FAI MA TRADING CO LTD v. L S LAI, INDUSTRY OFFICER

Headnote

    Magistrates Ordinance - appeal pursuant to section 113(1) - questions directed to be argued before the Court of Appeal pursuant to section 118(l)(d) - defective informations - aid by verdict and powers of appllate court to amend and to uphold the magistrate's decision if no injustice would result considered.

    The appellant company was convicted in the Magistrates Court on six charges of unlawfully exporting strategic goods. The informations were defective but the magistrate had not exercised his powers of amendment under section 27 of the Magistrates Ordinance (Can 227). On appeal to O'Connor J the following questions were directed to he argued before the Court of Appeal :-

"(1) Were the defects in the informations 'cured' by the magistrate's verdict?

(2) Has the Judge a power to amend the informations under section 27 of the Magistrates Ordinance pursuant to section 119(d) thereof so that they comply with the Indictment Rules (Can 221) and dismiss the appeals?

(3) Has the Judge power to dismiss the appeals notwithstanding the defects in the informations if he is of the view that no miscarriage of justice has been occasioned to the Appellant?"

In determining the Questions -

Held:-Each question was to be answered in the negative. Consequential- directions given.

The following cases cited in argument were not mentioned in the judgments:-

R v Leung Ynen f [1963] HKLR 154

R v Robert Wong [1963] HKLR 454

R v Kwong Shek Cr App No 267 of 1973 (Unreported)

R v Chan Kwok Kent Cr App No 547 of 1985 (Unreported)

R v Chan Chung Ho & Ann Cr App No 1082 of 1986 (Unreported)

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J U D G M E N T

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Kempster, JA :

HISTORY

1. On 8 April 1987 in South Kowloon Magistrate's Court Mr Uuham convicted Fai Ma Trading Co Ltd on 15 charges arising from that Company's urlawful export of IBM computer systems and Parts; six of them, the informations alleged, contrary to the provisions of Regulation 2 of the Import and Export (Strategic Commodities) Regulations made pursuant to section 31of the Import and Export Ordinance (Cap 60). The fines imposed on all 15 convictions, following review, total HK$2.22m.

2. The Company has prosecuted anneals in the High Court against the six convictions under the Strategic Commodities Regulations on a number of grounds; one being that material amendments to the Schedule to the relevant Regulations were ultra vires the maker due to absence of congruity between sections 2 and 31(1)(z) of the Ordinance and Regulation 4.

3. The appeals were heard by O'Connor J between 25th and 28th January 1988 and, as had been indicated on the latter date, when he delivered his judgment on 20th May this and other grounds were rejected. He also made certain findings :

"The Appellant was convicted by a Magistrate on informations which were defective in that they failed to give the particulars required by Rule 3(1), and the reference required by Rule 4(a), of the Indictment Rules (Cap 221)"

- I interpolate "as required by section 10(4) of the Magistrates Ordinance (Cap 227)" -

"(a) the informations should have been amended before verdict under section 27 of the .... Ordinance,

(b) the Appellant did not object to the informations before verdict,

(c)the magistrate found that all of the elements of the offences alleged in the informations had been proved,

(d)the Appellant annealed against conviction to a Judge of the high Court pursuant to Section 113(1) of the Magistrates Ordinance".

THE QUESTIONS

However, pursuant to section 118(1)(d) of that Ordinance he directed that certain points in the appeal should be argued before this Court. Put into formal questions, they were :

1. Were the defects in the informations "cured" by the Magistrate's verdict?

2. Has the Judge power to amend the informations under section 27 of the Magistrates Ordinance pursuant to section 119(d) thereof so that they comply with the Indictment Rules (Cap 221) and dismiss the appeals?

3. Has the Judge Power to dismiss the appeals notwithstanding the defects in the informations if he is of the view that no miscarriage of justice has been occasioned to the Appellant?"

In reaching our conclusions we acknowledge our indebtedness to counsel for their painstaking researches.

THE ORDINANCE

4. Sections 27 and 119(d) of the magistrates Ordinance read :-

    "27. (1) Where it appears to the adjudicating magistrate that there is -

(a) a defect in the substance or form of any complaint, information or summons; or

(b) a variance between the complaint information or summons and the evidence adduced in support of it,

he shall, subject to subsection (2) -

(i) amnd the complaint, information or summons if he is satisfied that no injustice would be cause by that amendment; or

(ii) dismiss the complaint, information or summons.

