HKSAR v. LE VAN HONG

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 927 OF 1998

(On Appeal from TMC 2137 of 1998)

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J U D G M E N T

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1. The Appellant was charged on 19th July 1998 at the area outside of Arts Spectacle Shop, 1/F Phase 2 Tuen Mun Town Plaza, Tuen Mun that she stole one wallet cash HK$334.30, one Identity Card and one Hongkong Bank Visa Card, the property of Cheung Pun Har.

2. The case for the prosecution: PWs1 and 2 are husband and wife. On 19th July, they were window shopping in the Tuen Mun Town Plaza outside the Arts Spectacle Shop when there were approached and told that a wallet had been stolen from them and pointed the direction in which the thieves, one male and one female had gone. PW1 then checked the rucksack he was carrying and found that the wallet and its contents belonging to PW2 which had been zipped in the pocket of the rucksack was missing. The theft had been witnessed by PW3, a Miss Chung Pun Chun who together with her boy-friend PW4 had been shopping the Tuen Mun Plaza at the time. She saw the man in a white T-shirt carrying a child, take the wallet from the rucksack carried by PW1 and immediately handed to the female who was wearing a green vest who then put it into the green paper bag which she was carrying. The male and the female then left the scene. PW3 then informed PW4 of what she had seen. PWs1 and 2 gave chase in the direction pointed out to them by PWs3 and 4. On the Ground floor, a male carrying a child was pointed out as being the man involved in the theft. The Appellant was also pointed out as being the female. The Appellant upon being stopped took out the wallet from the green paper bag she was carrying and handed it over to PW1. The male who was seen to have stolen the wallet subsequently left the scene and was not arrested by the police. PW5 PC50948 arrested the Appellant. Under caution, the Appellant said in Punti dialect the following words: "Ah sir, I beg you please don't arrest me, give me a chance."

3. The case for the defence: The Appellant gave evidence. She had a clear record. In her evidence she said that she had been at the Pillor Point Centre the night before and on the morning of the 19th July had gone to a church and intended thereafter to see a doctor. On the ground floor of the Tuen Mun Plaza, someone pushed her causing her to drop the bag she was then carrying. A man then approached and gripped her by the wrist and then pointed at the paper bag. To her surprise when she opened it she found the wallet inside. She said at the time she only spoke Vietnamese since she only understood very simple Punti. And that she had spoken to a police officer, that is to say, PW5 in Vietnamese. She denied she had ever made the alleged admission under caution. She further denied that she had received the wallet from a man holding a child. She likewise denied that she had ever put the wallet in the bag.

4. Under cross-examination, she denied ever having been on the 1st floor of the Tuen Mun Town Plaza, and had no idea how the wallet belonging to PW2 had come to be inside the paper bag she was carrying.

5. The Appellant appeared in person on the present appeal. Apart from advancing a general ground in her Notice of Appeal, no additional grounds had been argued before me. The issues that were before the learned magistrate were simple. Did the PW3 a civic minded citizen made a correct identification of the Appellant? Did the Appellant make the alleged admission under caution? The learned magistrate dealt with these issues thoroughly and came to the conclusion that it was the Appellant who received the purse from a male. And that she made the admission to PW5 in Punti dialect. The learned magistrate's reasons in my view cannot be faulted.

6. That, however, was not the end of the matter. At the end of the prosecution's case, the prosecution had sought to amend the charge. The learned magistrate allowed the amendment. The effect of the amendment was to include the following words: "That the Appellant, together with a person not in custody, stole the wallet and the rest of the stolen items." Records shows the amended charge had been read out to the Appellant. And that application to amend was made without any objection from the defence. I was concerned about the steps taken by the learned magistrate in allowing the amendment. Section 27 of the Magistrate Ordinance Cap. 227 lays down certain procedures that a magistrate has to follow in amending a charge. Section 27(3)(a), (b) and (c) provide:

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 re-call and further examine such witnesses as may be reasonably required by 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 re-call witnesses and to prepare their cases.

7. It is apparent from the record that the procedures as set out in sub-section 3(b) and (c) had not been complied with. I, therefore, took it upon myself to ask Mr. Brook, counsel for the government the following questions.

8. 1) Was the amendment purportedly made under Section 27 of the Magistrate Ordinance?

9. 2) Had there been non-compliance and that the effect of the non-compliance on the conviction?

10. Mr. Brook accepts that the amendment was in fact made under Section 27 and that there had been non-compliance. As to the third question, Mr. Brook submits that the provisions are merely directory and not mandatory. Mr. Brook relies upon a passage in a text book by Professor De Smith - Judicial Review of Administrative Action. And I cite the following passage:

"When parliament prescribes the manner or form in which a duty is to be performed or a power exercised, it seldom lays down what will be the legal consequences of failure to observe these prescriptions. The courts must, therefore, formulate their own criteria for determining whether the procedure rules are to be regarded as mandatory. In which case disobedience will render void or voidable what has been done, or as directory, in which case disobedience will be treated as an irregularity not affecting the validity of what has been done. Judges have often stressed the impracticality of specifying exact rules for the assignment of a procedural provision to the appropriate category. Furthermore, much may depend upon the particular circumstances of the case in hand. Although nullification is the natural and usual consequence of disobedience, breach of procedural or formal rules is likely to be treated as an irregularity if the departure from the terms of the act is of a trivial nature, or if no substantial prejudice has been suffered by those for whose benefit the requirements were introduced"

