July 8, 1896.
Mr. Francis, Q.C. (for the prosecution), his Lordship reserved judgment until yesterday.
His Lordship in giving judgment said-In this case the defendants were charged with perjury in an information containing two counts. The first count had reference to the first defendant alone. By this count it was charged that, at the Supreme Court in its Sum- mary Jurisdiction, on the 27th May, 1896, before T. Sercombe Smith, Esq., Acting Paisne Judge, a suit by which Wong King Tong, as plaintiff, sopght to recover from Wong Chi Tong. and Wong Wa Po, as defendants, the sum of 8364.41, came on for hearing and at such hearing it was a material question whe ther two agreements, each of them dated the 10th Etember, 1895, where chopped by Wong Chi Tong, and that Wong King Tong, having been declared in due form of law to speak the truth, did knowingly, wilfully, falsely, corruptly, and maliciously declare amongst other things in substance and to the effect following, that is to say, Wong Chi Tong then chopped the agreement, and that then Wong Chi Tong went away, and that then I (that is, Wong King Tong) paid the money to Wong Wa Po"; whereas in truth and in fact Wong Chi Tong did not chop any agreement and was not in fact present at any interview between Wong King Tong and Wong Wa Po on the 10th September, 1895; whereby Wong King Tong has incurred the punishment of persons committing wilful and corrupt perjury, at Victoria in this colony on the 27th May, 1896. The second count had reference to the second defendant alone. It Was in form
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His Lordship Of course I do not want to re-argue the question at this point; I simply want to look at the case.
His Lordship-I cannot have a re-argument. now that I have delivered judgment in the case.
Mr. Francis then proceeded to quote this case mentioned in East and said it was similar to the present case, in which he contended there was not a joint indictment. Each man was severally indicted.
His Lordship-Mr. Francis, I do not think it is correct in point of law that there should be a re-argument in the case, now at any rate. You said you had a case and that possibly might change my view,, which you seem to have. ↑ gathered I was taking. If you will let me see the case I will let you know whether the case need be re-argued. I do not think it is correct at this point. At the same time, if you have a case that is very clear on the point and which I have formed shakes the opinion
willing to have
of course I would be the case re-argued.
Mr. Francis handed the case in East up to his Lordship.
His Lordship (after glancing at the case)-Į really did not catch the facts of the case as you read it. I might say I read this case in chambers.
Mr. Francis-Mr. Justice Laurencei's judg.. ment seems to me so strong.
His Lordship-Yes, I read the case.
His Lordship then re-read the case and said— « I may say with regard to the case which Mr. Francis has quoted that I had already read it, although I did not, while he was referring to it, catch it sufficiently clearly to remind myself of it. I think the ruling in this case does not seem to affect the ruling of the King's Bench in the case of the King v. Phillips. It appears to me quite clear that if the King v. Phillips case had been in any way affected by the King v. Kingston the text books would have recognised that and häve treated it as invalid. So far the text books lay it down that two persons cannot be tried together. That is the principle of the English law, and I find no difference on that point between the law in this colony and the law laid down in England. The conclusion, at which J
King's Bench said:"There may be great incon. veniences if this is allowed: one may be de- sirons to have a certiorari, and the other not; the jury on the trial of all may apply evidence to Mr. Francis-I would call your Lordship's all that is but evidence against one." The judg- attention to the fact that I had no opportunity ment was arrested. I do not find any decision of looking up all the points and therefore impeaching the authority in this case, and, as II should be very glad of the opportunity of have already shown, it is cited as of authority in re-arguing the question. I was taken quite by the received text books. There appears, there- surprise and was able to refer to only the
books before me at the moment. fore, to be no doubt that the joinder of two or more defendants in an indictment for per. jury is, under the English practice, a misjoinder which may be made the subject of a demurrer, motion in arrest of judgment, or writ of error, or the Court will in general quash the indictment. Archbold p. 77. Nor does it seem to make any difference on this point whether the defendants are charged together in an indictment sustaining only one count or separately in an indictment containing two or more counts. This, then, being the state of the English law on the sub- jest, let us inquire whether a different rule of practice prevails in this Court. Mr. Francis, who conducted the case on behalf of the Crown, stated, on the argument of the motion, that the practice of the Court had been to allow a joinder of counts against different defendants in cases of this kind. I have caused the records of the Court to be searched as far back as the year 1869, and it appears that during that period there have been only two cases in which two or more persons have been charged in one- information for perjury. The later case is R. v. Lubbi Bux and Fattah Deen, June Sessions, 1888. In that case the defendants were charged with perjury in an information containing only and substance, mutatis one count. It appears that the defendants were mutandis, identical with the first count, not represented by counsel, and the question except that the evidence stated to have been of a misjoinder was not raised or argued. The given by the second defendant with respect to earlier case is R. v. Wong Hung Yau and Ng the chopping of the agreement by Wong Chi San Fat, June Sessions, 1881. In that Tong was somewhat more detailed. To this
the defendants were charged on information the defendants on their arraign-information containing
one ment severally pleaded "not guilty."
