TNAG-0683-FCO40-832-Political-aspects-of-administration-of-justice-in-Hong-Kong-1977 — Page 150

159.

2.

•

5.

of their evidence on the grounds that such persons are deemed to be

co-conspirators. In my view, these persons were known, or ought to

have been known to the Crown as such co-conspirators by reason of

firstly, the nature of the evidence which they were to give as is set

out in the summary of evidence and secondly, that each of those

witnesses were granted an immunity from prosecution on behalf of the

Attorney General in respect of matters pertaining to the first count

which they were to speak of in the witness box, as they came forward to give evidence. I would add that no reasons have been alvanced by the

prosecution as to why certain of the witnesses who are deemed to be

co-conspirators have not been named in the indictment, on the ground

of impracticability or otherwise.

I rule therefore that the provisions of Rule 4 of the

Indictment Rules have not been complied with in framing the count of

conspiracy against the two accused in the indictment and it is there-

fore defective.

In connection with what I have just said, I would refer to the case of Reg. v. Chen Kan and others (1965) H.K.L.R. 662, where at

Page 665, Hogan C.J. says after referring to Rule 4 of the said Rulǝs:

"This places on the prosecution the responsibility of identifying

any person to whom reference is made in an indictment but it also

provides an alternative; where the identity of the individual is not

known to the prosecution they can either then give such description or designation of him as is reasonably practicable or they may describe him as "a person unknown". None of these things was done in the present instance and Crown Counsel was unable to give us any adequate reason

for the omission. He was not, indeed, even able to tell us whether

the names of the other persons, statel not to be in custody, were or

were not known to the prosecution. He did not attempt to argue that the words "not in custody" amounted to the only description that it was practical to give, in the circunstances, but nevertheless went on to submit that the indictment was a good indictment because the forms which appear in the schedule to the rules and which contain the words "a person unknown" are not made absolutely binding by rule 1(5) and may be varied.

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