POON CHAU CHEONG v. SECRETARY FOR JUSTICE

CACV 123/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 123 OF 1999

(ON APPEAL FROM HCAL 1 OF 1999)

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J U D G M E N T

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Mayo, J.A.:

1. This is an appeal from a judgment of Woo, J. who dismissed the applicant's application for judicial review.

2. To obtain a background to the factual situation which presented itself to Woo, J. the best approach to adopt is to take in grounds 1 - 11 of the grounds upon which relief was sought in the application for judicial review:

"1. The Applicant is a Detective Senior Police Constable. On 11 February 1998 he was arrested by officers of the Independent Commission Against Corruption ('ICAC') and charged with an offence of soliciting an advantage, contrary to s.4(2)(a) Prevention of Bribery Ordinance, Cap. 201. ('the POBO'). Consent to prosecute was granted by the Secretary of Justice on 26.1.1998.

2. The particulars of the charge were to the effect that in May 1996 the Applicant had solicited $50,000 from one Tai Man Na ('Tai') on account of or in connection with his official duties investigating allegations of deception made by Tai on behalf of her company, Xing Ming Group Travel Service Co Ltd. An information was laid against the Applicant in these terms on February 1998 in the South Kowloon Magistracy by Leung Chung-shan, a Senior Investigating Officer of the ICAC.

3. The trial of the Applicant took place before Madam B. Chainrai on 1-5 June 1998, 11 June 1998, 31 August 1998 and 1 September 1998. During the trial counsel for the prosecution did not seek to amend the information or lay any new information against the Applicant.

4. On 11 September l998 Madam Chainrai dismissed the information. In giving her reasons for so doing the magistrate observed that there was no evidence that the Applicant had sought an advantage by way of a loan in connection with his official duties. The evidence was rather that the Applicant had asked for a simple loan.

5. On a date between 11 and 18 September 1998 the Secretary for Justice applied to the magistrate for a review of her decision under s.l04 Magistrates Ordinance, Cap. 227. By a letter dated 18 September 1998 the First Clerk at the Magistracy notified the Applicant's solicitors that the review was fixed for 28.9.1998 (later re-fixed to 5 October 1998).

6. The application for review was heard on 5 October 1998. The prosecution asked the magistrate to set aside the dismissal of the information and to substitute for the offence under s.4(2)(a) POBO a new offence under s. 3 POBO ('soliciting an advantage') using powers of amendment under s.27 Magistrates Ordinance, Cap. 227 and to try the Applicant for that new offence on the basis of the evidence already heard. The application was opposed on the grounds that the magistrate had no power to set aside an acquittal in these circumstances and that the time for bringing proceedings under s. 3 POBO had expired.

7. On 9 October 1998 the magistrate allowed the application for review and set aside her order of 11 September 1998 dismissing the information alleging an offence under s. 4(2)(a) POBO and she then substituted for the same a new offence under s.3 POBO.

8. On 14th October 1998 the Applicant applied for legal aid to seek judicial review of the magistrate's decision to set aside his acquittal and permitting a fresh information alleging a new offence to be laid against him.

9. On 27 November 1998 the Applicant withdrew an application that had been made on his behalf on 22nd October 1998 that the magistrate review her decision of 9 October 1998 under s.l04 Magistrates Ordinance, Cap. 227. This was done on the advice of counsel that there was no right of review under s. 104 of a decision already made under s. l04.

10. On 15 December 1998 the Director of Legal Aid granted the Applicant legal aid to apply for judicial review of the decision of the magistrate dated 9 October 1998.

11. On 18 December 1998 the magistrate adjourned the case for trial on 8 February 1999 after declining to adjourn the case generally to await the outcome of the Applicant's application for leave to apply for judicial review."

3. The relief sought on the application was:

"1. An order of prohibition to prevent the magistrate from determining the information dated 9 October 1998 alleging an offence contrary to s. 3 Prevention of Bribery Ordinance, Cap. 201; and

2. An order of certiorari to bring up and quash the decision of the magistrate dated 9 October 1998 to review her decision under s.19(2) Magistrates Ordinance, Cap. 227 to dismiss the information dated 9 September 1998 alleging an offence contrary to s.4(2)(a) Prevention of Bribery Ordinance, Cap. 201;

3. In the interim, an order under O. 53 r.3 10(a) directing that the grant of leave shall operate as a stay of proceedings relating to the information before Madam B. Chainrai alleging against the Applicant an offence contrary to s. 3 Prevention of Bribery Ordinance, Cap. 201."