(2) The adjudicating magistrate shall amend the complaint information or summons where-

(a) the defect or variance mentioned in subsection (1) is not material; or

(b) any injustice which might otherwise be caused by an amendment would be cured by an order as to costs, an adjournment or leave to recall and further examine witnesses or call other witness.

(3) Following an amendment to a complaint information or summons, the adjudicating magistrate shall -

(a) read and explain the amended complaint, information or summons to the defendant;

(b) give leave to the parties to call or recall and further examine such witnesses as may be reasonably required by a party  having regard to the nature of the amendment;

(c) grant such adjournment as may be reasonably necessary to enable the parties to call or recall witnesses and to prepare their cases;

(d) if he thinks fit, make an order that the complainant or informant shall pay to the defendant such costs, pot exceeding $5,000, as may be occasioned by the amendment and

(e) give judgment upon the substantial merits and facts of the case as proved before him, having regard to the offence charged in the complaint, information or summons as amended:

Provided that if the amendment is made after the case for the complainant or informant is closed, no further evidence may be called by the complainant or informant other than evidence that would, apart from this section, be admissible in rebuttal.

(4) In this section, "amend" includes the substitution of another offence in place of that alleged in the complaint, information or summons.

119 (1) In the case of any appeal to which section .... ll3 applies -

(d) the judge may by his order confirm, reverse or vary the magistrate's decision or may direct that the case shall he heard de novo by a magistrate or may remit the matter with his opinion thereon to a magistrate, or may make such other order in the matter as he thinks just, and by such order exercise any power which the magistrate might have exercised; and any decision or order made by the judge shall have the like effect and may he enforced in the like manner as if it had been made by the magistrate;"

This Court is accorded similar powers by section 118(1)(d).

THE FIRST QUESTION

5. As regards the first question posed Mr Sedgwick, who appeared for the appellant, commence his argument in high hopes of establishing that the doctrine of "Aid by verdict" applies only to civil proceedings. He took us back to such early authorities as Hale's "Pleas of the Crown" and the Fourth Book of Blackstone's Commentaries. In the first authority, published in 1737, it is stated at p 193 that

" .... a defective indictment is not aided by a verdict"

and in the second, published in 1769, at p 369,

" .... therefore a defective indictment is not aided by a verdict as defective pleadings in civil cases are".

But by 1910, when the 24th edition of "Archhold's Pleading Evidence and Practice in Criminal Cases" was published, the editors stated at p 78 that :-

"There was no distinction at Common Law between the rules of pleading in civil and criminal cases .... it is a general rule of pleading at Common Law that when an averment which is necessary for the support of the pleading is imperfectly stated and the verdict on an issue involving that averment is found if it appears to the court after verdict that the verdict could not have been found on this issue without proof of this averment the defective averment though it might have been had on demurrer is cured by verdict. Heymann v R LR 8 OB 102; R v Goldsmith LR 2 CCR 71."

Both cases cited bad been decided in 1839; the first on a writ of error on a judgment where the indictment charged conspiracy and the second on a case stated. Reliance could also be placed on R v Walters [1878] 1 DEN 356. The last mention in Archbold of the cure of a defective indictment by verdict was at p 147 of the 35th edition, published in 1962, but the doctrine still receives recognition in the 11th volume of the 4th edition of Halsbury's Laws of England at para 219. It is based on the presumption, arising in the absence of all but the formal record of proceedings, that every necessary averment must have been proved and have resulted in a just verdict albeit the indictment was defective. It has had no active place in the Common Law since 1907 when the type of appellate procedure, together with transcripts of evidence, with which we are presently familiar was introduced and writs of error abolished. It was never applied to the unrecorded proceedings of lay magistrates in relation to which appeals lay by way of rehearing or case stated; further challenge being available by way of certiorari.

6. By virtue of sections 34 and 116(1) of the Magistrates Ordinance minutes of proceedings and the magistrate's Statement of Finding are available to the single judge in Hong Kong. It is arguable, therefore, that when he had seen that the necessary facts were proved by way of broad admissions pursuant to section 65C of the Criminal Procedure Ordinance the judge would have been entitled to uphold the convictions by analogy to "aid by verdict" despite defective particulars but for the wrong citation of the convicting section namely regulation 2 instead of regulation 3. As was said in R v Aspinall (1876) 2 ORD 48 at p 58 by Brett JA:

"The rule is not applicable to case of the total omission of an essential averment. If there be such a total omission the verdict is no cure ".

