THE QUEEN v. YAU MAN CHE

Mag. App. No. 30 of 1990

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HEADNOTE

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AMENDMENT TO A CHARGE REQUIRING THE CONSENT OF THE ATTORNEY GENERAL - FRESH CONSENT REQUIRED WHERE AMENDMENT OF SUBSTANCE IS MADE.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 30 OF 1990

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JUDGMENT

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1. The appellant faced four charges of accepting an advantage contrary to section 4(2)(a) of the Prevention of Bribery ordinance. The 1st charges stated the offence to have taken place in the month of October 1988, involving $2,000, the 2nd charge, the month of November 1988 and $2,000, the 3rd charge, the month of December 1988 and $2,000 and the 4th charge, the month of January 1989 and $2,000. The Attorney General gave his consent to the prosecution proceeding on these four charges. Prior to the hearing before the magistrate the prosecution applied to amend the charges by specifying the date of the offences as the 8th day of October, 1988 and the 8th day of November 1988 in charges A and B respectively and 24th day of December and the 24th day of January in charges C and D respectively. in addition the amounts referred to in charges A and B were reduced from $2,000 to $1,000.

2. The appellant was convicted after trial and now appeals against those convictions. The 1st ground of appeal is that the magistrate erred in entering the convictions in as much as he had no power or jurisdiction to do so. Mr Hung for the appellant argues that as no fresh consent was given by the Attorney General to the amended charges, the convictions are a nullity.

3. The point was considered by the Court of Appeal in the case of R. v. Do Bing-hung, (1988) H.K.L.R. where the appellant was originally charged with having accepted a "favour", contrary to section 3 of the Prevention of Bribery Ordinance. The charge was amended to accepting a "gift". This was held to be an amendment of substance and Yang, Ag. C.J. (as he then was) giving the judgment of the court at page 562 said :-

"... and we are satisfied that any amendment of substance requires a fresh consent."

4. R. v. LEE Kwok-shun Mag. App. 782/88 was a case which involved an amendment whereby the date of the alleged offence was changed from the 3rd July 1985 to the 29th December 1984 and the amount involved from $2,625 to $10,000. Barnes, J. ruled that the magistrate had no jurisdiction to deal with the amended charge. The authority of DO Bing-hung was not referred to in this judgment.

5. I am satisfied that the proper test is to decide whether the amendment is one of substance or not. If it is, the magistrate had no jurisdiction to hear the amended charges without a fresh consent from the Attorney General. If it is not, then he does have such jurisdiction.

6. In this case I do not consider amendments giving further and better particulars of the date of the alleged offence as was done in respect of charges A, B, C and D, nor the amendment reducing the amount from $2,000 to $1,000 as was done in charges A and B, to be amendments of substance. Accordingly, the 1st ground of appeal fails.

7. The 2nd and 3rd grounds of appeal relate to the admission into evidence of confession statements and the weight given by the magistrate to the evidence of PW3, an independent witness. The magistrate evaluated the evidence relating to the allegations that the statments were not made voluntarily and were obtained in breaches of the Judges Rules. He was satisfied that the statements had been made voluntarily and did not consider the breaches of the Judges Rules to justify the exclusion of the statements from evidence. There is no reason for me to interfere with those findings nor with the weight that he gave to the evidence of PW3. These grounds also failed. The appeal is dismissed.