4. Two issues arose on this judicial review. These have been formulated by Mr. Dykes, S.C. for the applicant as follows:

"a. What are the limits of a magistrate's power of review under s.104 MO? Specifically, can a magistrate set aside an order dismissing an information when the decision to acquit is not criticized and the purpose of the review is to introduce a new information which could have been preferred at the outset or introduced during the trial?

b. Assuming that a magistrate can 'amend' an information on a review using powers under s.27 MO by substituting one information for another, can that power be exercised when the time limit for laying the new information has expired?"

5. Before dealing with the substance of the first issue one matter can immediately be disposed of.

6. Mr. Dykes contended that it was a material matter that when the respondent had sought this review she had not criticised the magistrate's decision to acquit the applicant on the s.4(2)(a) offence.

7. In my view this is not a material consideration. The magistrate was properly seized of the review and it was clearly open to her to deal with the application in any way she saw fit so long as she exercised her powers in accordance with the provisions contained in the section.

8. It is desirable to set out s.104 of the Magistrates Ordinance, Cap. 227 in full:

"104. Review of decision by magistrate

(1) Within 14 clear days after the determination in any manner by a magistrate of any matter which he has power to determine in a summary way it shall be lawful for either party thereto to apply to the magistrate to review his decision in the matter. (Amended 69 of 1972 s. 2)

(2) An application may be made whether by the party himself or by his counsel, and shall be made in writing to the magistrates' clerk. (Replaced 13 of 1995 s. 64)

(3) If either party to the said matter is in the custody of the Commissioner of Correctional Services, the magistrate shall, unless he dismisses the application forthwith, inform the Commissioner of Correctional Services in writing that an application for a review has been made, and thereafter the Commissioner of Correctional Services shall produce the said party whenever so required in writing by a magistrate for the purposes of the review or of the application therefor.

(4) It shall be lawful for the magistrate to grant the application for a review at any time provided that the application for the review shall have been duly made in accordance with the provisions of subsections (1) and (2).

(4A) A magistrate shall not reject an application for a review without giving the applicant or his counsel an opportunity to make representations to him in open court. (Added 13 of 1995 s. 64)

(5) It shall also be lawful for a magistrate on his own initiative, within 14 clear days after the determination in any manner of any matter which he has power to determine in a summary way, to re-open the case, and thereafter, whether within the said period of 14 clear days or after its expiration, to review his decision in the matter. (Amended 69 of 1972 s. 2)

(6) If the magistrate on his own initiative reviews his decision or grants an application for a review, it shall be lawful for him upon the review to re-open and re-hear the case wholly or in part, and to take fresh evidence, and to reverse, vary or confirm his previous decision.

(7) If the magistrate upon the review decides that the case is one which should be re-opened and wholly re-heard and if he is of the opinion that in the interests of justice the case should be re-heard by another magistrate, it shall be lawful for some other magistrate to re-hear and determine the case accordingly.

(8) For the purpose of the review a magistrate shall have all the powers, as to securing the attendance of the parties and witnesses and otherwise, that he would have if the matter were brought before him as an original complaint or information.

(9) No application for a review shall be granted and no exercise by a magistrate shall be made of the power conferred on him by subsection (5) subsequent to the commencement of proceedings by either party with a view to questioning the decision of the magistrate by way of appeal, mandamus or certiorari, unless such proceedings shall have been abandoned. (Replaced 24 of 1949 s. 38)

(10) For the purpose of determining the time within which an appeal whether by way of case stated under section 105 or under section 113 may be lodged, the determination of a case by way of review under this section or the refusal to grant a review shall, in the event of such determination or refusal and notwithstanding anything contained in the sections aforesaid, or in section 114 be the date as from which the respective periods for lodging an appeal shall run but nothing in this Ordinance shall authorize an appeal, whether by way of case stated or otherwise, from the refusal of a magistrate to grant a review. (Replaced 24 of 1949 s. 38)"

9. For the purpose of this appeal the operative subsection is s.104(6).

10. Mr. Dykes submitted the "decision" which was being referred to in the subsection was simply the decision of the magistrate to acquit the applicant on the s.4(2)(a) information. In this connection he referred us to s.19(2) of the Magistrates Ordinance which is couched in this form:

"(2) The magistrate, having heard what each party has to say and the witnesses and evidence so adduced, shall consider the whole matter and determine the same, and shall convict or make an order against the defendant or dismiss the complaint or information, as the case may be."

