HKSAR v. ADEOLA AREMU GEORGE

HCMA182/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.182 OF 2002

(ON APPEAL FROM WSCC 227 OF 2002)

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J U D G M E N T

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1. This is an appeal against conviction.

2. The appellant was convicted of theft of two Prada ties valued at $840 in total, contrary to section 9 of the Theft Ordinance, Cap.210.

3. The particulars of the charged offence of which the appellant was convicted were as follows :

4. The prosecution had opened its case on the basis of the contents of the brief facts before the magistrate. The body of that document simply repeated the evidence relied upon by the prosecution. That was to the effect that the appellant was stopped by police, who asked where he had gotten the items (of which the two ties the subject of the charge formed part) which were in the bag the appellant was carrying. The appellant produced receipts for all items except the two ties which he said he had found on the pavement.

5. The brief facts also described the location of the offence as being "on the pavement in Des Voeux Road". Nothing further said by the prosecution, or put by the prosecution in cross-examination of the appellant, specified that theft of the ties from the Prada shop from where they had earlier been found missing was part of its case.

6. The facts of the case as found by the magistrate were set out in his Statement of Findings, in his own words, as follows :

" Shortly after the Defendant had stolen P1 [the two Prada ties] from a Prada shop in Central; he concealed the stolen property, P1, in the Lane Crawford bag. Upon seeing the police, the guilty conscience drove the Defendant to have attempted to avoid PW1 [a police officer]. The suspicious behaviour of the Defendant attracted the attention of PW1. When the Defendant was intercepted and questioned by PW1 as to where he had purchased P1, he had given a foolish and senseless answer which led PW1 to concentrate the investigation in the Defendant's purchasing history on the material day. The price tag on P1 effectively led the police to the nearby Prada shop where it was confirmed that P1 was found missing from stock and that no sale record of P1 on the material day. It was not a 'theft by finding' case. The Defendant had gone through a shoplifting exercise; he dishonestly appropriated P1 from Prada shop. In the premises the Defendant was convicted." (emphasis added)

7. Mr Boyton appeals the appellant's conviction on grounds which can be fairly summarised to the effect that the appellant faced trial throughout on a charge particualrised as a theft by the appellant's finding of the ties on the pavement of Des Voeux Road in Central yet, without any amendment to that location specified in the charge during the trial, was convicted, effectively, of a different offence of stealing the ties from the Prada shop in Alexandra House in Ice House Street.

8. Mr Boyton who also represented the appellant at trial presented a concise argument before me to the effect that as it had never been suggested during the trial that the particularised offence was not the basis of the prosecution case that, accordingly, the defence had properly attempted to meet that charged offence of theft by finding on the particularised pavement location and no other. He argues that in those circumstances, it was wrong that the appellant be convicted of an offence which involved a different method of theft from a different location.

9. I accept that the charge the appellant faced at all times effectively alleged a theft by finding, by its particularisation of the location of the offence, and that allegation was maintained by the statement as to the location of the offence in the brief facts, albeit in the formal particulars of that document, and used as the prosecution's opening.

10. When the magistrate retired to consider his verdict, the particulars of the charge remained un-amended. Nor had anything been done to bring to the appellant's attention that an alternative basis for his conviction of shoplifting from the Prada shop was under consideration. When the magistrate returned and delivered his oral Reasons for Verdict he said, inter alia, that he found the appellant "guilty as charged", but in his Statement of Findings, he specifically stated that he convicted the appellant on the basis that the appellant had stolen two Prada ties from the Prada shop itself.

11. I am sure that that latter finding was in fact the real basis of the appellant's conviction. In those circumstances, the appellant was convicted on a different basis to the case as particularised in the charge. In my judgment and in the circumstances of this case, there is at least a substantial risk that the appellant was under a misapprehension as to what was alleged against him. I appreciate that, with this sort of offence, it is difficult sometimes for the prosecution to know precisely how, when and where a defendant may have stolen a particular item. In those circumstances, the prosecution cannot be criticised for particualrising only that which they can prove.

12. But in the present case, the prosecution nailed their colours to the mast, so to speak, by particularising in the charge alleging the offence, that the appellant had stolen the ties when he found them on the pavement in Des Voeux Road. That then was the case the appellant had to meet unless he was made aware that there was an alternative basis on which the prosecution sought a conviction, i.e., that the appellant was alternatively alleged to have shoplifted the ties from the Prada shop in Alexandra House.

13. Nothing was done during the course of the trial to bring to the appellant's attention, or apparently to that of his counsel, that the alternative basis to the prosecution's case was also before the court. The charge was never amended to reflect this alternative basis for a possible conviction of the appellant.

14. Mr Boyton tells me that if it had been brought to his attention that either the prosecution sought, or the magistrate was considering, a conviction of the appellant on the basis not of a theft by finding but of a direct shoplifting, then he would have adopted a different course in the conduct of the defence. He primarily would have cross-examined staff members from the Prada shop as to whether they had seen the appellant in their shop on the day of the alleged theft of the ties from that shop, and would also have been concerned to discover from the same staff members how it could possibly be that the ties could have been removed from the shop illegally while they still had their security tags in place.

