court' includes the District Court and a magistrate. No such definition appears in s. 65D. If it were intended that notice of alibi should be given before trials in the District Court this is a remarkable omission.

Where doubt exists as to the proper construction of a criminal ordinance, the interpretation that is most favourable to the defence should be adopted. There is in my judgment sufficient evidence of an intention that this section should apply only to trials in the Supreme Court - trials on indictment - and I ruled accordingly.

Representation:

Mr. D.G. Willis on fiat of A.G. for Crown.

Mr. Ambrose Lau (K.F. Wong & Co.) for both accused.