THE QUEEN v. LEE CHI WAI

1988, No. 238

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H E A D N O T E

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Attempt to pervert course of justice - tearing up forged document to be used as exhibit - conduct tending and intending to lead to miscarriage of justice - investigation must have started - amendment to more serious charge permitted by S. 27 Magistrates Ordinance if no injustice.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 238 OF 1988

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J U D G M E N T

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1. The appellant, a Survey Officer employed by the Hong Kong Government, was convicted by Mr. Yung at San Po Kong Magistrates Court of attempting to pervert the course of justice, contrary to Common Lava. The particulars of offence were that on 10th August, 1987, with intent to pervert the course of public justice, he damaged a parking permit Serial No. 152357, which had been seized by and was in the custody of the Royal Hong Kong Police Force and which might be used as an exhibit in criminal proceedings.

2. This was an amended charge. The original charge had been criminal damage, contrary to section 60(1) of the Crimes Ordinance, Cap. 200. The amendment, after the evidence of the fourth prosecution witness, was prompted by the magistrate's realisation that the parking permit could not be proved to be the property of the government as alleged.

3. There was also a charge of uttering forged documents, contrary to section 74(1) of the Crimes Ordinance, on which the appellant was found not guilty.

4. The prosecution case, as set out in the Magistrate's Statement of Findings, was as follows :-

"On 10th August 1987 a security guard discovered that a car was parked on hourly rated parking space in the car park of Tin Ma Court which was managed by the Housing Authority. Subsequent checks revealed that the monthly parking permit displayed on its windscreen had expired in April, although the month for which it was valid was handwritten on it as "July", and that it had not taken a ticket for the hourly rated spaces on entering the control point. A report was made to the police and the car was then watched by two uniform police officers (PW3 and PW4).

    Later on the same day the Defendant turned up to collect the car. PW3 and PW4 then confronted the Defendant. The Defendant admitted to them he was the owner of the car, but the car had not yet been registered in his name after his brother transferred it to him. He also admitted that the parking permit was his and said it expired in April. When asked why 'July' was written on it, the Defendant said he had earlier returned to China and lent his car to his friend. He refused to tell the officers who this friend was. The Defendant was then taken to the office of the Housing Authority where he was arrested for uttering a forged document. After the Defendant was taken back to the police station, he was taken to a room. There when PW3 showed to the Defendant the car park permit which had been seized from him earlier in the car park, the Defendant suddenly snatched it from him, tore it into pieces and threw the pieces, to the floor. PW3 picked up the pieces which were produced at the trial as exhibit P1."

5. The defendant's evidence was that he did not know that the parking permit had been altered. He only came to know on the first day of the trial that the word, 'July' had been written on the document. He denied that he had been told that by the officers and said that he had not been given any opportunity to look at the permit. He did not say he had been to mainland China, or that he had lent the car to his friend. He said the two officers left him alone in the room, leaving the permit on the table at which he was sitting. He understood that the permit had been returned to him and he picked it up. Then he remembered that someone at the office of the Housing Authority had advised him to throw away expired parking permits, so he tore it into pieces.

6. The officers came back and found what he had done. They then invented a story to cover their inattention to duty. He overheard a conversation between them, in which PC 23048 said a Mr. Chu had asked them to fix up the matter. Thereupon this officer whispered something to a person outside the room, whom he addressed as "sergeant". He did not see the sergeant. After that the police officer returned and, together with PC 7933, threatened the appellant and tried to get him to sign a statement admitting that he had snatched the parking permit from PC 23048. He refused and was then handed over to the C.I.D.

7. The magistrate believed the evidence of the police officers and disbelieved that of the appellant.

8. So far as the uttering charge was concerned, the magistrate found that:-

"There remained a possibility, which I could not exclude, that the Defendant, well knowing that the permit would not fool anybody, had no intention on 9th August to prejudice or to take the risk to prejudice the Housing Authority or its agent."

He therefore acquitted the appellant on that charge.

9. He concluded his Statement of Findings thus:-

"I found the parking permit expired in April and it was a forged one. It was clear from the evidence of PW3 and PW4 that the police had started their investigation into the forged permit when the Defendant tore it into pieces. From what the Defendant said to PW3, after tearing the permit, and other circumstances of the case, I was satisfied that the Defendant did it in order to avoid the consequences of the investigation. The tearing of the permit had the tendency and possibility of destroying, or of reducing, its value as, piece of real evidence. Although it was not shown that the actual course of public justice had been perverted, I found there was such a tendency. I was satisfied beyond all reasonable doubt that the Defendant attempted to pervert the public course of justice as charged and that charge B was proved."

10. Mr. Van Buuren, for the appellant, complains that it was wrong to convict the appellant of an attempt to pervert the course of justice, because the magistrate made no apparent enquiry into the intentions of the appellant. There was evidence from PC7933 that the appellant said he would have lost his job as a civil servant if he had not torn up the permit. This indicates, submits Mr. Van Buuren, that it was possibly fear of administrative action by the police, not court proceedings, that had prompted the appellant's action.

