ATTORNEY GENERAL v. WONG LAU t/a KIN KEUNG CONSTRUCTION &ENGINEERING CO.

M.A. No. 660 of 1992

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H EA D N O T E

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MAGISTRATES ORDINANCE - INFORMATION - OMISSION OF ESSENTIAL INGREDIENTS - WHETHER AMENDMENT PERMISSIBLE MORE THAN SIX MONTHS AFTER OFFENCE - RELATIONSHIP BETWEEN SECTIONS 26 AND 27 MAGISTRATES ORDINANCE - WHETHER INFORMATION DEFECTIVE OR A NULLITY.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MAGISTRACY APPEAL NO. 660 of 1992

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J U D G M E N T

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1. This is an appeal by way of case stated from the decision of a magistrate by which he ruled that there was no case for the respondent to answer in respect of a summons which alleged a breach of certain building regulations.

2. The matter came before the magistrate pursuant to the laying of two informations dated 25th October 1991. Two summonses followed in respect of which the respondent was tried. It is implicit in the case as stated that the wording of each summons followed that of the respective informations. The first summons alleged that on 25th April 1991 the respondent, a registered contractor, carried out demolition work in such manner that injury was caused. The magistrate found that there was a case to answer; that charge is not the subject of this appeal. The second summons is and, according to the case, it alleged:

"that you on 25th April 1991 at 9 - 17 Des Voeux Road West and 56 - 60 Connaught Road West, Hong Kong being a registered contractor under the Buildings Ordinance, failed to take necessary precautions to prevent accidental collapse of the building - contrary to Regulation 4(1) of the Building (Demolition Works) Regulations."

3. The respondent had been appointed to carry out demolition works at the addresses named in the summons. The targetted sites included 11 Des Voeux Road West. It was there that a verandah, or part of one, had to be demolished to facilitate relocation of a tramway cable. In the course of that demolition a foreman was injured when a floor collapsed.

4. Section 35 of the Buildings Ordinance empowers the Governor-in-Council to make regulations for the registration and control of registered contractors, for construction of buildings, and for a host of allied activities. Section 38(4) of this Ordinance stipulates that the regulations themselves may provide that a contravention of a regulation is an offence and may prescribe penalties for breaches, provided that the penalties do not exceed a fine of $100,000 and imprisonment for two years. Regulation 13(4) of the Building (Demolition Works) Regulations ("the Regulations") makes it an offence for a registered contractor to contravene regulation 4(1), and renders such a contractor liable to a fine of $100,000 and to imprisonment for two years.

Regulation 4(1) provides that:-

"... before commencing the demolition and at such times during the carrying out of the demolition works as may be necessary, such precautions as may be necessary shall be taken, by the provision of adequate shoring or otherwise, to prevent so far as is practicable, the accidental collapse of any part of the building, or of any adjoining or other building, the collapse of which may endanger any person."

5. The (second) summons (and therefore the corresponding information) in this case is an unfortunate document, the more so because its omissions or errors could so readily have been avoided with a moment's care:

(1) The summons alleges that the duty to take precautions arises in respect of the defendant in his position as a "registered contractor under the Buildings Ordinance"; whereas regulation 13 is directed at "registered contractor(s) appointed in respect of ... demolition works."

(2) It omits an ingredient of the offence, namely that the precautions required, and not met, are to be taken before or during demolition works.

(3) Regulation 4(1) refers to precautions to be taken to prevent collapse of part of a building; the summons refers to prevention of collapse of a building. The building is not identified, let alone which part of a building; and the lack of particularity is compounded by the fact that the only area identified by the summons as the site. of the breach is an area comprising a number of buildings so that the phrase "to prevent accidental collapse of the building" is meaningless.

