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DCCC000150/1973
IN THE DISTRICT COURT OF HONG KONG
HOLDEN AT VICTORIA
CRIMINAL JURISDICTION
CASE NO. 150 OF 1973
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The Queen |
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against |
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1. Mak Chi Kin |
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2. Chan Hoi On |
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3. Armando Da Silva |
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Coram: Addison, D.J. in Court.
Date of Judgment: 28th November, 1973.
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Reasons for a Ruling
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1. On the day fixed for the hearing of a trial of two charges of corruption brought against three defendants, each of whom had pleaded not guilty on an earlier occasion before my brother, Judge Collier, the Crown applied to the court for leave to prefer an additional charge of Blackmail, contrary to section 23(1) of the Theft Ordinance, Cap.210, as an alternative charges to one of those charges of corruption.
2. Leave was granted and I stated I would later give my reasons for allowing the application. This I now do.
3. The powers of a magistrate to transfer offences to the District Court is contained in Part IV of the Magistrates Ordinance, Cap.227. Section 89(1) thereof provides that
"An order of transfer shall operate as a stay of proceedings before the magistrate touching the charge or complaint to which the order refers and all process relating to the transferred charge or complaint shall be transmitted to the District Court."
4. The procedure upon transfer of the charge is regulated by section 75 of the District Court Ordinance, Cap. 336 (1972 Edition). That section enacts as follows:-
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"75. (1) Where a charge or complaint has been transferred to the Court by a magistrate in accordance with the provisions of Part IV of the Magistrates Ordinance, the Court shall have jurisdiction and powers over all proceedings in relation to the offence therein alleged similar to the jurisdiction and powers the Supreme Court would have had if the accused person had been committed to that court for trial on indictment, save that nothing in this section shall be deemed to give jurisdiction to hear and determine such charge or complaint. |
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(2) Where a charge or complaint has been transferred as aforesaid, the Attorney General shall, unless he enters a nolle prosequi, deliver to the registrar a charge sheet setting forth the charge or charges preferred in the name of Her Majesty against the accused person, and any such charge may allege the commission of any indictable offence not included in any of the categories specified in Part III of the Second Schedule to the Magistrates Ordinance and any offence triable summarily only, whether or not the offence was included in the order transferring the charge or complaint to the Court. |
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(3) Such charge sheet shall be delivered within fourteen days after the date of the order of transfer or such longer period as the Court may, in any particular case, allow on any application made by or on behalf of the Attorney General." |
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The power giving the court jurisdiction to hear the complaint is conferred by section 74 of Cap.336, which provides, inter alia,
"The Court shall have jurisdiction to hear and determine in accordance with the provisions of this Ordinance all such charges as the Attorney General may lawfully prefer under the provisions of section 75...."
5. Thus jurisdiction to hear and determine, in accordance with the provisions of the Ordinance, a charge, lawfully preferred by the Attorney General under section 75 is conferred by section 74 whilst the jurisdiction and powers over the proceedings relating to transferred charges derive from section 75 which are declared to be "similar to the jurisdiction and powers the Supreme Court would have had" if a committal on indictment had occurred.
6. The practice and procedure of the District Court in its criminal jurisdiction is set out in section 79 of the District Court Ordinance.
7. The relevant sub-sections are as follows:-
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"79. (1) Subject to the provisions of this Ordinance and as may be prescribed, the procedure and practice for the time being in force in the Supreme Court in relation to criminal proceedings therein shall, so far as the same may be applicable, be followed as nearly as may be in criminal proceedings in the Court; and where it is necessary for the purpose of rendering such procedure and practice conveniently applicable, "indictment" and "count" shall be understood to refer to "charge sheet" and "charge" respectively." |
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"79. (4) Where any provision of the Criminal Procedure Ordinance is applicable to criminal proceedings in the Court, such provision shall be read with such verbal alterations and modifications not affecting its substance as are necessary to render it conveniently applicable; and in particular, and without prejudice to the generality of the aforesaid, any such provision relating to a "jury" or a "verdict of a jury" shall be understood to refer to a judge and the functions of a judge as a judge of fact." |
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"79. (5) Nothing in this section shall be taken to authorize - |
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(a) |
the institution of any criminal proceedings in the Court save in accordance with the express provisions of this Part." |
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8. As I have already stated the Crown sought leave to prefer an alternative charge of blackmail. The reason for making the application was to have a "long-stop" in the event of the trial court coming to the conclusion that the money demanded from the complainant was not solicited by the defendants "as an inducement to or otherwise on account of their abstaining from performing an act in their capacity as public servants."
9. A summary of evidence had been filed with the court and delivered to the defence prior to the date of hearing, but by no stretch of the imagination, could this be regarded as a document in the nature of a deposition or depositions.
10. The Crown argued that the substantive charge of corruption was "defective" within the meaning of that word in section 23(1) of the Criminal Procedure Ordinance, Cap.221.
