The Queen v. Tam Chiu Yin

HCMA000027/1984

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 27 OF 1984

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BETWEEN

Coram: Deputy Judge O'Dea in Court

Date: 16 February 1984

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JUDGMENT

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1. The appellant appeals against his conviction on two charges of accepting an advantage contrary to Section 4(2) of the Prevention of Bribery Ordinance, Cap.201.

2. Several grounds of appeal were advanced but only one has validity. At the conclusion of the evidence the learned magistrate decided to amend the charges by severing all reference to a co-accused who had earlier pleaded guilty and who had been jointly charged with the appellant and also by reducing the monetary amount of the advantage he was alleged to have accepted.

3. No issue has been taken with these amendments, although, it is questionable whether they were strictly necessary. Issue has been taken, however, with the procedures adopted after the amendments were made. The amendments were expressly stated to have been made pursuant to Section 32(2) of the Prevention of Bribery Ordinance rather than the more commonly used provision, namely Section 27 of the Magistrates Ordinance to overcome any difficulties which might otherwise have arisen concerning absence of the Attorney-General's consent.

4. Section 32(2), like its related provision in the Magistrates Ordinance, lays down that the amendments once made shall thereupon be read and. explained. to the accused. While the appellant was legally represented at his trial there is, unfortunately, nothing in the record to indicate that this requirement was complied with.

5. In Sonca Industries v Reg Criminal Appeal No. 1342/1977 faced with a similiar situation Li J. stated in his judgment:-

"     Those who attend court must know what is the charge against the accused in court. For all I know, according to the records in the transcript, he might have read the amended charge in open court at the time or immediately after the amendments. However, there is no note in the transcript indicating that he did so. It may be a technicality. Nonetheless the requirement of the law has not been complied with. I have no option but to rule that this amendment is a nullity."

6. A similiar difficulty was facing the Court of Appeal in Ip Chiu v Reg Criminal Appeal No. 99/1977 where minor technical amendments were made and the Court ruled that in those circumstances it was not necessary to read and explain the amended information to the Defendant but added that Section 27(2) of the Magistrates Ordinance was clearly intended to relate to cases where the amendment results in a material alteration of the offence charged.

7. The amendments effected in this appellant's case must be regarded as material alterations and with the greatest reluctance I have no option but to allow the appeal and quash the conviction. In doing so I can only express full sympathy and understanding for the busy magistrates who face so many demands with regard to the keeping of their records and for those who have not already done so put this requirement forward as yet another item for their checklists.

Representation:

Mr. F. Chan instructed by Walter Woo & Co. for Appellant.

Mr. Harris C.C. for Crown.