THE QUEEN v. WONG LAP KWONG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 420 OF 1990

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BETWEEN

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JUDGMENT

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1. The Appellant pleaded not guilty in the Magistrates Court to two charges, each of which alleged the commission of an offence under the Prevention of Bribery Ordinance, Cap. 201 ("the Ordinance"). The first alleged that, on a day unknown in December, 1988, contrary to s.3 of the Ordinance he, being a Crown servant (a police constable) without the general or special permission of the Governor, accepted an advantage by way of a loan of $2,000 from one Hui Chit Pak. The second alleged that on 27th March, 1989, contrary to s.4 (2) (a) of the ordnance he, as a public servant (a police constable) without lawful authority or reasonable excuse, accepted an advantage from one Janny Chan as an inducement, reward or the like on account of his past or expected performance of an act in his capacity as a police constable.

2. The two charges were heard together. The Appellant gave evidence but was convicted on both.

3. His first ground of appeal is that s.10 of the Magistrates Ordinance did not authorise the joining of the two offences.

4. By s.10(2) a separate complaint or information is required for every distinct offence of which a person is accused subject to certain exceptions. The relevant exception here is the charging of a person with two or more offences of the same or similar character.

5. A similar provision was considered in Ludlow v. Metropolitan Police Commissioner ([1971] A. C. 29).   In that case the House of Lords considered that both the law and the facts should be looked at to see whether the offences exhibited such features as to establish a prima facie case that they could properly and conveniently be tried together. The House also approved a view earlier expressed in R. v. Kray & Others ((1970) 1 Q.B. 125) that such a provision should not be given an unduly restricted meaning since any risk of injustice can be avoided by the exercise of a discretion to sever the information.

6. I think that the two offences alleged were of a similar character in that the central allegation in each was that the Appellant, in his capacity as a police officer, unlawfully accepted an advantage. Prima facie they are charges which can be properly and conveniently tried together.

7. The discretion to sever the information even where a prima facie case for joinder exists is given by the proviso to s.10 (2). It is identical with the power considered in Kray and Ludlow.   With regard to that discretion the House of Lords in Ludlow decided that

"a [magistrate] has no duty to direct separate trials .. unless in his opinion there is some special feature of the case which would make a joint trial of the [two charges] embarrassing to the defendant and separate trials are required in the interests of justice "(see 54 Cr. App. R. 233, headnote)

8. One special feature in this case is that s.25 of the Ordinance provides that a certain rebuttable presumption arises in proceedings for an offence under s.4 once it is proved that the accused accepted an advantage. There is no presumption of any kind in relation to proceedings for an offence under s.3.

9. The joinder of a charge alleging an offence under s.3 with a charge alleging an offence under s. 4 creates a risk that the accused may be prejudiced or embarrassed in his defence in relation to the s.3 offence if the Prosecution evidence creates the need for him to give evidence to rebut the presumption in relation to the s.4 offence.

10. The Appellant was represented by counsel in the court below but not by Mr. Cheng Huan or Mr. McCoy who appear for him on this appeal. Had counsel then appearing for him drawn the learned magistrate's attention to that possible risk and, more particularly, had he indicated at the outset what became obvious later in the trial, namely, that the Appellant had distinctly different "defences" in respect of each charge, the learned magistrate would have been able to meet the requirements of the proviso to s.10 (2) by forming an opinion consonant with the interests of justice.

11. The Appellant's case in relation to the s.3 offence was that, although he had been paid money the payment was not an advantage within the meaning of the Ordinance. His case in relation to the s.4 offence was an admission that he had accepted an advantage within the meaning of the Ordinance but a denial that that advantage was accepted for a corrupt purpose. He could have pursued his defence to the charge in relation to the s 3 offence without giving evidence.  He could not have pursued his defence to the charge in relation to the s.4 offence without giving evidence.

12. Where an accused faces two charges in the one information there must be a risk that he will be caused embarrassment in his defence if the Prosecution can invoke the aid of a presumption in support of one charge but not in support of the other. Whether that risk is real or not depends upon the nature of the Defendant's defence to each charge. In many cases he may not be prejudiced or embarrassed and may well consider that his pursuit of justice will be aided by a joint hearing. If so, it would be consonant with the ends of justice for the magistrate to hear the charges jointly. But, equally there may be cases where the ends of justice will not be satisfied if through the joinder of "presumption" and "non-presumption" charges an accused person may run the risk of incriminating himself on one charge in order to have the advantage of exculpating himself on another. The difficulty is that an informed opinion as to whether an accused will be prejudiced or embarrassed in his defence needs assistance from the accused himself.  It seems to me, therefore, that where multiple charges are properly joined and the proof of some; but not all, is aided by a presumption or presumptions, then the case has a special feature requiring the exercise of the magistrate's discretion under the proviso to s. 10(2), That discretion cannot be properly exercised unless he is expressly informed by the defence whether it Will be prejudiced or embarrassed by a joint hearing. That, in effect, means that a magistrate, in such cases, is under a duty to make that inquiry in order to ensure that he does have jurisdiction to continue with a joint hearing.

13. As the record does not show that the learned magistrate was properly empowered to proceed with a joint hearing I uphold this ground of appeal and will hear counsel on the question of the proper order which should now follow.

Later:

14. Although the Respondent indicated earlier that it would not seek a retrial in respect of the s.3 offence, I think that, having hear counsels' submissions following my upholding of the first ground of appeal, the proper order is for retrial on both charges.

15. I allow the appeal, quash the convictions and order that the case be remitted to the Magistrates' Court for retrial.