THE QUEEN v. TSE MING LI

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY CRIMINAL APPEAL NO. 315 OF 1987

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Judgment reduced to writing: 11th June 1987

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JUDGMENT

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1. The Appellant pleaded not guilty in the Magistrates Court to the following charge :-

"TAKING CONVEYANCE WITHOUT AUTHORITY

Contrary to Section 14(1) of the Theft Ordinance, Cap. 210, Law of Hong Kong.

…… You are charged that between the 5th and 6th days of January 1987, outside Ting Nga Court, Tai Po without the consent of the owner or other lawful authority, you did take a conveyance, namely DH 3534 (sic), for the use of yourself."

The evidence for the prosecution was that the Appellant was seen to drive a motor vehicle with the registration number DH 3584 in the early hours of the morning of the 9th January 1987 in the Lok Fu Estate near block 17.

2. At the conclusion of the prosecution case the learned Magistrate found that he had a case to answer. After he explained the Appellant's rights to him the Appellant elected to give evidence.

3. He began his evidence by saying "on the night of 5th - 6th January I was at my home." He then went on to give evidence about where he was in the early hours of the 9th January 1987. The effect of his evidence was that he was not at the scene and he was not the person who had been seen driving the vehicle by the police witness.

4. The learned Magistrate accepted the police evidence, rejected the Appellant's and convicted him. The conviction, however, related to the offence as charged.

5. In his statement of findings the learned Magistrate said this:-

"I could have amended the particulars of the charge as to the locus and date to fit in with the evidence of the sergeant but 1 did not think that the averments in the particulars of the charge were material to the offence."

He then went on to explain why he thought that an amendment was not necessary and relied on certain passages from the 42nd Edition of Archbold.

6. The Appellant relies on a number of grounds in support of his appeal against the conviction but it is only necessary to deal with the ground regarding the Magistrate’s failure to amend the charge. Mr. Nunns, counsel for the Appellant - the Appellant was unrepresented at the trial - relies on this ground to support quashing of the conviction and sentence and an order for retrial before another magistrate.

7. The trial took place on the 23^rd March 1987. By that time Section 27 of the Magistrate Ordinance had been amended so as to provide as follows:-

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

(a) ……… ; or

(b) a variance between the complaint, information or summons and the evidence adduced in support of it,

he shall, subject to sub-section (2) -

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

(2) The adjudicating magistrate shall amend the complaint, information or summons where -

(a) The …… variance mentioned in sub-section (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 for 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) ………

(b) ………

(c) ………

(d) ………

(e) ………

8. Under the new Section 27 which applied at the time of trial, the learned Magistrate, ,on discovering that there was a variance between the charge and the evidence adduced in support of it, was obliged by the mandatory provisions, of that new section either to amend the charge or dismiss it. He did neither.

9. It is not necessary to consider whether he was right or wrong in deciding that the variance was not material. If the variance was material then, unless he could amend either without causing any injustice or by only causing an injustice curable under s. 27(2)(b), he had to dismiss the charge. If the variance was not material he was obliged to amend. Thus, whether the variance was material or not, the charge had to be amended if it were not dismissed. But, a conviction on an amended charge, could not lawfully follow non-compliance with the mandatory procedure laid down by s. 27(3).

10. I allow the appeal, quash the conviction and sentence and order that the Appellant be tried on a charge properly amended before another magistrate.

Mr. M.D. Wilson, C.C. for the Crown

Mr. M.R. Nunns (D.L.A.) for Appellant : TSE Ming-li.