ATTORNEY GENERAL v. JACQUALINE HAMILTON

HEADNOTE

Sec 27 of Magistrates Ordinance - imposes on magistrates a mandatory obligation such amendments as are appropriate to his “judgement on the substantial merits of the case” - findings of fact with alternative offence being proved - failure to amend required that case be remitted and retried before another magistrate.

Appeal by way of case stated - undesirable when only a question of law in issue for full notes of evidence to be included as part of case stated - useful guidance on form of case stated to be found in A.G. v Leung Chi-kin.

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 489 OF 1987

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JUDGMENT

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1. This was an appeal by way of case stated against the dismissal of four charges laid against the respondent alleging the obtaining of services by deception contrary to Section 18A(l) of the Theft Ordinance, Cap. 210.

2. Each count was of a similar nature and charged that the respondent had over various periods in June, July and August, 1986 dishonestly obtained services by deception from four different hotels or guest houses by falsely representing that she would pay the bills upon presentation.

3. The crown does not seek, for the purposes of this hearing, to question the trial magistrate's findings of fact, but it is contended that on the basis of those findings he should have amended the charges, in accordance with the procedures set out in Section 27 of the Magistrates Ordinance, Cap. 227, from those laid to charges of dishonestly making off without payment contrary to section 18C(1) of the Theft Ordinance.

4. Mr McCoy, in arguing the Crown's case, submitted that Section 27 of the Magistrates Ordinance, as it applied at the time of this trial in the Lower Court, imposed an obligation on the magistrate to make such amendments as were appropriate to his “judgment on the substantial merits and facts of the case”. Mr Spicer for the respondent, conceded that section 27 was a mandatory provision.

5. I was then referred to the magistrate's findings and in particular to the following passage:-

"Leaving a hotel without payment is not of itself sufficient proof of obtaining services by deception though it is evidence to consider. It was necessary to look at the mind of the defendant and consider her beliefs and intentions. The defendant gave evidence and I observed her throughout the trial. I had an overwhelming impression of emotional instability and of a person who at times seemed to be living in her own unrealistic world with indications of delusions of persecution. Such an assessment is relevant to the mens rea required on Charges A, B, C and D. Those charges were allegations of dishonestly obtaining services by deception. I am satisfied the defendant believed matters with the hotels the subject of Charges A, B, C and D were as she related in evidence, and that payment was to be made at the conclusion of each stay."

6. It is the latter finding which the Crown contends is of significance because while the magistrate may have reached the conclusion that, viewed subjectively, the respondent did not dishonestly obtain services by deception, he did so on the basis that it was her belief payment for such services was not to be made until the conclusion of each stay. Mr McCoy pointed out, however, that it was also a clear finding of fact that in each case she had left the hotel without paying the full amount and that each charge should, therefore, have been amended to one of making off without payment.

7. Mr Spicer, while agreeing that the amendments should have been made, argued that on the basis of the findings of the learned magistrate she would also have to be acquitted of the amended charges. He relied on the fact that as the element of "dishonesty" is equally applicable in the offence of making off without payment as it is in obtaining services by deception the magistrate's assessment of the respondent's emotional instability and lack of realism precluded a subjective finding of any dishonest conduct on her part.

8. With respect, I cannot agree. The magistrate has clearly indicated that he believed the respondent knew that payment was due at the end of each stay, and that is a clear application by him of one of the two aspects of the element of dishonesty, the subjective test. The other aspect, the standard of honesty, is, of course, determined on an objective approach and Mr Spicer did not seek to argue that the reasonable and honest person could have expected to leave a hotel in which he had been staying without making payment.

9. It was with obvious interest, therefore, that I looked to the learned magistrate's findings for possible reasons as to why he did not amend the charges. His comments on this are confined to the following:-

"The question of whether I should amend the said informations A to D under section 27 of the Magistrates Ordinance ……… was not raised at the said trial but was considered by me. I decided not to amend the said information as aforesaid."

10. This is a singularly unhelpful approach to what is, after all, a mandatory requirement imposed by a provision of the Magistrates Ordinance and I was left with little alternative but to answer the question as to whether the learned magistrate erred in not making the amendments under section 27 of Cap. 227 in the affirmative. It is my view that the proper course is to allow the appeal and order that the case be remitted to South Kowloon Magistracy to be retried before another magistrate.

11. It is, perhaps, timely to touch briefly on the preparation of cases stated as, recently, a number of these have failed to comply with the correct form. In this instance the learned magistrate has, after setting out the informations, allowed the full notes of evidence to be included as part of the case stated. This is undesirable when the questions the Court is asked to answer are issues of law and useful guidelines for those preparing such cases are succinctly set out in Attorney General v. Leung Chi-kin[1].

12. In his judgment, Huggins J. has carefully laid down the basic requirements of a case stated and the form it should take with particular reference to material which it should not be generally necessary to include.