POON CHAU CHEONG v. SECRETARY FOR JUSTICE

HCAL No. 1 of 1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

----------

----------

-----------------

JUDGMENT

-----------------

1. This is an application for judicial review of a magistrate's decisions. Leave for judicial review was granted by Keith J on 7 January 1999.

2. On 11 February 1998, an information was laid against the Applicant by the Independent Commission Against Corruption for an offence under s 4(2)(a) of the Prevention Against Bribery Ordinance, Cap 201 ("the POBO") with the following particulars of offence:

"POON Chau-cheong, as a public servant, in or about the middle of May 1996, in Hong Kong, without law 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 to 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 deceptions made by the said TAI Man-na to the then Royal Hong Kong Police Force on behalf of Xing Ming Group Travel Service Limited."

3. The Applicant pleaded not guilty to the charge and the trial took place before Madam B Chainrai on 1 to 5 June, 11 June, 31 August and 11 September 1998.

4. On 11 September 1998, the Magistrate pronounced her verdict. She said that "that the Applicant did ask Ms TAI Man-na for a loan of $50,000 was not contested -- not challenged." She found that the Applicant asked Ms TAI for a loan sometime between 10 and 20 May 1996. She was, however, not satisfied beyond all reasonable doubt that the Appellant, when soliciting the loan from Ms TAI, did so in his capacity as a police officer as an inducement to or reward for the performance of his duties whilst investigating Ms TAI's complaint to the police. The Magistrate therefore acquitted the Applicant of the offence charged.

5. Sometime before 18 September 1998, and Mr To for the Secretary for Justice clarified that it was on 16 September 1998, the Prosecution applied to the Magistrate under s 104 of the Magistrates Ordinance, Cap 227 ("the MO") for a review of her decision.

6. The application for review was heard on 5 October 1998 and the Magistrate delivered her judgment on 9 October 1998 and made the following orders:

(a) allowing the application for review;

(b) setting aside the acquittal; and

(c) amending the charge in the information pursuant to s 27 of the MO to allege an offence under s 3 of the POBO, instead of the originally stated one under s 4(2)(a) of the same Ordinance.

7. Counsel for the Prosecution then presented a hand-written amendment to the information, which substituted s 3 for s 4(2)(a) of the POBO with the following particulars of the offence:

"POON Chau-cheong, being a Crown servant, in or about the middle of May 1996, in Hong Kong, without the general or special permission of the Governor, solicited an advantage, namely a loan, fee, reward or commission consisting of $50,000 Hong Kong currency from TAI Man-na."

8. The Magistrate proceeded to take a plea on the amended charge, and the Applicant pleaded not guilty. Thereupon, solicitor for the Applicant applied for a trial de novo before another magistrate. Before that application was heard, he applied for an adjournment, which was granted, so that the counsel who had acted for the Applicant during the several-day trial could address the court. When the hearing resumed before the Magistrate on 18 December 1998, the Prosecution opposed an adjournment sought by counsel for the Applicant until after the determination of the Applicant's application for leave for judicial review. The Magistrate refused to grant such an adjournment and decided to continue with the case on 8 February 1999. On 7 January 1999, upon granting leave for judicial review, Keith J also directed that the grant of leave should operate as a stay of the proceedings relating to the amended information until the determination of the application for judicial review.

9. It is in regard to the Magistrate's said judgment or orders that the Applicant now applies to review before me.

10. The Applicant's basis for judicial review is that the Magistrate acted ultra vires in reviewing the acquittal. The grounds in support of that basis can be summarised as follows:

(a) The Magistrate did not have power under s 104 of the MO to set aside the order dismissing the information and then amend the information under s 27 of the MO by replacing it with a fresh information alleging a wholly different offence when the time for laying an information for that new offence (under s 31A(1) of the POBO) had expired.

(b) The Magistrate did not have power under s 104 of the MO to amend the information under s 27 of the MO as the power to amend under s 27 is only exercisable during the trial of an information under s 19 of the MO and not on a review under s 104.

(c) By ordering the amendment, the Magistrate ignored the statutory prohibition imposed by s 31A(1) of the POBO against the prosecution of an offence under s 3 of the POBO that is instituted more than two years after the occurrence of the offending event; and as more than two years had elapsed from the time when the matter for the information first arose, the order in effect allows the prohibition to be circumvented.

(d) The allowed amendment also contravenes s 31 of the POBO in that the consent of the Secretary for Justice to prosecute a s 3 offence as required by s 31 had not been obtained.