The count having reference to each of them-in trial took place in this Court, with a com- fact the circumstances were the same as in the mon jury, on the 26th, 27th, and 29th days present case. Mr. Francis appeared for both of June, 1896. I directed the jury that each defendants, and according to the Acting Chief of the defendants was standing his trial Justice's notes, "objected to the defendants being separately on the count which had reference tried together." The Attorney-General assented to him individually, and that it was therefore to their being tried separately. They were competent to them, if they saw fit, to find a ver- accordingly so tried, and a verdict of not guilty dict against one of the defendants and to acquit having been returned as regarded Wong Hung the other. At the same time I told the jury Yan, a nolle prosequi was entered on the second that, inasmuch as the evidence alleged to have count relating. to Ng San Fat. These cases been given by the defendants respectively had do not, in my opinion, support the position that, relation to one and the same matter and was of on a question of this kind, the practice of this the same purport and effect, it was difficult Court is different from the practice of the to see
how that evidence could be held English Courts.. It remains to consider whether, to be false in one case and not false in independently of any course of practice, there the other. In the result the jury, by a is any local enactment making valid a. joinder unanimous verdict, found both the defendants of defendants in one information on a charge guilty. Mr. Robinson, counsel for the defend- of perjury. I am unable to discover any such ants on the trial, thereupon moved in arrest enactment. At one time I was inclined to of judgment on the following grounds-first, think that such a power was conferred by sec. that the information was bad since two tion 7 of the. Criminal Law Procedure Ordin- persons cannot be jointly indicted for perjury; ance, 1865, but on consideration. I am not able secondly, that the information was bad as not to regard it as sufficiently clear and precise in averring that the Court before which the its terms as to impliedly abrogate a common alleged false declaration was made was of law rule of practice such as that under consider-defendants to be detained for another indict- competent jurisdiction; and, thirdly, that ation. The conclusion-- the evidence alleged to have been given by the defendanta severally should have been set out in the information in the very words used by them and not in its mere substance and effect. To take the first ground of objection, I proceed to consider whether it would avail in the English law of criminal procedure, and, if it would there avail, whether the law of the colony differs from the English law in that re- spect. In Archbold's Criminal Pleading and Evidence, 21st Edition, p. 927, it is said: "Two or more cannot be jointly indicted for perjury." The authority given for this proposition is the case of R. v. Philips, 2 Q.B., 921. In 3 Russell on Crimes and Misdemeanors, 6th edition, p. 332, it is said:" It has been holden, on motion in arrest of judgment, that several persons cannot be joined in one indictment for perjury, the crime being in its nature several." And the same case, R. v. Philips, ubi supra, is cited. In that case it appears that six persons were in- dicted in one indictment for perjury, and four of them pleading were convicted. It was then moved, in arrest of judgment, that "crimes (especially Mr. Francis-It is not a case of perjury; it perjury) were in their nature several, and that is a case of offences generally. It is laid down two cannot be indicted together." In giving that a joinder in offences which are in their judgment on the motion the Court of nature general-
"
Mr. Francis-Will your Lordship allow me? Your Lordship does not seem to have taken any notice-at any rate you have not referred to it in your judgment of the case to which I called your attention and which seems to me to en- tirely get rid of and explain the case of the King v. Phillips. I referred to the King v. Kingston, 8 East, page 431, and pointed out the difference between the joinder if two de- fendants in one case and the joinder of two se- parate counts in one case. Your Lordship will remember that I was taken by surprise when my learned friend raised his objections and. I had no books here when the matter was argued, and I shall therefore be very glad if your Lordship will allow me to re-argue the case.
His Lordship-Let me see the case.
Mr. Francis-The case is reported is 8 East, my Lord, and I have just sent for it. There it is specifically laid down that it is no objec- tion in point of law
His Lordship-Is it a case of perjury?
arrive is that the first ground of objection to the information must be decided in accordance with the principles on which it would be decided in England and that` it must therefore prevail. Under these circum- stances it is unnecessary to consider the remain- ing grounds of objection. The judgment of the Court accordingly on the motion is that judgment on the information and conviction is stayed and that the defendants be discharged.
Mr. Francis-I ask your Lordship to order the
ment to be made against each of them separately.
His Lordship-I do not think I ought to direct them to be detained. Of course the pro- secution must decide on what course to take on that point themselves; that is for the proseon- tion. Fet the defendants be discharged.
Mr. Francis-Well, my Lord, I formally apply for a Bench warrant for their re-arrest. The proceedings at the Police Court stand per- fectly good and complete. These men have been committed for trial and have gone through a trial which has turned out to be invalid and
therefore they are liable to be tried again.
His Lordship-That is a matter for the dis- cretion of the prosecution-whether they will take further proceedings.
Mr. Francis-Very well, I, on behalf of the prosecution, say they intend to take further proceedings and I apply for a Bench warrant for the detention of the defendants.
His Lordship-Can you cite any authority? Mr.Francis-No, my Lord, except that we are at liberty to indict them afresh.
His Lordship-Would not that be a case of the Court intervening between the Crown and the defendants to the prejudice of the defen- dants ? I do not think the Court ought to—
Mr. Francis-If a nolle prosequi had been
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