(4) It makes no reference to the nature of collapse against which precautions must be taken, namely, such collapse as "may endanger any person"; and

(5) According to the case, it makes no reference to the offence creating regulation, but refers only to the regulation which creates the duty to take precautions. I say "according to the case" because I have very recently seen papers in the court file which suggest that the information and summons referred also to the offence creating regulation. Nevertheless, argument was put forward to me on the premise that the offence creating regulation was omitted from the summons and information: that argument followed from the terms of the summons as set out in the case. In these circumstances I shall proceed on the footing presented by the case; in other words, that the offence creating regulation has been omitted.

6. The magistrate decided that the information was fundamentally defective. He was not troubled by the information's failure to isolate the site of the offence: that could be cured, he said, by the provision of particulars. The omission which compelled the magistrate to find for the respondent was the absence of the contention that the contractor's failure to take precautions was a failure "during the carrying out of demolition works (or before the commencement of demolition works)." This omission, he said, violated the Indictment Rules in so far as those rules require that an offence be adequately described, that such particulars be provided as are necessary to give reasonable information as to the nature of the charge, and that there be disclosure of the essential elements of an offence.

7. Faced with this unhealthy information and the arguments mounted against it, the appellant attempted to resuscitate it by amendment. The magistrate was content to permit an amendment to particularise the building or part of the building which was the target of the allegation. But he would not permit amendment of the information to allege that the failure to take precautions was a failure occurring "during the carrying out of the demolition works". His reasoning was this:-

(1) Section 27 of the Magistrates Ordinance empowers a magistrate to permit amendment of a defective information but that "[his] powers to amend an information under section 27 of the Magistrates Ordinance were subject to the limitation imposed by the provisions of section 26 [of the Magistrates Ordinance]";

(2) Without amendment the information before him was defective in that it omitted an essential ingredient of the offence, namely, that the contractor's failure to take precautions was a failure before or during the demolition;

(3) The information thus defective disclosed no offence known to law; and

(4) ".... in the light of the limitation imposed by section 26 [he] was precluded from exercising [his] powers under section 27 to amend the information".

8. Accordingly, he ruled that there was no case for the respondent to answer.

9. Two questions are posed by the magistrate for the opinion of this court:

"(1) ... whether, in the circumstances, I was correct in law in holding that section 26 of the Magistrates Ordinance operated to preclude an amendment under section 27 of the same Ordinance of a defective information.

(2) ... whether, if the answer to the first question is in the negative, I was correct in law in refusing the Crown's application to amend the information."

10. Section 26 prescribes a limitation period for the laying of informations for offences not triable on indictment, and in respect of which an enactment does not prescribe a limitation period. That time limit is six months from the time when the matter of the information arose.

Section 27 provides that:

"(1) Where it appears to the adjudicating magistrate that there is -

(a) a defect in the substance or form of any ... information; or

he shall, subject to subsection (2)

(i) amend the ... information if he is satisfied that no injustice would be caused by that amendment; or

(ii) dismiss the ... information.

(2) The ... magistrate shall amend ... the information ... 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."

11. The Indictment Rules stipulate, in so far as is relevant, that:   

"3(1) Subject to Rule 4, every indictment shall contain and shall be sufficient if it contains a statement of the specific offence with which the accused is charged describing the offence shortly together with such particulars as may be necessary for giving reasonable information as to the nature of the charge.

          ...

(3) Notwithstanding paragraph (1), a judge may order further particulars of an offence stated in an indictment ... to be delivered in any case in which he deems it expedient to do so.

4. Where the specific offence with which an accused is charged ... is one created by or under an Ordinance ..., then, without prejudice to the generality of rule 3:

(a) the statement of offence shall contain a reference to the provisions in the Ordinance creating the offence;

(b) the particulars shall disclose the essential elements of the offence:

Provided that an essential element need not be disclosed if the accused person is not prejudiced or embarrassed by the failure to disclose it."

12. Section 10(3) of the Magistrates Ordinance requires that:-

"every ... complaint or information shall comply with the Indictment Rules in so far as those rules are applicable mutatis mutandis to any such complaint or information;"

and section 33 that there:-

"... shall apply to proceedings before magistrates -

(a)    the provisions of the Indictment Rules which relate to the description of an offence in an indictment ..."