11. Mr Dykes, SC, counsel for the Applicant, contended that the Magistrate had no jurisdiction to order an amendment to the information and had therefore committed an obvious and fundamental error of law in making the said orders. If this argument is correct, without the amendment, and as the Prosecution did not seek a conviction on the originally stated offence contrary to s 4(2)(a) of the POBO, the acquittal entered on 11 September 1998 should have been confirmed. In other words, the application for review should have been refused, because without the amendment, the setting aside of the acquittal would have resulted in a vacuum in that while no conviction under s 4(2)(a) was possible according to the unchalleged findings of the Magistrate, the case would not have been finally determined.

12. It is now necessary to examine the relevant provisions of the MO. S 104 of the MO provides as follows:

(1) Within 14 clear days after the determination in any manner by a magistrate of any matter which he has power to determine in a summary way it shall be lawful for either party thereto to apply to the magistrate to review his decision in the matter.

(2) ...

(3) ...

(4) ...

(4A) ...

(5) It shall also be lawful for a magistrate on his own initiative, within 14 clear days after the determination in any manner of any matter which he has power to determine in a summary way, to re-open the case, and thereafter, whether within the said period of 14 clear days or after its expiration, to review his decision in the matter.

(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 the 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) ...

(10) For the purpose of determining the time within which an appeal whether by way of case stated under section 105 or under section 113 may be lodged, the determination of a case by way of review under this section or the refusal to grant a review shall, in the event of such determination or refusal and notwithstanding anything contained in the sections aforesaid, or in section 114 be the date as from which the respective periods for lodging an appeal shall run ...

13. S 27, the amendment section, provides as follows:

(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 the 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. S 19(1) of the MO provides for the usual procedure for conducting a criminal trial without a jury. S 19(2) is also relevant:

(2) 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.

15. On these provisions in the MO, Mr Dykes' arguments as applicable to the circumstances of the present case are as follows:

(a) Under s 104, as made clear by s 104(6), upon a review, the Magistrate could only reverse or confirm her 11 September 1998 decision of an acquittal. It was not open to her to merely setting aside the acquittal without entering a conviction. As I understand it, the argument is that the acquittal could only have been reversed or confirmed. If reversed, than a conviction must be entered. However, a conviction could only be entered for the offence as originally stated in the information, which was an offence contrary to s 4(2)(a) of the POBO. It could not be a new offence under s 3 of the POBO, because there was no acquittal of a s 3 offence. Therefore, the Magistrate acted beyond the jurisdiction conferred on her by s 104.

(b) The re-opening and re-hearing of the case stipulated in s 104(6) only allowed the Magistrate to reach a decision on the review in order to enable her to decide whether to reverse, vary or confirm the acquittal, but not to allow her to act pursuant to s 19 as if she was a magistrate at a trial. When purporting to act under s 19, the Magistrate acted ultra vires s 104(6).

(c) It follows from (b) that the Magistrate was not an adjudicating magistrate under s 27, and therefore the amendment powers or duties conferred or imposed by s 27 were not available and did not apply to the Magistrate. In purporting to allow an amendment, which was necessarily an exercise of a power under s 27, the Magistrate acted without jurisdiction.

(d) Moreover, s 27(1) and (2) only imposes a duty on an adjudicating magistrate to amend an information if there is a defect in the substance or form of the information or a variance between the information and the evidence adduced in support of it, and only where (i) no injustice would be caused by the amendment; (ii) the defect or variance is not material; or (iii) any injustice which might otherwise be caused by the amendment would be cured by the steps prescribed in s 27(2)(b). The amendment allowed by the Magistrate did not satisfy any of these provisions as there was no defect in the information, no variance between the information and the evidence adduced in support of it, and an incurable injustice was caused. The incurable injustice was caused by allowing the prosecution of an offence after it had already been time-barred, and without the consent of the Secretary for Justice.