It is common ground that no distinction falls to be drawn between a total omission and reference to the wrong section.  However, unless warranted by the terms of section 119(1)(a) I am not prepared to conjure from past presumption applicable to trials by jury grounds for the exercise of such a jurisdiction as is given  to this Court when hearing criminal appeals from the higher courts by section 83(1) of the Criminal Procedure Ordinance Thus, interesting as the question has been, neither the doctrine of  "aid" nor any analogous process of reasoning assists the Crown in relation to the defects in the informations.

THE SECOND QUESTION

7. Turning to the second question directed to be argued before us it is apparent that the magistrate should have dismissed or amended the informations pursuant to section 27 had their defects been apparent to him. Failure so to do in itself constituted an irregularity. I add that amendment would have been necessary even if section 27 had retained its pre-1987 wording which then reflected the terms of section 100 of the Magistrates' Courts Act 1952. Garfield v Maidocks [1974] 2 OB 7 at p 12. But no submission as to defects was made at any stage of the hearing. The matter was raised for the first time before O'Connor J whose powers of amendment, if any, must derive from section 119 (1)(d).

8. In construing the words of that subsection tor the purposes of this question and of question 3 we are required by sections 2 and 3 of the Interpretation and General Glauses Ordinance (Cap 1) to construe "or" disjunctively save where the contrary intention appears from the context and, by section 19, to deem the Magistrates' Ordinance remedial and to apply to it such fair, large and liberal construction and interpretation as will best ensure the attainment of its object according to its true intent, meaning and spirit. Applying these cannons of construction to the material words it would appear at first blush to a judge hearing an appeal from a magistrate that he had available to him four allternatives namely :-

(1) to confirm reverse or vary the magistrate decision;

(2) to direct that the case should be heard de novo by a magistrate:

(3) to remit the matter with his opinion thereon to a magistrate;

(4) to make such other order in the matter as he thought just.

A deeper scrutiny demands a different approach. It would be pointless for a judge to adopt courses (2) or (3) without reversing the magistrate decision since the magistrate, time for review being past, could not do so of his own motion. The overall tenor of the subsection therefore suggests that the adoption of course (4) is also dependent on the prior exercise of the power given by (1). Further the apparently wide parameters of course (4) are limited in that by such order the judge can only "exerecise any power which the magistrate might have exercised". Accordingly the disjunctive construction of "or" is not appropriate since a contrary intention appears from the context and the true intent meaning and spirit of the subsection makes the exercise of alternatives (2), (3) and(4) dependent upon the confirmation reversla or variance of the magistrate decision under (1). In the instant case if the judge had confirmed the decisions he could neither have adopted courses (2) or (3) nor amended the informations since section 27 only affords such a power prior to conviction If on the other hand be had reversed the magistrate decisions, so that no (4) convictions stood as a bar, he could have adopted course (2)and have amended the informations pursuant to (4) into the bargain, I cannot find any jurisdiction to confirm the convictions and then to amend the informations Were the judge so to do the appellant would be faced with a new charge to be tried on the magistrate minutes from which no appeal would lie under section 113 (1); a consideration such as was taken into account by the Court of Crown Cases Reserved in Shackell v West [1855] 4 E1 and E1 326 but not by the Divisional Court in Killington v Butcher [1979] CrLR 458.

9. It is necessary to consider such tentative conclusions in the light of the very considerable body of authority with which we have been favoured since

"when a particular form of 1egislative enactment, which has received an authoritative interpretation, whether by judicial decision or by a long course of practice is adopted in the framing of a later statute, it is a sound rule of construction to hold that the words so adopted were intended by the legislature to bear the meaning which has been so put upon them"

per Griffith CJ in D'Emden v Pedder [1904] 1 CLR 91 at p 110. What is more

" .... in the case of a colonial statute it has been held by this Roard that in colonies where an enactment has been passed by the legislature in n the same terms as an English statute the colonial courts should adopt the construction put upon the words by the English courts"

per Lord Porter in Coorav v R [1953] AC 407 at p 419. Lord Diplock advised to like effect in de Lasala v de Lasala [1980] AC 546 at p 558.

