POON CHAU CHEONG v. SECRETARY FOR JUSTICE

FAMC No. 23 of 1999

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 23 OF 1999 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV NO. 123 OF 1999)

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DETERMINATION

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Mr Justice Ching PJ:

1. The applicant is a Detective Senior Police Constable against whom, with the consent of the Secretary for Justice, an information was laid for an offence under section 4(2)(a) of the Prevention of Bribery Ordinance, Cap. 201. So far as is material to this application, the summons which followed alleged that he,

"... as a public servant, in or about the middle of May 1996, in Hong Kong, without lawful authority or reasonable excuse, solicited an advantage, namely a loan ... consisting of $50,000 Hong Kong currency from Tai Man-na, as an inducement to or reward for or otherwise on account of his performing or having performed acts in his capacity as a public servant, namely carrying out or having carried out criminal investigations in his capacity as a detective senior police constable ... into deceptions made by the said Tai Man-na ...."

The trial, at which he gave evidence, commenced on 1 June 1998, and with adjournments concluded on 11 September 1998. The Magistrate found that he had indeed asked Ms Tai for the loan but was not satisfied beyond all reasonable doubt that he had done so in his capacity of a police officer as an inducement to or reward for the performance of his duties in the investigation. She therefore acquitted him.

2. On 16 September 1998, the prosecution asked the Magistrate to review her decision under section 104 of the Magistrates Ordinance, Cap. 227. Notwithstanding that no attack was made upon the acquittal on the charge, the prosecution persuaded the Magistrate to set aside that acquittal and then to amend the charge to one under section 3 of Cap. 201. Before she had made any order as to how the matter was to proceed thereafter, the defence indicated that it intended to apply for a trial de novo and the matter was adjourned for further argument. The applicant successfully applied for leave to apply for a judicial review and the proceedings in the Magistrates Court were stayed pending the determination of that application. The matter came before a Judge of the Court of First Instance who refused relief. There was an unsuccessful appeal to the Court of Appeal who, however, certified that there was a point of great and general importance involved, namely

"Whether the provisions of s.27 of the Magistrates Ordinance, Cap. 227 respecting the amendment of informations, may be used on a review under s.104 of the Ordinance of a decision made by a Magistrate under s.19(2), and if they can, whether they permit the substitution of one information with another offence, which if laid as a fresh information at the time of amendment, would be time-barred by virtue of the provisions of s.26, or of any other statutory provision governing time limits within which informations for summary offences must be laid."

We give leave to amend the question by substituting the words 'Section 31A(1) of the Prevention of Bribery Ordinance, Cap. 201,' for the words 'section 26' and by deleting the words thereafter to the end of the question.

3. On the face of it, the question which has been certified is very wide and in fact comprises a number of questions. Basically it questions whether upon a review under section 104 the powers under section 27 may be utilised, especially when an amendment under the latter section is sought to be made more than two years after the event of which complaint is made. This raises a host of other questions such as the correctness or applicability of certain overseas decisions relied upon by the Courts below, whether a review under section 104 (which is a review of the decision given) can be utilised for the purposes of bringing another charge, whether in the circumstances of this case the application for review made by the prosecution could be said to amount to a misuse of procedure, and whether prejudice to the applicant or the lack of it is relevant on facts such as those outlined above. These questions are surely of great and general importance within section 32 of the Hong Kong Court of Final Appeal Ordinance, Cap. 484. We therefore give leave to appeal.