THE ATTORNEY GENERAL v. LEE SING CHOU

CACC000326/1974

 

IN THE SUPREME COURT HONG KONG

(APPELLATE JURISDICTION)

 

CRIMINAL APPEAL NO. 326 OF 1974

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BETWEEN
	THE ATTORNEY GENERAL	Appellant
	and
	LEE SING CHOU	Respondent

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Coram: Briggs, C.J., Huggins & McMullin, JJ.

Date of Judgment: 2nd July 1974.

 

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JUDGMENT

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1. The Attorney General appeals by way of case stated against the dismissal of three Informations charging the Respondent with soliciting as a public servant and without authority or reasonable excuse an advantage as an inducement, contrary to s.4(2)(c) of the provision of Bribery Ordinance. The case does not clearly state what facts were found but sets out facts which were "alleged by the Appellant and not disputed by the Respondent". It is implicit that this evidence was accepted. The learned magistrate was of opinion that the evidence was not strong enough to justify an inference that a personal loan requested by the Respondent was sought as an inducement to performing an act in his capacity as a public servant. Although it may be that the evidence would have justified such an inference, that is not the ground upon which the Crown appeals. The complaint is that although the findings were such that they clearly establish an offence under s.3 of the Prevention of Bribery Ordinance the magistrate failed to amend the Informations accordingly under s.27 of the Magistrates Ordinance. The Case does not indicate whether the magistrate thought the evidence did establish an offence under s.3: he took the view that he had in any event a discretion whether he would amend or no, because s.27 of the Magistrates Ordinance had no application and such a discretion was given by s.32 of the Prevention of Bribery Ordinance. The material part of s.27 is in these terms:

	"(1) No objection shall be taken or allowed to any complaint, information or summons for any alleged defect therein in substance or in form, or for any variance between such complaint, information or summons and the evidence adduced in support thereof, and the adjudicating magistrate shall in all cases give judgment upon the substantial merits and facts of the case as proved before him, and convict the defendant of the offence with which he was charged with such variation as has been warranted by the evidence or of any offence which under the provisions of paragraph (c) of subsection (2) of section 10 could have been tried therewith.
	(2) Whenever in the opinion of the magistrate there is a defect of substance of there has been any such variance as aforesaid he shall make the necessary amendment in the complaint, information or summons and shall read and explain the same to the defendant."

The material subsections of s.32 of the Prevention of Bribery Ordinance are:

	"(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 proved 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.
	(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."

It is true that s.32 does give a discretion - although it is a discretion which must be exercised judicially. However, sub-s.(4) must, Mr. Lucas submits, have been enacted with s.27 of the Magistrates Ordinance in mind. We agree and see no reason why, in the light of that subsection, s.27 should not override the discretion conferred by s.32 where a case is tried in the Magistrates' Court. The provisions of s.27 are such that we think we are compelled to hold that it is mandatory on a magistrate to amend where he is of opinion that a lefect can be remedied by amendment. It is not necessary for us here to consider what is the duty of a magistrate in a case where it may have been arguable whether an amendment would cure the defect, because whatever was the position at the ...(illegible) trial the Crown applied for a review and upon that application the possibility of a conviction under s.3 was brought to the notice of the magistrate and the evidence could clearly have supported a conviction under that section. When the learned magistrate said "In this matter, I am satisfied that the discretion, by virtue of s.32(1) Cap. 201, to convict under s.3 Cap.201 is not warranted by the evidence" it is open to question what he meant. Presumably he was referring to the exercise of the discretion and to an opinion that the evidence would not warrant a conviction and it may have been his view that that would in any event have made it unnecessary for him to make the proposed amendment. If that was his view we think he was wrong because, having regard to the provisions of s.94A of the Criminal Procedure Ordinance, there was abundant evidence of an offence under s.3 of the Prevention of Bribery Ordinance. The magistrate ought, therefore, to have made the necessary amendment and proceeded in the manner prescribed in s.27.

2. Our answers to the questions put to us are, therefore,

(i) Yes.

(ii) Yes.

(iii) Does not arise.

The case is remitted to the learned magistrate with a direction to amend the Informationsand to try the amended Informations in accordance with the provisions of the Magistrates Ordinance.

 

2nd July 1974.

 

Representation: