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State v Wong Kam Hong [2001] FJLawRp 56; [2001] 1 FLR 239 (25 July 2001)

STATE v WONG KAM HONG, TAK SANG HAO AND SHI JIE

High Court Criminal Jurisdiction

Separate trial – three accused jointly charged under the Dangerous Drugs Act - whether a joint trial was prejudicial, embarrassing, would cause delay - whether real danger that assessors will not be able to consider the evidence against Applicant separately from the other accused - Criminal Procedure Code s274(4)

Three accused were charged jointly with importing drugs under the Dangerous Drugs Act. The Third Defendant applied for a separate trial, alleging a joint trial would prejudice him, embarrass his defence, would cause delay, that there was a real danger that assessors will not be able to consider the evidence against him separately from the other accused. The trial Judge ruled that the assessors will be directed as to the need to consider each accused separately and each count separately, so that there would be no suggestion that the Third Defendant would be prejudiced because he is blamed by the other accused.

Held – In considering the principles of joint/separate trials, the Court must avoid inconsistencies of treatment of joint offenders and balance between the interest of justice and interests of the accused. Separate trial is not required where the trial Judge can direct assessors to consider each accused separately and each count separately to avoid any prejudice.

Cases referred to in Ruling

Appl Narend Prasad & Anor v Reginam (1971) 17 FLR 209
Cons Moghal 64 Cr.App. R. 56
Cons Lake 64 Cr App. R. 172.

Kevueli Tunidau for the State
Gavin O'Driscoll for Third Accused

[Note: first accused sentenced on 8 February 2002 on Count 1: Importing Heroin - 7 years imprisonment; on Count 2: Being in Possession of Heroin – 5 years; and on Count 3: Attempting to Export Heroin - 5 years. Sentences on Counts 1 & 2 are ordered to be served concurrently but consecutively with the sentence imposed in Count 3 making a total effective sentence of 12 years. Second accused sentenced on offence of Being in Possession of Heroin - 4 years. On appeal against sentence, there is no hard and fast or inflexible rule in relation to concurrent sentences: CAV002/03S]

Shameem, J

This is an application by the Third Accused Shi Jie a.k.a. Shi Kit, for separate trial. The application is made by Motion and the affidavit of Shi Jie sworn on 5th July 2001. Counsel for the First Accused and the Second Accused did not wish to be heard in respect of the application.

Section 274(4) of the Criminal Procedure Code provides:

"(4) Where, before a trial upon information or at any stage of such trial, the court is of opinion that the accused may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same information, or that for any other reason it is desirable to direct that the accused should be tried separately for any one or more offences charged in an information, the court may order a separate trial of any count or counts of such information."

The Third Accused says that if he is tried together with the First and Second Accused, he will be prejudiced and embarrassed in his defence. He says that most of the witnesses are not relevant to the case against him, that he is only a co-accused on the first count of Importation of Dangerous Substances contrary to the Dangerous Drugs Act, that the evidence against him is confined to the circumstances of the importation of a consignment of "garments", that the other accused did not directly implicate him in the offence, that the trial against the other accused will be prolonged, and delayed because of the unavailability of counsel whereas he is ready to proceed, and because he considers there to be a real danger that the assessors will not be able to consider the evidence against him separately from the other accused.

In submissions counsel for the Third Accused canvassed the evidence submitted with the Third Accused's affidavit, including the cautioned statement of the First Accused, Wong Kam Hong.

The State opposed the application, submitting authorities to support the principle that joint offenders should normally be tried jointly.

Both counsel agree that the trial with the three accused is likely to be six weeks long, and that a separate trial for the Second Accused would last for 2½ or 3 weeks.

In Moghal 64 Cr. App. R. 56, the English Court of Appeal said (per Scarman J at p.62) that:

"... we think that only in very exceptional cases is it wise to order separate trials when two or more are jointly charged with participation in one criminal offence."

The reasons for this rule were discussed in Lake 64 Cr. App. R. 172, 175 thus:

"It has been accepted for a very long time in English practice that there are powerful public reasons why joint offences should be tried jointly. The importance is not merely one of saving time and money. It also affects the desirability that the same verdict and the same treatment shall be returned against all those concerned in the same offence. If joint offences were widely to be tried as separate offences, all sorts of inconsistencies might arise."

These principles have been followed in Fiji. In Narend Prasad & Anr v Reginam 17 FLR 208, the Court of Appeal said that in considering an application for separate trial, the judge should consider the interests of justice as well as the interests of the accused.

In this case the Third Accused is jointly charged with importing the same quantity of drugs which is the subject of Count 2. The evidence against him is the evidence that the drugs were allegedly consigned to his company Prime Success Ltd. Counsel said that his defence will be innocent importation, and that he did not know what was in the consignment. The other accused did not directly implicate him.

Having considered the affidavit material filed and submissions of counsel, I am not satisfied that it is in the interests of justice to separate the accused. The assessors will be directed as to the need to consider each accused separately and each count separately. There is no suggestion that the Third Accused would be prejudiced because he is blamed by the other accused. The evidence is to the contrary.

The only prejudice in terms of the evidence, is that the Third Accused's alleged role is peripheral compared with the other accused, but that the assessors might make assumptions against him on the strength of the evidence against Accused One and Two.

This is clearly a matter to be dealt with by adequate and careful directions to the assessors. It is not in my view a matter to warrant separate trial which might result in far more prejudicial inconsistencies.

As to the length of trial, I do not consider it sufficient reason to order separate trial that the accused's separate trial would be shorter and earlier. It is clearly in the interests of justice that all accused be tried together in one trial.

The application is refused.

Application refused

Marie Chan