11. Mr. Dykes went on to submit that it was clear from the subsection that a magistrate's powers were severely circumscribed and that the only "decision" which the magistrate had been empowered to make was to confirm or to dismiss the s.4(2)(a) information. It was accordingly not open to the magistrate on the review to make an order pursuant to s.27 of the Ordinance to amend the information.

12. Put another way the magistrate was only empowered to invoke s.27 during the currency of the proceedings before her.

13. Mr. Dykes went on to argue that having regard to the wording of s.104(6) there was no power to set aside an acquittal for the purpose of laying a new information. What the magistrate had in fact done was to take away from the applicant the positive benefit of a decision to acquit on the s.4(2)(a) information.

14. In my view it is necessary to read s.104(6) in conjunction with the other provisions relating to reviews. In particular s.104(7) is illuminating. What is clearly envisaged is that if the rehearing should be before another magistrate the case should be re-opened and wholly reheard. There can be no justification for interpreting these powers in such a way as to provide for different criteria to be applied if the hearing is before a different magistrate.

15. In this connection if there is to be a rehearing of the case I can see no reason whatever why the duty to make amendments pursuant to s.27 should be in any way limited. There is certainly nothing in the Ordinance to suggest such a limitation. This being the case it would not seem to make any difference if the amendments are effected during the currency of the hearing or on a review.

16. As was pointed out by Mr. To for the respondent the important word in s.104(6) was the word "vary". This was a clear indication that something more than reversing or confirming the decision was contemplated.

17. In my view there is considerable merit in this contention.

18. Equally I can see no reason to limit the reference to the "previous decision" in the manner proposed by Mr. Dykes.

19. What is clear is that reviews undertaken by magistrate often extend beyond the simple question of whether or not there should be a conviction or an acquittal. An obvious example being an application for the review of a sentence which has been passed.

20. Mr. Dykes also advanced reasons of policy to support his interpretation of the Ordinance. In particular he contended that if it was possible to proceed in the manner proposed by the respondent this would not promote a satisfactory degree of finality.

21. The answer to this is that the mere fact of a power to review under the Ordinance militates against finality. Any application to review a decision has to be made timeously and should be resolved without undue delay.

22. A further matter which has to be considered in this connection is the right of the parties to apply to a magistrate to appeal by way of case stated under s.105 of the Magistrates Ordinance. This of course also detracts from finality.

23. It is also perhaps of significance to note that it would appear that the respondent may have been able to achieve the same objective if instead of seeking a review under s.104 she had applied to the magistrate to state a case under s.105.

24. In my view this would suggest that unless the present application was clearly outside the scope of s.104 it was likely that the legislature had it in mind to confer a power on magistrates to achieve a similar result by way of review.

25. For all these reasons in my view the magistrate did have the power to proceed in the way she did.

26. This then leads to the second issue which is raised which is when an amendment is made substituting one offence for another can the amendment be made when the time limit for laying the new information has expired.

27. Mr. Dykes' main submission on this was that s.27 of the Ordinance had to be read in conjunction with s. 23. The two sections read as follows:

"23. Variance between information and evidence

(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.

