R. v. YEUNG LEE TRANSPORTATION & ENGINEERING LIMITED

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 407 OF 1994

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[Where it is proposed that an information should name as the Defendant a particular company (for example, the registered owner of a particular vehicle), and by mistake the information names a non-existent company, the information is not a nullity. It is not so defective that an amendment cannot cure it. A magistrate must amend the information if the circumstances set out in section 27(2) of the Magistrates Ordinance (Cap. 227) are satisfied.]

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J U D G M E N T

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1. On 21st March 1994 at North Kowloon Magistrates' Court, the Appellant, a limited company, was convicted, after pleading not guilty, of an offence of using on a road a vehicle whose fittings were not in good and serviceable condition, in that its offside rear lamp and stop lamp lens cap was missing. The Appellant was fined $500.00. It now appeals against its conviction.

THE HISTORY OF THE PROCEEDINGS

2. The offence was alleged to have been committed on 7th August 1992. The information in respect of the alleged offence was laid on 20th October 1992, well within the limitation period of 6 months from the date of the alleged offence provided for by section 26 of the Magistrates Ordinance (Cap. 227) ("the Ordinance"). The Defendant named in the information as the registered owner of the vehicle was Yeung Lee Transportation & Engineering Company Ltd. I shall refer to this company as "the original Defendant". The summons which was eventually issued named the original Defendant, and it summoned the original Defendant to appear in court on 24th November 1992.

3. After various adjournments, the hearing of the summons took place on 9th June 1993. On that date, counsel appeared. That was not Mr. Gerard McCoy, who came onto the scene later. Counsel purported to have been instructed on behalf of the original Defendant. He asked for a fresh summons to be issued because he complained that the summons was defective in a number of respects:

(i) The summons had only been served after the date on which it had required the original Defendant to appear in court.

(ii) It did not give the correct address of the original Defendant. It gave the original Defendant's address as an address in Tai Po, whereas counsel told the court that the correct address of the original Defendant was 4/F, 514 Shanghai St., Mong Kok.

I have not been able to fathom the strategy behind these complaints, but the magistrate acceded to the request for a fresh summons to be issued. In due course, a fresh summons was issued.

4. It was when Mr. McCoy appeared in court on 14th October 1993 that the case took a bizarre turn. Mr. McCoy was not appearing for the original Defendant. He informed the court that he represented a company called Yeung Lee Transportation & Engineering Ltd., i.e. a company with a name identical to the original Defendant, save that the word "company" was not in its name. I shall refer to this company as "the substituted Defendant". On that occasion and at a subsequent hearing, Mr. McCoy told the court three things relevant to the issue which I have to decide:

(i) the substituted Defendant was the registered owner of the vehicle to which the summons related;

(ii) the registered office of the substituted Defendant was the same as the address of the original Defendant given to the court by counsel who purported to be instructed on behalf of the original Defendant on 9th June 1993;

(iii) the original Defendant did not exist in that there was no company which bore that name.

That last piece of information which Mr. McCoy gave the court was startling. It meant that the court and the prosecution had been misled - admittedly entirely innocently, for all I know - by counsel on 9th June 1993, who had claimed to be representing a company which Mr. McCoy conceded had never existed. In those circumstances, the prosecution at a subsequent hearing on 13th December 1993 applied for leave to amend the summons to name the substituted Defendant as the Defendant. The magistrate permitted Mr. McCoy to address him on behalf of the substituted Defendant who was not then a party to the proceedings as to why the application should not be granted. In the event, the magistrate amended the information, and Mr. McCoy, whose tireless endeavours on behalf of the substituted Defendant continue on this appeal, agrees today that the magistrate should be treated as having amended the summons as well, so that the substituted Defendant was substituted, in both the information and the summons, for the original Defendant. The trial in due course proceeded against the substituted Defendant, and the substituted Defendant was convicted.

