THE QUEEN v. YEUNG KUEN CHI

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H E A D N O T E

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An order for retrial by the Court of Appeal involves an implicit but nonetheless clear and binding direction that n fresh indictment be preferred charging the same counts as those successfully determined by the Court of Appeal in the appellants favour.

An order involving corporal punishment can only be made in the case of multiplioffences such as robbery and rape if the offence with regard to which such punishment is allowed to be imposed by the Corporal Punishment Ordinance, which in the present case was the robbery, warrants it. It was wrong to impose such punishment when sentencing for the robbery where it was merited by the acts accompanying the rape.

IN THE COURT OF APPEAL

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JUDGMENT

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Power, J.

1. The applicant originally faced three counts, two of rape and one of robbery. He was tried on those three counts before Mr Justice Bewley in May 1984 and, after conviction on each count, received a totality of imprisonment of 14 years. On appeal, those convictions were quashed and the applicant was then tried on those same three counts before Deputy Judge Daniel. He was convicted on his own plea on one count of rape and one of robbery and sentenced to 14 years on the rape count and 10 years on the robbery count. No evidence was offered on the second count of rape.

2. The applicant again appealed. The Vice--President in his decision on that appeal delivered on 17th August 1985 said, when describing what had occurred before Deputy Judge Daniel:-

"After the opening of the Crown case, the 1st applicant changed his plea of guilty to the first count of rape and the third count of robbery and was sentenced to a total of 14 years imprisonment. The Crown offered no evidence against him on the second count of rape."

He went on to say:-

"On counsel's advice, the applicant now applies for leave to appeal against conviction and asks for a new trial."

It is important to note that the applicant was there appealing against his convictions consequent on his plea of guilty to the one count of rape arid his plea of guilty to one count of robbery.

3. After dealing with the facts the learned Vice-President said:-

"The plea entered in these circumstances was a nullity."

He was referring there to the pleas of guilty to rape and robbery. He went on to say:-

"The proper course for this Court to take is to quash the conviction and make an order in the nature of a venire de novo."

4. Silke, J.A., who also delivered a judgment having reviewed the facts, said:-

"That which occurred necessitates this Court making an order in the nature of a venire de novo."

Both Judges, it is to be noted, said that they were making an order "in the nature of" a venire de novo.

5. The actual notes of those proceedings, which we have before us, reveal that the Vice-President said, when allowing the appeal, that there should be a trial de novo and that the 1st defendant was remanded in custody pending the Attorney General's decision.

6. On the 16th October 1985, a fresh indictment was preferred charging the original two counts of rape and one of robbery. The Crown in the event proceeded only upon the count of rape and one robbery count the two offences which had been dealt with by the Court of Appeal. The trial proceeded before Mr Justice Wong and resulted in the two convictions against which the applicant now appeals.

7. Mr Keane, who appears for the applicant, firstly submits that the Court had no jurisdiction to issue a writ of venire de novo. He has not, in the outcome, pursued this point as it is clear that neither of the Judges had said that they were ordering the issue of such a writ. Both said that they were making an order "in the nature of" a venire de novo. It seems to us clear that what was actually said by the Vice-President of the Court was that what they were doing was ordering that there be a re-trial. It must be borne in mind that that Court was dealing only with the two counts to which the defendant had pleaded guilty, one of rape and one of robbery.

8. Mr Keane submitted that the Court failed, having ordered a retrial, to give a proper direction as to the preferring of a fresh indictment under s. 83F(1) of the Criminal Procedure Ordinance.

9. Section 83E(1) of that Ordinance states that the Court may order a retrial where it allows an appeal against conviction. This, we are satisfied, was done. The two appeals against conviction were allowed and a retrial was ordered. Section 83F(1) goes on to state that the successful appellant shall be tried "on a fresh indictment preferred by the direction of the Court of Appeal and shall be tried before such Court as the Court of Appeal may direct ............ or, if no such direction is given, before the Court by which he was originally tried."

10. It is the words "preferred by the direction of the Court of Appeal" that are in issue before us. Mr Keane points out that there was no specific direction as to the preferring of a new indictment and that the indictment preferred on the 16th October 1935 was an indictment for three offences, one of which had not been before the Court of Appeal. Mr Keane submits that this is a matter of fundamental importance which goes to jurisdiction. Clearly unless a proper indictment was preferred there was no valid trial. He submits that the legislature when it enacted S. 83F gave the Court power to determine the counts that the successful appellant was to face in his new trial. He submits that this power lies on the Court alone and that it is not a matter which can be lawfully determined by the Attorney General. He submits that there is no authority given to the Attorney General to exercise what is, by statute, the lawful function of the Court.

11. Mr McCoy, who originally appeared for the Crown, conceded that there was no specific direction as to the preferring of a fresh indictment, but said that the order for a re-trial involved an implicit direction that it be on the counts which the appellant had successfully raised before the Court of Appeal.

12. Having considered both arguments, we are satisfied that, in circumstances such as this, an order for a re-trial made in general terms involves an implicit, but nonetheless, clear and binding, direction that a fresh indictment be preferred charging the same counts as those successfully determined by the Court of Appeal in favour of the appellant. The Court of Appeals implicit direction in the present matter was that there be a fresh indictment preferred with regard to the two counts upon which the appellant had been successful. The adding by the Attorney General of a third count was not pursuant to the implicit direction of the Court of Appeal. This is, however, not presently a matter of any significance as, before the jury was empanelled, the Crown indicated that it was proceeding only upon the two counts with which the Court of Appeal had dealt and the trial proceeded only upon those 2 counts. There was, in the circumstances, we are satisfied, no material irregularity and the appeal therefore is dismissed.

13. The applicant was, in this matter, sentenced to imprisonment for 15 years from the conviction for rape and to 10 years imprisonment with 10 strokes of the cane from the conviction of robbery. He now ask for leave to appeal against those two sentences. We consider it proper to deal with this matter shortly. We are satisfied that the 10 strokes of the cane came to be imposed because of and was justified by the horrifying acts that were committed at the time of the rape. It could only, however, be imposed as punishment for the robbery charge as strokes of the cane are not permitted to be imposed under the Corporal Punishment Ordinance for the offence of rape. We share the trial judge's surprise that this should be so but such is the law as it stands. In such circumstances We consider that the trial judge was wrong to attach that punishment to the robbery charge and we will, therefore, give leave to appeal against sentence. We quash the sentence insofar as it relates to the 10 strokes of the cane.

14. It was also argued by Mr Keane that the sentence of 15 years for rape was improper in the circumstances and that the trial judge given that this was a retrial which occurred through no fault of the applicant should have been guided by the sentences of 14 years that had been previously imposed. In Hong Kong sentence is just as much a matter for the trial judge on a retrial as it is on a trial. It cannot be argued that 15 years is not a proper sentence to impose and we do not consider that we should interfere with that sentence. The two sentences therefore of 15 years and 10 years will stand.