HKSAR v. WONG HIU FUNG

[English Translation – 英譯本]

HCMA 60A/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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Before: Hon Deputy Judge Barnes in Court

Date of Hearing: 21 May & 24 June 2003

Date of Judgment: 24 June 2003

Date of Delivery of Written Judgment: 2 July 2003

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JUDGMENT

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Introduction

1. By a “Notice of Motion” dated 6 May 2003, the Applicant applied to the Court of First Instance for certification that “a point of law of great and general importance is involved” in the judgment in HCMA No. 60 of 2003, so that an appeal may be lodged to the Court of Final Appeal. The point of law sought to be certified was:

At the trial of a charge against the Applicant for jointly possessing with others 4 bags of ketamine, after the prosecution and defence closed their cases, whether the magistrate was entitled to convict the Applicant of solely possessing 2 of the 4 bags of ketamine without amending the charge pursuant to section 27 of the Magistrates Ordinance.

2. Having heard submissions on behalf of both parties, I allowed the application on 24 June 2003. I now set out my reasons therefor.

Summary of facts

3. 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.

4. 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.”

5. 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 before the Court of First Instance

6. The ground of appeal put forward by Mr Ma, then Counsel for the Appellant, was 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 in effect 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.

Judgment of the Court of First Instance on the appeal

7. On appeal, I accepted Mr Ma’s submission that the magistrate had not amended the “conviction record” so that it reflected the Appellant’s culpability.

8. In my judgment, I pointed out that the prosecution case was that the Appellant not only possessed the dangerous drug found on him but also possessed the dangerous drug found on 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 did not mean that the prosecution case against the Appellant had undergone any change. The circumstances of the present case were 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 was still part of and contained in the set. 

9. I took the view that the present case was fundamentally different from Yeung Chiu. The present case was analogous to the case where a defendant was charged with theft of 4 items but in the end convicted of theft of 2 of them.

Judgment

10. In Hong Kong, magistrates often have the opportunity or the need to amend charges and/or particulars of charges pursuant to section 27 of the Magistrates Ordinance. It can be seen from decided cases such as Yeung Chiu v. The Queen, Crim. App. No. 1043/1975, Tang Poon-kan v. The Queen [1980] HKLR 885, R v. Ip Chiu & Another, Crim. App. No. 99/1977 and The Queen v. Kwan Cho-kit [1989] 1 HKLR 64 that whether it is “necessary” for a magistrate to amend a charge or particulars of charge in accordance with the said section 27 depends on the degree of importance of the amendment – whether the amendment is “substantial”. A unique feature of the present case is that the prosecution case had never changed and, in considering the evidence, the magistrate accepted part of the prosecution case/evidence and rejected another part thereof. In this case, where no application for amendment of the charge/particulars of charge was ever made to the magistrate in the course of trial, was it still necessary for the magistrate to amend the particulars of charge pursuant to the said section 27? 

11. In my view, the point of law put forward by the Applicant is of great and general importance. Furthermore, magistrates very often have to deal with cases involving dangerous drugs. That several persons are charged with jointly possessing dangerous drugs but in the end the magistrate convicts only one of those persons of possessing part of the dangerous drugs – which is what happened in the present case – cannot be considered an unusual scenario. For these reasons, I allow the application and grant the relevant certificate.