(2) If any such variance, or any variance in any other respect between the information and the evidence adduced in support thereof, appears to the magistrate to be such that the defendant has been thereby deceived or misled the magistrate may -

(a) adjourn the hearing of the case and if he is satisfied that the variance is due to default or neglect on the part of the complainant, informant or his counsel, as the case may be, he may order that the complainant or informant shall pay to the defendant such costs, not exceeding $5,000, as the magistrate may think fit; and (Amended 18 of 1981 s. 3)

(b) commit the defendant to prison or some place of security or to such other custody as the magistrate may think fit, or admit him to bail, with or without surety or sureties. (See Forms 5-9)
(Replaced 36 of 1976 s. 8)

(3) Where a defendant admitted to bail under subsection (2)(b) does not appear at the time and place appointed for the adjourned hearing, a magistrate may declare any recognizance to be forfeited and issue a warrant for the arrest of the defendant. (See Form 3) (Added 36 of 1976 s. 8)"

"27. Defects in and amendment of complaint, information or summons

(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) amend the complaint, information or summons if he is satisfied that no injustice would be caused 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 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;

(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, not 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" (修訂) includes the substitution of another offence in place of that alleged in the complaint, information or summons.

(Replaced 5 of 1987 s. 2)"

28. The point being made by Mr. Dykes was that the question of time was clearly a matter of importance under the legislation. This being the case it would only be possible to over ride a time limitation if s.27(2)(b) could be invoked.

29. Mr. Dykes submitted that it could not be argued that an injustice would not arise in the present case. He referred to the fact that there were material differences between s.4(2) and s.3 offences under the Prevention Bribery Ordinance, Cap. 201 (POBO) and the fact that his client had lost the benefit of his acquittal on the s.4(2) information.

30. Mr. To submitted that he was able to derive assistance from the provisions contained in s.32 of the POBO. The section reads:

"32. Alternative convictions, and amending particulars

(1) If, on the trial of any person for any offence under Part II, it is not proved that the accused is guilty of the offence charged but it is proved that the accused is guilty of some other offence under Part II, the accused may, notwithstanding the absence of consent under section 31 in respect of such other offence, be convicted of such other offence, and be liable to be dealt with accordingly. (Amended 56 of 1973 s. 5)

(2) If on the trial of any person for any offence under Part II there is any material variance between the particulars of the offence charged and the evidence adduced in support thereof, such variance shall not, of itself, entitle the accused to an acquittal of the offence charged if, in the opinion of the court, there is prima facie evidence of the commission of that offence, and in such a case the court may, notwithstanding the absence of consent under section 31 in respect of the particulars supported by the evidence adduced, make the necessary amendment to the particulars, and shall thereupon read and explain the same to the accused and the parties shall be allowed to recall and examine on matters relevant to such amendment any witness who may have been examined and, subject to the provisions of subsection (3), to call any further witness. (Amended 56 of 1973 s. 5)

(3) If an amendment is made under subsection (2) after the case for the prosecution is closed no further witness may be called by the prosecution other than such and on such matters only as it would, apart from the provisions of this subsection, be permissible to call and put in evidence in rebuttal.

(4) Nothing in this section shall exclude the application of any other law whereby a person may be found guilty of an offence other than that with which he is charged."

31. He argued that s.3 could be regarded as a statutory alternative to s.4. This being the case the institution of the proceedings under s.4(2) had a similar effect to an information being laid under s.3. However he did not just rely upon this as he accepted that it was incumbent upon him to demonstrate that all of the requirements of s.27 had been complied with.

32. The Divisional Court in England considered the question of amendments alleging different offences where there was a time bar operating for the different offences in R. v. Newcastle upon Tyne Justices of the Peace Ex parte John Bryce (Contractors) Ltd. [1976] 1 WLR 517. It was held such amendments could be made in an appropriate case so long as no injustice was done to the defence. May, J. said this at p.520D:

"In my view the six months' limitation provision in section 104 of the Magistrates' Court Act 1952 is to ensure that summary offences are charged and tried as soon as reasonably possible after their alleged commission, so that the recollection of witnesses may still be reasonably clear, and so that there shall be no unnecessary delay in the disposal by magistrates' courts throughout the country of the summary offences brought before them to be tried. It is in this context that their power to permit the amendment of an information under section 100 referred to by Lord Widgery C.J. in Garfield v. Maddocks [1974] Q.B. 7, 12 is to be exercised. It must be exercised judicially. It must be exercised so as to do justice between the parties. But where it can be so exercised, where an information can be amended, even to allege a different offence, so that no injustice is done to the defence, I for my part can see no reason why the justices should not so exercise it even though the amendment is allowed after the expiry of the six months' period from the commission of the alleged offence."