16. The powers under s 104 of the MO are very wide and sweeping. If a magistrate grants an application for review, he is entitled to "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." I do not accept that as a matter of construction, "reverse" is restricted to the meaning as contended by Mr Dykes in that if the decision subject to review is an acquittal of an offence, when the acquittal is reversed, a conviction for the same offence must follow. I consider that upon review, when a magistrate re-opens the case, an acquittal as previously determined by him can be set aside, and the case will continue and can be re-heard. I do not consider that when an acquittal is set aside, the magistrate is bound to immediately replace it with a conviction in respect of the same offence or otherwise. As part and parcel of the review exercise pursuant to s 104(6), I consider that a magistrate can re-open the case, hear submissions, and decide to set aside the acquittal first, and then re-adjudicate the case. In such circumstances, the magistrate reverts to be a trial or adjudicating magistrate and he has to discharge his functions under s 19 and s 27 of the MO. To express my interpretation of s 104(6) another way: the review exercise is not complete when the acquittal is set aside, and the magistrate is continuing with the review after re-opening the case. He will proceed to re-hear the case and all the functions under s 19 and s 27 are for him to discharge. If he decides that the case as re-opened by him should be wholly re-heard by another magistrate, another magistrate will re-hear the case pursuant to s 104(7), and that magistrate will have to discharge his functions under ss 19 and 27. My interpretation finds support in s 104(8) and (10) of the MO. S 104(8) provides that for the purpose of the review a magistrate shall have all the powers that he would have if the matter were brought before him as an original information. S 104(10) provides that the time limit for an appeal under s 105 or s 113 will only run from the date of the determination of the review or refusal to grant a review.

17. In the present case, according to my above interpretation of s 104 of the MO, the Magistrate had not concluded the review by merely setting aside the acquittal. She had re-opened the case and proceeded to discharge her functions under s 19. She reverted to being the trial magistrate. Pursuant to s 27, she then allowed an amendment to be made to the information against the Applicant to substitute an offence contrary to s 3 of the POBO for the offence contrary to s 4(2)(a) of the POBO as originally alleged in the information. She had not finalised the review, but when the solicitor for the Applicant applied for an adjournment, she granted it as the adjudicating magistrate, again performing her functions under s 19. All these powers were granted to her by s 104 (6) and (8).

18. If I am wrong on my views expressed above, and if the setting aside of the acquittal was the conclusion of the review under s 104, it would be difficult to fix the date from which the appeal period, to be calculated in accordance with s 104(10), would start to run. Does it mean that it would have started to run on 9 October 1998 when the acquittal was set aside? Or would it only start to run after the re-hearing and upon a final determination of the case pursuant to s 19(2)?

19. Counsel for the Secretary for Justice submitted that the review concluded upon the decision to set aside the acquittal, but that submission will result in the total disregard of s 104(10). According to my interpretation of the entirety of s 104, there was not yet a determination of the case upon the setting aside of the acquittal, and the appeal period did not start to run.

20. The case was re-opened by the Magistrate upon review, and if she was to stop after the setting aside, there would have been a vacuum as suggested by Mr Dykes. I think that is the basis upon which Mr Dykes argued that there must be a conviction to replace the acquittal set aside. That argument is correct, for it will be able to fix the time for the appeal period to run under s 104(10). However, there is no express language used in s 104(6), nor can it be implied from the word "reverse" in that subsection, that a conviction must be recorded immediately upon the setting aside of an acquittal. The powers granted by s 104(6) are "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" the previous decision. It does not provide that a setting aside of an acquittal must necessarily conclude the review. Nor does it restrict the power to re-hear the case wholly or in part for arriving at a decision to set aside an acquittal but no further.

21. Although pursuant to s 104(6), a magistrate has re-opened a case and re-heard it in part, he can still order it to be wholly re-heard by another magistrate under the powers granted by s 104(7). It must have been pursuant to s 104(7) that the solicitor for the Applicant applied to the Magistrate to have the case heard de novo before another magistrate.

22. In the present case, the decision to set aside the acquittal can be viewed as a result of the Magistrate, having re-opened the case, hearing the case in part, and another part of the case was proceeding when she granted the amendment. When the Magistrate granted the application to review her order of dismissal of the information, or in other words the acquittal, and set aside the acquittal, the case became undetermined as to whether the Applicant should be acquitted or convicted. It is at least implicit, if not explicit, in ss 104(6) and 19(2) of the MO that the Magistrate was duty bound to reach a final determination of the matter before her, ie, either to acquit or convict. Since that issue was still left open, the Magistrate was perfectly entitled to deal with it at the stage that it was left before the acquittal (which was set aside), namely, when the defence closed its case. Her status as the adjudicating magistrate under ss 19 and 27 of the MO was restored, since she was exercising the powers given her by s 104(8). As arguments on the amendment had been heard by her, she decided to allow the amendment. After counsel for the Prosecution had handed up the amended information, the amended charge was read to the Applicant and his plea taken. The Magistrate was in the course of proceeding to hear submissions for both sides in order to reach a verdict on whether the Applicant was guilty or not guilty. However, she was stopped by the Applicant's application to have the case heard de novo by another magistrate and an adjournment for the Applicant's counsel to address her. She granted the adjournment sought. The matter remained there as Keith J granted an order to stay those proceedings.