THE FIRST GROUND OF APPEAL

5. The first issue which this appeal raises was whether the magistrate was wrong to permit the information to be amended, bearing in mind that the limitation period for laying an information against the substituted Defendant had expired a long time previously. Section 27 of the Ordinance sets out the circumstances in which an information must be amended, and the circumstances in which it must be dismissed. However, section 27 applies only to defects in the substance or form of the information, and variances between the information and the evidence called in support of it. When the information is a nullity, it cannot be amended - whether by section 27 of the Ordinance or otherwise. That was what Stock J. held in the Attorney- General v. Wong Lau [1993] 1 HKCLR 257. Mr. McCoy argues that the information in this case was a nullity, and that it could therefore not be amended.

6. Having regard to the circumstances identified by Stock J. as to when an information can be a nullity, the only basis upon which the information in this case could be characterised as a nullity was because it was so defective that an amendment could not cure it. The basis for Mr. McCoy's assertion that this information was so defective that an amendment could not cure it was that the information named an entity which had no legal existence. There was no legal entity which had the name of the original Defendant.

7. In my view, the fact that the information named an entity which had no legal existence did not make the information so defective that an amendment could not cure it. It cannot be contradicted that the company which it was proposed the information should be laid against was the registered owner of the vehicle. The Central Traffic Prosecutions Bureau must have believed that the name of the registered owner of the vehicle was that of the original Defendant. The name of the registered owner of the vehicle was therefore simply misstated on the information. That is what the magistrate himself found. I simply do not see how a mistake in the name of the company which it was proposed to lay the information against can be described as a defect which is incapable of being cured by amendment, simply because the mistake meant that the name of the Defendant appearing on the information was the name of a company which did not exist.

8. That conclusion is supported by the view of a Divisional Court of the Queen's Bench Division in Marco (Croydon) Ltd. v. Metropolitan Police [1984] RTR 24. Although the Court was considering a statutory provision which was different to section 27 of the Ordinance, the distinction which the Court made between different kinds of mistake is instructive. At p. 32, the Court approved the following principle in the Case which had been stated to it for its opinion by the justices:

"... where the wrong person has been summoned, amendment should not be allowed, but where the prosecutor has correctly identified the defendant but merely misstated the name, amendment should be allowed."

The present case was not a case of the wrong person being summoned. The original Defendant was not a person in law at all. This was a case of the prosecution misstating the name of the company whom it was proposed to lay the information against, namely the company which was the registered owner of the vehicle.

9. Since the information was not so defective that an amendment could not cure it, the information was not a nullity. It was merely defective. Did the fact that it was proposed to amend the information, albeit not a nullity, after the period of limitation had expired prevent the information from being amended? The answer is "No". For the compelling reasons stated by Stock J. in Wong Lau, section 26 of the Ordinance does not preclude an amendment made more than 6 months after the "matter of such ... information ... arose" where the information is not a nullity.

10. Against that background, I turn to section 27 of the Ordinance, which provides, so far as is material:

"(1) Where it appears to the adjudicating magistrate that there is - ... a defect in the substance or form of any ... information or summons, he shall, subject to subsection (2) -

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

(ii) dismiss the ... information or summons.

(2) The adjudicating magistrate shall amend the ... information or summons where -

(a) the defect ... 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."

Accordingly, there were four questions which the magistrate had to decide:

(i) Was there a defect in the substance or form of the information or summons?

(ii) If there was, was that defect material?

(iii) If it was, would any injustice be caused by the amendment?

(iv).If it would be, could that injustice be cured by taking any of the steps referred to in section 27(2)(b)?

11. As to (i), the magistrate decided that there was a defect in the information and the summons. In my view, he could not have found anything else. The information and the summons named a non-existing entity as the Defendant.

12. As to (ii), the magistrate's Statement of Findings does not indicate whether he made an express finding as to whether the defect was material. However, he did consider whether the substituted Defendant would be prejudiced by the amendment. I take that to mean that he considered whether any injustice would be caused to the substituted Defendant by the amendment. Since that is a question which he would only have had to consider if he had found that the defect was material, I take it that he did find that the defect was material, even though he did not say so in terms.