33. This case was followed by Stock, J. in AG v. Wong Lau trading as Kiu Keung Construction and Engineering Co. [1993] 1 HKCLR 257 and by Keith, J. (as he then was) in AG v. Yeung Lee Transportation and Engineering Ltd. [1995] 1 HKCLR 144.

34. Mr. Dykes made the point that there are differences between the legislative regime in England and the scheme here. However he was unable to indicate any significant differences relevant to this issue.

35. The other case which was referred to which shed light on this topic was AG. v. Fung Si Tsou [1986] HKC 567. This case also was concerned with a time bar. Roberts, C.J. had this to say at p. 573:

"The application relating to conviction is based on the interpretation of s 31A of the Prevention of Bribery Ordinance which provides that 'a complaint may be made or an information laid' in respect of an offence under s 3 within two years from the time when the matter of complaint or information arose. In this instance, the date on which the offence in the second charge, with which we are concerned, took place was 27 July 1983.

D1 was charged and brought before a magistrates' court on 22 November 1985, outside the two-year limit prescribed. When a section refers to a 'complaint being made or an information laid', it must be taken to be referring to the making of a complaint or laying of an information before a court, not to the lodging of a complaint with the investigating authorities.

That would have been no doubt the end of the matter had it not been for the fact that at the conclusion of the trial the Deputy Judge, having acquitted D1 on the charge brought against him under s 4 of the Prevention of Bribery Ordinance, sought to take advantage of the provisions of s 32 and substitute a finding of guilt of a charge under s 3 of the Prevention of Bribery Ordinance.

Once the statutory period for the bringing of the charge has expired, it cannot be revived in this roundabout way by convicting of it as an alternative verdict to a charge which is not time-barred. It is not possible, in other words, to bring a dead horse to life by throwing a blanket over it.

The Crown very properly conceded that they could not support this conviction for the reasons which we have given."

36. This case however is clearly distinguishable from the instant case. Here there is no question of throwing a blanket over a dead horse. Our horse is very much alive. This can be seen from the factual grounds upon which relief was sought in the judicial review cited earlier in this judgment.

37. I am satisfied that the questions which were before the magistrate and the Judge were whether there was in fact sufficient similarity between sections 3 and 4 of the POBO and if so, whether any injustice would be occasioned to the applicant if the amendment proposed was to be made.

38. On the first point it has to be said that s.4(2) virtually embraces all the ingredients required to make out a case under s.3. The main difference being the requirement under s.4(2) of establishing that there has been an inducement. This of course is an onerous requirement. The other difference is the necessity in s.3 to obtain the permission of the Governor before an advantage is accepted. This has to be balanced against the requirement under s.4(2) of having lawful authority or reasonable excuse. Looked at as a whole I am satisfied that there is sufficient similarity between the sections to bring the case within the parameters of Ex parte John Bryce.

39. The next matter which has to be considered is whether it has been demonstrated that no injustice has been occasioned to the applicant consequent upon the amendment. It is clear that both the magistrate and Woo, J. were concerned about this aspect of the matter.

40. The main contention advanced by Mr. Dykes is that the applicant has been deprived of the acquittal he obtained on the s.4(2) information. I do not think that this is a valid objection. It has to be accepted that even if this amendment had been disallowed it would have been open to the respondent to require the magistrate to state a case under s.105 of the Magistrates Ordinance. This being the case the applicant's acquittal would have been placed at risk. The fact of the matter is that the respondent is alleging that the magistrate erred in law when she acquitted the applicant and this being the case the acquittal was wrong. I do not think that the applicant has been able to establish that he has been occasioned any injustice as a consequence of this amendment.

41. Following from this I am satisfied that the magistrate was right to amend the information in the way she did notwithstanding the time bar point.

42. For all of these reasons I consider that Woo, J. was right in declining to grant the relief which was sought in the judicial review. In my view this appeal should be dismissed and the respondent should be entitled to her costs.

