Lam Sang And Another v The Queen

Judgment Cited authorities (3) Cited in Precedent Map Related
Judgment Date10 June 1968
Judgement NumberCACC212/1968
Year1968
CourtCourt of Appeal (Hong Kong)
CACC000212/1968 LAM SANG AND ANOTHER v. THE QUEEN

CACC000212/1968

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 212 OF 1968

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BETWEEN
1. LAM SANG Appellants
2. WONG SHING
AND
THE QUEEN Respondent

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Coram: Rigby, S.P.J.

Date of Judgment: 10 June 1968

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JUDGMENT

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1. The two appellants were separately charged but jointly tried upon the three charge sheets preferred against them. They now appeal against their convictions.

2. On the facts, there is really no merit in these appeals. The very brief facts were that in the early hours of the morning of the 23rd February a party of three plain-clothes policemen were on patrol duty in Prince Edward Road near Kadoorie Avenue, Kowloon. They saw a car draw up and stop and three persons get out of the car. One of those police officers knew one of those three persons and as a result it was thought desirable to follow these three persons who had got out of the car. They were seen to enter a house and the police officers followed them into it. They proceeded upstairs to the third floor. The police officers followed them there at a distance. There, on the third floor they were seen outside the grille door of a flat on that floor. The police officers noticed that one or more of these three persons were wearing white gloves and one of them had a torch in his hand and that he was shining upon the grille door. These three persons then saw the police and started to run away. They were apprehended and all three of them were found to be wearing white gloves. The first appellant was found in possession of two skeleton keys, the second appellant a jemmy and the third accused, who has not appealed, a bundle of keys.

3. In their defence they put forward a story that all three of them were in a car driven by the third accused and that they were stopped by the police when proceeding in the car, and stopped for no reason whatsoever.

4. Those were the facts before the learned Magistrate and upon those facts he convicted each of the three appellants upon the two charges contained in each charge sheet as separately preferred against each of the appellants. The two charges were in fact possession of housebreaking implements and loitering at night.

5. As I have said, the facts of the case really present no difficulty. The only doubt in my mind, and it is indeed a substantial doubt, is as to the propriety of the procedure adopted in this case. It would appear that the two appellants - together with the third accused - were originally jointly charged with the offence of attempted burglary. I am informed that the learned Magistrate, presumably after he had heard the opening statement by the prosecuting officer, was of the opinion that the facts alleged were not sufficient to constitute the offence of attempted burglary and that he then, of his own motion, thought it right that these separate and distinct charges alleging in each case possession of a housebreaking implement and loitering at night, should be substituted for the original charge. That course was then adopted by him and the fresh and separate charges preferred against each of the appellants. Each of them pleaded not guilty to those separate charges and the learned Magistrate then enquired whether they had any objection to a joint hearing of the charges, and each appellant is recorded as having said he had no objection.

6. Now Section 10 of the Magistrates Ordinance (Cap.227) specifically provides that in certain circumstances the trial at the same time of different charges may be heard against the same offender. There is however, curiously enough, no provision in that Ordinance enabling the trial of joint offenders charged with the same offence committed at the same time. It is no doubt a common practice, and a proper practice, for offenders jointly accused of the same offence committed at the same time to be tried in a joint charge, although, as I have said, there is no specific provision in the Ordinance enabling that to be done.

7. The proposition in this case, however, goes a good deal further. The question is whether separate charges in separate charge sheets against separate offenders may be tried at one and the same time, albeit though such offences were in fact of a similar nature and committed by those offenders in the course of the same transaction. Now there is clear authority that in so far as the superior courts...

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