THE QUEEN v. LO CHIU

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 32 OF 1991

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BETWEEN

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JUDGMENT

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1. The appellant leaded guilty in the Magistrates court to a charge which was expressed as 'Possession of an identity card relating to another person. The Statement of Offence in the charge sheet read 'contrary to Section 19 (g) (i) of the Registration of Persons Ordinance, Cap. 177 Laws of Hong Kong.

2. The Particulars of Offence in the charge sheet read:

"Lo Chiu, you are charged that on the 2nd day of December, 1990 at Kwai Chung, in Hong Kong you did without reasonable excuse, have possession of an identity card bearing number G425405 (2) in the name of KWOK Hing-wai that has ceased to be valid under Regulation 13B of the Registration of Persons Ordinance, Cap. 177, Laws of Hong Kong."

3. The appellant pleaded guilty to that charge, and was sentenced to imprisonment for 15 months. In his appeal against sentence, Mr. Wong has advanced the ground on his behalf that the conviction is void and of no effect because the Section under which the appellant was convicted is not found anywhere under the Registration of Persons Ordinance.

4. The appellant was unrepresented in the Magistrates court. It is true as Mr. Wong contends that there is no Section 19 under the Registration of Persons Ordinance. The learned Magistrate in his Reasons for Sentence says that he did not notice that the Statement of the Offence was wrongly cited an that if he had done so he would have amended it so that it would have read contrary to Section 7A of the Registration of Persons Ordinance

5. Mr. Lee, on behalf the Respondent, contends that on the basis of we facts which were agreed upon in the Magistrate's court, it is quite clear that the intention was to charge a Section 7A offence, and submits that the proper order to be made on this appeal is one amending the charge, so that it alleges an offence under Section 7A of the Ordinance and to remit tae amended charge back to the Magistrate to deal with the appellant de novo.

6. Mr. Wong, on the other hand, submits that it would be unjust to do that, because it is clear that it was the intention to charge the appellant with an offence under the regulations, an offence for with the maximum penalty is imprisonment for 1 year. The appellant has already been in custody for 8 months and 7 days. If he were to be proceeded against de novo in respect of the regulation offence then the Magistrate could not reasonably impose a sentence any longer than the period that the appellant has already spent in custody. He also submits that it would we wrong to amend the charge to allege a Section 7A offence.

7. I am in agreement with Mr. Wong. Under the Registration of Persons Regulations, there is a Regulation 19 (g) (i), which reads as follows :

"Any person who without reasonably excuse has possession of an identity car that has ceased to be valid under Regulation 13B shall be guilty of an offence"

and sub-regulation 2 of Regulation 19 provides that any person guilty of such an offence shall be liable to a fine of $3,000 am to imprisonment for 1 year.

8. Section 7A of the Registration of Persons Ordinance provides by subsection 1A the provision under which Mr. Lee says it has the intention to proceed against the appellant reads :

"Any person who without lawful authority or reasonable excuse uses or has in his custody or possession an identity card issued under this Ordinance which relates to another person commits an offence, and is liable on summary conviction to a fine of $20,000 and to imprisonment for 2 years.

9. If the charge in the form in which it was when the appellant pleaded guilty were amended in three minor respects namely to substitute "Regulation" for "Section" in the Statement of Offence, and "Regulations" for "Ordinance" in both the Statement of Offence and Particulars of Offence, then the appellant would be properly charged with an offence against Regulation 19. The wording of the particulars, once those minor amendments have been made reflects the intention of the drafter of charge, namely, to charge the appellant with an offence under Regulation 19 (g) (i).

10. The Court of Appeal in Fai Ma trading Co. Ltd. v. L. S. Lai (1989) 1 HKLR 592 held that there are four alternatives available to a judge under Section 119 (1) (d) of the Magistrate's Ordinance when dealing on an appeal with a charge that is defective. It is common ground here that this charge is defective, and it is common ground between Counsel also that it is defective only in that certain minor particulars are wrongly stated. Fai Ma Trading approved of an earlier single judge decision The Queen v. Chen Ta hoi (1986) HKLR 1189 and Chen Ta hoi applied an earlier Court of Appeal decision in WONG Man-shun v The Queen(1980) HKLR 267 where it was said at page 271:

"Save in exceptional cases we regard it as undesirable to amend the charge on appeal except in minor particulars, since this would deprive an accused person of the protection of Section 27 of the Magistrate's Ordinance, unless the matter will be referred back to the Magistrate's court for re-hearing."

11. I think this is an exceptional case. I agree with the submissions of Counsel that the particulars wrongly stated are minor particulars. I, therefore, think that the proper course for me to follow under Section 119D of the Magistrate's Ordinance is to amend the charge in the way that I have suggested. With the charge so amended, it follows that the appellant has been sentenced to a period of imprisonment beyond the maximum prescribed under the regulations, and accordingly, that sentence cannot stand.

12. I, therefore, allow the appeal and quash the sentence and substitute therefor a sentence which will enable the appellant's immediate release. The appeal is allowed to that extent.