ATTORNEY GENERAL v. FUNG KA KEUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 502 OF 1995

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J U D G M E N T

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1. The complaint against the Respondent was that the Respondent at the address of 1/F 458 Shanghai Street in Mongkok Kowloon knowingly lived partly or wholly on the earnings of the prostitution of a Thai female BUNCHUAI ORANUT, contrary to s. 137(1) of the Crimes Ordinance, Cap. 200.

2. At the hearing, the prosecution evidence was that a police officer visited the premises posing as a customer. The Respondent took a Thai girl to the premises and told the officer that the girl would offer sexual service. There was evidence that prostitution was involved. The Respondent admitted that he took the Thai girl to the establishment for prostitution and that was not his first time. For such trips, he obtained a commission. The Thai girl was not called as a witness. No mention was made in the prosecution case of the Thai girl named in the complaint. The Respondent gave no evidence.

3. The learned magistrate of his own initiative and in exercise of his powers under s. 27(1)(a) of the Magistrates Ordinance Cap. 227 amended the particulars of offense by deleting the words "the prostitution of the Thai prostitute Bunchuai Oranut" and substituted the words "a female prostitute".

4. The amended complaint was put to the Respondent again and a fresh plea taken. The Respondent was given the opportunity, as was required under s. 27 to call and recall witnesses and to apply for an adjournment because of the amendment. Counsel for the Respondent indicated to the learned magistrate that none of these was necessary. The learned magistrate considered the evidence before him and proceeded to find the Respondent guilty of the complaint as amended. He then sentenced the Respondent to 6 months imprisonment and activated 2 months of a term of suspended sentence.

5. After lunch, the learned magistrate reconvened the court and informed counsel for the Crown and counsel for the Respondent that he had of his own initiative reviewed his decision on amendment of the complaint and concluded that the conviction should not stand. He set aside the conviction and the sentence. He gave his reasons as follows:

"a. The prosecution's allegation was that the Defendant was living wholly or partly on the earnings of a named Thai prostitute.

b. There was no evidence that the "lady" to whom PW1 was provided sexual service was the one named in the complaint.

c. In exercising my power under s. 27 of Cap. 227, I had to satisfy myself that there was no injustice done to the Defendant.

d. In a one to one situation, I felt that it was unfair and unjust to the Defendant to have amended the complaint in that manner in order to cure a defect in the prosecution case because if the complaint had been originally laid in the amended form, the defense could have been conducted in an entirely different manner."

6. The Crown appealed by way of case stated. The questions stated for the opinion of this court as set out in the case stated are:

"a. Was I correct in deciding that the identity of the Thai girl must be the same as the lady referred to by PW1 in his evidence in order to sustain the original complaint?

b. Was I correct in deciding that it was unfair and unjust to the Defendant to have amended the original complaint in the circumstances?

c. Was I correct in reviewing my decision to amend the original complaint in the absence of defense counsel and without inviting submission from either counsel, in particular counsel for the prosecution?"

7. Mr. Reading counsel for the Crown submitted that the because of the variance between the complaint and evidence adduced, and the defect not being material, the learned magistrate under s. 27 of the magistrate Ordinance was required to amend. For the purpose of s. 137 of the Crimes Ordinance, the identity of the prostitute was immaterial on proof of prostitution. No injustice was caused to the Respondent by such amendment since the Respondent was facing the same complaint after amendment and the Respondent had had the opportunity of asking for an adjournment or to recall or call witnesses which the Respondent did not deem it necessary. Mr. Reading also submitted that the learned magistrate in reviewing his decision should not, in the interest of justice, conduct his review without hearing from the parties first.

8. Mr. Mcguinniety for the Respondent accepted that there was a variance between the evidence and the complaint and in law the learned magistrate could amend. But he must not do so it was submitted, should there be injustice to the Respondent which could not be cured by adjournment or costs or the recalling or calling of witnesses and in such case the learned magistrate should dismiss the complaint. He submitted that the name of the prostitute although not an ingredient of the offense complained of, the deletion of it would caused injustice to the Respondent because there was a change from a particularized person to one unidentified whom the Respondent had no opportunity to cross examine.

