THE QUEEN v. CHENG YIU KONG

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H E A D N O T E

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Criminal law and procedure - mandatory procedures set out in S. 27 of Magistrates Ordinance Cap. 227 not complied with - conviction on an amended charge cannot lawfully follow such non-compliance - proviso implicit in S. 119(d) Cap. 227 not applicable.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurdisdiction)

MAGISTRACY APPEAL NO. 676 OF 1987

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J U D G M E N T

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1. The appellant appeals against his conviction on a charge of common assault. He was initially charged with wounding contrary to section 19 of the Offences Against the Person Ordinance but at the conclusion of the prosecution's case the learned trial magistrate ruled that "on the basis of the evidence presented the charge is reduced to one of common assault". I have quoted the actual words used because it is the circumstances surrounding this ruling which forms the only ground of appeal left to be decided.

2. There are two possible provisions which would vest the necessary authority to find an accused guilty of an offence other than that charged. The first is section 51(2) of the Criminal Procedure Ordinance but it is accepted that this provision entitles the court to find an accused guilty of another offence only at the conclusion of the case and quite clearly the learned magistrate made his ruling before the defence commenced its case and the ruling is worded in such a way that he was amending the charge and not making a finding of guilt on another offence.

3. The power to amend a complaint, information or summons is given by section 27 of the Magistrates Ordinance, Cap. 227 and can be exercised at any stage of a trial when it appears to the adjudicating magistrate that there is a variance between the information and the evidence adduced in support of it. Quite clearly the learned magistrate was in this case availing himself of this statutory power and no complaint is made of his decision to do so. What is complained of is that after making his ruling, he failed to follow what are clearly mandatory procedures set out in s. 27(3). These relate to the reading and explanation of the amended information to the defendant, giving the defendant the opportunity of seeking an adjournment to enable new witnesses to be called and other requirements which are designed to give a measure of protection to an accused person who suddenly finds himself facing a different charge than the one he had pleaded to. The consequences of a failure on the part of a magistrate to comply with this provision were spelled out in no uncertain terms by Barnes J. in The Queen v. Tse Ming-Li⁽¹⁾ when he said:-

"A conviction on an amended charge could not lawfully follow non-compliance with the mandatory procedure laid down by s. 27(3)."

4. Counsel for the Crown, nevertheless, urges me to find that no actual miscarriage of justice occurred and that I should apply the equivalent of the proviso implicit in section 119(d) of the Magistrates Ordinance.

5. It is, perhaps, necessary for me to record the circumstances upon which the Crown rely for their submission that no actual miscarriage of justice resulted. The first is that the amendment was made at the close of the Crown case. Prior to the lunch adjournment the trial magistrate gave a clear indication that his intention was to amend the charge and he did so when the trial resumed. The appellant was represented by Counsel and thus he had ample opportunity to be advised of the implications. After the amendment the appellant maintained his plea of not guilty and freely elected not to give evidence himself or call any witnesses. In the circumstances, the Crown argue, the failure to comply with s. 27(3) resulted in no actual miscarriage of justice. To a certain extent I have to agree but whether or not the failure to comply with section 27/(3) con ever be cured in such circumstances by the application of a proviso is a different question.

6. Section 119(d) provides:-

    "In the case of any appeal to which section 105 or 113 applies:-

(d) the judge may by his order confirm, reverse or vary the magistrate's decision or may direct that the case shall be heard de novo by a magistrate or may remit the matter with his opinion thereon to a magistrate, or may make such other order in the matter as he thinks just (emphasis is mine) and by such order exercise any power which the magistrate might have exercised; and any decision or order made by the judge shall have the like effect and may be enforced in the like manner as if it had been made by the magistrate."

This provision was the subject of comment in R. v. Leung Chi-kin⁽²⁾

when the Full Court observed:-

"These powers, which are contained in section 119(d) of the Magistrates Ordinance, include, inter alia, the power to make such order as the appellate judge 'think just'. As indicated in Reg. v. Albert Wu and another, this wide power bears a close resemblance to the proviso in section 81(2) of the Criminal Procedure Ordinance, which is identical with section 4(1) of the Criminal Appeal Act and enables the Full Court, '........ notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, (to) dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred."

7. Clearly one of the objects of section 119(d) was to prevent the quashing of a conviction upon a more technicality which has not caused any prejudice or resulted in any form of injustice. The failure to follow the mandatory steps laid down by section 27(3) of the Magistrates Ordinance cannot in my view be termed a technicality as the exercise of the power to amend carries with it certain integral procedures which must be carried out. No exceptions are allowed for and it seems to me that when section 27 is invoked it must be complied with in its entirety and the question of whether or not an actual miscarriage of justice has resulted in an irrelevant consideration. I, therefore, find myself in total agreement with Barnes, J. as earlier cited when it was said that a conviction on an amended charge could not lawfully follow non-compliance with the mandatory procedures laid down by s. 27(3). For the reasons given the appeal must be allowed and the conviction quashed.

(1) Mag. App. No. 315 of 1987

(2) (1970) H.K.L.R. 25