Lau Chi Kwan v. The Queen

CACC000418/1975

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO.418 OF 1975

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Coram: Huggins, J.

Date of Judgment: 13th June 1975.

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JUDGMENT

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1. This case raises an issue upon that very difficult problem of duplicity. The appeal is one entirely without merit in that the Appellant was charged with dangerous driving and it is difficult to imagine a more serious case of dangerous driving within the area in which this offence was committed. The Appellant first went on the wrong side of the road in order to turn right when the traffic lights were against him: he disobeyed the order of a police officer to stop and he then tried to escape capture by the police by going through a series of streets - ignoring traffic lights and so driving that foot passengers had to jump aside in order to escape being hit.

2. The point taken is a technical one - and one which is perfectly properly taken even though it was not taken in the court below. The charge alleged originally that the dangerous driving took place "on the 16th day of January 1975 at Java Road, Shu Kuk Street, Harbour Parade, Kam Hong Street, King's Road, Tin Chiu Street and North View Street", but in the event the last two of those roads were deleted at the close of the prosecution case because there was no evidence at all that the Appellant had been in them.

3. The point taken is that the charge was necessarily bad in that it mentioned more than one street at all. It is submitted that where a person drives dangerously in more than one street there ought to be a separate charge in respect of each. First, my attention was drawn to the section under which the charge was laid, namely s.11(2) of the Road Traffic Ordinance, which refers to driving a motor vehicle in a manner dangerous to the public "on a road" and the suggestion is that where there is more than one road then s.10 of the Magistrates Ordinance (which requires that for every distinct offence there shall be a separate information) requires that there must be a separate charge. The answer seems to me to be in s.7 of the Interpretation and General Clauses Ordinance, which provides that the singular shall include the plural.

4. However, that is not a complete answer to the appeal. Mr. Winter relies to a large extent on the series of cases dealing with shop-lifting, and he points out that it has been said that in cases where a person is charged with stealing from different departments in a large departmental store there ought to be separate and distinct charges. He says that the present case is similar to those charges. That is, he likened each department to a road and said that where there is an offence in one department or in one road that must be the subject matter of a separate and distinct charge, even though if there are several thefts from a single department they may properly be charged together. I think that it is not entirely a satisfactory analogy. As I see it the real issue is whether or not the dangerous driving constituted a single activity. It is quite clear that the mere fact that somebody has not alighted from his motor-car between the time when two separate incidents take place does not necessarily affect the situation. If a man drives from John O'Groats to Land's End and drives dangerously in Glasgow and in Penzance no-one would suggest that those two matters could be charged as a single act of dangerous driving, but I do not think it necessarily follows that because a man drives dangerously in adjoining streets he necessarily cannot be charged in one charge. It is true that there may be separate charges - and there could have been separate charges in the present case - but that, again, does not necessarily rule out the possibility of its being one single activity, and for that we have the authority of Jemmison v. Priddle 1972 1 Q.B.489, not a driving case but an interesting case in that there were clearly there separate acts but separate acts which the Divisional Court of Queen's Bench regarded as being part of one activity. In that case two deer were shot by separate discharges of a shot-gun. Clearly there were separate acts - a trigger had to be pulled twice - but the discharges were at such a short interval of time and so near together in place that the court considered it was a single activity. I was referred to Reg. v. Clow 1963 2 All E.R. 216 chiefly because it was a driving case in which the charge alleged dangerous driving in that the driving was "at a speed and in a manner which was dangerous to the public". It was held that there was a single activity of driving and therefore the charge was valid and not bad for duplicity. Mallon v. Allon 1963 3 All E.R. 843 was clearly distinguishable. There the charge alleged "admitting and allowing to remain" on licensed premises. There there were two activities - one can admit somebody without allowing him to remain: one can allow someone to remain without having admitted him - and the court held that the charge was bad for duplicity.

5. I think that the present case is on the right side of the border-line. This view is supported by a statement in Wilkinson in his "Road Traffic Offences" (7th Ed.) 225 to which Mr. Winter drew my attention but which he sought to persuade me was incorrect, having had the misfortune to rely in another case a few minutes earlier on a passage in this book which I had said was not supported by the authority cited. Here, there is no authority cited and the passage says:

"It seems to be in order to charge the offence as having been committed in all the roads where the defendant drove dangerously or carelessly".

I accept that as being a correct statement though subject to this limitation: it must be one activity. There may well be a case where the driving clearly consists of more than one activity. This is demonstrated by the example I have given of the man driving from John O'Groats to Land's End. There there is more than one activity. It is a matter of degree. Duplicity is a question of form and one has to look closely to see just what is alleged. I cannot express it any more clearly than was expressed by Lord Widgery in Jemmison v. Priddle 1972 1 Q.B.489 where he cited some words of Lord Parker, J.J. and continued:

"I think that what it means is this, that it is legitimate to charge in a single charge one activity even though that activity may involve more than one act."

6. In my view the charge in the present case was valid and, that being so, the appeal must be dismissed.

13th June 1975.

Representation: