POON CHAU CHEONG v. SECRETARY FOR JUSTICE

FACC No. 7 of 1999

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 7 OF 1999 (CRIMINAL)

(ON APPEAL FROM CACV NO. 123 OF 1999)

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J U D G M E N T

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Chief Justice Li :

1. I agree with Lord Cooke of Thorndon NPJ's judgment.

Mr Justice Litton PJ :

2. I agree with Lord Cooke of Thorndon NPJ's judgment.

Mr Justice Ching PJ :

3. I agree with Lord Cooke of Thorndon NPJ's judgment.

Mr Justice Bokhary PJ :

4. I agree with Lord Cooke of Thorndon NPJ's judgment.

Lord Cooke of Thorndon NPJ:

5. This case is about the power of a magistrate, on a review of his dismissal of an information, to amend the information by substituting a charge of a lesser offence, notwithstanding that at the date of the amendment a fresh information charging that lesser offence would be time-barred.

Introduction

6. Part II of the Prevention of Bribery Ordinance, Cap. 201, creates various offences. By s.31 of the Ordinance the consent of the Secretary for Justice is required for a prosecution. An information laid in February 1998, with the prior consent of the Secretary for Justice, charged the present appellant with an offence of soliciting an advantage, contrary to s.4(2)(a) of the Ordinance. The particulars alleged that the offence had been committed in Hong Kong in or about the middle of May 1996. It was alleged that the defendant, a public servant, without lawful authority or reasonable excuse solicited an advantage, namely a loan, fee, reward, or commission consisting of $50,000 Hong Kong currency from Tai Man-na as an inducement 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 of the then Royal Hong Kong Police Force into deception allegations made by the said Tai Man-na to the then Royal Hong Kong Police Force on behalf of Xing Ming Group Travel Service Limited.

7. The case was tried in the Magistrate's Court at South Kowloon before Madam B. Chainrai on various dates in 1998. Evidence was called for the prosecution but not for the defendant. On 11 September 1998 the Magistrate delivered a decision dismissing the information. The substance of her reasons was that, although it was not challenged that when acting as an investigating officer the defendant had asked Miss Tai for a loan of $50,000, there was no evidence permitting the drawing of an inference that it was as an inducement to the performance of his duty. In the course of her reasons, however, the Magistrate said that there was evidence before her that police officers seeking loans had to comply with "various regulations of procedures and this, clearly, the defendant did not do. He may have committed offences of a disciplinary nature in regard to police regulations".

8. No application had been made, at the time of the delivery of the decision or earlier, to the Magistrate for amendment of the charge. But s.104 of the Magistrates Ordinance, Cap. 227, authorises either party to summary proceedings to apply to the magistrate, within 14 clear days after the determination, to review his decision in the matter. Within the same period the magistrate may re-open the case on his own initiative. In the present case, on behalf of the prosecution the Secretary for Justice, within the 14 days, applied for a review. The section does not prescribe or limit in any way the grounds upon which a review may be granted. Subsections (6), (7) and (8) provide :

"(6) If the Magistrate on his own initiative reviews his decision or grants an application for a review, it shall be lawful for him upon the review to re-open and re-hear the case wholly or in part, and to take fresh evidence, and to reverse, vary or confirm his previous decision.

(7) If the magistrate upon the review decides that the case is one which should be re-opened and wholly re-heard and if he is of opinion that in the interests of justice the case should be re-heard by another magistrate, it shall be lawful for some other magistrate to re-hear and determine the case accordingly.

(8) For the purpose of the review a magistrate shall have all the powers, as to securing the attendance of the parties and witnesses and otherwise, that he would have if the matter were brought before him as an original complaint or information."

9. The application being contested, Madam Chainrai heard argument upon it on 5 October 1998. Counsel for the prosecution made it clear that the dismissal of the charge under s.4(2)(a) of the Prevention of Bribery Ordinance was not being challenged, and that the purpose of the application was to seek an amendment of the information under s.27 of the Magistrates Ordinance to charge a lesser offence under s.3 of the Prevention of Bribery Ordinance. The latter section formerly provided simply "Any Crown servant who, without the general or special permission of the Governor, solicits or accepts any advantage shall be guilty of an offence". Now the section is to be read as specifying any servant of the Government of the Hong Kong Special Administrative Region and the permission of the Chief Executive. In this case nothing turns on those changes; it will be convenient in this judgment to use the old terminology.

10. It will be noted that s.3 requires no inducement as an ingredient of the offence. Also the absence of the general or special permission of the Governor is stipulated rather than "without lawful authority or excuse" as in s.4(2)(a). Another difference, and the one on which the present appeal largely turns, is that, unlike s.4(2)(a), s.3 is one of the offences for which a time limit of two years from the time when the matter of the information or complaint arose is laid down by s.31A(1) of the Prevention of Bribery Ordinance. In this case the original information, the amendment of which was now sought by the prosecution, had in fact been laid within that period of two years, although that time limit did not apply to the original charge.

11. By a decision delivered on 9 October 1998 the Magistrate granted the review application, set aside the acquittal under s.4(2)(a), amended the charge to one under s.3, and read the amended charge to the defendant or caused it to be read to him. The defendant pleaded not guilty to it. Counsel appearing for the defendant on that day, not being the same counsel as had represented the defendant previously, indicated that the latter counsel wished in the circumstances to apply for a trial de novo before another magistrate. Counsel for the prosecution intimated that this application would be opposed. The matter was adjourned until 23 October 1998 for the defence to make an application for a trial de novo and an application for costs.

12. The proceedings in the Magistrate's Court are at present stayed. The stay was ordered by Keith J when he granted the defendant leave to apply for judicial review of the decision of 9 October 1998. Woo J heard the judicial review application and on 29 March 1999 dismissed it. The defendant appealed to the Court of Appeal, where the case was heard by Mortimer V-P, Mayo and Rogers JJA. By unanimous judgments delivered on 9 July 1999 the appeal was dismissed. But the Court of Appeal certified that a point of great general and public importance was involved in their decision, namely (as subsequently amended by the Appeal Committee of the Court of Final Appeal) -

"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.31A(1) of the Prevention of Bribery Ordinance, Cap. 201."

Section 19(2) is the general provision that the magistrate, having heard what each party has to say and the witnesses and evidence so adduced, shall consider the whole matter and determine the same, and shall convict or make an order against the defendant or dismiss the complaint or information, as the case may be.

13. Leave to appeal to this Court was given on 20 September 1999, the wording of the point being amended to the form already quoted. The appeal has been fully argued. Before dealing with the issues it is desirable to set out in full s.27 of the Magistrates Ordinance :

"27. Defects in and amendment of complaint, information or summons

(1) 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.

(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.

(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.

(4) In this section, "amend" includes the substitution of another offence in place of that alleged in the complaint, information or summons."

14. Section 32(1) and (4) of the Prevention of Bribery Ordinance should also be noticed :

"32. Alternative convictions, and amending particulars

(1) If, on the trial of any person for any offence under Part II, it is not proved that the accused is guilty of the offence charged but it is proved that the accused is guilty of some other offence under Part II, the accused may, notwithstanding the absence of consent under section 31 in respect of such other offence, be convicted of such other offence, and be liable to be dealt with accordingly.

(2) ...
(3) ...

(4) Nothing in this section shall exclude the application of any other law whereby a person may be found guilty of an offence other than that with which he is charged."

Section 32(1) would have had the effect of dispensing with any need of the consent of the Secretary for Justice to the amendment charging a s.3 offence if the amendment had been made during the original trial. I think that it must have the same effect when the amendment is made on a review of the original decision.

Determination

15. Simple though the facts of this case seem, many points have been taken for the appellant by Mr Dykes SC and Mr Acton-Bond; and quite a long voyage round the Ordinances is required to deal with them. For the purposes of this judgment it will be sufficient to refer to the main ports of call.

16. The information charging an offence under s.4(2)(a) of the Prevention of Bribery Ordinance, being for an indictable offence charged summarily, was not subject to the normal time limit of six months for summary prosecutions (see the Magistrates Ordinance, s.26) nor was it subject to the special two-year period prescribed by s.31A(1) of the Prevention of Bribery Ordinance for certain offences under the latter Ordinance. In fact, however, it was laid within the two years. There is no dispute that the Magistrate was properly seised of the original charge.

17. During the trial of that charge, if there appeared to her to be a material variance between the information and the evidence adduced in support of it, the Magistrate was under a duty to amend the information, if she was satisfied that no injustice would be caused by that amendment. That was the effect of s.27(1)(b)(i) of the Magistrates Ordinance. Upon the review under s.104 the Magistrate stated that she was satisfied that no injustice would be caused by the amendment; and this is not surprising, as on the evidence before her a conviction on the amended and lesser charge would have been inevitable. Subject only to the point about a time limit (with which I shall deal separately), I think that this was clearly a proper case for an amendment to charge the lesser offence under s.3 of the Prevention of Bribery Ordinance.

18. Counsel's researches suggest that s.104 is unique to Hong Kong, or at least not copied from elsewhere. It will be seen that the section contemplates two stages. First the grant or dismissal of the application for review; secondly, if the application has been granted, what is done upon the review. For the purpose of a review a magistrate has all the powers that he would have had if the matter were brought before him as an original information : see s.104(8). Section 104 does not prescribe or limit in any way either the grounds on which a review may be granted or the factors to be taken into account in the exercise of powers upon the review. The section, including the formula "reverse, vary or confirm his previous decision", is manifestly a wide one enabling inter alia the relatively speedy and simple correction of mistakes. It should receive a correspondingly liberal construction to achieve its purpose. Not only the decision whether to grant an application for review but also the decisions required upon the review must be governed, of course, by the requirements of justice in the particular case.

19. The procedure is open to the prosecution as well as to the defence. An illustration of proper resort to it by the prosecution arises when a magistrate has entered a simple acquittal (strictly speaking, in the summary jurisdiction, a dismissal of a charge) although his statutory duty was to amend the charge. As evidently happened in this case, it is easy for a magistrate, amid the pressures of judicial work, to overlook the possibility of amending a particular charge instead of merely dismissing it. Mindful that mistakes can be made, the legislature in Hong Kong has provided a useful remedy of review within the summary jurisdiction. To set aside the acquittal and to amend the charge upon the review will be to vary the previous decision. An application for that purpose falls prima facie plainly within the section. Subject to the time limit point (to which I shall turn shortly), a reviewing magistrate will have by virtue of s.104(8) the power of amendment under s.27.

20. A reviewing magistrate should have in mind that at the original trial there would have arisen under s.27(1)(b)(i) a duty - the word is "shall" - to amend the information if he was satisfied that no injustice would be caused by that amendment. Subsection (1) is subject to subsection (2); but subsection (2) does not apply where, although there is a material variance, the magistrate is satisfied that no injustice would be caused by the amendment. Upon the review here the Magistrate, obviously having that provision in mind, said that she was so satisfied. There can be no ground, relating to costs or otherwise, on which this Court, remote as we are from the evidence at the original trial (which we have not even seen and which included a tape recording), could possibly disturb that decision.

21. The Queen v. Wong Kei-lung [1994] 1 HKCLR 79 was a materially different case. The defendant was charged with the possession of watches to which false trademarks had been applied. It emerged that the trade mark Rolex was genuine but that some of the components were not genuine Rolex parts. The magistrate amended the charge to one of possession of goods to which a false trade description had been applied. Kaplan J, after referring to the argument that this was to introduce a wholly new charge and different considerations, appears to have taken the view that there was an injustice which could not be cured by an order for costs, as the costs allowable were limited to $5,000 : see s.27(2)(b) and s.27(3)(d). That was a decision on the particular facts of Wong Kei-lung's case. Its correctness or otherwise does not arise for decision if, as the Magistrate found here, the substitution of a lesser charge will cause no injustice.