11. That sub-section is in these words:-
"Where, before trial or at any stage of a trial, it appears to the court that the indictment is defective, the court shall make such order for the amendment of the indictment as the court thinks necessary to meet the circumstances of the case, unless, having regard to the merits of the case, the required amendments cannot be made without injustice."
This sub-section has been taken bodily from the Indictments Act, 1915, s. 5.
12. Mr. Niamatullah, who appeared on behalf of the prosecution, referred me to several cases one of which was R. v. Martin (1961) 2 All E.R. 747, the headnote of which reads:-
"A new count may be added to an indictment by way of amendment before arraignment if that can be done without injustice."
13. The facts of the case were that counsel for the prosecution, on examining a copy of the draft indictment, discovered that two of the counts did not charge the offence alleged in the depositions, accordingly a further count was drafted by him and notice was given to the other side of his intention to apply at the trial for its inclusion. The trial judge allowed the Crown's application to amend by including the new count.
14. On appeal against that ruling it was held by the Court of Criminal Appeal that the indictment contained a latent defect and that the amendment was properly allowed.
15. In the course of his reserved judgment, Parker, L.C.J. said:-
"Unless a defendant has ample warning of an intention to apply for a count to be added, the probabilities are that the addition cannot be made without injustice. After arraignment it is doubtful whether a new count can be added at all as the defendant will not have pleaded to it nor, if the trial has started, have been put in charge of the jury on it; and if it were made, injustice as R. v. Errington (1922) 16 Cr. App. R 148 and R. v. Hughes (1927) 20 Cr. App. R 4 show would almost certainly be caused. When, however, the Court which is asked before arraignment to allow the addition of a new count is satisfied that no injustice will be caused to the defendant, we can see no reason why such an amendment of the indictment should not be made."
16. There are no depositions in the District Court though there is the equivalent of an arraignment which is constituted by (1) calling the defendant to the bar by name; (2) reading the charge to him and (3) asking him whether he is guilty or not.
17. The defendants in this case having pleaded to the charge, the arraignment was complete. (R. v. Duffy (1848) 7 St. Tr. (N.S.) 795, 799).
18. In this trial the Crown sought to prefer an additional charge, albeit alternative to one laid, after the defendants' arraignment.
19. The decision in R. v. Martin (supra) was considered by the Court of Appeal (Criminal Division) in the case of R. v. Hall (1968) 3 W.L.R.359.
20. The headnote is as follows:-
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"Held, dismissing the appeal, that an indictment was defective not only if it charged offences not disclosed in the depositions but equally if it failed to charge an offence which was disclosed in the depositions. Count 10 being defective in its original form in that it failed to charge receiving eight paintings of which there was evidence in the depositions, it could be amended under section 5(1) of the Indictments Act, 1915. |
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(2) That there was no reason why an amendment of an indictment by way of the addition of a new count should not be made before arraignment provided the court was satisfied that no injustice would be caused to the defendant; and that there was so suggestion in the present case that the addition of a new count by way of an amendment caused any injustice." |
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21. In the course of his judgment, Parker, L.C.J., at page 362, stated:-
"The latest authority on this matter is Reg. v. Martin. In that case, the circumstances in which a count could be said to be defective were considered, and in giving the judgment of the court, I said this:
"An indictment which charges offences which are not disclosed in the depositions and fails to charge an offence which is, lacks the most essential quality of an indictment.'
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It may well be said that on the facts of that case those remarks were obiter, but this court, faced with deciding the question, has no hesitation in saying that an indictment lacks the most essential quality, in other words is defective, not only if it charges offences which are not disclosed in the depositions but equally if it fails to charge an offence which is disclosed by the depositions. |
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In so far as the matter is put by Mr. Wrightson on the basis that it is a new count, it so happens that that also was dealt with in Martin's case, in which I said: |
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'We appreciate that no case has been reported which approves the adding of a new count before arraignment and by way of an amendment, but nevertheless we consider that there is no objection in principle to this being done provided it can be done without injustice.'
The Court then went on to express the hope that the occasions for that would be rare in that indictments should be carefully drafted. Finally the judgment ended:
'When, however, the court which is asked before arraignment to allow the addition of a new count is satisfied that no injustice will be caused to the defendant, we can see no reason why such an amendment of the indictment should not be made.'
I should add that Mr. Wrightson quite rightly, on the facts of this case, cannot suggest that the amendment, or the addition of a new count by way of amendment before arraignment, caused any injustice whatsoever."
22. The determining factor therefore is, whether or not an injustice would be caused to the defendant if the amendment is allowed.
23. This matter was further considered in the recent case of R. v. Johal (1972) 3 W.L.R. 210 where it was held that no rule of law precluded amendment of an indictment after arraignment either by addition of a new count or otherwise; and that, no injustice having been caused to the defendants by the amendment after arraignment, the appeals would be dismissed.