13. As to (iii), I agree with the magistrate that no injustice would have been caused by the amendment. The substituted Defendant had believed all along that the summons which had been served on it had been intended for it. It is not an injustice for a defendant to be deprived of the windfall of a mistake in an information and a summons, especially where the court and the prosecution were not told about the mistake for a long time, and were misled by counsel who must have been instructed on behalf of the substituted Defendant (because the original Defendant, being non-existent, could not have instructed him) to make representations to the court which had the effect of concealing the fact that the original Defendant did not exist.

14. For all these reasons, I have no doubt that the magistrate did not err in permitting the information and the summons to be amended.

THE SECOND GROUND OF APPEAL

15. The only other ground of appeal relied upon by Mr. McCoy is that the magistrate's conclusion that the lens cap was missing prior to the accident in which the vehicle was involved on 7th June 1992 was erroneous or against the weight of the evidence.

16. Two relevant facts were found by the magistrate which bore on this issue:

(i) The accident in which the vehicle was involved did not involve the rear of the vehicle. That finding was based on the evidence of PW2, the driver of the vehicle, and the position of the vehicle on a sketch of where the vehicles involved in the accident ended up made by a police officer, PW1.

(ii) Five hours after the accident, the lens cap was missing. That finding was based on the evidence of a government motor vehicles examiner, PW4, who examined it then.

At first blush, therefore, the inference which the magistrate drew - that the lens cap was missing before the accident - was irresistible, once the possibility of it being removed between the accident and PW4's examination of it could be excluded. That could be excluded because the evidence of another police officer, PW3, was that he had taken the vehicle to the pound for examination, and nothing had occurred on the way.

17. However, the Appellant's case is that the lens cap came off either in the accident - not because something collided with the rear of the vehicle, but because the impact of the collision caused the vehicle to come to an abrupt halt, the jolt of the halt causing the lens cap to fall off - or after the accident but before it was examined by PW4, because the accident and the driver's attempt to bleed the tyres of air had loosened it. Those alternative scenarios are said to be supported, not only by the evidence before the magistrate as to the care taken by the Appellant to ensure that its considerable fleet of vehicles was at all times properly maintained, but by two additional features of the evidence. They were as follows:

(i) PW2 conceded that glass had been left on the ground as a result of the accident. It may be that, at that stage of PW2's evidence, he was addressing only the question as to whether there was something on the ground, be it glass or plastic, but the magistrate found as a fact that it was glass that had been on the ground, and so it could not have come from the lens cap, because the unchallenged evidence of PW4 was that the lens cap was made of plastic.

(ii) An invoice showed that work had been done on the vehicle on the day of the accident. It was common ground that the work to which that invoice related had been done on the morning of the accident. It set out the work which had been done, but that did not include work on the rear light. The inference which the magistrate was being invited to draw was that if the lens cap had been missing then, it would have been noticed. The fact that its absence was not noticed by the garage is, so it is said, strong evidence that it was not missing. However, the fact that the invoice did not refer to the missing lens cap is equally consistent with its absence simply not being noticed.

18. In my view, the magistrate evaluated all this evidence with consummate care. It was open to him to conclude, as he did, that it was inherently unlikely that the jolt of the collision could cause the lens cap either to drop off, or to loosen so that it dropped off within the next five hours. It was therefore open to the magistrate to exclude alternative scenarios which involved the lens cap dropping off or loosening as a result of the accident. It was therefore open to the magistrate to conclude that the lens cap was missing at the time of the accident.

19. In the interests of completeness, I should add that an alternative possibility considered by the magistrate could not have properly led to the conviction of the Appellant. In his Statement of Findings, the magistrate said that even if the lens cap had simply dropped off as a result of the collision,

"I should have been quite sure that it would not have done so had it been in good and serviceable condition and properly secured to the vehicle."

That finding could not properly have resulted in the conviction of the Appellant because the summons alleged that the lens cap was missing, not that it was not properly secured. However, that was not the basis of the conviction of the Appellant by the magistrate, and therefore nothing turns on that observation of the magistrate. For these reasons, this appeal must be dismissed.