Ching Poon Keung v. The Queen

CACC000267/1980

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 267 OF 1980

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Coram: Bewley, J. in Court

Date of Judgment: 25 April 1980

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JUDGMENT

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1. The appellant was the defendant in Case Nos NK12686 and NK20043 of 1979, which were determined by the same magistrate one after the other. This came about in the following manner.

2. On the 19th July, 1979, the defendant was charged with:-

He pleaded not guilty to both charges and was remanded on bail until the 12th September for trial. This was Case No. 12686. On the 12th September he failed to appear and a warrant was issued.

3. On the 9th December he was again arrested for attempted theft, but this time he gave his name as Li Chi Keung. Consequently, he appeared in North Kowloon Court on the 11th December under this name. He pleaded not guilty and he was remanded to the 8th February, 1980, for trial.

4. Meanwhile, however, on the 11th December he also appeared in the same court, under his correct name, to answer the charges in NK12686, which should have been tried in September. He made no mention of the other case, and apparently neither the prosecution nor the magistrate was aware of the situation. He pleaded guilty to the B Charge, assault occasioning actual bodily harm, and was sentenced to six weeks imprisonment. On the A Charge, attempted theft, he was, by coincidence, remanded also until the 8th February, 1980.

5. On the 8th February, the appellant, who was then unrepresented, came before a different magistrate for trial and acknowledged that he was the defendant in both cases. The name in NK20043 was amended and it was explained to him that he was entitled to separate hearings. The appellant, however, stated that he was quite happy for the Court to hear both charges. The Learned Magistrate thereupon proceeded to hear the evidence on Case No. 12686, at the conclusion of which he convicted the defendant as charged.

6. At that point he again advised the appellant that, if he wished, the second charge would be tried in another court, but the appellant repeated that he had no objection to the matter being dealt with by the same magistrate. The evidence was then led and the Learned Magistrate convicted him on this charge also and ordered that he be detained in a Training Centre.

7. The appellant now appeals to this Court against his conviction on both charges. An appeal against sentence has been withdrawn.

8. In NK12686, the Particulars of Offence state, "Ching Poon Keung, you are charged that on the 17th day of July, 1979 at Kowloon in this Colony, you did attempt to steal a handbag the property of Lo Man Yee". The evidence of the victim, however, makes it clear that the appellant was not trying to steal the handbag itself : he was trying to steal from it. Her evidence reads, "I saw that defendant was pressing my handbag with his hand, and by that time it was open and he was in the act of taking something from it". In cross-examination, she said, "Your hand was inside handbag. You were covering your hand with newspaper".

9. It is true that her husband told the Court that his wife had told him, when he asked her what had happened, that the man had attempted to snatch her handbag. This, of course, is hearsay and not evidence of the truth of what was said. On the other hand, his next piece of evidence, "I grab him and ask wife to examine handbag to see if anything missing", is consistent with his wife's evidence.

10. It would have been appropriate if the Learned Magistrate had amended the Particulars of Offence before the defendant gave evidence, but he did not do so, and he frankly confesses, in his Statement of Findings, that he failed to consider the matter.

11. Counsel for the Crown concedes that, in view of the failure to amend, the conviction on this charge cannot be supported. I agree. There is no evidence that the appellant attempted to steal the handbag itself.

12. Once a conviction has been recorded on the basis of the information as originally formulated, there is no power to amend the information to allege what amounts to a different offence. Garfield v. Maddocks. ⁽¹⁾ An appellate court cannot itself make the necessary amendment. The appeal in respect of NK12686 is allowed and the conviction quashed.

13. Turning now to NK20043, it is submitted by Miss Remedios, for the appellant, that by hearing this case immediately afterwards, the Learned Magistrate was being less than fair to the appellant, having already formed an unfavourable view of his credibility. She also argues that the appellant's conviction for assault may have prejudiced the magistrate.

14. I do not think it is profitable to consider whether the two charges could or should have been tried together. This does not affect the issue, which is whether the appellant may have been prejudiced.

15. I agree with Miss Remedios that the unrepresented appellant's consent to the procedure that was adopted takes the matter little further. Had the Learned Magistrate adjourned the second case for trial before another magistrate, a remand of several weeks, and possibly months, would have been involved. Against this, there was the danger that he might form a certain view of the defendant arising from the first case.

16. It was an extremely strong prosecution case. The victim was positive about what had happened. She had no reason to lie. Identification was not in issue. The appellant's defence was that he stood on her foot by accident.

17. In these circumstances the possibility of a professional magistrate being swayed by the evidence in the first case was remote. The fact that the appellant had been convicted of assault occasioning actual bodily harm had no relevance to the question of guilt in this case. I am satisfied that the appellant has suffered no prejudice. The appeal in respect of NK20043 is dismissed.

Representation:

Miss C. Remedios (D.L.A.) for appellant

Mr Martin, Crown Counsel, for respondent

(1) (1973) 2 AER 303