THE QUEEN v. LI CHI-KWONG

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Headnote

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No jurisdiction to convict of alternative summary offence if separate information not laid within six months of offence.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Appeal No. 705 of 1986

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BETWEEN

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JUDGMENT

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1. At the hearing of this appeal against conviction counsel for the Crown conceded that the conviction could not stand. Having quashed the conviction accordingly, I now give my reasons for doing so.

2. It is not necessary to recite the facts of the case. What happened before the magistrate was this. The appellant was charged with careless driving on 13th September last year. The information was laid on 14th January, 1986. At the close of the defence case the magistrate found the appellant not guilty of careless driving, but convicted him under Regulation 83(2) of the Road Traffic (Construction and Maintenance of Vehicles) Regulations, despite the defending solicitor's submission that the magistrate had no jurisdiction to do so, since an information in respect of this offence had not been laid within six months. He relied upon section 26 of the Magistrates Ordinance, which provides:

"In any case of an offence, other than an indictable offence, where no time is limited by any Ordinance or statute for making any com-plaint or laying any information in respect of such offence, such complaint shall be made or such information laid within 6 months from the time when the matter of such complaint or information respectively arose."

 

3. The matter did not end there because the certificate of conviction, which is dated 29th May - the date of the trial - records that the appellant was convicted under regulations 5(4) and 121(1) of the same regulations.

4. To find the explanation for this, it is necessary to go forward to 9th June, on which date there was an application for review, which came on for hearing on 13th June.

5. The magistrate began by stating that he was amending the charge to an offence under Regulations 5(4) and 121(1); in fact no amendment to the summons appears to have been made.

6. Counsel again submitted that a conviction for an alternative summary offence was time barred, relying upon Attorney General v. TONG Yin-pui ⁽¹⁾. The magistrate disagreed on the grounds that the facts were the same as those giving rise to the careless driving information, which was laid within six months of the offence. He sought to distinguish Tong's case because the appellant in that case had originally been charged with dangerous driving, an indictable offence to which section 26 of the Magistrates Ordinance does not apply.

7. With respect that cannot be right. If the court has no jurisdiction to convict of careless driving, as an alternative to dangerous driving, because six months have passed since the offence, a fortiori in a case where a summary offence is alleged in the information and summons. I was satisfied therefore that the defence solicitor was correct and that the magistrate had no jurisdiction to convict of any alternative offence.

8. I would add that when an amendment is made, unless the defect is merely one of form or is of a minor nature, the provisions of section 27 of the Magistrates Ordinance must be strictly complied with. See R. v. TANG Poon-kan ⁽²⁾.

9. This was not done in this case and would, on that account alone, have required the conviction to be quashed.

(1) 1972 H.K.L.R. 71

(2) 1980 H.K.L.R. 885.