9. S. 27 provides that:

(1) Where it appears to the adjudicating magistrate that there is-

(a) a defect in the substance or form of any complaint ...; or

(b) a variance between the complaint ... and the evidence adduced in support of it

He shall, subject to subsection (2)

(i) amend the complaint ... if he is satisfied that no injustice would be caused by that amendment; or

(ii) dismiss the complaint ...

(2) The adjudicating magistrate shall amend the complaint ... 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 ... witnesses."

10. Reference has been made to A.G. v. Wong Lau (1993) 1 HKCLR 25 where Stock J. after he had reviewed other related statutory provisions had this to say regarding amendments under s. 27:

"By reason of those statutory provisions to which I have referred, it is quite clear that a defective complaint or summons may be cured by amendment, and in certain instances must be cured by amendment. Amendments must be made even if the defect is material, so long as there is no injustice, or so long as any injustice which might otherwise arise can be met by an adjournment, or an order for costs, or by a number of other specified measures. This is the effect of s. 27 of the Magistrates Ordinance. Further, the fact that an essential ingredient of an offense is omitted does not of itself render an complaint or complaint or summons defective, provided no injustice is thereby caused. That is the effect of the proviso to rule 4 of the Indictment Rules. So the flavour of the legislation is that the courts should be free to enable defects to be cured if that can be done without injustice."

Section 137 of the Crimes Ordinance Cap. 200 is as follows:

"(1) A person who knowingly lives wholly or in part on the earnings of prostitution of another shall be guilty of an offense ..."

(2) For the purposes of subsection (1) a person who lives with or it habitually in the company of a prostitute, or who exercises control, direction or influence over another persons movements in a way which shows he or she is aiding abetting or compelling that other person's prostitution with others, shall be presumed to be knowingly living on the earnings of prostitution, unless he or she proves the contrary."

11. Thus, as long as there has been proof of a Defendant knowingly living on the earnings of prostitution of another, for example as in the present case, deriving a commission from the earnings of a female prostitute over whom the Defendant had control, the offense under s. 137 is made out. The identity of the prostitute is not an essential ingredient of the offense. That being the case, the variance between the evidence adduced and the complaint would not warrant the learned magistrate to dismiss the complaint. The deletion of the name would not cause the Respondent any injustice. The magistrate was bound to amend the complaint.

12. The learned magistrate was incorrect to conclude that the identity of the Thai prostitute was material to sustain the complaint.

13. Since the identity of the prostitute is immaterial the amendment would cause no injustice. The Respondent was given the opportunity of an adjournment to call witnesses or recall the police officer in which case the officer could have been cross examined as to the identity of the prostitute if her identity was material to the defense. But this was not taken up by the defense.

14. The learned magistrate was incorrect to decide that it was unfair and unjust to amend in the circumstances.

15. Section 104 of the Magistrates Ordinance enables a magistrate to review his own decision either on the application of a party or of his own initiative.

16. Subsection (1) provides for a review on the application of a party and subsection (3) requires the magistrate to inform the Commissioner of Correctional Services to produce the applicant if he is in custody at the hearing of the review.

17. Subsection (5) which provides for review at the magistrate's own initiative is as follows:

"(5) It shall be lawful for a magistrate on his own initiative, within 14 clear days after the determination in any manner of any matte which he has power to determine in a summary way, to reopen the case, and thereafter, whether within the said period of 14 clear days of after its expiration, to review his decision in the matter."

18. The subsection contemplates a two-step function: to decide to reopen the case and if so decided, to review the determination. The decision to reopen may be made by the magistrate by himself but, having regard to subsection (3), the intention of the legislature must be that any determination of the matter which has been reopened for the purpose of a review should be in the presence of the parties.

19. The learned magistrate was incorrect to review his decision in the absence of counsel for the parties.

20. The answers to the three questions stated are in the negative.

21. The appeal is allowed and the case remitted to the learned magistrate to be dealt with on the complaint as amended.