THE QUEEN v. TSUI CHIK MAN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 491 OF 1987

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JUDGMENT

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1. The appellant was charged that on the 26th of October, 1986 at Gammon (Hong Kong) Limited, Albany Road, L.L. 8683, Central, Hong Kong, he permitted to be used powered mechanical equipment for the purpose of carrying opt construction work, such date being a public holiday (Sunday), contrary to section 13(1)(b) of the Summary Offences Ordinance, Cap.228, Laws of Hong Kong.

2. The Defence at the trial conceded that the Crown had proved its case so that the onus fell on the appellant to prove, on the balance of probabilities, that the circumstances were such on the day in question that he came within the provisions of section 13(1A)(b).

3. The magistrate, Mr S.K. WONG, found that the appellant had not discharged that onus and accordingly convicted the appellant and fined him $2,500.

4. The solicitors for the appellant filed a notice of appeal that the said conviction was against the weight of the evidence and that there was no sufficient evidence to found the said conviction.

5. No other or perfected grounds of appeal were filed. At the appeal, the appellant was represented by Mr M. Poll. After hearing Mr Poll on the grounds of appeal filed I indicated I thought that there had been ample evidence to enable the magistrate to come properly to the conclusions he did. Mr Poll then raised a point of law, namely, that during the trial, a prosecution witness had referred to the site as 8638. The magistrate asked if the site number he gave was correct - Counsel for the Defence at the trial said the Defence were "not taking issue on that". Counsel for the Crown asked the magistrate to amend the charge by substituting the site number to read "8638" instead of "8683". The magistrate did so. The magistrate recorded that the amended charge was not read as the Defence were not taking issue (on that point).

6. Mr Poll has referred me to section 27 of the Magistrates Ordinance which was amended in 1987. He argued, in effect, that I should allow the appeal because there was a material irregularity during the trial in that section 27 imposed a statutory and mandatory requirement on the magistrate to read and explaine the amendment to the defendant which he failed to do.

7. Section 27(2) before its amendment in 1987 read :

"(2) wherever in the opinion of the magistrate there is a defect of substance or there has been any such variance as aforesaid he shall make the necessary amendment in the complaint, information or summons and shall read and explain the same to the defendant (emphasis added)."

8. The new section 27 provides in subsections (1) and (3) as follows:-

(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 ……

(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."

(emphasis' added).

9. Mr Poll drew my attention to-the addition of-the words "or form" in the amended section.

10. The charge, before amendment referred to "Albany Road, I.L.8683, Central, Hong Kong". Albany Road is a well-known road running between the two sections of the Botanical Gardens and stretches from Robinson Road to Upper Albert Road, a total distance of about 250 yards. The only development in Albany Road is the site in question which was the former site of the Government flats known as The Albany.

11. Huggins, J.A. stated in IP Chiu and another v. R (Crim. App. 99 of 1977 unreported) that where the amendments were of a minor nature, it was not necessary to read and explain the amended information. The judge pointed out that section 27(2) was intended to relate to cases where the amendment results in a material alteration of the offence charged and that substitution of a charge of common assault for one of criminal intimidation was clearly a material alteration of the offence.

12. Although that case was decided before the recent amendment I cannot see that the position is now any different.

13. In my view the amendment by the substitution of the Inland Lot in Albany Road of the figure 8638 in place of 8683 is trivial and superficial that the argument borders on the frivolous.

14. Mr Poll asked me to refer the point of law to the Court of Appeal. I refused on the basis de minimis non curat lex.

15. There is no merit in the appeal both in law or on the facts and the appeal is dismissed.

16. As Blair-kerr J. said in the Full Court in Reg. v. SUEN Chuen and another (1963) H.K.L.R. at p.636 :

"We therefore take this opportunity to say we do not propose merely to repeat the directions so often given and so often ignored; but in future if notice giving full particulars of each ground of appeal and identifying passages in the summing-up which are to be discussed on the appeal is not given to the Court hearing the appeal and to the Crown within a reasonable time before the hearing (and that should ordinarily be not less than 4 days before the hearing) this will be regarded as a dereliction of duty."

17. For myself I am frequently unimpressed with the reasons advanced as to why the above directions have not been complied with.