15. I accept that if Mr Boyton had been alerted to the alternative basis of the prosecution's case against his client then there were other approaches that reasonably could and should have been taken to the prosecution evidence, on behalf of the appellant. In my judgment, therefore, the appellant in his trial was prejudiced by the terms of the charge leading him to believe the case he had to meet was a theft by finding when the magistrate found it open to him to convict of a shoplifting offence, at a different location. In my view, that breaches the general principles of the common law.

16. In R. v. Warburton-Pitt (1991) 92 Cr.App.R.136, the pilot of an ultra-light aircraft stalled it shortly after take off and crashed into a group of spectators killing one. He was charged with recklessly having permitted the aircraft to endanger persons. The case against him was presented as being a reckless turn he had attempted to make following take off. At the end of the trial, the judge left the case to the jury on a further basis that the appellant had recklessly continued his take-off when he should have aborted it. That latter basis have never formed any part of the prosecution's conduct of the case. In allowing the appeal, the Court of Appeal said :

" The prosecution never advanced the argument at committal proceedings or in their opening at the trial that the appellant should have aborted his take-off. So if, prior to arraignment, the prosecution had been required to provide particulars, those particulars would be restricted to the four allegations which have been mentioned and would not have included any allegation that the appellant should have aborted his take-off. That being the case, the prosecution would not, without amendment, have been permitted to go outside the particulars or to put their case in any other way, and the learned trial judge would not have directed the jury on any different basis."

17. The same principle had earlier been applied in R. v. Joan Olive Falconer-Atlee (1974) 58 Cr.App.R., a theft where the prosecution alleged the defendant had simply kept a prize dog after belatedly realising it had been given to her in error. The Court of Appeal regarded it as wrong in those circumstances for the judge to have left for the jury's consideration an alternative basis for conviction being the defendant's obtaining the dog in the first place by dishonestly substituting and switching another dog for it.

18. So far as general principle is concerned, it is wrong that a person be convicted of an offence on an alternative basis to that presented against him at trial so that he was unable to or did not have a proper opportunity to meet that alternative case against him. This is a matter of general principle, but it triggers the operation of section 27 of the Magistracies Ordinance, Cap.227, because the same protection to a defendant is statutorily provided in magistrates courts in Hong Kong by way of the operation of section 27. That section says :

"(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,

...

(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 witnesses.

(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;

..."

19. It seems to me that the provisions of section 27 effectively encapsulate the general principle of law reflected in Warburton-Pitt and Falconer-Atlee, certainly so far as the present case is concerned. The court in the present case should have proceeded by way of the mandatory provisions of section 27.

20. Pursuant to section 27(1)(a) and (b), once the magistrate in the present case had determined that the evidence presented before him may have allowed a conviction of the appellant on a different basis to the particularisation of the offence in the charge before him, then he should have directed his mind to the amendment of that charge, either by an amendment to its particularisation of the location of the offence, or by amending the charge sheet so as to contain an alternative charge reflecting the alternative basis of the offence. Of course, any such amendment could only occur after the provisions of section 27(2) were taken into account. If there was no unfairness to the appellant and the provisions of section 27(2) could be complied with, then the mandatory requirements of section 27(3) would then operate to allow inter alia the recall or calling of existing or additional witnesses in respect of the subject matter of the amendment after the magistrate had explained the effect of the amended charge or charge sheet to the appellant so as to allow the appellant the opportunity to respond to the new basis of the prosecution case.

21. There is one further matter I wish to address. Mr Tam, who argued the respondent's case very capably and fairly before me, relied upon section 23(1) of the Magistrates Ordinance to support the conviction. That section says :

"(1) In every case of an information for any offence punishable on summary conviction any variance between the information and the evidence adduced in support thereof as to the time at which the offence or act is alleged to have been committed shall not be deemed material, if it is proved that such information was in fact laid within the time limited by law for laying the same; and any variance between the information and the evidence adduced in support thereof as to the place in which the offence or act is alleged to have been committed shall not be deemed material, provided that the offence or act is proved to have been committed within the jurisdiction of the magistrate by whom the information is heard and determined." (emphasis added)

22. Mr Tam says the provisions of section 23(1) thereby render as immaterial any misstatement of date or location in a charge sheet and that accordingly, the misstated allegation in the particulars of the present charge is not sufficient to overturn the conviction.

23. With respect, it seems to me that section 23(1) in its terms simply states that a variance between the place or date of offence pleaded in the charge and the place or date of offence as adduced in evidence "shall not be deemed material". The provision simply means that any such variation shall not, of itself, be a material defect or variation. But the section does not and cannot mean that a variation between the charge particulars and the evidence as to the place or date is always immaterial. Such variations are frequently material. A variation of one week, for example, in the date of the offence may well be significant so far as any alibi defence is concerned. Equally for the same reasons, a significant variation in the place of offence may also be material to such a defence where an appellant may have been able to say that he was somewhere else at the time of the offence.

24. In my judgment, section 23(1) operates so as to, in appropriate cases, allow small variations in date and place between the particularisation of the offence and the evidence called to be regarded, where appropriate, as immaterial by preventing them being deemed material. Whether such a variation is material will be determined on the facts and circumstances of a particular case. Section 23(1) does not operate so as to prevent the application of the principles of law I have expressed in this judgment.

25. For the reasons I have given, the appeal against conviction is allowed, and the conviction and sentence is set aside. The appellant has now returned to Namibia. Given that and the relatively small value of the stolen items, I do not order a re-trial.