R. v. Michael Li Chun Tat and Another
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IN THE SUPREME COURT OF HONG KONG (CRIMINAL JURISDICTION) CASE NO. 12 OF 1972 _________________
_________________ Coram: Mr. Commissioner Derek Cons. Date: 3rd May, 1972. ___________________________________________________ RULING AS TO SEPARATE TRIAL OF COUNTS ___________________________________________________ 1. In this matter I have been greatly assisted by a very well prepared and well documented argument by Counsel for the Crown in support of the indictment as it now stands. Some objections have been taken to the wording of the first count, but I do not think it necessary for me to say more in this respect at the moment, except to comment that although the statement of offence does not accord exactly with the precedent given in Archbold, the particulars set out subsequent to that statement make it quite clear that the conspiracy alleged is a conspiracy to commit crime, namely, to contravene the Prevention of Bribery Ordinance. 2. The primary matter raised today is that of whether the first count of conspiracy should be tried separately on its own or together with the other twenty substantive charges. I also queried myself whether apart from this the number of the substantive charges alone would make for an oppressive trial, but on consideration and bearing in mind their inter-relation and the manner in which they form a consecutive history I do not think this can be said, or that a reduction in their number would materially shorten the trial or reduce the basic evidential issues before the Jury. 3. Many cases have criticized the trial of a charge of conspiracy at the same time as the substantive charges on which it is based. The specific reasons given appear principally to be that this course has a tendency to lengthen or to complicate the issues, or to allow into the trial evidence which is admissible only on the conspiracy charge and not on the substantive charges. It is submitted that none of these dangers can arise in this present case. It is of course difficult at this stage to know how certain of the matters that appear in the depositions will come out in the evidence, or whether even any attempt will be made to introduce them, but a not insubstantial portion of the file that is before me concerns the activities of a Mr. CHIU Yiu-him who, although not charged in this action, is alleged to be a fellow-conspirator with the defendants. No objection could be taken to the calling of this evidence on the conspiracy charge, for the existence or otherwise of the conspirary would be the very issue itself. It may be admissible on the substantive charge also, but before any of this could be placed before the Jury, the Crown would have to establish by other evidence to the satisfaction of the Judge the existence of a common purpose between Mr. Chu and the others, which is quite a different proposition. 4. I do not think the inclusion of this portion of the evidence would unduly prolong the hearing of the case. The trial of the substantive charges alone must of necessity take a considerable time, particularly if reliance is intended to be based upon an objection taken to the tape-recordings, but on the other hand it does seem to me that if thought were given to the matter – and I am sure that if this course were adopted, such thought would be given – the prosecution of the conspiracy charge alone could be completed in a somewhat shorter time. 5. If this case had been set down for trial before a Judge alone, then despite the number of charges and witnesses and documents expected, I do not think it would be classed as complicated case. The differences between a professional judge and a jury have been too often enumerated for me repeat them now, but having regard to them, I would not say that this case can now be regarded as simple and therefore any course which could make it more so has a lot to commend it. 6. These are my comments on the three specific matters. If I thought that the correct principle was that the undoubted right of the Crown to join the charges in the same indictment extended to a right to demand joint trial unless any of these three specific matters was substantially involved, I think I might have had some hesitation in concluding that in this case the involvement was sufficiently substantial. But I do not think that is the correct way to approach the matter. Looking as a whole at all the cases to which I have been referred it seems to me that the correct principle is an approach from the other direction, that is the charges should not be heard together unless there is some good reason for so doing, as for example, in NG Chan-chuen’s case where it was necessary in order to include the sixth appellant among the defendants. This principle accords not only with what appears to be the underlying thought of the various judges who have given their opinions on this problem but also with common-sense. In the authorities reported the Courts have had the benefit of knowing already the evidence that had been given. They were in a position to pin-point the actual prejudices that had in fact occurred. This benefit is not available to a trail judge at the commencement of the trial. He has to grope, if not exactly in the dark, in a certain amount of twilight, not knowing what in due course might eventuate. In such circumstances it is better and surer for him to be guided by the general principle that some good must be shown – which should not be difficult for the Crown if this be the case – rather than guess of the possibility of specific defects. The only passage that I can find which may be thought not to adopt this view is the last paragraph on page 577 in HUI Shing’s case, but in that case the Court was dealing with a case of a rather unusual history and with an argument based on the joinder in the indictment alone and not with joint trial; and even that Court on the previous page accepted that it might well be undesirable that the charges should be joined when the evidence must either prove both charges or fail to prove either of them. Despite Mr. Evans’ arguments, that is the position that I see on the depositions. If the elects to proceed first on the substantive charges and some hightly unexpected development in the course of the trial results in the complete acquittal of the defendants, as opposed to their acquittal by reason that the Jury reject the evidence which is currently expected, then it would still be open to him to proceed on the conspiracy charge later. I cannot believe that any Court would stay those subsequent proceedings after this order for separate trial is made at the request of the defendants and in the teeth of strong opposition by the Crown. 7. Section 23 of the Criminal Procedure Ordinance says that the Court may order separate trials where for any reason other than those specifically mentioned it is desirable to do so. The authorities suggest that it is undesirable to allow joint trials unless it is necessary for some good reason. None has been shown to me. There are some matters apart from this which incline me to think that some prejudice might accrue to the defendants from a joint trial. Taking these aspects together I have come to the conclusion that separate trials should be ordered. I would be grateful, Mr. Evens, if therefore before the trial tomorrow morning you would let me know on which charges you wish to proceed first.
Cases referred to in argument by Counsel were: (1) R. v. Cooper; R. v. Compton 32 Cr. Appr. 102. (2) R. v. Hammersley (1958) C.L.R. 470. (3) R. v. Dawson (1960) 1 W.L.R. 163 (4) R. v. tripodi (1961) A.L.R. 780 (5) R. v. Chan Kan (1965) H.K.L.R. 662 (6) R. v. Ng Chan Chuen (1965) H.K.L.R. 880 (7) R. v. Griffiths & others (1966) 1 Q.B. 589 (8) R. v. Hui Shing (1967) H.K.L.R. 563 Mr. I.A. Evans C.C. and Mr. P. Nguyen Asst. C.C., for Crown. Mr. Donnelly (David Tsang & Co.) assigned for accused. |