HKSAR v. WONG HIU FUNG

[English Translation – 英譯本]
HCMA 60/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 60 OF 2003

(ON APPEAL FROM KCCC NO. 11766 OF 2002)

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JUDGMENT

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Introduction

1. The Appellant was convicted after trial before a magistrate on one count of possessing a dangerous drug, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap. 134 of the Laws of Hong Kong. He was sentenced to community services for 80 hours. He now appeals against conviction.

Summary of facts

2. On 9 June 2002, a security guard working at a disco (PW1) noticed that the Appellant and 3 young males entered a cubicle at the lavatory of the disco. Using a specially made mirror, PW1 saw one of the 4 persons taking out 4 packets of yellow substance. PW1 felt something wrong and knocked on the door of the cubicle, asking those inside to open the door. After the door was opened, the group was brought to the security room, and there police officers found from the Appellant and another person a dangerous drug commonly known as “K” (i.e. the dangerous drug referred to in the charge). Found from the Appellant were a paper bag containing 0.24g powder which in turn contained 0.21g ketamine, and a plastic bag containing 3 paper bags, which contained a total of 0.36g powder which in turn contained ketamine totalling 0.31g.

3. The Appellant was arrested for the offence of possessing a dangerous drug. Under caution, he said, “Ah Sir, the [‘K’] is that I and [my friends] pooled our money to buy this [‘K’] for our own consumption. Give me a chance, Ah Sir, this is my first time.”

4. In the end, the magistrate ruled that the Appellant possessed the dangerous drug found on him, but that there was insufficient direct or circumstantial evidence to indicate with whom the Appellant possessed the dangerous drug found on the other person. The magistrate convicted the Appellant of possessing ketamine totalling 0.52g.

Ground of appeal

5. The ground of appeal put forward by Mr Ma, Counsel for the Appellant, is that the magistrate did not convict the Appellant on the basis of the particulars of offence as set out in the original charge. Mr Ma submitted that the Appellant was charged with one count of possessing, jointly with others, a dangerous drug ketamine as set out in the charge sheet. The ketamine as found was contained in 4 bags, and the quantity in each bag was stated in the certificate issued by the Government Laboratory. The magistrate amended the particulars of charge so that the Appellant was alleged to have possessed ketamine totalling 0.52g as found on his own person. The amendment, however, was not made in accordance with the procedure prescribed under section 27 of the Magistrates Ordinance, and as a result of this procedural irregularity, the Appellant was deprived of his rights under the said section 27 and hence suffered unfairness.

6. One of the rules of natural justice is that “the views of both parties to the litigation must be heard”. In Wade & Forsyth, Administrative Law (8^th ed. 2000) Chapter 15, page 538, the learned authors quoted the following statement by Lord Denning:

A proper hearing must always include a ‘fair opportunity to those who are parties in the controversy for correcting or contradicting anything prejudicial to their view’. Lord Denning has added: ‘If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them.’

7. In the context of an amendment of the charge against the accused at trial, section 27(3) of the Magistrates Ordinance serves to give effect to the above rule of natural justice.

Section 27(3) provides as follows:

(3)     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 recall and further examine such witnesses as may be reasonably required by a 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 recall witnesses and to prepare their cases;

(d)  if he thinks fit, make an order that the complainant or informant shall pay to the defendant such costs, not exceeding $5,000, as may be occasioned by the amendment; and

(e)  give judgment upon the substantial merits and facts of the case as proved before him, having regard to the offence charged in the complaint, information or summons as amended:

Provided that, if the amendment is made after the case for the complainant or informant is closed, no further evidence may be called by the complainant or informant other than evidence that would, apart from this section, be admissible in rebuttal.

8. In relation to the effects of an amendment of the charge on a defendant, Mr Ma has drawn my attention to a few decided cases. In Yeung Chiu v. The Queen, Crim. App. No. 1043/1975, the appellant was originally charged with assault “together with other persons not in custody”. These words were then deleted by the magistrate of his own accord, but he failed to call upon the appellant to plead to the amended charge and allow him to recall witnesses as required by section 27(2) of the Magistrates Ordinance. The appellant’s appeal against conviction was allowed on the ground that the magistrate had substantially failed to observe the relevant statutory provisions.