23. When granting the review and setting aside the acquittal, the Magistrate had pursuant to s 104(6) re-opened the case which was treated as being brought before her as an original information in accordance with s 104(8). She also exercised her lawful power under s 104(6) to re-hear the case in part, ie, from the stage where the defence closed its case. It was because of the application to adjourn and the stay ordered by Keith J that she has not so far decided what verdict she should enter regarding the case, and the review is pending completion. Where any amendment to the charge or information was needed, as in the present case, the Magistrate performed her functions under s 27 of the MO. I do not consider that the attack on the powers of the Magistrate that she did not have jurisdiction to amend under s 27 has any substance.

24. Mr Dykes also relied upon the concept of functus officio. I am not persuaded that when a conviction or acquittal resulted from a trial, the trial magistrate becomes functus officio. S 104 of the MO is an express empowering section for a magistrate to review his decision, be it a conviction or acquittal. The section is clearly an avenue provided to setting aside or reversing a verdict, be it a conviction or an acquittal. The concept of functus officio is expressly abrogated by s 104. However, there is still finality in a determination of a magistrate in a case, because s 104 only postpones that finality by allowing either party to a case or the magistrate to have the determination reviewed within 14 clear days of the determination. After the expiry of this period, the determination will be final.

25. Upon the above analysis, Mr Dykes' arguments that there could not be a conviction on an offence contrary to s 3 of the POBO upon the setting aside of the acquittal of an offence under s 4(2)(a) of the POBO are rejected. The Magistrate did, according to my view, have jurisdiction under s 104(6) to set aside the acquittal and proceed with re-hearing the case. She had, pursuant to s 104(8), reverted to be the trial magistrate under ss 19 and 27 of the MO, and her acting as such in allowing the amendment, taking the plea of the Applicant on the amended charge, granting an adjournment as sought by the solicitor for the Applicant were all proper and lawful.

26. I now turn to Mr Dykes' arguments relating to the propriety of the amendment to substitute an offence under s 3 of the POBO for one under s 4(2)(a) of the same Ordinance. Ss 3 and 4 of the POBO are both under Part II of that Ordinance. S 31 of the POBO provides that no prosecution for an offence under Part II shall be instituted except with the consent of the Attorney General. There is no challenge that the Attorney General's consent had been obtained for prosecuting the Applicant for the originally alleged offence under s 4(2) of the POBO. S 31A of the POBO is important. It provides:

"Notwithstanding section 26 of the Magistrates Ordinance (Cap. 227), a complaint may be made or an information laid in respect of an offence under section 3, 14(5), 14A(5), 14C(6) or 33A within 2 years from the time when the matter of such complaint or information respectively arose."

27. It is also pertinent to look at s 26 of the MO for comparison, which provides:

"In any case of an offence, other than an indictable offence, where no time is limited by any enactment for making any complaint or laying any information in respect of such offence, such complaint shall be made or such information laid within 6 months from the time when the matter of such complaint or information respectively arose."

28. S 31A of the POBO does not apply to an offence under s 4(2) of the Ordinance. On the other hand, a s 3 offence is squarely within the ambit of s 31A, and therefore the information in respect of that offence must be laid within two years from the time when the subject matter of the information arose. The subject matter of the information arose, according to the particulars of offence stated in the information and the findings of the Magistrate, sometime between 10 to 20 May 1996. The information was laid in February 1996. There was clearly no contravention of s 31A of the POBO, even if the offence charged by the information had been a s 3 offence. The Applicant's complaint is that when the information was amended by the Magistrate on 9 October 1998, or even when the application for review under s 104 of the MO was made on 16 September 1998, the two-year limitation period for laying an information for offending s 3 of the POBO had already expired. It was argued that the Magistrate's allowing the amendment to the information to alter the offence from one under s 4(2) to one under s 3 of the POBO had the following unfair and unjust effect, namely, allowing the prosecution of a s 3 offence even after two years had elapsed between the time the subject matter of the offence arose and the institution of the proceedings, resulting in a contravention of s 31A of the POBO through a back door. The Magistrate had therefore acted ultra vires and beyond her jurisdiction.