10. The provisions of no English statute are exactly reflected in section 119 (1) (d) but those of several acts approximate to its wording. Section 2 of the Crown Cases Act 1848 (Cap LXXVIII) provided that on case stated from Quarter Sessions

" .... the said Justices and Barons shall .... have full Power and Authority to hear and finally determine the said Question or Questions and thereupon to reverse, affirm or amend any Judgment .... or to make such other Order as Justice may require".

The expression "such other order" was held to be dependent upon the exercise of the primary power to reverse, affirm or amend any judgment, R v Paderman [l850] 1 DEN 565 at P 568 Per Parke B. The English Courts also held that although they had power to amend the Judgment there was no power to amend the indictment and uphold the conviction after verdict. R v Larkin [1854] 6 Cox CC 377; R v Frost [1855] 7 Cox CC 526; R v Garland [1869] 11 Cox CC 224. Power also existed to order a venire de novo in the case of a misdemeanour. Crane v Public Prosecutor [1921] 2 AC 299.

11. The wording of section 2 of the Crown Cases Act was reflected in subsequent statutes. In section VI of the Summary Jurisdiction Act 1857 :

"The Court to which a Care is transmitted under this Act shall hear and determine the Question or Question of Law arising thereon and shall thereupon reverse, affirm or amend the Determination in respect of which the Case has been stated or remit the matter to the Justice or Justice with the Opinion of the Court thereon, or may mal e such other Order in relation to the Matter ... as to the Court may seem fit".

In section 31(5) of the Summary Jurisdiction Act 1879 :

"The court of appeal may adjourn the hearing of the appeal, and upon the hearing thereof may confirm, reverse, or modify the decision of the court of summary jurisdiction or remit the mtatter, with the opinion of the court of appeal thereon, to a court of summary jurisdiction ... or may make such other order in the matter as the court of appeal may think jest, en may by such order exercise any Power which the court of summary jurisdiction might have exercised ...."

That statute was replaced by section 31(l)(vii) of the Summary Jurisdiction (Appeals) Act 1933 which more closely anticipates section 119(l)(d) of the Magistrates Ordinance

" ... quarter sessions may by their order confirms- reverse or vary the decision of the court of summary jurisdiction, or may remit the matter with their opinion thereon to a court of summary jurisdiction ... or may make such other order in the matter as they think just, and by such order exercise any power which the court of summary jurisdiction might have exercised".

12. Section 9 of the Courts Act 1971, which in England substituted the Crown Court for Quarter Sessions, provided :

"(2) on the termination of the hearing of an appeal the Crown Court -

(a) may confirm, reverse or vary the decision appealed against, or

(b) may remit the matter with their opinion thereon to the authority whose decision is appealed against, or

(c) may make such other order in the matter as the court thinks just, and by such order exercise any power which the said authority might have exercised. ....

(6) Subject to any provision contained in or having effect under this Act,  the transfer of appellate jurisdiction to the Crown Court from quarter sessions shall not affect the customary practice or procedureon any such appeal, and in prticular shall not affect the extent to which the appeal is by way of re-hearing of the case".

Finally section 48(2) of the Supreme Court Act 1981 :

On the termination of he hearing of an appeal the Crown Court -

(a) may confirm, reverse or vary the decision appealed against; or

(b) may remit the matter with its opinion thereon to the authority whose decision is appealed against; or

(c) may make such other order in the matter as the court thinks just, and by such order exercise any power which the sail authority might have exercised".

13. Against this statutory background and of section l00 of the Magistrates' Courts Act l952 the English Courts have, save in the case of Wright v Nicholson [1970] 1 WLR 142, subsequently disapproved, consistently eschewed any jurisdiction to amend; most recently in Carfield v Maddocks (supra) and Fairgrieve v Newman [1986] 82 Cr App R 60. In the earlier of these cases, at p 12, Lord Widgery CJ said :

"Roth Lord Goddard CJ and Byrne J make it clear that the concept of ameding, the proceedings in an appellate court is something which is foreign to our general system".

He was there referring to Meek v Powell [1952] 1 KR 164 where the Court appears to have construed the words "exercise any power which the court of summary jurisdiction might have exercised" as if they read "exercise any power which the court of summary jurisdiction can still exercise". This authority nonethe less remins good law in England.

14. The argument is not advanced on either side by reference to the magistrate's power under section 104 of the Ordinance to review his decision within 14 days after conviction. If relevant to the matter in question the effect would he to give the judge power to review the order he himself makes on appeal from the magistrate court but as I construe section 119(1) (d), he only has jurisdiction to exercise the powers available to the magistrate prior to or after his final decision whether made at the original hearing or on review.

