Chan Yat Pui v. The Queen
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CACC000685/1967 IN THE SUPPEME COURT OF HONG KONG APPELLATE JURISDICTION CRIMINAL APPEAL No.685 OF 1967 -----------------
Coram: Briggs, Huggins & Creedon, JJ. Date of Judgment: 1 March 1968 ----------------- JUDGMENT ----------------- 1. The appellant appealed against his conviction on two charges. We dismissed the appeal but indicated that we would reduce into writing our reasons relating to one of the points which was argued. 2. The second charge was laid under regulation 118(1) of the Emergency (Principal) Regulations and alleged that the appellant "was found in the company of another person who without lawful authority had in his possession (an) explosive substance, in circumstances which raised a reasonable presumption that (the appellant) intended to act or was about to act with or had recently acted with the said other person in a manner prejudicial to the public interest". At the trial the appellant was not represented by counsel but the learned judge raised the question whether the charge was bad for duplicity. The same question was raised by counsel for the appellant before us. 3. We were of opinion that the charge could properly be laid in these terms. A charge is bad for duplicity where the particulars include two or more separate offences, thus embarrassing the accused because he does not know which offence the prosecution seek to prove. The test for ascertaining whether two or more separate offences have been included is to ask whether the particulars cover only one act which may be done in one of two or more different ways or two or more acts each of which constitutes an offence. A very clear exposition of the law was given by Lord Parker, C.J. in Mallon v. Allon(1). There the question was whether there was duplicity in an information charging the appellant that he did unlawfully "admit and allow to remain on premises" which were a licensed betting office a person apparently under the age of 18 years. At p.392 the learned Lord Chief Justice cited Thomson v. Knights(2) and G.Newton Ltd. v. Smith(3) and went on:
In the present case the "act" complained of was that the appellant was, when found, in the company of another person who without lawful authority had in his possession an explosive substance. Which (if any) of the possible alternative intentions referred to in the regulation was to be presumed depended upon the surrounding circumstances and not upon any specific act of the appellant which the regulation required to be proved. Counsel for the appellant frankly admitted that Reg. v. Naismith(4) was against him, but he submitted that a Defence Regulation must be construed more strictly than a section in the Offences Against The Person Act 1861. We see no justification for such a distinction. Naismith was charged with "causing grievous bodily harm with intent to cause grievous bodily harm or to main, disfigure or disable". The Courts Martial Appeals Court emphasised the difference between "a section creating two or more offences and a section creating one offence but providing that that offence may be committed in more than one way" and held that the substance of the charge was the act of assaulting and causing grievous bodily harm. Similarly in our view the charge here under regulation 118(1) alleged only one "act". That the case is not, perhaps, as clear at first sight as those to which we have referred is due to the fact that the "act" which constitutes the offence is rather a continuing state following upon an act, the active ingredient being the coming into the company of the other person. 4. For the reasons stated we held that the appellant could not succeed upon this point. 1st March 1968. Representation: William Chun (Peter C. Wong & Co.) for Appellant. Duckett (Crown Counsel) for Respondent (1) (1964) 1 Q.B. 385 (2) (1947) K.B. 336 (3) (1962) 2 Q.B. 278 (4) (1961) 1 W.L.R. 952 |