22. The proviso to s.27(3) of the Magistrates Ordinance, came into some prominence at a late stage in the hearing of this appeal. In truth it is not relevant. If an amendment is made during a trial (either an original trial or a retrial), that restriction on the calling of further evidence by the prosecution will apply thereafter in that trial. But it cannot limit a magistrate in deciding under s.104 whether or to what extent there should be a retrial.

23. In the present case the Magistrate has granted a review and has embarked on the review to the extent of setting aside the acquittal, amending the charge and obtaining a plea to it. She has yet to decide whether she will rehear the case wholly or in part or whether in the interests of justice the case should be reheard before another magistrate. If the case is to proceed, the defence has applied for a full rehearing before another magistrate. It will be understandable if, to avoid any appearance of injustice, the original Magistrate accedes to that application. Among other things this would enable the defence to cross-examine more extensively on the question of a loan; it has been suggested that at the original trial the cross-examination was limited because counsel concentrated on excluding the ingredient of inducement.

24. Coming now to the time point, as already explained I think that the application for a review was prima facie within the scope of s.104. To recapitulate, that section does not limit the grounds on which a review may be granted. The rectification of an omission of this kind to allow a lesser charge to be put forward is prima facie a plain case for invoking the section. Does it make any difference that the time for lodging a new information for the lesser charge has expired? In principle, I do not think that the expiry of itself necessarily presents any difficulty.

25. The prosecution on the original charge carries with it the magistrate's powers of review and amendment. At the time when the prosecution is commenced the defendant in effect has notice that the proceeding may result in his being convicted of a lesser charge arising out of the same facts. If at the time of that commencement the lesser charge was not time-barred, there is nothing in either Ordinance to rule out an exercise of those powers by the magistrate. The amendment is fairly to be treated as retrospective to the date of the commencement. On the other hand it would plainly be unjust - and, I think, an abuse of the powers of the court - to amend the charge to a lesser one if a prosecution for the lesser one would have been out of time when the proceeding was commenced. Attorney General v. Fung Si Tsou [1986] HKC 567, 573, was such a case and is therefore distinguishable from the present case. And there might be other circumstances which would make an exercise of the powers unfair - for instance, a charge based on different facts, or the unavailability of a witness who might have materially assisted the defence on the lesser charge. Any unjust use of the powers would be open to redress, however, on appeal or judicial review.

26. By contrast the present case is straightforward. On the unchallenged evidence the prosecution proved a request for a loan. The ingredient of inducement was found not to be established. The prosecution accepts that finding (however reluctantly) but seeks a conviction arising out of the same conduct for an offence not including the additional ingredient. If the defendant now wishes to deny that he solicited an advantage the Magistrate has power to order a rehearing at which the defendant may put that in issue. There is no prospect of injustice.

27. The foregoing view is substantially the same as that taken in all three courts below in this case and also by a Divisional Court in R v. Newcastle-upon-Tyne Justices, ex parte John Bryce (Contractors) Ltd [1976] 2 All E.R. 611. In that case it was held that justices had power to allow an amendment which had the effect of charging a different offence after the six months' limitation period had expired. Delivering the principal judgment, May J. said at 614 :-

"In my view the six months' limitation provision in the 1952 Act is to ensure that summary offences are charged and tried as soon as reasonably possible after their alleged commission, so that the recollection of witnesses may still be reasonably clear, and so that there shall be no unnecessary delay in the disposal by the magistrates' courts throughout the country of the summary offences brought before them to be tried. It is in this context that their power to permit the amendment of an information, referred to by Lord Widgery CJ, is to be exercised; it must be exercised judicially; it must be exercised so as to do justice between the parties. But where it can be so exercised, where an information can be amended, even to allege a different offence, so that no injustice is done to the defence, I for my part can see no reason why the justices should not so exercise it even though, as I say, the amendment is allowed after the expiry of the six months' period from the commission of the alleged offence."