15. In Killington v Butcher (supra) the Crown Court allowed an appeal from magistrates against a conviction for dangerous driving but then charged the successful appellant with careless driving and convicted him; a procedure approved by the Divisional Court on the basis that the magistrate could have done the same and that, in contrast to an appeal pursuant to section 113 (1) of the Magistrates Ordinance, the Crown Court had entertained the matter by way of rehearing.

16. In this jurisdiction uncertainty reigns. It has been held at first instance that there is no power to amend an information on appeal from the magistrate's court. Lo Wai Ki v R [1957] HKLR 454. It has also been suggested at first instance and by this Court, apparently in the absence of argument, that such a power is or may be available R v Wong Man Shun [1980] HKLR 266; Yuk Mau Kam v R [1977] HKLR 434. The power to amend was implicitly asserted, an information amended and a conviction upheld in R v Sizto Yuk Hing Magistracy Appeal No 103 of 1985 (Unreported) while in the first instance cases of Kwong Shek v R Cr App No 267 of 1973 (Unreported) and R v Ng Kam Chuen  [1986] HKLR 1202 the existence of such a power or at least of a power both to amend and dismiss the appeal was doubted.

17. In R v Chen Ta Hoi [1986] HKLR 1189 Jones J held that he was entitled to amend on the footing that be also made a direction that the amended information be reheard de novo by a magistrate; in that instance the same magistrate. By necessary implication he also reversed the magistrate's decision. This approach accords with my tentative conclusion as to the proper construction of section 119 (1) (d) before reference to authority None of the cases binds this court or persuades me that such conclusion is wrong, I accept that it wouled not be consistent with them for the appeal judge himself to conduct a paper trial on an information which be had amended.

18. I would answer the second question put to us in the negative and add the rider "The Judge has power to amend the informations after reversing the magistrate's decisions so long as he also directs that the amended informations be heard de novo by a magistrate".

THE THIRD QUESTION

19. The third question effectively asks whether the judge hearing an appeal from the decision of a magistrate enjoys the Power accorded to this Court by the proviso to section 83(1), and by section 830(a) of the Criminal Procedure Ordinance; by analogy with section 4(1) of the Criminal Appeal Act 1907 a power sufficient to allow a conviction on a defective indictment to stand, R v MCvitie [1960] 2 OB 483. The powers also available to this Court by reason of section 13(4) oft the Supreme Court Ordinance (Cap 4) have not been the subject of argument.

20. Section 119(1)(d) does not rant such a power in terms but, on behalf of the Crown, Mr Harris contends that its. wording is effective to give the judge "a broad brief to do justice according to law to both sides even though Quarter Sessions and now the Crown Court in England had and have no equivalent power when considering appeals from magistrates by way of rehearing. Having regard to the conclusion I have reached as to the derivative nature of the power "to make such other order in the matter as he thinks just" there is no room for the exercise of a Proviso power before the judge confirms a magistrate decision. I so conclude despite along line of local cases dating at least from 1961, then in relation to section 117(d) of the Magistrates Ordinance, affirming the existence of such a power. Albeit one, R v Leone Chi King [1978] HKLR 25, was a decision of the Full Court it does not bind us. In none of the cases does the point appear to have been argued though the Full Court, of which Scholes J wsa member, followed his earlier decision as to the existence of a Proviso-like power. R v Wu [1961] HKLR 467. Likewise the first instance decisions followed each other and that of the Full Court.

21. As for English authority reference has already been made to the wording of section 2 of the Crown Cases Act 1848. Applying, their powers thereunder five judges in the Court of Crown Cases Reserved held in R v Gibson [1887] 18 OBD 537 that inadmissible evidence had been left to the jury and although there was sufficient admissible evidence to warrant conviction the appeal should be allowed and the conviction set aside.

"I am clearly of opinion that the Court has no power to say that the evidence of the identification of the prisoner was sufficient to warrant a conviction without the statement of the woman who was passing at the time the offence was committed."

said Pollook B at p 542. This conclusion may well have led to the addition of the proviso to section 4(1) of the 1907 Act.

22. Again I am not persuaded by any of these local or English authorities to alter my tentative view as to the proper construction of section 119(1)(d) in relation to the third question. Had I been so persuaded I would necessarily have been driven to a different conclusion in relation to the second question as the answers to both derive from the same process of reasoning. In the premises my answer to the third question, as to the first and second, is in the negative.

