ATTORNEY GENERAL v. YEUNG KWOK SANG AND ANOTHER

Headnote: Duplicity: District Court Ordinance Schedule II: when to make application

IN THE COURT OF APPEAL

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J U D G M E N T

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Silke, V.P.:

1. The Respondents, Yeung Kwok Sang and Wong Fai Hung, appeared for trial before His Honour Judge Moylan in the District Court on four charges. The first charge, cheating at gambling, related to the 1st Respondent only. He was subsequently acquitted. The second and third charges related to both the 1st and the 2nd Respondents, both alleged cheating at gambling. The fourth charge, claiming to be a member of a triad society, related only to the 2nd Respondent. Upon that he was also acquitted.

2. The second and third charges contained in their particulars a reference to offences occurring on "divers days": in respect of the second charge between June 1986 and July 1986 and as to the third charge between 18th April 1986 and 4th June 1986.

3. During the course of the trial, the second charge was amended by deleting the words "on divers days between" and substituting for them the word "during". The third charge was amended by replacing the section of the gambling Ordinance referred to therein as s.17 with the proper section which was s.16. The expression "on divers days" in the third charge remained unamended.

4. When, on 27th August 1987, the case for the Crown had concluded, submissions were made by counsel representing, the 1st Respondent that charges 1, 2 and 3 were bad for duplicity and similar submissions were made on behalf of the 2nd Respondent in respect of charges 2 and 3. The submissions were opposed and eventually His Honour Judge Moylan ruled, quite rightly, that charges 2 and 3 were bad for duplicity.

5. When the ruling was given, counsel then appearing for the Crown asked the Court to amend the charges and he further applied to add two additional charges intended to cure the duplicity. The trial judge declined to allow the amendments to charges 2 and 3 but he did allow an amendment to charge 1.

6. Having so declined, the trial judge was faced with a further submission made on behalf of the Respondents that charges 2 and 3 should be dismissed and not quashed. He acceded to that submission dismissing charges 2 and 3.

7. The Attorney General applied under the provisions of s.84 of the District Court Ordinance - "the Ordinance" - for him to state a case and the question of law which is placed before this Court for its opinion is:

"Whether I erred in law in dismissing charges 2 and 3 when I found them to he had for duplicity?"

8. These applications in relation to the duplicitious nature of the charges on their face were, as we have said, made at the conclusion of the Crown's case.

9. In Masood Asif (1986) 82 Cr.App.R. 123, Purchas L.J. in delivering the judgment of the English Court of Appeal had this to say as to the timing of such applications:

"However, before parting with this ground of appeal we wish to record our disapprobation of the manner in which the matter was conducted in the court below by Mr. Walsh. Mr. Walsh frankly told us that he had deliberately postponed his application to quash the indictment until the end of the case for the prosecution. He did this because if he had applied at the outset of the trial and had been successful, then the likelihood, would have been that the indictment would have been amended.".

10. Purchas L.J. then went on to make reference to Heane (1864) 4 B. & S. 947; James (1871) 12 Cox 127 and Wilmott (1933) 23 Cr. App. R. and laid emphasis upon the decision in Maywhort (1955) 39 Cr. App. R. 107.

11. He went on:

"This Court can see no justification for the tactical postponement of a motion to quash an indictment, the only result of which would be to incur unnecessary public expense and hardship to the accused involved in the abortive trial. Such a practice ought, in our judgment, firmly to be discouraged."

12. It is clear from the authorities that the appropriate time to make an application of this nature where duplicity is inherent in the charge itself and is not an "evidential duplicity" is at the outset of the trial. But equally it is clear that the fact that it, is not then made does not preclude its being made at a later stage - even as far as raising it in the course of proceedings in the Court of Appeal.

13. Mr. Hampton, who appeared both here and below for the Respondents, has told us that he was relying, in delaying his submissions, on that which was said in Nelson (1477) 65 Cr. App. R. Lawton L.J., in delivering the judgment of the English Court of Appeal, said at page 122:

"Mr. Coles, with perhaps greater experience of the criminal law than prosecuting counsel, did notice the defect in the indictment. He took the view, and he was justified in doing so, that there was no duty on him to draw attention to defects in the document upon which the prosecution were relying, namely the indictment. He bided his time and, at the end of the case, he moved under the old common law procedure to arrest judgment." (Emphasis supplied)

14. We fully accept that which Mr.. Hampton has told us and anything that we have said is not intended as any personal criticism of him, but Nelson was referring to a defect in the indictment rather than to an indictment which was duplicitious and, therefore, not a good indictment at all. We would with respect adopt Masood Asif and make it clear that such a practice ought in our judgment "firmly to be discouraged".