13. It is plain that in the present case the Indictment Rules as applicable to magistrates' proceedings have been breached. Although (according to the case) the summons purports to contain a reference to the provision creating the offence, it does not do so because the offence creating regulation is not cited, so the requirements of paragraph 4(a) of the Rules have not been met. Paragraph 4(b) is also slighted because the particulars do not disclose the essential elements of the offence. The proviso to paragraph 4 is, I note, a proviso which goes only to save an omission in particulars; it does not avail an infringement of the requirements of paragraph 4(a) of the Rules.

14. I have had the advantage of research by counsel on both sides, and of their analysis of certain cases. I have also, since reserving judgment, examined a few others. These cases, to which I shall shortly turn, are to be examined against the statutory matrix applicable in this jurisdiction. By reason of those statutory provisions to which I have referred, it is quite clear that a defective information or summons may be cured by amendment, and in certain instances must be cured by amendment. Amendments must be made even if the defect is material, so long as there is no injustice, or so long as any injustice which might otherwise arise can be met by an adjournment, or an order for costs, or by a number of other specified measures. That is the effect of section 27 of the Magistrates Ordinance. Further, the fact that an "essential ingredient" of an offence is omitted does not of itself render an information or complaint or summons defective, provided no injustice is thereby caused. That is the effect of the proviso to rule 4 of the Indictment Rules. So the flavour of the legislation is that the courts should be free to enable defects to be cured if that can be done without injustice.

15. At the heart of the magistrate's reasoning was his "regard to the dicta in R. v. Hamilton [1988] 1 HKLR 138 in respect of the effect of a missing ingredient in the particulars of a charge" and his conclusion that "without amendment, the information as laid had not revealed an offence known to law."

16. With respect, I think that the magistrate has read too much into the effect of the decision in Hamilton. Ms Hamilton had been convicted of an offence of making off without payment, but from the charge were omitted the words "and with intent to avoid payment". Wong, J. was satisfied that the phrase omitted was an essential ingredient, and that its omission rendered the charge defective. However, he did not find that the defect was incurable. Indeed, counsel for the appellant in that case complained, rightly so, that the magistrate had failed to observe the statutory obligation to amend. Faced with the defect, the magistrate had either to amend or dismiss the charge. What he was not permitted to do was to convict in the absence of an amendment. Hamilton therefore serves to underscore the magistrate's power to amend defective informations. It is not authority for the proposition that the omission of an essential ingredient renders that information incurable.

17. The first question posed for this court's opinion itself begs another question, namely, what is embraced by the term "a defective information"? I would distinguish it from a bad information or an information which is a nullity. The term "a defective information" imports a multitude of sins, some insignificant requiring no amendment, others material. The distinction between an information whichis bad in the sense of being a nullity on the one hand and, on the other, one which is defective, is a distinction highlighted by a full court in R. v. McVitie (1960) 44 Cr. App. R. 201. There, the statement of offence was drawn correctly, but the particulars omitted the word "knowingly", knowledge being an essential ingredient of the offence. It was argued that the appellant had been arraigned, tried and convicted for an offence not known to law. The failure to include in the particulars the word "knowingly" was adjudged a failure which:-

"... did not make the indictment a bad one, but simply a defective or imperfect one. A bad indictment would be one disclosing no offence known to law, for example, where it was laid under a statute which had been repealed and not re-enacted. ... The question of applying the proviso is to be considered therefore not upon the basis that the indictment disclosed no known offence, but that it described a known offence with incomplete particulars." (per Donovan J., at p.209)

18. The distinction is reflected in a number of other decisions which illustrate as well where the line is likely to be drawn; illustrations of particular value in the English cases because the rules there governing indictments are virtually the same as the Indictment Rules applicable in Hong Kong. They and the cases already cited demonstrate too how fundamental a defect must be before the courts are likely to determine that the information is a nullity.