Rogers, J.A.:

43. There are two issues in this appeal. The first is as to whether the Magistrate on the hearing of a review under Section 104 of the Magistrates Ordinance, Cap. 227 was entitled not only to reverse the decision previously given and set aside the acquittal of the Applicant on the charge under Section 4(2)(a) of the Prevention of Bribery Ordinance, Cap. 201 but also to amend the charge to one under Section 3 of the Prevention of Bribery Ordinance. The second issue is as to whether Section 27 of the Magistrates Ordinance and Section 32 of the Prevention of Bribery Ordinance can together give a Magistrate power to amend a charge previously brought under Section 4(2)(a) to one under Section 3 of the Prevention of Bribery Ordinance, in circumstances where the amendment would be made on a date after the expiration of the two-year period limited by Section 31A of the Prevention of Bribery Ordinance for the laying of an information under Section 3.

The power to amend the charge

44. Section 104 of the Magistrates Ordinance gives the Magistrate a power to review his decision in a matter. Subsection (1) provides that a party may apply to the Magistrate to review his decision in a matter. Subsection (5) provides that a Magistrate may re-open a case on his own initiative to review his decision in a matter.

45. Subsection (6) provides that:-

"If the Magistrate on his own initiative reviews his decision or grants an application for a review, it shall be lawful for him upon the review to re-open and re-hear the case wholly or in part, and to take fresh evidence, and to reverse, vary or confirm his previous decision."

On this wording, it would seem that the power of the Magistrate to re-hear a case wholly and to take fresh evidence in effect means that the hearing before the Magistrate would be a complete re-hearing. If a Magistrate were to take the course of re-hearing the case wholly, it would appear that the relevant evidence upon which the Magistrate would act would be the evidence given at the re-hearing. Nevertheless, Mr. Dykes S.C. argued that the powers of the Magistrate were confined to reversing, varying or confirming the Magistrate's previous decision. In this case the previous decision was one under Section 19(2) of the Magistrates Ordinance whereby the Magistrate dismissed the information. The powers under that subsection are limited to convicting or making an order against the Defendant or dismissing the complaint or information as the case may be.

46. In my view, such a construction of Section 104 gives that Section too narrow a meaning. On the face of the matter, if the Magistrate has power to re-hear the case, he or she must have all his or her other ancillary powers as well.

47. Section 27 of the Magistrates Ordinance provides that:-

"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) amend the complaint, information or summons if he is satisfied that no injustice would be caused by the amendment; or

(ii) dismiss the complaint, information or summons."

48. Subsection (2) provides that:-

"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."

49. At Common Law, the power of amendment in criminal proceedings was strictly limited. Even where the power existed, it would not be exercised if there were any question of prejudice to a Defendant.

50. The power of amendment in criminal proceedings was enhanced under the Criminal Procedure Act 1851 and, in particular, Section 1. Even there however the powers of the Court to permit amendment were strictly limited.

51. But that is only a matter of historical interest. Section 27 not only now clearly gives a power to amend an information which would include changing the offence of which the Defendant is charged but, as has been held by this Court, imposes an obligation on the Magistrate so to do where the requirements in the section are met.

52. The powers under Section 27 of the Magistrates Ordinance have to be read in conjunction with the provisions of Section 32 of the Prevention of Bribery Ordinance which reads as follows:

"(1) If, on the trial of any person for any offence under Part II, it is not proved that the accused is guilty of the offence charged but it is proved that the accused is guilty of some other offence under Part II, the accused may, notwithstanding the absence of consent under Section 31 in respect to such other offence, be convicted of such other offence and be liable to be dealt with accordingly.

(4) Nothing in the section shall exclude the application of any other law whereby a person may be found guilty of an offence other than that with which he is charged."

Subsection (4) therefore makes clear that the Magistrate is not prevented from allowing an amendment which would permit the finding of guilt of an offence other than that with which the accused is charged if that is permitted under any other law. It would follow therefore that the Prevention of Bribery Ordinance would not exclude the possibility of the amendment of an information to change the offence charged from one offence to another. It would seem a finding of guilt on an offence charged on an amended information would clearly be less objectionable than a finding of guilt on an offence for which a person has not been charged.

53. Subsection (1) merely provides that it is not an objection to conviction for an alternative offence that the consent of the Secretary for Justice, under Section 31 of the Ordinance, has not been obtained.