28. The reference to Lord Widgery CJ is to a judgment in which the Lord Chief Justice had pointed out that if a variance was so substantial that it was unjust to the defendant to allow it to be adopted without a proper amendment of the information, then the practice was for the court to require the prosecution to amend in order to bring their information into line. The defence could seek an adjournment if necessary. The statutory provisions were different from those of the Hong Kong Ordinances, but the result is in my opinion broadly the same in a case of such facts as the present case. Stock J took the same view in Attorney General v. Wong Lau [1993] 1 HKCLR 257, 270, and was, I think, correct on the point.

29. In his argument in reply in this Court Mr Dykes very properly drew the Court's attention to a recent English decision that revisits the Newcastle Justices case and is against him. This is R v. Scunthorpe Justices, ex parte McPhee and Gallagher (1998) 162 J.P. 635, decided by a Divisional Court consisting of Lord Bingham of Cornhill CJ and Dyson J. The defendants there were initially charged with robbery. More than six months after the date of the alleged offence, the prosecution sought to prefer alternative charges including common assault. A fresh information for the latter offence would have been time-barred. It was held that an information can be amended after the expiry of the six-months period, even to charge a different offence, provided that the charge of the different offence alleges the same misdoing as the original charge and the amendment can be made in the interests of justice. The expression "the same misdoing" was taken from the judgment of McCullough J, with whom Robert Goff LJ agreed, in Simpson v. Roberts (1984) The Times, December 21. The latter judgment was to the effect that the broad principle is that an information which is good enough to enable a defendant to identify the misdoing alleged against him can be amended so long as it continues to allege the same misdoing.

30. In the Scunthorpe Justices case Dyson J, with whom the Lord Chief Justice agreed, said that "same misdoing" should not be construed too narrowly : it means that the new offence should arise out of the same (or substantially the same) facts as gave rise to the offence originally charged.

31. It is striking that the English courts, without the aid of express provisions such as s.27 of the Hong Kong Ordinance, have evolved a test virtually identical with that under s.27, namely whether the amendment can be made without injustice. They have taken the view that, where the misdoing is the same, it is not necessarily unjust to a defendant to make an amendment. For the reasons already given, I think that the position in Hong Kong law is no different in substance. Mr Dykes argues that the English decisions are wrong, but on the contrary I think that they are realistic and fair, and accordingly should be followed in this jurisdiction, although not binding here.

32. On the foregoing views the first limb of the amended point must be answered Yes, and the second limb must be answered : Yes, if the substituted information is based on the same or substantially the same facts and would not have been time-barred when the prosecution was commenced.

33. For clarity two incidental matters may be mentioned. First, no question need arise in this case as to the provisions of s.94A of the Criminal Procedure Ordinance, Cap. 221, on the onus of proof regarding exceptions or exemptions. The amended information charges that the defendant, being a Crown servant, solicited the advantage "without the general or special permission of the Governor". At the original hearing evidence appears to have been called for the prosecution that the police departmental records had been checked for evidence of some authority, and that none had been found. The possibility of a permission from the Governor not carried into the police departmental records is so remote that, in the absence of some evidential foundation for such a suggestion, a magistrate would be entitled to infer beyond reasonable doubt that there had been no permission of the Governor.

34. The second matter is that upon the review the original magistrate has already re-opened the case to the extent of setting aside the dismissal of the original information, amending the charge by substitution and taking the defendant's plea to the amended charge. These steps cannot be treated as precluding her from considering the defendant's application for a full rehearing before another magistrate : to hold otherwise would be to place an oppressive and impractical interpretation on ss.104 and 27. But, if a full rehearing is ordered, it will be desirable for the magistrate presiding at the rehearing to have the amended information read again to the defendant, and to give the defendant a further opportunity of pleading to it. And, as Rogers JA suggested in the Court of Appeal, all questions of costs in the Magistrate's Court, including any question of an order under s.27(3)(d), are probably best left until the conclusion of a retrial in the Magistrate's Court.

35. For these reasons I consider that this appeal must be dismissed with costs and an order for legal aid taxation of the appellant's own costs.

Chief Justice Li :

36. The Court unanimously dismisses this appeal with costs, and orders that there be legal aid taxation of the appellant's own costs.