HKSAR v. BALJIT SINGH

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 585 OF 1998

(On Appeal from NKC 6883/94)

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J U D G M E N T

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1. This Appellant seeks leave to appeal against his conviction out of time. On 30th April 1994, he pleaded guilty to one charge of Possession of an Identity Card Relating to Another Person and a second charge of Breach of Condition of Stay. He was convicted after admitting facts which established both those offences. On 16th May 1994, he was sentenced to 6 months imprisonment on the first charge and 1 month imprisonment on the second.

2. On 30th March 1998, the Department of Justice informed the Appellant that the section number of the first Charge (A) had been wrongly entered on the Information as Section 19(g)(i) of the Registration of Persons Ordinance Cap. 177, Laws of Hong Kong. The correct reference should have been Section 7A(1A) of that Ordinance. The basis of the Appellant's appeal is that as the wrong section had been mentioned in the charge, the conviction must be quashed. Counsel for the Appellant has today addressed me on the basis of Meek v. Powell [1952] 1 K. B. 164 which established that:

"where a wrong section had been referred to in the indictment that the indictment must be quashed".

3. I was referred also to the case of Fai Ma Trading Co. Ltd. v. L. S. Lai (Industry Officer) [1989] 1 HKLR, Magistracy Appeal No. 516 of 1987. There the magistrate's powers under section 119(d) of the Magistrates Ordinance were looked at by the Court of Appeal. Under that section on an appeal from a Magistrate the judge has power to direct that a case be heard de novo by a magistrate; to remit the matter with an opinion thereon to the magistrate, or to make such other order in the matter as is thought just, and all those depended on a confirmation, reversal, or variance of the magistrate's decision.

4. In this particular case, it would be possible for me to discharge the conviction and remit the case for a re-hearing before the magistrate. However, taking into account that this Appellant has already served his sentence, I can see no point in following that course. There is of course no equivalent to the proviso exercisable by the Court of Appeal in a case like this. I should state, however, that it appears the incorrect section appears to be a clerical error because section 19(g)(i) is the punishment section relative to the possession of an identity card relating to another person. The facts, which the Appellant admitted before the Magistrate, would fully support a conviction under Section 7A(1A) of the Registration of Persons Ordinance.

5. At this stage, I grant leave to appeal out of time, I treat this as the hearing of the appeal and I quash the conviction. I make no order remitting the case to the magistrate.