The Queen v. Lee Tin-sung

Case No.CACC 48/1983

Court

Court of Appeal

Date—

Judge—

Case Document

100%Judiciary

CACC000048/1983

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Criminal Appeal No. 48 of 1983

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Between

	The Queen	Respondent
	and
	LEE Tin-sung	Appellant
	______________

Coram: Hon, Penlington, J. in Court

Date: 11th February, 1983

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JUDGMENT

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1. This is an appeal against conviction on a charge of making a false statement to a police officer, contrary to Section 64(b) of the Police Force Ordinance.

2. The appellant, who is himself a police constable, was involved in the investigation of a robbery which occurred in Jordan Valley Estate on 23rd September 1981. On the 18th of July 1982 the appellant made a statement to deceiving Senior Inspector NG Kam-wing relating to the manner in which a suspect had been arrested. He said, it was on information which had to be paid for, though the appellant himself did not receive or pass on any such information money. The magistrate found, as a question of fact, that the statement was false, that the appellant knew it was false and it was made with the intention of deceiving Senior Inspector NG. He also, however, found that the Inspector was not in fact so deceived. I see no reason to disagree with those findings of fact. As a result he ruled that while the appellant should not be convicted of the substantive offence, he had attempted to deceive and he would be convicted of such an attempt.

3. The magistrate did not amend the charge under Section 27 of the Magistrates Ordinance before doing so and did not therefore follow the procedure laid down in that Section such as calling on the accused to plead again and giving him the chance to re-examine witnesses.

4. There were several grounds of appeal argued but only one which at first caused me some concern. In YIP Yuk Lun v. R. 1961 H.K.L.R. 268 the facts were very similar indeed and Hogan C. J. said that when a person is summarily charged with a substantive offence he could not be convicted of an attempt unless the charge was amended under Section 27 of the Magistrates Ordinance and the procedure laid down followed. He said that a magistrate did not have the same power as did the Supreme Court but clearly thought the law should be changed to give such a power.

5. This did seem a strong argument but on further study I am satisfied that that decision is no longer of authority. It was made before Section 51 of the Criminal Procedure Ordinance was replaced in 1971 and amended in 1972. The new section clearly does now provide for a conviction of an attempt by a magistrate without amendment of the charge. Subsections (2) and (7) read as follows :

	(2)	If on the trial of any information, charge or indictment for any offence other than treason it is proved that the accused is not guilty of that offence but the allegations in the information, charge or indictment amount to or include, whether expressly or by implication, an allegation of another offence falling within the jurisdiction of the court of trial, he may be found guilty of that other offence or of an offence of which he could be found guilty on an information, charge or indictment specifically charging that other offence.
	(7)	In subsection (2), "court of trial" includes the District Court and a magistrate.

6. Those provisions must be read in conjunction with Section 81 of the Interpretation Ordinance:

	(81)	(1) A provision in any Ordinance which creates or results in the creation of an offence shall be deemed to include a provision that an attempt to commit such an offence shall itself constitute an offence which may be dealt with and punished in like manner as if the offence had been committed.
		(2) Where a person is charged with an offence, he may be convicted of having attempted to commit that offence although he was not charged with the attempt.
		(3) Nothing in this section shall affect any law relating to attempts to commit offences at common law.

7. The magistrate relied on those sections and I am satisfied he was entitled to do so. He also referred to the dicta of McMullin J. in Kwok Hung v. R. (1978 H.K.L.R. 173) which sets out when Section 27 should be used; none of those circumstances existed here.

8. The appeal is dismissed.

(R.G. Penlington)

Judge of the High Court

Representation:

J.G. Hagon, C.C. for Crown.

Brian Van Buuren (Wong, Hui & Souza) for the Appellant.