19. R. v. Williams (1991) 92 Cr. App. R. 158 was a case in which the offence alleged was a substantive common law offence, whereas the indictment stated it to be an inchoate crime contrary to a particular statute. The defect went further, for there was no reference in the particulars of offence to an essential ingredient of the offence, but the court held nevertheless that the indictment contained "such particulars as may be necessary for giving reasonable information as to the nature of the charge". The Court of Appeal adjudged the indictment to be defective, but not a nullity.

20. The Court of Appeal in R. v. McLaughlin (1982) 76 CAR 42 decided that the indictment which identified the wrong statute was not, in that case, a nullity. A main ground of appeal was that the count did not charge an offence known to law. The court was satisfied "that this indictment was defective and not a nullity", adding, however, that in that case:-

"... the particulars of offence were entirely apt to particularise an offence against (the appropriate statutory provision]. If an application had been made at the trial to amend the statement of offence in the indictment the judge would have had power to grant the application. The appellant was in no way prejudiced or embarrassed by the defect in the indictment. In our judgment it is quite plain that this is a case for applying the proviso" (per O'Connor L.J. at p.47).

21. The same approach had previously been adopted in R v. Nelson (1977) 65 Cr App R 119 in relation to an indictment which, rather than identify the wrong statute, identified none at all. The court there accepted that the indictment was indeed defective but that "... the very fact that the judge could have amended the indictment indicates to us that the indictment was not a nullity; it was merely defective"; adding, when refusing to follow a previous decision of the court, that "there is no indication from the judgment that the court's attention was invited to the distinction which must be drawn between an indictment which is null and void, and one which is defective" (per Lawton, L.J. at p.124).

22. In Molyneux (1981) 72 Cr. App. R 111 the statement of offence read "conspiracy to defraud" whereas the particulars described a conspiracy to rob. Since there was an offence known to law as conspiracy to defraud, it could not be said that the indictment disclosed no offence known to law: "the defect ... consisted in misdescribing a statutory conspiracy as a common law conspiracy while the essential ingredients of the offence remained properly particularised" (per Shaw L.J. at p. 116).

23. It follows that an information may survive and therefore lend itself to amendment despite an inaccurate reference to statute, or the omission of an essential ingredient of the offence. I say "and therefore lend itself to amendment" because a nullity is by definition not susceptible to amendment. And that touches the heart of the questions posed by the magistrate, for if the fault does not render the instrument a nullity, it matters not for the purpose of section 26 when an amendment is made, so long as the (original) information has been laid "within six months from the time when the matter of such ... information ... arose." In other words, the power (and in some instances the obligation) to amend presupposes a living instrument capable of amendment. If, on the other hand, the information is a nullity, no question of amendment arises. What is then required, if the prosecuting authority wishes to proceed, is that a fresh information be laid, and if more than six months have passed from the time when the subject matter of the information arose the new information will, for that reason, be bad.

24. If it be correct that the omission of an essential element or reference to the wrong statute need not of itself render an indictment or information a nullity, in what circumstances is such an instrument bad? McVitie provides an obvious instance: "where [the indictment] was laid under a statute which had been repealed and not re-enacted". The same example was put forward by Lord Bridge in R. v. Ayres [1984] 1 A.C. 447, 460:

"In a number of cases where an irregularity in the form of the indictment has been discussed in relation to the application of the proviso a distinction treated as of crucial importance has been drawn between an indictment which is 'a nullity' and one which is merely 'defective' ... If the statement and particulars of the offence in an indictment disclose no criminal offence whatever or charge some offence which has been abolished, in which case the indictment could fairly be described as a nullity, it is obvious that a conviction under, that indictment cannot stand. But if the statement and particulars of offence can be seen fairly to relate to and to be intended to charge a known and subsisting criminal offence but plead it in terms which are inaccurate, incomplete or otherwise imperfect, then the question whether a conviction can properly be affirmed under the proviso must depend on whether, in all the circumstances, it can be said with confidence that the particular error in the pleading cannot in any way have prejudiced or embarrassed the defendant."

