Chan Kan Kau v. The Queen
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CACC000699/1967 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION ----------------- CRIMINAL APPEAL NO. 699 OF 1967
----------------- Coram: Huggins, J. Date of Judgment: 3 January 1968 ----------------- JUDGMENT ----------------- 1. In this case three accused were charged jointly with loitering at night contrary to s.26(a) of the Summary Offences Ordinance for that they were found loitering in Pine Street at 5.30 in the morning and were unable to give a satisfactory account of themselves. This was clearly a bad charge because the offence was not one which could be committed jointly. The defect was apparently realised and amended charges were then laid charging each of these men separately. When they were called upon to plead two of them pleaded guilty but the appellant pleaded not guilty. 2. Now in my view it was unsatisfactory that there should have been a joint charge sheet at any stage, but so long as there were separate trials there could clearly be no injustice. Two having pleaded guilty, if the trial had then proceeded against the appellant alone no question would have arisen. However, on hearing the facts the learned magistrate decided not to accept the pleas of guilty and a trial proceeded against all three. The learned magistrate who presided at the trial was not satisfied with the explanation of any one of the three and all were convicted. The Appellent was sentenced to two months' imprisonment. 3. On his appeal the appellant has sought to persuade me that the magistrate should not have believed the evidence of the police but should have accepted his own explanation of his conduct. He says that he was in fact sleeping in a lorry and that the case against him was a frame-up. Quite clearly it is impossible for me, who have not heard the witnesses, to come to any conclusion opposite to that to which the learned magistrate came. There were, however, two points which I raised with counsel for the Crown. The first is whether it was right that a joint trial should have taken place. As to that although I think it would have been preferable for all three to have been charged on separate charge sheets and tried together only with their express consent I do not think that the trial was a nullity. In Reg. v. LIPSCOMBE(1) a certiorari was sought against a justice of the peace who tried several men in the lump. The writ was refused and in my view there was equally no want of jurisdiction in the present case. The evidence upon which the three men were charged was identical and while it would have been open to them to ask for separate trials I do not think that in the absence of any such request it was improper for the magistrate to proceed as he did. 4. The second point was that in the notes of evidence it appears that a constable cautioned the appellant and took him to the police station. The note then goes on: "The 2nd defendant said 'Yes, I am'". One immediately asks "Yes, I am what?" and the answer does not clearly appear from the notes of evidence. The learned magistrate of course is not required to keep a verbatim note of the evidence but it is much to be desired that what is recorded shall be a logical record in so far as the evidence is logical. But, as I say, the magistrate is not required to note every word and I think I am entitled to assume (although it would have been better had the magistrate made it quite clear in his note what this answer related to) that the constable said it related not to a "caution" but to an allegation of an offence accompanying a caution. There is no doubt about the reason why these men were arrested and I think again I am entitled to assume that the answer which is stated to have been given by the appellant was an answer to an allegation of loitering at night. The magistrate says in his statement of findings and other grounds of decision that that was so. 5. In these circumstances the appeal must fail. There is no appeal against sentence.
3rd January, 1968. Representation: Appellant in person Macdougall C.C. or Respondent Oral Judgment reduced into writing (1) (1862) 26 Justice of the Peace, p.244. |