Kwong Shek v. The Queen

CACC000267/1973

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 267 OF 1973

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Coram: Trainor, J.

Date of Judgment: 10 May 1973

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JUDGMENT

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1. The appellant was convicted in the Magistrates' Court of: obstructing a police officer; assaulting a police officer; damaging Government property; and possessing a dangerous drug. He was sentenced to two months' imprisonment on each of the first two counts and one month on the third count, the sentences to be served concurrently. On the fourth count he was sentenced to four months' imprisonment to be served consecutively to the other terms.

2. He appealed against sentence.

3. There was nothing in the submission of the appellant that would justify me in interfering with the penalties but counsel for the Crown drew my attention to the wording of the particulars of the offence set out in the fourth count.

4. The appellant had been seen by a police officer in a public lavatory with a paper tube in his mouth, a lighted match in one hand and a tinfoil packet in the other. Suspecting that the appellant was smoking a dangerous drug the officer after a struggle arrested the appellant but not before he threw the tinfoil into the sewage. The evidence of being in possession of a dangerous drug was obtained by the analysis of nail clippings taken from the appellant's fingers. At the trial for some reason that is very difficult to ascertain an amendment was made to what seemed to be a perfectly good count which resulted in an amended count which was somewhat ambiguous.

5. Crown counsel in pointing this out maintained that the count to which the appellant pleaded was not defective in substance and that should it wish to do so this Court could amend. He referred to s.119(d) of the Magistrates' Courts Ordinance:

"In the case of any appeal to which section ... 113 applies -

..........

Counsel referred to the cases of Meek v. Powell⁽¹⁾ and Garfield v. Maddocks⁽²⁾. In both these cases an amendment of substance was sought on appeal and refused. He also referred to the case of Wang v. the Queen⁽³⁾. In that case the magistrate had found the appellant guilty of larceny by a trick, the date of the offence in the charge being stated as the 11th March whereas the correct date was the 1st March. Delivering judgment Blair-Kerr J. said

"We are therefore of the opinion that the appellant was properly convicted of larceny by a trick, the date of the offence being the 1st March, 1963. We are satisfied that the attention of all concerned was directed to the events of the 1st March and that consequently no prejudice resulted to the appellant from the error in particularising the date."

6. Counsel would argue that this Court has power by virtue of the Magistrates Ordinance to amend the count should it so wish, but as the defect, if any, in the fourth count in the instant case is not of any substance it is not necessary to amend just as the Full Court in Wang v. The Queen⁽³⁾ did not consider it necessary to amend.

7. In the instant case I do not consider the defect in the count to be of substance. The accused was made fully aware of all the particulars of the count and was in no way embarrassed or prejudiced.

8. In the circumstances I do not propose to enter into a consideration of the question as to whether or not this Court would amend a charge at the appellate stage by virtue of the Magistrates Ordinance as submitted by Counsel (a submission which would appear to be in direct conflict with the decision in Meek v. Powell⁽¹⁾ and Garfield v. Maddocks⁽²⁾ - "An amendment at the appellate stage is foreign to our legal system") and hold, following Wang v. The Queen⁽³⁾, that no prejudice resulted to the appellant and an amendment is not necessary.

9. I dismiss the appeal.

Representation:

(1) 1952 1 K.B. 164

(2) The Times 6/2/73

(3) 1963 H.K.L.R. 154