29. In The Attorney General v Wong Lau trading as Kin Keung Construction & Engineering Co [1993] HKCLR 257, Stock J was dealing with a case stated from a magistrate regarding whether it was proper to disallow an amendment to the charge. One of the issues was whether s 26 of the MO prohibited the amendment if the amended charge related to a matter that arose six months before the amendment was sought. After referring to May J's judgment in R v Newcastle-upon-Tyne Justices [1976] 2 All ER 611 @ 614, Stock J held at 269 that "Amendments, properly so called, are not subject to the provisions of s 26 of the Magistrates Ordinance, since the power to amend presupposes a 'live' information." Mr Dyes urged me not to follow Stock J's interpretation of s 27(4) of the MO, because that interpretation made for uncertainty, legal novelty and inconsistency. He submitted that uncertainty arose because people could not rely on statutory limitation periods. These were most important in regulatory offences where there might be an obligation to preserve things or records for a certain period. The novelty was in the idea that limitation periods could be overridden as a matter of discretion. The inconsistency lay in the fact that different substantive rules operate in respect of the same offence in different courts, namely, only s 104 and s 27 procedures applied to the magistrates' court but not the District Court or the Court of the First Instance of the High Court, the other courts having first instance jurisdiction.

30. All the relevant provisions, namely ss 26, 27 and 104 of the MO and ss 3, 4 and 31A of the POBO, are statutory provisions. A proper understanding of these sections will not give rise to the uncertainty as contended. Nor is there any novelty, for if the subject matter of a relevant information arose within two years before the information is laid, a properly advised defendant should appreciate that the information can be subject to amendment under s 27 of the MO and he is liable to a conviction of the amended information, and the possible conviction of an alternative offence where that is open to the court to convict upon the evidence. That possibility is clearly provided in s 32(1) and (4) of the POBO, which provides:

(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 provided 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.

31. In a case tried before a magistrate, however, he is bound by The Attorney General v Lee Sing Chou, Crim App No 326 of 1974 (2 July 1974, unreported) to amend the information to substitute the alternative offence pursuant to s 27 of the MO, instead of relying on s 32(1) and (4) of the POBO to merely convict the defendant of the alternative offence open on the evidence without an amendment.

32. I do not quite understand why Mr Dykes ascribed novelty to the clear provisions of the various sections, and the argument is rejected.

33. The alleged inconsistency is based on the fact that while ss 26, 27 and 104 of the MO apply only to magistrates' courts, they have no application to the other courts of first instance. I have no quarrel with that, but I see no ground for complaint. Magistrates courts are statutory creatures, and are governed by the MO, whereas the Court of the First Instance of the High Court and the District Court are not so governed. The inconsistency is a deliberate act of the legislature, and the law so made by the legislature is for the courts to apply. This complaint has no substance either.

34. Mr Dykes also submitted that Wong Lau was per incuriam because the MO must be construed as a whole, and s 23(1) thereof had not been considered in that case. The relevant part of s 23(1) reads as follows:

"In every case of an information for any offence punishable on summary conviction any variance between the information and the evidence adduced in support thereof as to the time at which the offence or act is alleged to have been committed shall not be deemed material, if it is proved that such information was in fact laid within the time limited by law for laying the same."

35. The applicability of the provisions of s 23(1) is where the information was laid after the expiration of the time-bar or limitation. For example, if any information for a s 3 offence was laid on 1 January 1999 alleging an offence that took place on 1 March 1997, but the evidence adduced in support of the information at trial is that the offence took place on 1 March 1996, then s 23(1) applies. Mr Dykes conceded that s 23(1) did not apply to the facts of the present case, and his referring to it was merely for two purposes, namely that time was a material factor when considering whether an amendment should be granted under s 27 of the MO, and that if an injustice was caused because otherwise the offence introduced by the amendment would have been time-barred, then that injustice would be extremely serious and could not be cured by any means provided in s 27(2)(b) of the MO. In such circumstances, the amendment should not be allowed.

36. Although s 23(1) was not specifically mentioned in Wong Lau, s 26 of the MO was. In additon, Wong Lau was a decision reached after hearing detailed submissions of counsel for both sides and considering a number of authorities. I have not been persuaded that I should not follow the decision of Stock J.