25. In Hutchinson (Cinemas) Ltd and Others v. Tyson (1969) 134 JP 202, the informations alleged unlawful gaming, but it was contended at trial that the informations did not reveal precisely what it was that the defendants were said to have done that was unlawful - this was particularly relevant because the offence creating provision set down a number of ways in which the offence could be committed. The justices ordered that particulars be delivered. On appeal, it was argued that the informations were bad. The Divisional Court did not agree. Lord Parker said, at p.206, that in his judgment:

"... these informations were deficient in particulars .... On the face of the informations there is not sufficient information which a defence may well require.

But I do not intend to convey that these informations were bad informations which cannot be cured. It seems to me bearing s.100 [of the Magistrates' Courts Act 1952] in mind that one might find an information which was so defective, so fundamentally bad, that it could not be cured at all and the only proper course would be for the justices to dismiss the informations. At the other end of the scale there may be informations which are deficient in some minor particular, a misdescription of premises or date, where there could be no prejudice and where no amendment or further particulars are required at all. In between there are informations, of which I think these are examples, which are perfectly good as informations albeit deficient and can be cured not merely by a formal amendment but by the delivery of particulars to supplement their contents."

26. It is a feature of these cases that the indictments or informations though defective were nevertheless capable of redemption because, examined as a whole, they pointed to offences known to law either by reference to the correct and subsisting statutory provision, or by particulars which adequately described a known offence.

27. Mr Plowman, who appeared for the respondents, was not slow to lay bare the fact that in the instant case, the summons was infected by a host of defects. "... registered contractor under the Buildings Ordinance" was meaningless, he said, for the offence creating regulation applied to a registered contractor "appointed in respect of the demolition works"; and the nature of the precautions, by whom to be taken, and to what end, were all allegations either misstated or absent. He referred to a number of decisions which, he suggested, were authority for the proposition that if an amendment is of such a substantial nature that it amounts to the laying of a new charge, that "amendment" had to be made within the six months limitation period.

28. He relied first on the decision of Wong, J in R v. Tai Hing (Engineering and Builders) Limited (M.A. 1443 of 1988), where a magistrate had amended the charge by substituting "canopy" for "window sill" to describe the dangerous place at which contractors allegedly failed to ensure that a workman would not remain without safety equipment. It was there argued that the amendment was so substantial as to constitute the preferment of a new charge, ousted, therefore, by section 26 of the Magistrates Ordinance. Wong, J. did not agree, pointing out that the time, date and place remained as in the original charge. But, at page 8, he went on to explain that:

"I am satisfied that the amendment in the present appeal is not one of such a substantial nature and character so as to constitute a new or different charge and therefore it was not caught by section 26 ..."

I was invited by Mr Plowman to rely on that passage as authority for the proposition that if an amendment were sufficiently substantial, the amended charge would be caught by section 26. As I read that passage, the learned judge was saying no more than that the matter, or the essence, of the amended charge remained the same; it was not a different course of conduct or activity which was the subject matter of the charge. Even the substitution of a different offence from that alleged in the information may, in some circumstances, be deemed an amendment rather than the preferment of a fresh charge. Section 27 of the Magistrates ordinance provides that:

"(1) Where it appears to the adjudicating magistrate that there is -

...

(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 ... information ... if he is satisfied that no injustice would be caused by that amendment; or

(ii) dismiss the ... information ...

(4) In this section 'amend' includes the substitution of another offence in place of that alleged in the . . . information." (Emphasis added)

29. This principle finds further support in R. v. Newcastle-upon-Tyne Justices [1976] 2 All ER 611 in which May, J. said, at p.614, that the circumstances in which an amendment is permitted are not at large; they should only be permitted:

"... so as to do justice between the parties. But where [the power] can be ... [judicially] 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 ... the amendment is allowed after the expiry of the six months period from the commission of the alleged offence."

