THE QUEEN v. CHAN KWON-KENT

HEADNOTE

Defective information - wrong section number - no prejudice and charge held to be defective but not a nullity - power of court to make such order as it deems to be just on appeal from Magistrate.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Criminal Appeal No. 547 of 1985

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BETWEEN

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JUDGMENT

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1. This is an appeal against conviction on charges of inviting a person to be a member of a triad society.

Grounds of Appeal

2. The appellant was originally charged with three such offences but was acquitted on the first one and convicted of offences that on a day unknown between the 1st July 1984 and the 1st September 1984, he invited CHA Kam-tim and LUI Kwok-wing to become members of the Luen Ying She Triad Society. The offences were, in the charge, stated to be contrary to section 33(1) of the Societies Ordinance, Cap. 151, and the first point of appeal is that section 33(1) relates only to the police powers of entry and search of premises suspected to be used in connection with unlawful societies. It creats no offence and, therefore, the appellant argues that the charges are bad ab initio. The second ground of appeal is that the learned Magistrate convicted the appellant on the uncorroborated evidence of accomplices notwithstanding the fact that he found that such evidence contained "some discrepancies" and that the conviction was therefore unsafe on that ground.

3. At the hearing of the appeal Counsel for the appellant argued a further ground which was that the appellant being unrepresented in the Court below the learned Magistrate allowed a great deal of leading questions to be asked of the witnesses and that he should not have done so. Again Counsel suggests that this makes the conviction unsafe.

Mistake in Citation of Section

4. The first point regarding the wrong section being stated in the charge is, I think, fully covered by the case of McLaughlin v. The Queen (1983) 76 Cr. App. Reports 42, there it was held that such an indictment was defective but not a nullity. There the offence intended to be charged was one contrary to section 3(a) of the Explosive Substances Act 1883 whereas the appellant was in fact prosecuted under section 5(6) of the Criminal Law Act 1977. O'Connor, L.J. said in McLaughlin that the appellant was in no way prejudiced or embarrasses by the defect in the indictment, 'In our judgment it is quite plain that is a case for applying the proviso'. In R. v. Wang (1963) H.K.L.R. p.454 The Court of Appeal dismissed an appeal because they were satisfied that a defect in the charges had caused no prejudice to the appellant. That decision was followed in Kwong Shek v. R. Criminal Appeal 267/73. In both cases the Court did not specifically state that it was applying the proviso but the principle seems to be that if there was no prejudice to the accused by reason of a defect in the charge the conviction should stand. I am satisfied that that is correct and that there was no prejudice to the appellant here. Section 119(1)(d) of the Magistrates Ordinance provides that on appeal the judge may "make such order in the matter as he thinks just". It goes on to say he may, in doing so exercise any power which the Magistrate had. I do not consider that to be restrictive and am satisfied that I may generally make such order as will do justice. That ground of appeal must therefore fail.

Uncorroborated evidence of accomplices

5. I am also satisfied that there is nothing in the second ground of appeal because the learned Magistrate has, quite clearly, fully directed himself as to the danger of convicting on the uncorroborated evidence of accomplices. He specifically says 'I treated the evidence of the prosecution witnesses with caution. These boys were by no means reluctant to join the society. Indeed, I treated them as accomplices. I am, therefore, satisfied that the Magistrate was fully alert to the dangers involved but nevertheless he says that he was satisfied that the vital evidence was there and that it was true. That is a Pure finding of fact and the Magistrate, being aware of the principles involved, was perfectly entitled to come to the conclusion that he did.

Leading questions

6. The third ground of appeal is, in my view, of more substance. The accused was not only unrepresented but he is aged 17. That being so leading questions should not be allowed unless in the opinion of the Magistrate then they can be of no possible prejudice to the accused. However, in this case one witness LUI Kwok-wing who had been granted immunity was asked this question by the prosecution :

7. I think great care must be exercised by any court when there is a young unrepresented defendant and that there were some questions put to witnesses which certainly, I think, suggested the answer that was expected. However, having considered all the evidence in this case, I am satisfied that these questions made no material difference to the Magistrates finding and the appellant was not thereby prejudiced.

8. The appeal is dismissed.