54. On the face of it, there may seem to be a conflict between Section 27(1)(i) and Section 27(2)(b) in that subsection (1) would appear to exclude amendment except where the Magistrate is satisfied that no injustice would be caused whereas the second subsection permits an injustice provided that it may be cured by an order as to costs or an adjournment or leave to recall and further re-examine witnesses or call other witnesses. In my view, it is clear that subsection (2) is the guiding subsection and that the injustice will be permitted provided that it is curable.

55. I had at one stage considered that the argument that the powers under Section 104(6) of the Magistrates Ordinance might be limited as argued by Mr. Dykes because Section 104(8) provides that:-

"For the purposes of the review a Magistrate shall have all the powers, as to securing the attendance of the parties and witnesses and otherwise, that he would have if the matter were brought before him as an original complaint or information."

The insertion of a provision giving specific powers in certain circumstances might be thought to cast doubt on the proposition that there was a blanket incorporation of all powers. It seems to me however that this subsection is merely making it clear that even where the Magistrate is deciding whether or not a case should be re-opened or re-heard and before that decision is actually taken, he or she has the power to secure the attendance of the parties and the witnesses. Subsection 104(7) makes it clear that the Magistrate may review a case and decide that it should be re-opened or re-heard and then order that the re-hearing should take place in front of another Magistrate. It might be observed that without the power of compelling attendance of the parties under subsection 104(8), there would be no other power given to a Magistrate to compel the attendance of the parties after an acquittal and before another hearing takes place; evidence may be necessary for the Magistrate to come to a conclusion as to whether there should be a re-hearing hence the attendance of the witnesses might be necessary. The fact that the subsection encompasses not only the initial stages of a review but any re-hearing as well does not, it seems to me, militate that the Magistrate would not have all his or her other powers as well.

56. In my view, the powers under Section 104(6) are wide enough to include the power of a Magistrate under Section 27 to amend the information as to the offence charged.

The prejudice

The time limit

57. One of the important points in this case is that Section 31A prohibits the laying of information in respect of an offence under Section 3 after a period of two years from the time when the subject matter of the information arose. In this case, a period of two years had not elapsed between the events, the subject of the information and the laying of the original information. The amendment by the Magistrate took place after the two-year period had expired.

58. It is trite law in civil proceedings that an amendment of pleadings once made takes effect from the date of the original pleading. That really is a matter of logic because the original document has been amended. Whilst I have found no direct authority in respect of criminal proceedings, the statement of Yates J. in R. v. Wilkes 19 State Trials 1075 (the North Briton case) at page 1121-2 that in relation to Common Law amendments, there was no difference between civil and criminal proceedings lends support for the proposition that amendments in respect of criminal proceedings are treated in the same way as amendments in relation to civil proceedings. It may be noted that the other judges Aston and Willes J.J. concurred with what he said.

59. Once therefore it is established that an information may be amended, the question arises first as to whether the information can be amended after the expiry of a limitation period and secondly, whether the amendment is in any event impermissible because the Defendant would be prejudiced by the amendment.

60. I see no absolute bar to an amendment which permits the alteration of the offence charged to an offence which would be time barred at the date of the amendment. The divisional court in the case of R. v. Newcastle-upon-Tyne Justices ex. parte John Bryce (Contractor) Ltd. [1976] 1 W.L.R. 517 considered that, on the wording of Section 100 of the Magistrates' Courts Act 1952, an amendment was permissible even if the effect of it was to bring into contention a charge in respect of an offence which had not been previously charged after the expiry of a relevant time limit. Mr. Dykes criticised reliance on the decision upon the basis that the wording of the section and derivation of the section in the Magistrates' Courts Act 1952 was different from the Magistrates Ordinance in Hong Kong. Clearly the wording is different. I am far from convinced however that the wording of the Ordinance is narrower. Following a long line of authorities based in part upon previous similarly worded legislation May J. and Lord Widgery C.J. held that the power to amend was included in Section 100 of the Magistrates' Courts Act 1952. Lord Widgery said:

"On the other hand, in this instance the facts of the two competing offences are really identical, and it seems to me that the justices could hardly have reasonably come to any conclusion other than that the amendment here should be permitted."

Lord Widgery was following the same principle as was May J. at p.520F where he indicated that the power to amend should only be exercised where it would do justice between the parties and there would be no injustice to the Defendant.