30. Mr Plowman also relied on a number of Canadian authorities. They reveal a strict regime in that jurisdiction towards defects in informations and indictments where the defect is the omission of an essential ingredient of the offence. Some of the cases refer not only to the omitted essential ingredients of the offence under consideration, but describe those characteristics of an information or indictment without which an information or indictment is regarded as invalid.

31. Brodie v. The King [1936] 3 DLR 81 concerned a seditious conspiracy. The indictment specified the time and place of the alleged conspiracy but particularised no facts in support of the allegation. The relevant provision of the Criminal Code required indictments to specify the offence alleged, adding that if the substance of the offence was identified, that would suffice. In addressing that section, Rinfret, J. (in a judgment cited extensively in R. v. Vallee (1969) 3CCC 293, to which Mr Plowman referred me) said, at pages 85 and 87 that:

"... this does not mean merely classifying or characterising the offence; it calls for the necessity of specifying time, place and matter, of stating the facts alleged to constitute the indictable offence. ... The manner of stating the matter is of no absolute importance. ... It is not sufficient in a count to charge an indictable offence in the abstract. Concrete facts of a nature to identify the particular act which is charged and to give the accused notice of it are necessary ingredients of the indictment."

32. Applying these criteria to the case then before the Supreme Court, Rinfret J. condemned that indictment as insufficient, for:

"It is not a case where an offence is imperfectly stated; it is a case where essential averments were wholly omitted. The so-called indictment contains defects in matters of substance. To use the apt words of counsel for the appellants: 'it does not describe the offence in such a way as to lift it from the general to the particular.'"

33. There is also reference in the cases cited by Mr Plowman to R. v. Edgar and Rea (1962) 132 CCC 396, and to the test it recites, at pages to 398-9, for distinguishing matters of form from matters of substance, namely, that:

" ... if the matter pleaded be in itself insufficient, without reference to the manner of pleading, the defect is substantial; but that if the fault is in the manner of alleging it, the defect is formal."

34. These principles are useful in identifying which defects are defects of substance, and which are not, but they are of limited assistance in the determination of the questions posed by the magistrate in this appeal for, so far as I can ascertain, the legislative provisions relevant to these Canadian decisions did not contain a proviso akin to that in paragraph 4 of the Indictment Rules, nor, (unlike section 27 of the Magistrates Ordinance) provision for amendment even where the defect was one of substance.

35. I was then taken to R. v. Hawthorne (1899) 2 CCC 468, a judgment of the County Court, Ontario. The information originally laid alleged unlawful selling of liquor on a given date but, at the hearing, the information was amended to allege selling on that day or upon the subsequent day. The effect of this amendment was to import different acts of selling so that the amendment could not be made after the expiration of the limitation period. The judge held that "the power to amend was subject to the 30-day limit," for were it otherwise, he said, "there would be nothing to prevent an amendment charging an offence committed months or, for that matter, years before". This authority does not carry the respondent's case further, for its basis is the attempt to introduce a charge founded on facts different from the matter of the original information.

36. Finally, Mr Plowman urged upon me the decision in Garman v. Plaice [1969] 1 WLR 19. That was an appeal by of case stated from a decision of the Norfolk justices holding void an information which omitted an essential ingredient of an offence. None of the key decisions, in particular McVitie, appears from the report to have canvassed, and in Simpson v. Roberts (1984) Times, been way 21st December, D.C., McCullough J. said that:

"The observation of Mr Justice Ashworth in Garman v. Plaice ... that an information which did not disclose an offence was void ab initio was obiter and probably was intended to mean no more than that the defect could not be cured after conviction."

37. Mr Plowman argued that the information was bad not only for the reason given by the magistrate, namely, that one essential element was missing, but for the omission of several essential elements, and the omission of the offence creating statutory provision.

