CHAN WAI CHUNG v. HKSAR

FAMC No. 20 of 2004

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 20 OF 2004 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMA NO. 518 OF 2003)

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D E T E R M I N A T I O N

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Mr Justice Chan PJ:

1.  The applicant seeks leave to appeal to the Court of Final Appeal against his conviction for conspiracy to offer an advantage to an agent on the grounds that there is a point of law of great and general importance and that he has suffered substantial and grave injustice.

2.  Unlike in the courts below, the applicant is now acting in person.  He asserts that he was proceeded against on the wrong charges and that this was unfair to him.  These points had been taken by his counsel before the judge and the judge had dealt with them.

3.  The question involved in this application is whether the magistrate could and should have amended the charges from six counts of offering an advantage to an agent to a single count of conspiracy and whether the applicant had suffered any injustice as a result of the amendment.

4.  Section 27 of the Magistrates Ordinance, Cap 227, is mandatory.  Once the magistrate took the view, having heard the evidence adduced by the prosecution, that there was a variance between the charges and the evidence before him, he was under a duty to raise the question of an amendment to the charges.  He had heard submissions from the parties before making the amendment and followed the procedure stipulated in s. 27 of the Magistrates Ordinance.  He was right in saying that there was no change in substance in the prosecution case and that the applicant was not prejudiced.  The appeal judge was also right in holding that the provisions of s. 31 or 32 of the Prevention of Bribery Ordinance, Cap 201, were not applicable and that the cases cited by counsel for the applicant in the court below (which dealt with the situation of amendment before the commencement of a trial) were not relevant.

5. We do not think there is any point of law of great and general importance in this case.  Nor do we think it is reasonably arguable that there is a departure from accepted norms resulting in any injustice to the applicant.  The application for leave to appeal is dismissed.