11. This, I am satisfied, is unrealistic. The appellant's job would clearly have been at risk had he been convicted of uttering a forged document. He was cautioned for this offence and that must have been in his mind when he snatched and tore the permit. No civil servant of the appellant's rank could have thought he would be dismissed without prosecution. The magistrate drew the only reasonable inference as to the appellant's intentions.

12. Mr Van Buuren submits that, before a defendant can be convicted of an attempt to commit an offence, the court must determine whether the offence itself could have been committed if the defendant was not interrupted or, as in this case, had not done what he did. He says the court did not consider what offence the appellant could have been charred with if he had not torn up the parking permit.

13. In R. v. Machin⁽¹⁾ it was held that :-

"the gist of the offence was conduct which might lead, and was intended to lead to a miscarriage of justice whether or not a miscarriage actually occurred - the use of the word attempt was misleading in the present context and, was convenient for use in the case where it could not be proved that the course of justice was actually perverted - the jury should not be directed to assess the accused's conduct in terms of proximity to an ultimate offence but should be left to consider its tendency and the intention of the accused. That was done in the instant case, and in the Court's opinion the acts alleged did have a tendency to pervert the course of justice even though the appellant's plan was not pursued to a final conclusion and the verdict of the jury was clearly supported by the evidence."

14. It is thus immaterial that the appellant was subsequently acquitted of the uttering offence.

15. However, as Watkins, L.J. said in R. v. Selvage and Morgan⁽²⁾ at p. 341 :-

"......... a course of justice must have been embarked upon in the sense that proceedings of some kind are in being or are imminent or investigations which could or might bring proceedings about are in progress in order that the act complained about can be said to be one which has a tendency to pervert the course of justice."

16. In the present case the appellant had been arrested and cautioned for uttering a forged document. An investigation into this charge was well in train when the appellant tore the permit.

17. Mr Van Buuren may be correct in saying that there is no reported case in which the tearing of his own documents by a suspect has been held to amount to this offence. But he concedes that the destruction of a urine specimen is an offence, which he distinguishes on the grounds that the police have a right to demand a specimen. I do not with respect, think this argument takes the matter any further.

18. Counsel also points to several inconsistencies in the evidence of the prosecution witnesses, which the magistrate has not dealt with in his Statement of Findings. They are, however, not material discrepancies and are actually omissions, which were brought out in cross-examination. The magistrate was not obliged to deal specifically with these.

19. The main thrust of this appeal concerns the amendment of the charge.

20. Section 27 of the Magistrates Ordinance, Cap. 227 provides:-

"27.(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, and 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' includes the substitution of another offence in place of that alleged, in the complaint, information or summons."

21. There was a material variance between the information and the evidence adduced in support of it. The section permits this kind of amendment, provided it can be without injustice. But its provisions are mandatory. See R. v. Cheng Yiu Kong⁽³⁾.

22. Mr Van Buuren submits that the magistrate did not comply strictly with the section, in that he did not explain the amended charge. He told the appellant the reason for the amendment. The charge was then 'put' to him and the plea retaken. The appellant was advised of his right to apply for an adjournment and to recall witnesses.

23. It seems to me that the magistrate was required to do no more. The appellant had already heard the evidence of the police officers. The particulars of offence were self-explanatory. There may be cases in which a magistrate is obliged to go further. Some charges may not be properly understood by an unrepresented defendant without a detailed explanation of the particulars and what has to he proved, but this was not such a case.

24. The final point made by Mr Van Buuren is that it was unfair to lay a more serious charge at so late a stage. He says that, if the prosecution were unable to prove an essential ingredient of the original charge, the magistrate should nevertheless have proceeded with the trial, even though an acquittal on that charge was inevitable.

25. The question is whether injustice was caused by the amendment. Miss Chan, for the Crown, concedes that it is a more serious charge, but submits that there was no unfairness, since both the prosecution and defence cases remained unchanged.

26. In R. v. Johal and Another⁽⁴⁾ the headnote reads:-

"No rule of law precludes the amendment of an indictment after arraignment, whether by adding a new count or otherwise. An amendment during the course of trial is likely to prejudice the accused person and, the longer the interval between arraignment and amendment, the more likely is it that injustice will be caused. In every case in which amendment is sought the court must consider with great care whether the accused will be prejudiced thereby."

27. The magistrate obviously gave the matter thought, for he says in his statement of findings that, the facts relied on by the prosecution to prove the original and the amended charges being the same, he considered the defendant had suffered no prejudice and had not been misled or affected in the conduct of his defence.

28. Those were the relevant matters he had to consider in exercising his discretion to amend. I am not prepared, in these circumstances, to say that he was wrong.

29. The appeal is dismissed.

(1) [1980] 71 C.A.R. 166

(2) [1981] 73 C.A.R. 333

(3) M.A. No. 676 of 1987

(4) [1972] 56 C.A.R. 348