38. From the terms of the applicable statutory provisions and from the decisions to which I have referred, the following principles may, in my judgment, be distilled:

1. A distinction is to be drawn between informations that are defective and those which are nullities.

2. An information will be a nullity if

(i) the statutory provision creating the following the offence has been repealed and not re-enacted; or

(ii) the statement and particulars of offence cannot be seen fairly to relate to, or be intended to charge, a known and subsisting criminal offence; or

(iii) in some other way, it is so defective that it cannot be cured.

3. An information is not a nullity by reason only of the omission in the particulars of an essential ingredient of an offence.

4. If the particulars adequately describe an offence known to law, the information is not a nullity by reason only that the statutory provision creating the offence is wrongly stated or is omitted.

5. An information is not a nullity if it describes a known offence, but with incomplete particulars.

6. Unless the defect is too trivial to call for amendment, a defective information must either be amended to cure the defect, or must be dismissed.

7. The powers to amend defective informations, conferred by section 27 of the Magistrates Ordinance, extend to defects in substance as well as in form.

8. If the defect is not material, the magistrate is obliged by section 27 of the Magistrates Ordinance to cure it by amendment.

9.       If a defect is material, the magistrate must nevertheless amend the information if no injustice will be caused by the amendment or if any such injustice can be cured by an order as to costs, or by other measures described by section 27(2)(b) of the Magistrates Ordinance.

10.     The power to order that further particulars be provided presupposes that the information already contains "such particulars as may be necessary for giving reasonable information as to the nature of the charge." Paragraph 3(3) of the Indictment Rules is intended, in my judgment, to provide a defendant with further details, and presupposes that particulars sufficient to "identify the transaction" or which "lift the [description] from the general to the particular", have already been provided in the information.

11. The requirement to particularise the "nature of the charge" is not fulfilled by describing the category or character of the offence. What is demanded is identification of the matter, the act, the transaction, in respect of which the charge is brought, such that the information or summons will "in itself be sufficient to identify with reasonable precision the act or acts with which [the defendant] is charged."

12. Informations which are a nullity cannot be amended.

13. Defective informations may be amended subject to any conditions prescribed.

14.   Amendments, properly so called, are not subject to the provisions of section 26 of the Magistrates Ordinance, since the power to amend presupposes a "live" information.

15. Where a magistrate exercises his power of amendment by the substitution of a new offence, then so long as the "matter" levelled against the defendant is the same, the substitution constitutes an amendment and not a new proceeding.

39. Into what category, then, falls the disputed information in this case? Does it "describe a known offence, with insufficient particulars"? Can the information "be seen fairly to relate to, and to be intended to charge, a known and subsisting criminal offence but [pleaded] in terms which are inaccurate or otherwise imperfect"? It is certainly a defective information in its failure to identify the place of the alleged offence and in its omission of certain essential ingredients of the offence. But is it a nullity? I am much tempted to say "yes", for it is not a case such as McLaughlin where despite an erroneous statement of offence, the particulars were "entirely apt to describe an offence against [the appropriate section]"; there is more than one essential element omitted from the particulars; and the place of the offence is also omitted. There is an obligation on prosecuting authorities to inform a defendant what wrong he is said to have committed, and that obligation is not discharged by an assumption that he knows, or must know, to what matter the information is directed.