9. It appears from Yeung Chiu that, where an amendment to a charge is substantial in nature, the magistrate should, in accordance with section 27(3) of the Magistrates Ordinance, read the amended charge, allow the defendant to recall any witness for examination, and consider whether an adjournment of trial is reasonably necessary, so as to avoid the situation in which the appellant does not know about the amendment to the charge until after he is convicted. And, in the passage on “the right to a fair trial” quoted above, Lord Denning has pointed out that:

He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them.

In the present case, the Appellant has, it is submitted, been deprived of his rights under section 27 of the Magistrates Ordinance, and the magistrate has acted in breach of the rule of natural justice.

10. The present case and Yeung Chiu share a common feature, in that the charge prior to amendment was for joint commission of an offence by the defendant with others whereas the amended charge was for commission of the offence by the defendant alone. In Yeung Chiu, the words “together with other persons not in custody” were deleted from the charge; in the present case, the names “Chan Yu Hor, Lui Bo Hong and Chan Yu Hong” were deleted from the charge because the magistrate took the view that only one person had committed the offence. The appellate court in Yeung Chiu considered that the appeal could be allowed for this reason alone. Another complication in the present case is that the subject-matter of the charge was further amended from 4 bags of ketamine to 2 bags of ketamine, and the 4 bags of ketamine had been found in two different places. This complication made it all the more necessary for the magistrate to notify the Appellant at trial what exactly was being charged against him.

11. In Tang Poon-kan v. The Queen [1980] HKLR 885, the magistrate ruled, after the prosecution closed its case, that there was no case for the defendant to answer on the charge of criminal intimidation. The magistrate amended the charge from criminal intimidation to common assault, purportedly in accordance with the Magistrates Ordinance, but no amendment was made on the record. Nor was the amended charge read and explained to the defendant. Counsel for the defendant indicated to the magistrate that the defendant would plead not guilty to the charge. On appeal, it was held that, as the amendment was substantial in nature, the magistrate’s failure to observe section 27(2) rendered the conviction unsafe.

12.  In the present case, although the magistrate had orally indicated that the charge would be amended, no alteration was made to the charge sheet, and it appears from Form 22, the document signed by the magistrate on the date of conviction of the Appellant (page 15 of the Appeal Bundle) that the contents of the charge had by that time still not been amended in any way. As was the case in Tang Poon-kan, by merely indicating orally that the charge would be amended and then failing to amend the charge on record, the magistrate had committed a procedural error.

13. As Mr Ma has pointed out, in Tang Poon-kan, Bewley J relied on the following cases:

(a)      In Chan Kam Chau & Another v. The Queen [1971] HKLR 383, the magistrate in committal proceedings failed to explain to the defendant the elements of the offence as required by section 81B(3)(c) of the Magistrates Ordinance, and this omission rendered the committal proceedings null and void.

(b)     In R v. Ip Chiu & Another, Crim. App. No. 99 of 1977, the appellate court held that, where an amendment to a charge was trivial in nature, it would not be necessary to read and explain the amendment to the defendant. Huggins JA observed that section 27(2) was directed at what emerged as substantial amendments to a charge. The substitution of a charge of common assault for a charge of criminal intimidation was obviously a substantial amendment.

14. At the present hearing, the Appellant contended that the amendment by the magistrate of the charge from one of 4 persons jointly possessing a total of 4 bags of ketamine to one of the Appellant alone possessing 2 bags of ketamine was a substantial amendment.

15. At trial, there was simply no means by which defence counsel could know what amendments the magistrate would make to the charge. This was because the charge could be amended in all possible manners, for example, it could be amended to 4 persons jointly possessing 2 bags of ketamine, or 4 persons jointly possessing 4 bags of ketamine, or one person possessing 4 bags of ketamine, or one person possessing 2 bags of ketamine.