24. In that case Ashworth, J., delivering the judgment of the Court of Appeal had this to say at page 214 of the report:-
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".... it is important to realize that in the present case the trial had not started, and Mr. Farrer very properly conceded that neither of the defendants was in any way prejudiced by the addition of the four further counts. All that had happened was that the defendants had been arraigned on the first two counts, and there was no difficulty in arraigning them on the further counts before the trial started. |
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The decision in Reg. v. Harden (1963) 1 Q.B.8, was also relied on by Mr. Farror. In that case, at the close of the case for the prosecution, application was made to amend the indictment. In respect of some counts leave was refused but in respect of others it was granted. On appeal it was held that leave was rightly granted in respect of one count, but wrongly in respect of another. It is unnecessary to quote from the judgment in which the difference in nature between the two relevant amendments is emphasised. The effect of the decision is that when amendment of a particular count is under consideration it may be a question of degree whether the proposed amendment is no more than the correction of a misdescription or on the other hand involves the substitution of a different charge. In the headnote to the report of this case it is stated 46 Cr. App. R. 90, 91: |
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'An amendment of a count of an indictment may not be made after arraignment if the result is to substitute another offence for that originally charged.'
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As a statement of principle, to be applied generally, this is in the judgment of this court too wide. No doubt in many cases in which, after arraignment, an amendment is sought for the purpose of substituting another offence for that originally charged, or for the purpose of adding a further charge, injustice would be caused to the accused by granting the amendment. But in some cases (of which the present case is an example) no such injustice would be caused and the amendment may properly be allowed. |
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Reference was also made to the decision in Reg. v. Hall (1968) 2 Q.B. 788 but there is no need to consider it in detail; it is an example of an amendment being properly allowed before arraignment when there was no injustice to the person accused. |
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In the judgment of this court there is no rule of law which precludes amendment of an indictment after arraignment, either by addition of a new count or otherwise. The words in section 5(1) of the Indictments Act 1915 'at any stage of the trial' themselves suggest that there is no such rule; if the suggested rule had been intended as a limitation of the power to amend, it would have been a simple matter to include it in the subsection. |
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On the other hand this court shares the view expressed in some of the earlier cases that amendment of an indictment during the course of a trial is likely to prejudice an accused person. The longer the interval between arraignment and amendment, the more likely is it that injustice will be caused, and in every case in which amendment is sought, it is essential to consider with great care whether the accused person will be prejudiced thereby. |
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In the present case, although amendment was made after arraignment, the situation was to all intents and purposes the same as if application to amend had been made before arraignment. In the view of this court it would be wholly wrong to decide that in these circumstances the indictment could not be amended." |
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25. There is no suggestion in this case that the two transferred charges were a nullity. Had that been so then no amendment would have been permissible (see: R. v. Lamb (1969) 1 All E.R. 45 and R. v. Smith (1951) 34 Cr. App. R. 168); nor was this a case where the proposed amendment related to a description of the property which could, in effect, have resulted in the conviction of the defendant on an entirely different charge, such as arose in R. v. Gregory (1972) 56 Cr. App. R. 441.
26. Mr. Niamatullah pointed out, as was observed in R. v. Johal (supra) that the words in section 23(1) of the Criminal Procedure Ordinance, namely: "at any stage of a trial" do not limit the time when the amendment may be made ordered.
27. He further stressed the recent amendment to section 75(2) of the District Court Ordinance, Cap.336 by the inclusion of the words
"Whether or not the offence was included in the order transferring the charge or complaint to the Court."
Had the additional alternative charge been included in the charge sheet delivered by the Attorney General to the registrar within fourteen days after the date of the order of transfer there would have been no need for this particular application to have been made. Whether, in those circumstances, a judge of the District Court could, by reason of his powers over the proceedings in relation to the offence being similar to the jurisdiction and powers of the Supreme Court, defer the trial of that additional charge is a question not before me in this case.
28. I would venture that he could do so on the authorities already cited, but limited to the reasons given therein. But the question here is whether I should allow the Crown's application to deliver an amended charge sheet to the registrar out of time. Quite clearly the likelihood of any possible injustice to the defendants falls to be determined.
29. Mr. Yu, who appears for the defendants, informs me that he cannot say there would be an injustice save that they would have an additional charge to meet, albeit as an alternative to one substantive transferred charge.
30. Having given the matter careful consideration I was of the opinion that the application should be allowed.
31. Accordingly it was ordered that the charge sheet, as amended be delivered to the registrar by 2.30 p.m. that same day.
32. As a footnote I should add that no verdict was returned on this alternative charge, the defendants being convicted on the substantive charge of corruption.
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(F. Addison) |
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District Judge |
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28th November, 1973. |
Representation:
Mr. Niamatullah, C.C. for Crown.
Mr. Patrick Yu for defence.
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