FINAL CONCLUSIONS

23. Since the Crown has not, to our knowledge, formulated amendments to the six informations now in question I would not think it appropriate for this Court to quash the convictions, set aside the sentences and attempt to amend them. Rather I would remit the matter to O'Connor J with our judgments by way of opinion. It will then be open to him to quash the convictions, set aside the sentences, amend and remit the informations so amended to a magistrate for trial de novo or, alternatively, to quash the convictions, set aside the sentences and remit the non-amended and therefore still defective informations to a magistrate together with his opinion. It would then be for the magistrate, if he thought fit, to invoke section 27 and amend; thereafter trying the informations so amended de novo.

24. I have not reached the foregoing conclusions with any relish. It seems to me that the expeditious and fair dispatch of anneals from magistrates in Hong Kona would greatly be facilitated were there vested in the appellate Judge of the High Court such powers as are granted to this court by sections 83(l) and 830(a) of the Criminal Procedure Ordinance in relation to criminal appeals falling for its determination.

Silke, V.-P.:

25. As to the first questions I am in respectful agreement with my Lord Kempster, J.A.'s analysis and with his conclusions that, whatever else, the reference to the wrong section is not curable by having resort to any doctrine similar to the "aid to verdict".

26. I am not persuaded that the particulars were, in this instant case, defective in the sense that they did not comply with the indictment rules. But this only in the light of the admission freely made at trial - much to the present dislike of Mr. Sedgwick who did not appear below - that the items specified in the particulars were "strategic commodities". The draftsman in future would be well advised to ensure that the commodity referred to is specifically indicated as coming within the Schedule to the import and Export (Strategic Commodities) Regulations, Volume 6, Cap.60 G1. I would answer the question in the negative.

27. As to the second questions: The defect in the citation of the Regulation contravened was unfortunate. It clearly did not impinge on the minds of anyone at trial. It could have been amended without the slightest injustice of even inconvenience. The point is entirely a technical one but the Courts in England have firmly set their faces against an amendment by an appellate court. The reasoning is simple: if an appellate court were to amend, and by so doing uphold the conviction, then a defendant would stand convicted upon a charge or information on which he has not stood trial - unless, of course, the amendment had the effect of substituting a lesser offence which was encompassed in the matter before the trial court and one that court was empowered, on the facts before it, to come to conviction.

28. As my Lord has said, in Hong Kong. there is uncertainty. Where the Courts thought thereto be power to amend no full argument, such as that from which we have benefited here, was addressed to them. The English decisions seem to me preferable. The appellate judge in Hong Kong can certainly direct an amendment but cannot, in my judgment, then go on to uphold the conviction. That which Jones J. did in R. v. Chan Ta Hoi [19861 H.K.L.R. 1189 is the only course open: reverse the decision and send back for rehearing de novo the amended information. I would also answer the second question in the negative but with the qualification indicated.

29. On the third questions: I was at first strongly attracted by the argument that the. phrase in section 119(1)(d) of the Magistrates Ordinance, Cap.227 "or may make such other order in the matter as he thinks just" incorporated by a side wind a "proviso" like power. My attraction was increased not least by the line of authority starting with R. v. Wu [1961] H.K.L.R. 467 which assumed it did and because this instant case is provisable if ever there was one, there not being the remotest unfairness or miscarriage of justice by reason of the defects with which we are concerned.

30. The Hong Kong Courts in coming to their decisions more than probably had in mind the old section 27 of the Magistrates Ordinance similar in terms though not identical in wording with section 830 of the Criminal Procedure Ordinance, Cap.221. This has relevance to the Court of Appeal, but not to a single judge of appeal hearing magisterial appeals. It prevents an appeal being allowed on the ground of any defect which might have been amended by the Court of trial. Sub-section (1) of section 27 unfortunately disappeared when that section was replaced in 1987. Mr. Sedgwick concedes that had it remained as part of the law he would not have had a leg to stand on. I do not feel it necessary to go beyond that concession.

31. Reluctantly, in the absence of any express provision in the Magistrates Ordinance and as I accept the reasoning set out by my Lord in respect of the second question posed to us, I have come to the conclusion that no power exists to exercise a "proviso". The sooner there is such an express provision the better.

