3.
160
In this connection, he did draw our attention to a recent decision in the District Court, namely, The Queen v. Chau siu-hanve and others which, he said, appeared to be against him but which, he maintained, was wrongly decided because it was based on the decision in R. v. Perrin and Burst where the judgment did not bear out the headnote and which was, in any event, a decision prior to the introduction of the Indictments Act 1915 in England, and, consequently, no authority on the interpretation of the current legislation.
Had rule 1(5) stood alone, Mr. Airey might well have been right, as it does not require rigid adherence to the forms set out in the schedule but what we are primarily concerned with here is not rule 1 but rule 4, which gives the Crown an option. Either they could have identified these people, or, failing that, have given such description as was reasonably practicable in the circumstances, or have referred to them as persons unknown. The indictment did none of these things and, consequently, it fails to comply with the rules. What action should we then take? Must we quash this count or can we deal with it in some other way? To this problem, the decision in R. v. McVitie seems to provide the appropriate answer.
In that case,
also, the indictment failed to comply with the requirements of the rules but the Court of Criminal appeal did not quash it. They treated it as an imperfect indictment and looked to see whether it had caused any substantial miscarriage of justice; finding there was none, the Court allowed the indictment to stand."
98
In my view, having regard to the evi lence so far received and that the summary of evidence was delivered to the two accused, far as I understand it, two weeks before the trial, no prejudice, injustice, embarrassment or delay will be caused to the defence if the indictment were to be amended pursuant to the provisions of Section 23(1) of the Criminal Procedure Ordinance, Cap. 221, by the addition of the names of the persons mentioned.