37. It was further argued that allowing the amendment to substitute a s 3 offence for a s 4(2) offence under the POBO was also to pay no regard to s 31 of the same ordinance, which provides that the consent of the Attorney General (or the Secretary for Justice) is required for instituting prosecution for a Part II offence which includes one offending s 3. However, s 32(1) expressly provides for a situation where a defendant is prosecuted for one offence under Part II but can be liable to conviction of another offence under the same Part. An amendment allowed by a magistrate may lead to a conviction under s 3 instead of s 4, and this avenue is entirely open by virtue of the clear provisions of s 32(1) and (4) of the POBO and also s 27 of the MO. There is nothing wrong with the proper application of the law, save that as ruled in Lee Sing Chou, a magistrate is bound to amend first before he proceeds to convict an accused of an alternative offence open on the evidence.

38. The only point left to be dealt with is whether the amendment ordered by the Magistrate was proper. The working of s 27(1) and (2) of the MO is mandatory, the adjudicating magistrate "shall amend" the information under certain circumstances. Such was the view of the Court of Appeal in Lee Sing Chou. One of the circumstances giving rise to the mandatory action of the adjudicating magistrate is "a variance between the ... information ... and the evidence adduced in support of it" (sub-s (1)(b)), and he shall "amend the ... information ... if he is satisfied that no injustice would be caused by that amendment" (sub-s (1)(i)) where "the defect or variance mentioned in subsection (1) is not material; or 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" (sub-s (2)(a) and (b)). An amendment includes a substitution of an offence for the one alleged in the information (sub-s (4)).

39. The reason for the amendment as contended by Mr To, which I accept, was that there was a variance between the information and the evidence in support of it. The variance was apparent from the Magistrate's reasons for verdict, ie, that the evidence did not support a finding that the loan solicited by the Applicant was an inducement to or reward for the performance of his duties as a public servant. That triggered the application of s 27(1)(b) of the MO. Whether the amendment should be allowed to substitute an offence under s 3 of the POBO for an offence under s 4(2)(a) of the POBO ultimately rested on whether an injustice would be caused and if caused, whether it would be cured by the steps in s 27(2)(b) of the MO.

40. In examining whether the amendment ordered by the Magistrate was proper or not, I also derive assistance from Wong Lau. The total effect of the amendment to the information against the Applicant in the present case is as follows:

(a) substituting s 3 for s 4(2)(a) of the POBO;

(b) substituting "Crown servant" for "public servant" in the description of the position and status of the Applicant;

(c) substituting "without the general or special permission of the Governor" for "without lawful authority or reasonable excuse"; and

(d) deleting the part of "an inducement to or reward for or otherwise on account of" the Applicant's performing or having performed acts in his capacity as a public servant, etc.

41. The facts on which the original offence and the amended offence were based are substantially the same, namely that the Applicant solicited a loan, fee, reward or commission consisting of $50,000 from TAI Man-na. If there was a defect in the original charge, it is merely a difference in degree: a solicitation of a loan, as found by the Magistrate, without the permission of the Governor, instead of soliciting such a loan as an inducement to or reward for, etc the Applicant's performance of acts in his capacity as a public servant. The defect, if there be a defect at all, in my view, does not render the information to be a nullity, and the information can therefore be saved by an amendment pursuant to s 27 of the MO, unless the amendment would cause an injustice which could not be cured by an order for costs, an adjournment, or leave to recall or call witnesses, etc.

42. The only alleged injustice is that based on the argued application of s 31A and s 31 of the POBO, ie, the deprivation of the limitation of two years of the event for prosecution to be instituted and of the required consent of the Secretary for Justice in bringing a prosecution. As I have dealt with the effects of these provisions vis-à-vis the relevant provisions of the MO, I have come to the conclusion that there is no injustice that could have resulted from the Magistrate making the amendment order, which was merely her acting in accordance with the above cited provisions of the MO applicable in the circumstances before her. Nor do I find the amendment in contravention of s 23(1) of the MO.

43. In view of my above decisions, I do not need to deal with the arguments if this is a proper case for seeking judicial review and whether there are exceptional circumstances for me to exercise jurisdiction to judicially review the decisions of the Magistrate.

44. For all the reasons given above, the application for judicial review is dismissed and the stay of the proceedings before the Magistrate ordered by Keith J uplifted.

45. I also make the following order nisi for costs, namely, the Respondent's costs of these judicial review proceedings be borne by the

Applicant, and the Applicant's own costs be taxed in accordance with the Legal Aid Scheme.