40. Nevertheless, it is my opinion that the information in this case is defective, but that it is not a nullity. I think that it can fairly be seen to be intended to charge a known and subsisting offence. Whilst (according to the case) the offence creating regulation is not specified, regulation 4(1) of the Building (Demolition Works) Regulations is, and that is of considerable significance. There is nothing in regulation 13 (the offence creating regulation) which draws to the attention of a defendant the essential ingredients of the offence, save by reference to regulation 4(1). According to the case, in the information now under scrutiny, the offence is said to be one "contrary to regulation 4(l) ...". I say that this is of considerable significance "because the insertion of the reference to the section of the Act creating the offence is intended to act as a pointer to the accused person or his adviser and in most cases will lead that person to see and understand exactly what it is that is charged against him", (per Humphreys, J. in Atterton v. Browne [1945] 1 KB 122, 128). If despite that reference a defendant or his adviser cannot understand exactly what is charged against him, it does not follow that the information is a nullity. What does follow in this case is that the information is defective and that the defects are material defects of substance, so that the real issue is whether the application of section 27 of the Magistrates Ordinance will preclude or permit amendment to cure the defects. In determining that issue, the magistrate would be required to ask whether the proposed amendments would cause injustice. In deciding whether the respondent has been prejudiced by the defect or would be prejudiced by the proposed amendment, the fact that the other summons alleged that the work under attack was demolition work would no doubt be taken into account, as would the terms of regulation 4(1), which have in the information itself been drawn to the respondent's attention. It would appear from the stated case that it was only at the close of the prosecution case that the court addressed the defects in the information. One would expect such an issue to be raised at the outset. Although that does not affect the question whether the information is a nullity, the fact that the respondent has heard the Crown's evidence touching upon this information is a factor to be added to the balance in deciding whether an amendment will cause injustice. So too would the magistrate wish to bear in mind that:

"... the six months' limitation provision ... 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 ... 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 ...'is to be exercised." (May, J. in R. v. Newcastle-upon-Tvne Justices [1976] 2 All ER 611, 614).

41. I return now to the questions posed by the magistrate:

"(1) ... whether in the circumstances, I was correct in holding that section 26 of the Magistrates Ordinance operated to preclude an amendment under section 27 of the same Ordinance of a defective information.

(2) ... whether if the answer to the first question is in the negative, I was correct in law in refusing the Crown's application to amend the information."

42. The target of the first question is not very clear. The phrase "in the circumstances" suggests that the question is directed at the information in this case only and is not a general question, namely, whether section 26 precludes amendment of defective informations; whereas the reference to "a defective information" suggests a question beyond the facts of this case. Counsel understood that the question was restricted to the circumstances of this information only. It appears, however, that the magistrate had the broader proposition in mind for in the stated case he said that:

"I also found that my powers to amend an information under section 27 of the Magistrates Ordinance were subject to the limitation imposed by the provisions of section 26."

43. I shall first answer the question on the assumption that it is directed at the general proposition. The obligation imposed, or the power given, by section 27 to amend an information, summons or complaint in certain circumstances, can only arise if that information, summons or complaint is not a nullity. If the information is not a nullity section 26 does not preclude an amendment made more than six months after the "matter of such ... information ... arose". The magistrate's finding that his powers to amend under section 27 were subject to the limitation imposed by section 26 was, in my view, erroneous. It follows that if the first question is directed at the relationship between sections 26 and 27 of the Magistrates Ordinance, the answer to that question is "No".

44. If, on the other hand, the first question was intended to be restricted to the facts of this case, my answer is, again, "No", because in my judgment the information, although defective, is not a nullity. I note that the magistrate took the view that an amendment of the information was acceptable if it went to identify the building or part of the building the collapse of which should have been prevented, and he appears therefore to have limited his real concern to the omission of one essential element, namely, the taking of precautions before or during demolition works. That omission ought not on its own to have led to a finding that the information was a nullity, given the terms of section 27 of the Magistrates Ordinance, and the proviso to rule 4 of the Indictment Rules. It is significant that the case stated makes no reference to the proviso to rule 4 of the Indictment Rules, nor to the power conferred by section 27 to amend an information, even where a defect is one of substance.

45. My answer to the second question is, again, "No", precisely because the magistrate's decision to disallow the amendment was reached on the premise that section 26 precluded an amendment of the information before him. For the reasons I have given, it did not. The magistrate should instead have addressed the question whether amendments to this defective information should have been permitted, and in doing so, applied the tests prescribed by section 27.

46. [Appeal allowed, but in accordance with submissions by counsel case not remitted to magistrate to proceed further].