32. My conclusion is fortified by the next succeeding words to the phrase I have quoted "and by such order exercise any power which the magistrate might have exercised" (emphasis supplied). The magistrate now cannot amend being functus offico at the time of the appeal nor therefore, inter alia and for the reasons already given, can the appellate judge: whether it be just or not. If he cannot neither can he, unless expressly empowered to do so, say in effect "the defects do not matter let justice be done".

33. My answer must therefore also be in the negative to question 3.

34. I too would remit the matter to O`Connor J. with our judgments by way of opinion. My Lord Kempster J.A. has set out the possible courses open to O'Connor J. and I have nothing to add to them.

Penlington, J.A.:

1. Whatever the history of the concept of a defective indictment being "cured by the verdict" I have no doubt it has no place in Hong Kong. The concept stems from the. reasoning that if there was some omission in the indictment the gap must have been filled by evidence which was accepted to enable the jury to convict. It seems to me to be without force when there is a record of proceedings, which the magistrate is obliged to keep pursuant to Section 34 of the Magistrates Ordinance. The doctrine seems only to have ever applied to trials in a superior court and there do not appear to be any cases in which it has been relied on after Taylor v. R. in 1895. I have no doubt the doctrine has fallen into disuse and is not available to the Crown here. The answer to the first question is "no".

2. Section 119(d) of the Magistrates Ordinance provides that the appeal judge "may exercise any power which the magistrate might have exercised" and do not see any reason why those plain words would not include the magistrates power to amend, as set out in Section 27 of the Magistrates Ordinance. I am however also satisfied that if tine judge decides to so amend a charge he may not then go ahead and dismiss the appeal, no matter how trifling the amendment. Section 27 sets out very precisely what a magistrate must do after any amendment such as giving the defendant the right to re-call any witness for further cross-examination if appropriate. Clearly that is not a procedure which should be carried out in the appeal court even if it was physically possible to do so and if the appeal judge does decide to amend the charge he must then remit the amended charge back to the magistrate for hearing de novo. The answer to question two, as framed, is therefore also "no".

3. There are several Hong Kong decisions which have been cited as supporting the view that Section 119(d) contained a power to reach a decision, on an appeal from a magistrate, which could ignore technicalities and simply do justice as the judge saw it on the record before him. Indeed it seems strange that the Court of Appeal is empowered by tae proviso to Section 83(l) of the Criminal Procedure Ordinance to dismiss an appeal if satisfied that no injustice has occurred but a judge hearing an appeal from a magistrate cannot do So. All the earlier Hong Kong decisions however were laid down before the 1987 amendment to the Magistrates Ordinance. Before that the section provided that "(i) no objection shall be taken or allowed to any complaint, information or summons for any alleged defect therein in substance or in form, or for any variance between such complaint, information or summons and the evidence adduced in support thereof, and the adjudicating magistrate shall in all cases give judgment upon the substantial merits and facts of the case as proved before him and convict the defendant of the offence with which he was charged with such variation as has been warranted by the evidence or of any offence which under the provisions of the section 10(2)(c) could have been tried therewith."

    it was somewhat draconian legislation and the amendment was clearly simply intended to allow a magistrate in an appropriate case, to acquit a defendant if there was a defect in the charge or if the evidence produced did not justify a conviction on the charge as laid, and it would be inappropriate to allow an amendment. Mr. Sedgwick concedes that if the section had not been amended this appeal must fail because, as the judge may exercise any of the magistrate's powers lie also could ignore any defect in the charge and "give judgment upon the substantial merits and facts of the case''.

35. The question is therefore whether the Section 119(d) on its own and without the support of Section 27 is so worded as to give the judge a "proviso like" power.

36. With reluctance I must also find that it does not. It seems to me than such a power must be conferred by the Legislature in clear terms. Before the re-enactment of Section 27 the power was probably not as well defined as it could have been but it was sufficient for the courts to decide as they did. Mr. Sedgwick thought that to succeed on this question he must show that all previous Hong Kong decisions were wrong - a formidable task. I do not think he was right in that. The underlying legislative basis for those decisions was changed - albeit, perhaps, unwittingly - by the 1987 amendment. I have no doubt that, as Mr. Sedgwick suggests' the position will be soon remedied. However that is a task for the Legislature.

37. I would also agree that the answer to the third question is "no" and the consequence of that should be that the matter be remitted back as set out by my Lord Kempster.

38. I would only add that this appeal has been researched and argued before us on both sides with great diligence and ability.