THE QUEEN v. TSE YU

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JUDGMENT

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Ching JA:

1. The applicant and two others faced two charges of conspiracy to defraud. The first was permanently stayed but he was convicted on the second and now seeks leave to appeal against that conviction.

2. The charges were brought in the Magistrates' Court. The first was that they had conspired to defraud Phomintex Industrial Limited of Taiwan. The third particular of the charge was that they had done so

"by forwarding freight notices to Phomintex Industrial Company Limited for payment of shipping charges, thereby inducing the said company to transfer monies into the personal account of Tse Yu into the bank account of Famous Line International Transport in Hong Kong."

The second charge was that they had conspired to defraud Jewellery Corporation of Taiwan. The wording of this charge was identical to that of the first with the substitution of the name of Jewellery save that in the third particular the words "into the personal account of Tse Yu" were omitted.

3. The charge sheet was supplied to the defence. The case was then transferred to the District Court by which time another charge sheet had come into existence. At the top right hand corner there appears the words "(Amended Charge Sheet)". The amendment was the addition of the missing words to the third particular of the second charge. No leave was sought and no order was made to allow the amendment. A copy was supplied to the legal representatives of the third accused but none was supplied to those of the applicant who were also appearing for the second accused. When pleas were taken from the accused in the District Court the charges were put to them in the Chinese language, a language which the representatives of the applicant did not understand. They had no reason to think that the charge had been amended and the trial proceeded.

4. The first prosecution witness, P.W.1, was Madam Hu Lin Hsiu-chin. She finished her evidence and returned to Taiwan. The next witness, P.W.2, was Madam Chen Huei-jen who had been at the material time but was no longer an employee of Phomintex. A week-end occurred before she had finished her evidence in chief and she went back to Taiwan. She did not return. In these circumstances the first charge was made the subject of the permanent stay and the trial proceeded on the second charge alone. Amongst the witnesses then called was P.W.20, Madam Fan Wei-ling. She too completed her evidence and returned to Taiwan. On the 25th day of the hearing the prosecution concluded its case and a submission was made on behalf of the applicant that he had no case to answer on the second charge. It was only then that it became apparent that the legal representatives of the applicant had no knowledge of the amendment.

5. When the amendment was brought home to counsel for the applicant he immediately protested that he had been conducting the defence on the basis of the first charge sheet. He therefore applied for P.W.1 and P.W.20 to be recalled for further cross-examination. In the exercise of his discretion the Judge below refused to accede to that application. The trial proceeded. The Judge held that the applicant did have a case to answer. The applicant then gave evidence. In the course of final addresses counsel for the applicant submitted that no reliance should be placed on such evidence as P.W.2 had given and the Judge acceded to that submission. Nonetheless he convicted the applicant.

6. The defence put forward was basically that the monies remitted by Phomintex and Jewellery into the bank account of the applicant's companies were indeed for the payment of shipping charges. However, the monies remitted into his personal bank account were not. They were remitted ostensibly for shipping charges but were in fact remitted in the name of Phomintex and Jewellery in that way to avoid the exchange controls of Taiwan. The application to recall P.W.1 and P.W.20 was based on the assertion that they had knowledge of these matters but in the circumstances had not been cross-examined upon them. It was said that therefore the applicant had been prejudiced.

7. On this application two matters were argued. The first was that the trial was a nullity. The second, by itself and in the alternative, was that by reason of the prejudice suffered by the applicant the conviction was unsafe and unsatisfactory.

8. What happened in relation to the charge sheet was unfortunate. Obviously the accused must be told what is alleged against him and he must be given reasonable opportunity to prepare his defence. If any emphasis for that proposition be required it is to be found in the legislation. By section 75(3) of the District Court Ordinance, Cap.336, where charges are transferred to the District Court a charge sheet of these charges must be delivered within 14 days of the transfer. By paragraph 1(2) of Part II of the Second Schedule to that Ordinance, it is provided that:-

"The charge sheet shall then be read over to him and explained, if necessary, and he shall be required to plead thereto in person, unless he objects to the want of due service of the charge sheet, and the Court finds that he was not duly served therewith."

However, failure to deliver or to serve the charge sheet does not necessarily nullify the charge or the trial. No doubt if the accused were to show that he had not been served and that he needed time the case would be stood down.

9. It was unfortunate also that there had been neither application nor order that the charge should be amended. It was pointed out that the District Court has jurisdiction only over charges transferred to it and that what is transferred is the original charge brought in the Magistrates' Court. By section 23(1) of the Criminal Procedure Ordinance, Cap.221, however it is provided that

"Where, before trial or at any stage of a trial, it appears to the court that the indictment is defective, the court shall make such order for the amendment of the indictment as the court thinks necessary to meet the circumstances of the case unless, having regard to the merits of the case, the required amendments cannot be made without injustice."

Here the charge was not defective in the sense that it was bad as a matter of law. What was omitted was words from one of the particulars. It would be odd if the section allowed a remedy for a charge bad in law but none for the rectification of particulars to meet the case.

10. What happened is comparable to the position in Ismail (1991) 92 CAR 92 where it was said:-

"It is true, as has been put forward in argument, that the Indictments Act 1915, section 5(2), provides as follows:

'Where an indictment is so amended, a note of the order for amendment shall be endorsed on the indictment, and the indictment shall be treated for the purposes of the trial and for the purposes of all proceedings in connection therewith as having been signed by the proper officer in the amended form.'

It is true that that step was not taken as it should have been. It is suggested by counsel for the appellants that that indicates that this was not an amendment, but was a fresh indictment. We do not take that view. We take the view that that was an oversight on the part of the staff. It certainly is not an oversight which in itself invalidates the amendment which we find to have been made."

It has not been suggested that the failure to obtain an order or the failure to inform the applicant's legal representatives was anything other than an oversight. The charge was in fact put to the applicant and, by continuing the trial on the basis of the amended charge, the Judge effectively gave leave for the amendment. There was no substitution of a charge. In these circumstances it cannot be said that either the charge sheet or the trial was a nullity. While the applicant was read the amended charge his legal representatives were not made aware of the amendment. The question then is whether or not this caused any prejudice to the applicant and, if so, whether the Judge ought to have acceded to the application for the recall of P.W.1 and P.W.20.

11. The case for the prosecution was that the applicant had set himself up in business as a shipping agent. That was disputed but the dispute is not relevant for present purposes. The case was that Jewellery had sent the shipping charges to the applicant but that he had failed to pay it over to the carriers. Neither of these facts was disputed. What was disputed was that all of the money was for shipping charges. That being the defence, the relevant witnesses should have been cross-examined to that effect even if the charge had not been amended. In short, it is not possible to see how the applicant was prejudiced by the amendment. It follows that the refusal of the Judge to allow the recall of P.W.1 and P.W.20, a matter which was primarily a matter of his discretion, also caused the applicant no prejudice.

12. Upon the conclusion of the argument this application was refused. The reasons for that refusal have now been given. It is not to be thought, however, that this Court approves of the manner in which the amendment was dealt with or in which the charge was put. The refusal of this application has been dealt with on its own peculiar facts.