Choi Nai Yin v. The Queen

CACC000054/1981

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Criminal Appeal No. 54 of 1981

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Coram: McMullin V.P., Li J.A., Silke J.

Date of Judgment: 23rd May 1981

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JUDGMENT

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Silke J. :

1. The appellant appeared for trial in the District Court on three charges - one of theft, the stealing of a private car : one of robbery, a goldsmith shop in King's Road : and one of resisting police officers on the due execution of their duties brought under section 36(b) of the Offences Against the Person Ordinance.

2. In the course of the trial the Crown, then, and on the appeal, represented by Miss Plumptre, offered on evidence on the theft charge. At the end of the trial the appellant, was convicted of the robbery and of the resisting police officers charges.

3. He now appeals, Mr. Peter Nguyen appearing for him, against the robbery conviction only.

4. At the hearing on the 14th May 1981 we allowed the appeal, quashed the conviction on the robbery charge and directed a new trial. We stated we would give our reason later. We now do so.

5. The appeal turned on one point. At the hearing in the Court below, and after the third witness for the prosecution had concluded his evidence, counsel then appearing for the appellant applied, making reference to the provisions of section 65D of the Criminal Procedure Ordinance, apparently to serve Notice of Alibi.

6. This was objected to by Miss Plumptre mainly on the ground of the late application.

7. The trial judge ruled against the application stating "His application to give alibi notice in the middle of the hearing is rejected". In the course of his evidence in chief there was a simple denial by the appellant of his presence at the robbery and in cross-examination, in answer to questions put, he made answers which answers, in effect, were to give evidence of his alibi. No supporting witnesses were called there being no application by counsel to do so presumably in the light of the judges' earlier ruling.

8. In one of his answers; to the question "What effort had you made to trace Mr. Cheung?" the appellant said "I intended to ask the trial judge to help me locate him".

9. In his Reasons for verdict given in open court on the 6th January 1981, the trial having concluded on the 17th December 1980, the trial judge had this to say relating to Mr. Cheung and the alibi evidence, which were intermingled:

"In his defence defendant claimed that he worked as a vehicle paint sprayer of Wah Yip Garage and was with a customer called Cheung at the material time. Under cross-examination he said, on the one hand, that his company kept records of its clients but, on the other hand, had to wait for the Court to ask him questions on the evidence before he would seek its assistance to trace that Mr. Cheung to testify in his support. This statement lacks logic and credibility because defendant had all along been legally represented and therefore had the time and opportunity, since his arraignment on 14/8/80, to call that Mr. Cheung if he ever existed, and to summon his employer to substantiate his alleged activities on 17/7/80 but had not done so. His story of being away from the scene of robbery is, in my view, a fabrication on his part and his alibi is a fake one".

10. Both the submission by counsel and the judges' ruling had proceeded on the basis that section 65D applied in the District Court. It is Mr. Nguyen's point that this is wrong in law.

11. Miss Plumptre very fairly conceded that as a matter of practice it has been thought that section 65D does not apply but she does not concede the point of law. However as the appellant was not given the opportunity to call supporting evidence as to his alibi and as it cannot be known what effect such evidence, if given, might have had on the mind of the trial judge she does not resist Mr. Nguyen's submission that there should be a new trial.

12. Section 65D of the Criminal Procedure Ordinance, Cap. 221 which is set among the series of sections added to that Ordinance in 1971, reads as to subsection (1);-

"On 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 alibi".

and subsection (2) reads :-

"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 - ......."

and the conditions to be observed are set out in paragraph (a) to (d) of the subsection.

13. Under the provisions of section 82 (4) of the Magistrates Ordinance Cap. 227 a Magistrate, upon committing an accused for trial is obliged to give him that which might be called the "alibi warning" - that he must give particulars of the alibi and of the witness either there and then or not less than ten days prior to the commencement of his trial. The accused is also given a written notice setting out the provisions of section 65D.

14. There is of course no committal to the District Court - simply a transfer from the Magistrates Court to the District Court under the provision of section 88 of the Magistrates Ordinance. Sections 75 et. seq. of the District Court Ordinance, Cap. 336 then come into play. Approaching the hearing date a summary of evidence is sent to the accused, or his legal representatives, but this summary is simply an indication of the names of the witnesses and of the nature of their evidence and is not binding on the Crown.

15. Section 79 (1) of the District Court Ordinance reads:-

"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, he 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 "court" shall be understood to refer to "charge sheet" and "charge" respectively."

As we have said section 65D opens with the words "on trial on indictment" but it goes on to refer to "leave of the Court". Now "Court" is defined in the Criminal Procedure Ordinance as the High Court. The other new sections 65A, 65B, 65C in their subsections (2), (8) and (5) respectively make it clear that those sections apply to the District Court and to Magistrates Courts as well as to the High Court. Section 65D does not so provide.

16. Part I of the Second Schedule to the District Court Ordinance, which allows for certain sections of the Criminal Procedure Ordinance to be non-applicable to trials in the District Court, makes no mention of section 65D.

17. We agree with Miss Plumptre when she says that the District Court Ordinance clearly contemplates that matters such as notice of particulars of alibi should, as matter of practice and procedure of the Supreme Court, be applicable to trials in the District Court but section 65D, possibly through some slip in drafting, does not appear to contemplate its particular provisions being so applicable.

18. In the Queen v. Law Chi Chung & Anr.⁽¹⁾ Judge Bewley, as he then was, had for consideration precisely the same point. At page 69 he said this

19. While we are in agreement with his conclusion that section 65D has no application to the District Court we can see no logical reason why notice of particulars of alibi and of the witnesses to it should not be given in the District Court in the same or similar way as in the High Court. We are given to understand that amending legislation is in contemplation.

20. We think it might be advisable - but put it no higher than that - until such legislation is enacted, for it is of benefit to the accused that he should be able to avoid allegations of last minute fabrication and to the Prosecution who should be able to investigate, if they so think fit, matters pertaining to an alibi, that a Magistrate making a transfer order to the District Court should at the same time give to an accused a warning in the terms of section 82(4) of the Magistrates Ordinance, and also give him written notice of the provisions of section 65D. Thus, in effect, treating a transfer to the District Court as analogous, for this purpose, to a committal to the High Court for trial.

21. We appreciate that the "not less than 10 days before trial" might cause difficulties in relation to trials set down in the Criminal Running list and would therefore suggest that this be altered to a formula such as "within two weeks from today".

22. In the event we ordered that the conviction on charge 2 be quashed and a new trial be ordered.

Representation:

Peter Nguyen Esq. for appellant

Miss Plumptre for the Crown

(1) (1975) D.C.L.R.