Chan Kan v. The Queen

CACC000205/1974

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 205 OF 1974

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Coram: Li, J.

Date of Judgment: 11th April, 1974.

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JUDGMENT

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1. This is an appeal against sentence. The appellant was originally charged with the offence of keeping an opium divan contrary to s.35(1) of the Dangerous Drugs Ordinance. The particulars of offence in the original charge were that he, the appellant, did keep an opium divan where a dangerous drug, namely prepared opium, was sold to be smoked therein. At the trial, for reasons best known to the prosecution, this charge was amended to that of keeping an opium divan with the particulars of offence that the appellant did keep a divan. Needless to say, the charge was preferred under the same section.

2. The facts leading to the information and complaint are very brief. At 1155 hours on 16th February, 1974 Preventive Service officers conducted a dangerous drugs raid at 25 New Street, 1st floor, Hong Kong. Upon gaining entry, the appellant was found holding two opium pipes in his hands, and there were no less than 15 other persons either sitting or standing inside the premises. On the platform within the premises were 130 pots of prepared opium, 6 opium lamps, 3 needles, 2 scrapers and 2 opium pipes. When enquiries were made, the appellant admitted he was the keeper of the divan, and produeed cash, $45, which he admitted were derived from sale of opium at $5 per pot. Subsequently, the appellant was charged with the offence before the learned magistrate.

3. In so far as the appeal against sentence is concerned, I have considered the point raised by the learned counsel for the appellant, and I find great difficulty in saying that the sentence of 12 months' imprisonment was manifestly excessive. It is true the learned magistrate, in his findings, referred to the fact that the possession of such a quantity of dangerous drugs would make the appellant liable to a charge of possession of dangerous drugs for the purpose of unlawful trafficking. But that is not the offence charged. The appellant has a previous conviction of a similar character which the learned magistrate took into consideration and I do not see anything wrong with that.

4. Under the circumstances I feel that there is no valid ground for an appeal against sentence. However, I observed a point on the amended charge and asked learned counsel for the Crown to address me on this point because, if the point I raised is a valid one, it appears that the appellant was pleading to a charge which disclosed no offence at all.

5. I first referred to s.35(1) of the Dangerous Drugs Ordinance, which is the offence creating section. Section 35(1) provides that -

"No person shall open, keep, manage or assist in the management of a divan where -

6. Thus it will be observed that the totality of the offence created is not only management or keeping a divan, but it must be management of and keeping a divan where some type of material benefit is derived by the person keeping such a divan. I also referred to the definition section of the same Ordinance in s.2 in which a "divan" is defined as:

"... any place or premises opened, kept or used, whether on one occasion or more than one occasion, for the smoking, inhalation, ingestion or injection of a dangerous drug;"

The keeping of a divan does not include the keeping of a divan where dangerous drugs are sold; thus it appears that the amended charge as it stood disclosed no offence at all.

7. Section 10(4) of the Magistrates Ordinance provides that

"Every such complaint or information shall be in writing and shall contain or consist of a statement of the offence alleged to have been committed, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence."

There again it referred to the nature of the offence. The "nature of the offence" is not, I repeat, keeping a divan but keeping a divan where dangerous drugs were sold.

8. Learned counsel for the appellant refers me to the case of Reg. v. Leung Yuen ⁽¹⁾ which she tries to distinguish at p.158. My brother Huggins, who heard the case, had this to say:

"The next question is whether it is necessary in Hong Kong to set out all the ingredients of an offence. There is no provision in Hong Kong (as there now is in England) which lays down what an information shall contain, but it must clearly show that an offence has been committed."

9. Section 32 of the former Magistrates Ordinance which is re-enacted in s.27 of the Magistrates Ordinance provides that:

"the description of any offence in the words of the Ordinance or statute or any order, bylaw, regulation or other document creating the offence, or in similar words, shall be sufficient in law,"

That has been omitted in our present s.27, which merely provides that:

"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 morits 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 thereiwth."

10. However, in the case of Leung Yuen, my brother Huggins went on to say:

"Thus, it appears that the offence must be so described as to show precisely what it is that the defendant is said to have done. Counsel argues that the requirements are, therefore, at least as strict (if not more strict) as those applicable to indictments, and section 25 of the Criminal Procedure Ordinance is in these terms:-

I do not dissent from that. Except in so far as section 32 of the Magistrates Ordinance may excuse it I agree that the information must include in express terms every ingredient required by the statute to constitute an offence."

Thus, no matter what the variation may be, what the facts might be, it was for the learned magistrate to convict the appellant with an offence known to law.

11. The offence which was put to the appellant in this case was one of merely keeping a divan. The learned magistrate had this to say in paragraph (2) of his Statement of Findings:

"A statement of facts was submitted by the Prosecutor and read out. The appellant agreed that the facts were correct. The facts revealed that the appellant was keeping a divan wherein he was selling opium for the purposes of smoking, thus bringing the appellant within the scope of section 35(1)(a) of the Ordinance. The appellant had been originally thus charged but an amended charge had been preferred against him of simply 'keeping a divan'. Clearly the original charge was preferable but I was satisfied that the amended charge did at least reveal an offence."

With great respect to the learned magistrate, I am unable to agree that the amended charge did reveal an offence.

12. Learned counsel for the Crown also refers me to the case of Leung Chi Kin v. Reg. ⁽²⁾, an appeal before the Full Court in 1970. He relies on the headnote in paragraph 3(b) at p.27, where it was hold:

"The charge was an imperfect charge, but it was sufficient to disclose an offence and no embarrassment or prejudice had been caused to the appellant."

That is a case where, without further argument, it was said that an offence had been disclosed. In the present case no offence has been disclosed as the charge stood. Had the learned magistrate found the appellant not guilty of the amended charge but guilty of an offence it might be arguable under s.27 of the Magistrates Ordinance. I am not too sure. But as it is no offence has been disclosed by the amended charge. The appellant was pleading to a charge which was null and void. In the circumstances I would grant them leave to extend time for an application for leave to appeal against conviction, and I would allow the application and the charge must be quashed.

13. In other words, Chan Kan, owing to a very, very technical matter, but nonetheless one I have to take into consideration, I have no option but to discharge you.

Representation:

(1) 1963 H.K.L.D. ...(illegible)

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