HKSAR v. N. S. H.

HKSAR v. N. S. H.

There was sufficient factual nexus between the counts so the indictment was not misjoined and therefore not invalid, but exercising discretion under s23(3) CPO the court ordered severance: leave granted to prefer two fresh indictments separating the criminal intimidation counts (Counts 1 and 3-7) from the indecent assault and rape counts (Counts 2 and 8); trial to proceed first on the indecent assault and rape indictment with the intimidation indictment to be listed later or transferred depending on the result.

Citation
HKSAR v. N. S. H.
Parties
Prosecution: HKSAR; Defendant: N. S. H.
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
22 May 2017
Case Number
HCCC15/2017
Procedural Posture
Criminal Indictment / Pre Trial Severance Application
Outcome
Indictment severed; leave granted to prefer two fresh indictments separating criminal intimidation counts from indecent assault and rape; first trial to proceed on indecent assault and rape counts.
Legal Topics
Misjoinder, Severance, Joinder Rules, Criminal Intimidation, Indecent Assault, Rape, Prejudice and Jury Directions
Source Language
EN
Criminal Law Criminal Procedure Evidence Family Law Misjoinder Severance Joinder Rules Criminal Intimidation +3 more

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Parties

HKSAR

Prosecution

N. S. H.

Defendant

Procedural Posture

Criminal Indictment / Pre Trial Severance Application

Legal Issues

  1. 1 Whether Counts 1 and 3-7 (criminal intimidation) and Count 2 (indecent assault) and Count 8 (rape) are misjoined in the same indictment
  2. 2 Whether the indictment should be severed under s23(3) CPO despite sufficient nexus
  3. 3 Whether prejudice from inadmissible evidence can be cured by directions to the jury

Ratio Decidendi

There was sufficient factual nexus between the counts so the indictment was not misjoined and therefore not invalid, but exercising discretion under s23(3) CPO the court ordered severance: leave granted to prefer two fresh indictments separating the criminal intimidation counts (Counts 1 and 3-7) from the indecent assault and rape counts (Counts 2 and 8); trial to proceed first on the indecent assault and rape indictment with the intimidation indictment to be listed later or transferred depending on the result.

Court Disposition

Indictment severed; leave granted to prefer two fresh indictments separating criminal intimidation counts from indecent assault and rape; first trial to proceed on indecent assault and rape counts.

Orders

  • Severed the current indictment and granted leave for prosecution to prefer two fresh indictments: one containing Counts 1 and 3-7 (criminal intimidation) and one containing Counts 2 and 8 (indecent assault and rape).
  • Proceed initially on the fresh indictment containing Counts 2 and 8 (to be renumbered as Counts 1 and 2).