THE QUEEN v. LEE KA FAI

MCA No. 843 of 1987

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HEADNOTE

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S.10(2) Magistrates Ordinance – unconnected charges tried together – prejudice – retrial ordered.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 843 OF 1987

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JUDGMENT

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1. The appellant was charged in Tsuen Wan Juvenile Court with two offences, assault occasioning actual bodily harm, contrary to section 39 of the Offences against the Person Ordinance, Cap. 212 and criminal damage, contrary to section 60(1) of the Crimes Ordinance, Cap. 200. The appellant was convicted of common assault on the first charge but, on the second charge, the magistrate held that there was no case to answer.

2. Separate informations were laid but the charges were tried together. Counsel for the respondent, Mr. Harris, submits that these two offences were entirely unconnected and therefore should have been tried separately.

3. Section 10(2) of the Magistrates Ordinance provides:-

"(2) For every distinct offence of which any person is accused there shall be a separate complaint or information, and every such complaint or information shall be tried separately except in the following cases -

(a) When a person is accused of more offences than one of the same or a similar character he may, subject to the provisions of section 26, be charged with and tried at the same time for any such offence, whether it is committed with respect to the same person or not:

(Amended, 49 of 1965, s. 4)

Provided that if the magistrate is of opinion that a person accused will be prejudiced or embarrassed in his defence, he may order a separate trial of any such charge or charges;

(b) if in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with and tried at the same time for every such offence; and

(c) if a single actor-series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused person may be charged with having committed all or any of such offences and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences. (Replaced, 24 of 1949, s.6)"

4. The second charge falls into none of these categories and should therefore have been tried separately. In fact an unusual and undesirable procedure was adopted by the magistrate. At the end of the evidence on the assault charge, defence counsel said that his client would not give evidence but he wanted to call a defence witness. To avoid the latter having to return on another day, he applied to call him before the prosecution evidence on the second charge was led. The prosecution had no objection and the case proceeded accordingly.

5. On the second charge evidence was given that the defendant had kicked a video game machine. When it was later examined, it was discovered that the wires had short-circuited, causing it to malfunction. It was, however, not possible to say that this had been caused by the defendant's kick. He was therefore acquitted.

6. Nevertheless, as Mr. Harris says, the magistrate's decision on the assault charge may have been influenced by the evidence of hooliganism subsequently led on the second charge.

7. In these circumstances the appeal is allowed and the conviction quashed. I will hear Counsel on the question of a retrial.