16. At law, the concept of joint possession was vastly different from that of sole possession. On the facts, had the evidence against the Appellant been altered from 4 bags of ketamine to 2 bags, the Appellant might have made different decisions as to whether he would give evidence or call witnesses at trial.

17. In view of the legal and factual differences between the original charge and the amended charge, the amendments made by the magistrate were substantial in nature.

18. For the above reasons, the Appellant submitted that the magistrate’s failure to follow the procedure under section 27 of the Magistrates Ordinance in amending the charge and his failure to amend the corresponding record constituted a procedural irregularity which deprived the Appellant of a fair trial, and the appeal should accordingly be allowed.

Respondent’s reply

19. Ms Chan, Counsel for the Respondent, has submitted that there is no indication in the Appeal Bundle that the magistrate had ever amended the particulars of charge.

20. Nor was it necessary for the magistrate to amend the particulars of charge pursuant to section 27 of the Magistrates Ordinance, because the charge was defective neither in substance nor in form. The acquittal of the Appellant in respect of possession of the dangerous drug found on the other defendant was merely a finding of fact made by the magistrate after he heard all the evidence and was not because of any variance between the prosecution evidence and the charge.

21. It was obvious that the prosecution case had all along been that the Appellant possessed the dangerous drug found on his own person, and the defence had all along been aware that it was one of the allegations which the defence had to answer. In fact, the line of defence was that the dangerous drug was not found on the Appellant’s person but was seized from a table. It follows that, even if the magistrate convicted the Appellant on the basis of that part of dangerous drug as was found on his person, this would not have been unfair to the Appellant. The trial had not been tainted by any impropriety.

Judgment

22. First of all, I accept Mr Ma’s submission that the magistrate had not amended the “conviction record” so that it reflected the Appellant’s culpability.

23. The original charge was that the Appellant and 3 other males jointly possessed the dangerous drug set out in the charge sheet. The prosecution case was that PW1 saw the Appellant and 3 males entering a lavatory cubicle together and that, using a specially made mirror, PW1 saw one of the 4 persons taking out 4 packets of yellow substance. There was no evidence regarding which of the 4 persons took out the 4 packets. Subsequently, in the security room, 2 bags of dangerous drug were found from the Appellant and 2 other bags were found from another male. The prosecution alleged that, apart from possessing the dangerous drug found on his own person, the Appellant also possessed the dangerous drug found from the other male. Although the magistrate ruled in light of all the facts that the Appellant possessed only the dangerous drug found on his own person, this does not mean that the prosecution case against the Appellant had undergone any change. The circumstances of the present case are analogous to a sub-set within a set: the set being possession of all the dangerous drug and the sub-set being possession of the dangerous drug found on him. The sub-set is still part of and contained in the set. 

24. The present case is fundamentally different from Yeung Chiu. The present case is analogous to the case where a defendant is charged with theft of 4 items but in the end convicted of theft of 2 of them.

25. The magistrate had very fairly ruled that, on the prosecution evidence, he was not satisfied beyond reasonable doubt that the Appellant possessed the dangerous drug found on the other person. He ruled that the Appellant only possessed the dangerous drug found on his own person. I fail to see how this ruling is unsafe, unsatisfactory or unfair to the Appellant.

26. I do agree with Mr Ma’s submission that, given the magistrate ruled that the Appellant possessed only part of the dangerous drug as particularized in the charge, he should have amended the particulars of charge when he gave the ruling. Nevertheless, even if he did amend the charge at that time, such amendment would not have arisen from the circumstances which necessitated an amendment under section 27(3) of the Magistrates Ordinance, namely “a defect in the substance or form of any complaint, information or summons” or “a variance between the complaint, information or summons and the evidence adduced in support of it”. Furthermore, the amendment was in my view not “substantial”. As the amendment was trivial, I do not consider it necessary for the magistrate to amend the charge in accordance with section 27(3) of the Magistrates Ordinance.

27. The magistrate’s verdict is neither unsafe nor unsatisfactory. Nor is it unfair to the Appellant. The appeal is accordingly dismissed and the conviction affirmed.