THE QUEEN v. JACQUELINE HAMILTON

HCMA000581/1987

HEADNOTE

Making off without payment - Intent to avoid payment means an intent permanently to avoid payment or to avoid payment altogether - Intention to delay or defer payment not : sufficient - Omission of words "with intent to avoid payment" in the charge amounted to a material irregularity as magistrate failed to consider the question of specific intent owing to absence of allegation - Conviction quashed and new trial ordered.

THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 581 OF 1987

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JUDGMENT

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1. The appellant was found guilty by a magistrate of the offence of making off without payment contrary to section 18C of the Theft Ordinance, Cap. 210. She was fined $2,000 or one month imprisonment in default of payment and ordered to pay $4,224 to the Y.M.C.A. being the amount due and owing and in default of payment two months imprisonment. She appeals against conviction.

2. The particulars of offence in the amended charge are as follows :-

“Jacqueline Hamilton, on or about the 5th day of December, 1986 at Y.M.C.A. International House, 23 Waterloo Road, Kowloon, then knowing that payment of HK$4,224 being payment for her stay in Room 1414 of the said Y.M.C.A. International House between the 19th day of November, 1986 and the 5th day of December, 1986 inclusive, was then required or expected of her, dishonestly made off from the said Y.M.C.A. International House without making payment of the said sum."

3. The facts as found by the learned magistrate were these. The appellant checked into Room 1414 of the Y.M.C.A. Waterloo Road, Kowloon on 18th November, 1986. She was aware that the daily rate of the room was $240 and payment vas on a cash basis. She was found to have not been occupying the room a few days before 5th December, 1986. On that day, a cleaner of the hostel found in the room the room key lying in the bed with a few items of personal belongings of little or no value. The management was notified. The appellant did not inform the management of her departure or check out nor had she any permission or other arrangement from or with any members of the management of the Y.M.C.A. to defer or otherwise for non-payment of the room charges.

4. A number of grounds of appeal were argued by Mr. Nunns, Counsel for the appellant, the first one being:

“The trial proceeded upon a defectively worded charge (the words, 'and with intent to avoid payment' being omitted) to the prejudice of the appellant; who was unrepresented and whose application to adduce additional evidence was refused. The learned magistrate failed to comply with section 27(2) of the Magistrates Ordinance, Cap. 227 which is in mandatory terms.  Hence the trial.ended with the appellant being convicted of an offence which does not exist in Hong Kong."

Heavy reliance was placed on the decision of the House of Lords in The Queen v Allen [1985] A.C. 1029.  The headnote reads:

''The respondent stayed at a hotel and incurred a bill of £1,286.94. He left the hotel without paying.  He subsequently explained that he was in financial difficulties and said that he genuinely hoped to be able to pay the bill.  He was arrested and charged with, inter alia, making off without payment, contrary to section 3 of the Theft Act, 1978.  His defence was that he had acted honestly and had genuinely expected to pay the bill from the proceeds of business ventures.  The judge directed the jury that the intent to avoid payment in section 3(1) of the Act of 1978 did not have to be permanent but need only apply to the date on which the respondent avoided the payment on the spot that had been required or expected from him by the hotel.  The jury convicted the respondent. The Court of Appeal (Criminal Division) allowed his appeal against conviction. On appeal to the House of Lords by the Crown, it was held, dismissing the appeal, that on the true construction of section 3(1) of the Theft Act 1978, having regard to the mischief that it had been intended to deal with, the intent to avoid payment referred to must be an intent permanently to avoid payment or to avoid payment altogether and not merely an intent to delay or defer payment; and that, accordingly, the respondent’s conviction had rightly been quashed.”

Section 18C of the Theft Ordinance, Cap. 210, which are in identical terms with section 3(1) of the Act of 1978 provides :

"Subject to subsection (3), a person , who, knowing that payment on the spot for any goods supplied or service done is required or expected from him, dishonestly makes off payment without having paid as required or expected and ,with intent to avoid payment of the amount due shall be guilty of an offence."

5. Intention to avoid payment is therefore an essential ingredient of the offence and its omission from the particulars of offence makes the charge defective. Mr. Nunns further relied on section 27 of the Magistrates Ordinance. Subsection 1 says:

"Where it appears to the adjudicating magistrate that there is -

(a) a defect in the substance or form of any complaint, information or summons; or

(b) a variance between the complaint, information or summons and the evidence adduced in support of it,

he shall, subject to subsection (2) -

(i) amend the complaint, information or summons if he is satisfied that no injustice would be caused by that Amendment; or

(ii) dismiss the complaint, information or summons.