15. At the time of the making of the order by the trial judge his attention was not drawn to Part II of the Second Schedule of the Ordinance, at page 44, and in particular to the provisions contained in item 3 of Part II. Item 3 reads:

"(1) No objection to a charge shall be taken by way of demurrer, but if a charge does not state in substance, an offence or states an offence not triable by the Court, the accused person may move the Court to quash it or in arrest of judgment.

(2) If such motion is made before the accused person pleads, the Court may dismiss the charge or amend it.

(3) If a defect in a charge appears to the Court during the trial, and the Court does not then think fit to amend the charge it may either quash the charge or leave the objection to he taken thereafter in arrest of judgment.

(4) If a charge is quashed under the provisions of this paragraph the Court may direct the accused person to he detained in custody or to be released on bail for a period not exceeding 14 days thereafter, and may order him to plead to another charge if called on to do so within the same period."

16. Item 3(3) and item3(4) have particular relevance to the matters here.

17. One of the issues before us is what in fact was meant by the trial judge when he used the expression "dismiss" in respect of charges 2 and 3. On the face of it, and in view of his acceptance of the argument on void or voidable, it would appear that he was intending to acquit rather than quash but did not say so. But the order that should have been made and this is not disputed, was to quash.

18. As was made clear in In Re Attonery General's Reference No. 1 of 1987 [1988] 1 H.K.L.R. Part II at page 375, this is not an acquittal. Sir Denys Roberts, C.J., in delivering the judgment of the Court, said at page 384:

"Thus the quashing of an indictment, whether for duplicity or other reason, does not amount to an acquittal.

19. Had the proper order been made here, then it was a matter for the Attorney as to what course he would seek to take at a later stage.

20. A great deal of the argument today has turned on what action this Court should take if it finds that the proper order was to quash.

21. Section 84 of the District Court Ordinance deals with the orders to be made, and the procedure, in appeals by way of case stated. Its paragraph (c) reads:

(c) at the hearing of the appeal, whether or not the respondent appears, the Court of Appeal shall -

(i) if it is satisfied that there is no sufficient ground for interfering, dismiss the appeal; or

(ii) reverse the verdict or order and direct that the trial be resumed or that the accused be retried as the case may be, or find him guilty, record a conviction and pass such sentence on him as might have been. passed on him by a judge; and

(iii) give all such necessary and consequential directions, as it shall think fit.

22. Mr. Bruce, though not counsel at trial, who appears for the Attorney General in this Court has asked us to make an order "reversing the order" and directing that "the trial be' resumed". Mr. Hampton has drawn to our attention first that these offences concerned periods in 1986; secondly: that the order of the District Judge was made just one year ago; third that we are neither aware of the facts nor the reasons why the judge refused to grant the amendments sought by the Crown. In those circumstances, he submits that we should find that there is no sufficient ground for interference and therefore dismiss the appeal. We should treat the order to "dismiss" as an order to quash.

23. We are appreciative of the time elements involved and of the expense to which the State and the Respondents must have been put. But, clearly, there is ground for interfering with the order which was plainly, with respect to the trial judge, wrong. That order is reversed and we direct that the trial be resumed.

24. Presumably what will now take place is that when the matter comes again before the District Judge he will quash the charges. It would be then a matter for the Attorney General as to what course he wishes to take and it would be a matter for the judge as to what course he wishes to take within the confines of the provisions of the item 3(4) in the Schedule Part II.

25. We would, therefore, answer the question of law arising in the affirmative.

26. Having, made the Order under section 84(c)(ii) and having heard counsel we make "necessary and consequential directions" that the Respondents' trial be resumed in the District Court on such date as the Registrar of the District Court may direct and that each of the Respondents be placed on bail in the sum of $500 cash.