61. As I have observed, in Hong Kong the legislation goes further than mere permission of amendment, albeit by inference, but rather imposes a mandatory requirement upon the Magistrate to amend in circumstances where it is appropriate.

The prejudice

62. It is said that the Defendant would be prejudiced by the fact that he would have been deprived of his acquittal under Section 4 of the Ordinance. It is said that there is no dispute that he should be acquitted under Section 4 of the Ordinance. In my view this deprivation of an overall acquittal is consequent upon the provisions of Section 104 which allows the Magistrate to review a case. This in itself is an erosion of the finality of criminal proceedings. The importance of this should not be underestimated. Nevertheless, it is something which follows from that section and not from the amendment.

63. In circumstances of this case, the facts to be alleged which form the basis of the charge in respect of an offence under Section 3 are all facts which had been alleged against the Applicant under the charge under Section 4(2). What must be proved under Section 3 is that the Defendant was a Crown Servant. In this case the allegation is that the Defendant was a police officer. That would bring him within the narrower category of Crown Servant in Section 3 but was also the basis on which it was alleged that he was a public servant within the meaning used in Section 4(2). Section 3 prohibits the soliciting or accepting of an advantage, but it is not limited, as is Section 4(2)(a), to it being an inducement to or reward for or otherwise on account of his performing or abstaining from performing, or having performed or abstained from performing, any act in his capacity as a public servant. Thus the narrower allegation under Section 4(2)(a) falls within the ambit of Section 3 and there is no change in the facts alleged. Finally the exception permitted under Section 3 that there has been general or special permission of the Governor falls within the wider ambit of the words "without lawful authority or reasonable excuse" in Section 4(2)(a). It is only here, as I note below, that I see any scope for discrepancy.

64. Therefore the facts alleged upon which the information in relation to Section 3 is founded are for the most part the same as those which formed the basis of the information under Section 4(2)(a). The latter section required, if anything, proof of additional facts to those required under Section 3.

65. The naturally important point where the information is in respect of an offence under a Section subject to a time limit which has expired is whether the Applicant would be in any way prejudiced as to his defence. This is of particular importance also where the offence is one which requires consent for a prosecution to be brought. I regret that I can see no prejudice to the Applicant in his defence.

66. A crucial factor is that the Applicant in this case has been put on notice that the facts and events referred to are to be the subject of a charge. The two relevant charges are very similar. The only possible prejudice which I can perceive could arise in a situation such as this would be if a Defendant had intended to rely upon the words "without lawful authority or reasonable excuse" under Section 4 without going to the trouble of showing that he had special authority of the Governor. For there to be any prejudice, the Defendant would have at least to argue that somehow the delay prevented him relying on that part of Section 3. As regards this case, not only is that not alleged but it is such a remote possibility that in my view it can be discounted. The Applicant would be put into jeopardy of conviction whereas after the acquittal he was not. That however in my view is not sufficient to make it impermissible for there to be an amendment of the charge.

67. Other matters of prejudice which have been relied upon are the disadvantage which the Applicant would suffer by reason of not being able to have an award of costs in his favour. In this case no order for costs had been applied for or granted after the acquittal. The matter is therefore somewhat academic. But even if the Magistrate were not able to make any order for costs in the Applicant's favour following the order on the review, it is not to say that any costs thrown away for which the Applicant should be compensated could not be taken into consideration at the end of the proceedings.

68. I too would dismiss this appeal.

Mortimer V.-P.:

69. It had been my intention to give a separate judgment in this matter but having heard the judgments which have been delivered, there is nothing that I can usefully add. I would also - for the reasons given - dismiss this appeal.

[Counsel]

70. We are prepared to certify that a point of great and general importance is involved in our decision. The point is,

"Whether the provisions of s.27 of the Magistrates Ordinance, Cap. 227 respecting the amendment of informations, may be used on a review under s.104 of the Ordinance of a decision made by a magistrate under s.19(2), and if they can, whether they permit the substitution of one information with another offence, which if laid as a fresh information at the time of amendment, would be time-barred by virtue of the provisions of s.26, or of any other statutory provision governing time limits within which informations for summary offences must be laid."

[Counsel]

There will be, therefore, an order that the respondent shall have the costs of the appeal and the applicant shall have his costs taxed under the Legal Aid Regulations.