Subsection 2:

“The adjudicating magistrate shall amend the complaint, information or summons where -

(a) the defect or variance mentioned in subsection (1) is not material; or

(b) any injustice which might otherwise be caused by an amendment would be cured by an order as to costs, an adjournment or leave to recall and further examine witnesses or call other witnesses."

6. Mr. Nunns submitted that section 27 is in mandatory terms and the learned magistrate had failed to comply with the statutory requirement to amend. He cited a decision of Barnes J. in the Queen v Tse Ming-li, Magistracy Criminal Appeal No. 315 of 1987.  The material part of the judgment is to be found at page 4 where the learned judge said:

"It is not necessary to consider whether he was right wrong in deciding that the variance was not material. If the variance was material then, unless he could amend either without causing any injustice or by only causing an injustice curable under section 27(2)(b), he had to dismiss the charge.  If the variance was not material he was obliged to amend. Thus, whether the variance was material or not; the charge had to be amended if it were not dismissed.  But, a conviction on an amended charge, could not lawfully follow non-compliance with the mandatory procedure laid down by s.27(3).”

7. Mr. Harris for the Crown tackled this ground of appeal along these lines. He argued that the case had to be looked at in practical and realistic terms because the only issue was: Did the appellant ever intend to come back to the Y.M.C.A. and pay the bill?  He conceded that the charge was defective but the defect was not a material irregularity which necessarily resulted in the conviction being quashed. In support of his argument, he relied firstly on the Indictment Rules which are made applicable to trials before magistrates by virtue of section 10(4) of the Magistrates Ordinance. Rule 3(1) states:

"Subject to rule 4, every indictment shall contain, and shall be sufficient if it contains a statement of the specific offence with which the accused is charged describing the offence shortly, together with such particulars as may be necessary for giving reasonable information as to the nature of the charge.”

The proviso to Rule 4 further says:

"Provided that an essential element need not be disclosed if the accused person is not prejudiced or embarassed in his defence by the failure to disclose it."

8. Mr. Harris contended that there was no prejudice or embarrassment caused to or claimed by the appellant. In any event, this is a proper case for the application of the proviso that there has been no substantial miscarriage of justice:  The Queen v McVitte [1960] 2Q.B.483.  In that case, the word ''knowingly” was omitted from the particulars of offence.  It was held that the indictment was not, by reason of the omission of the word "knowingly", rendered bad in law in the sense of disclosing no offence known to the law, but merely defective in that it described a known offence with incomplete particulars. It was further held that the appellant had not been embarrassed or prejudiced by the technical irregularity and the court was not precluded from applying the proviso.

9. Mr. Harris further relied on the decision in CHEUNG Chi-sang v The Queen, Criminal Appeal No. 210 of 1980 in which it was held that the omission of the words "knowing it to be forged" in a charge of uttering a forged document under section 74(1) of the Crimes Ordinance, Cap. 200 did not vitiate the charge. At page 4 of the unreported judgment, Silke J. (as he then was) said:

“ I accept that the actual offence within the term of section 74(1) is uttering and that section 74(2) sets out that which is uttering but I think that the particulars of the charge should contain words similar to the precedent contained in Archbold.  That having been said does their absence here vitiate the charge and the conviction upon that charge?

In my judgment it does not.  The appellant could have been under no illusion as to that which was alleged against him.  The evidence led clearly imputed “knowledge” and none of the evidence was contradicted.  There was one and one only inference the learned trial Magistrate could draw, he did and he was correct in so doing.  Such knowledge of falsity is seldom capable of direct proof, it usually emerges from the evidence - it did here.”

10. I am in respectful agreement with what is set out in the passage.  But the situation here is somewhat different.  An intent to avoid payment is not only a necessary and essential ingredient of the offence, but also there must be an intent permanently to avoid payment or to avoid payment altogether.  An intent to delay or defer payment is not sufficient to prove the charge.  Owing to the absence of this vital element in the charge, the learned magistrate was unable to approach the issue of intent on a proper and correct basis and there is certainly no finding anywhere in his judgment that the appellant had the intent permanently to avoid payment or to avoid payment altogether.  The fact that she had no permission from the staff or the management to defer payment or for non-payment is one thing, whether she intended permanently to avoid payment is quite another.  Did he draw the inference from the established facts that the appellant intended just to delay or defer payment or she intended permanently to avoid payment ?  This is by no means clear.  From the record it seems that he was unaware of the requirement of the specific intent otherwise he would have amended the charge in accordance with the mandatory provision of section 27.  Since he was unaware, he could not have had the matter in mind during the process of his deliberation.

11. In view of the conclusion I have reached on this ground, it is not necessary for me to deal with the other grounds of appeal.  The appeal is therefore allowed, the conviction quashed and the fine and compensation order set aside.  There will be an order that the appellant be tried on a properly drawn charge before another magistrate.