11. I am, therefore, invited by Mr. Brook to consider whether the requirements laid down in section 27(3)(a)-(c) are merely directory in nature or whether they are mandatory. There had been many Hong Kong decisions with regard to the particular procedural requirements. In Yeung Chiu v. The Queen CA 1043 of 1975, the Appellant there in that case was charged with assault occasioning actual bodily harm. In particulars of which alleged he committed the offence in the company of persons not in custody. His defence was that he was unconnected with those between whom a fight had occurred in a restaurant. That himself was assaulted by one of the police officers summoned to the scene. The magistrate there took it upon himself to amend the charge by deleting words 'in the company of persons not in custody'. The Appellant there was not asked to plead to the amended charge. On appeal it was held the amendment of the charge by the deletion of the particulars was one of substance, in that it may have made a considerable difference to the manner in which the Defendant regarded the charge as well as to the manner in which he proposed to defend himself. The conviction was quashed on appeal.

12. In Sonca Industries Limited v. The Queen CA 1342 of 1977, the Appellant was a corporation appearing before a magistrate facing a charge of failing to fence dangerous machinery. During the course of the hearing, the magistrate amended the summons and handed it down to the solicitors appearing on behalf of the corporation without reading it out. There was, therefore, no compliance with S. 27 of the Magistrate Ordinance. Simon Lee J., as he then was, held that although the spirit of the Ordinance had been complied with there was no literal compliance with the letter at all. As a consequence the amendment was a nullity and the conviction was quashed.

13. In Tan Pui Kan v. The Queen 1980 HKLR page 885, where the facts in so far as they are relevant are as follows. The Appellant and his co-defendant were charged with three charges of criminal intimidation . At the close of the prosecution case the magistrate held there was no case to answer on two of those charges. He purported to amend them pursuant to Section 27 of the Magistrate Ordinance to a charge of common assault. However, no amendment was made on the record and the new charge was not read and explained to the Defendants. On appeal, it was held where amendments made under Section 27 of the Magistrate Ordinance are of a minor nature, it is not necessary to read and explain the amended information to the Defendant.

14. The substitution of a charge was not an amendment of a minor nature and therefore the appeal was allowed.

15. In Chung Wood Ling v. The Queen CA 829 of 1980, the Appellant faced a charge of going equipped for stealing. After he had given evidence in his defence, the magistrate amended the charge under Section 27 by including an additional charge of conspiracy to rob. This new charge was read over and explained to the Appellant. But there was nothing on the record to show that the Appellant was informed of his right to recall witnesses or to ask for an adjournment. On appeal, it was held, inter alia, the failure by the magistrate to record that he had informed the Appellant of his right to recall the witness and to ask for adjournment did not mean these procedural steps had not been taken. Even if they had not, the circumstances of the case were that the Appellant had neither challenged the prosecution's evidence nor the voluntariness of his confession so that there was no reason to believe he had done so in relation to the new charge. Accordingly, the conviction could not be considered as unsatisfactory on the ground of non-compliance.

16. In Shim Ching Chung v. The Queen 1982 HKLR page 530, the Appellant was convicted of book-making contrary to Section 71(a) of the Gambling Orders. The information laid before the trial magistrate alleged an offence contrary to Section 7A which does not exist. Before any evidence was called, the magistrate amended the information to an offence contrary to Section 7(1)(a). The charge was not read nor was it explained to the Appellant. Addison J. having considered some seven Hong Kong authorities and one Australian authority came to the conclusion that defect in the information was one of form and not of substance. Alternatively, it was of a minor nature and it was therefore unnecessary to read and explain it to the Appellant. The appeal was dismissed.

17. In Lee Chi Kwong 1987 2 HKC page 506, Bewly J. in following Tam Kun Kan held that where an amendment was made under Section 27 of the Magistrate Ordinance unless the defect was merely one of form or was of a minor nature, provisions must be strictly complied with.

18. Upon a careful analysis of the decisions, I am of the view that the effect of non-compliance of Section 27 Magistrate Ordinance on the conviction is dependent on its degree and extent. It had been said that if the amendment was of a minor nature, then compliance was not necessary. These cases suggest very strongly that the requirements under Section 27 of the Magistrate Ordinance are directory.

19. I now return to the facts in this case. The allegation that the Appellant had committed the present offence with another man was there in the prosecution's case right from the start. On the evidence of PW3, the man was clearly the thief. This allegation was a live issue in the entire proceedings before the learned magistrate In her own defence, the Appellant had specifically denied that she had ever received the wallet from the man. The amendment in its terms did not add anything new to the allegations and that defence counsel who then appeared on behalf of the Appellant in the course of the trial had ample opportunities to cross-examine all the relevant witnesses as far as this allegation was concerned. No prejudice had been caused to the Appellant. In these circumstances, the non-compliance with certain parts of Magistrate Ordinance, that is to say, Section 27(3)(b) and (c) is not fatal to the conviction. The appeal is therefore dismissed.