Yuen Choi-sau v. The Queen

CACC001055/1975

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 1055 OF 1975

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Coram: Briggs, C.J.

Date of Judgment: 27th December, 1975.

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JUDGMENT

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1. In this case the appellant was charged with attempted robbery contrary to section 10(1) of the Theft Ordinance. Evidence was given by the prosecution and at the end of the prosecution's case the court of its own motion amended the charge to one of "simple theft or attempted theft". This charge was read and explained to the defendant. Unfortunately, the magistrate did not comply with the provisions of section 27(3) of the Magistrates Ordinance. This imposes a duty on a magistrate to inform an accused person in circumstances such as this that he has a right to recall the witnesses who have already been heard. Be that as it may, the appellant elected to remain silent and he was then found guilty of attempted robbery under section 10(1) of the Theft Ordinance.

2. I do not think that this can be right. At the time the magistrate amended the charge, all the evidence as to any attempted robbery had been given and the magistrate would not have amended the charge to one of simple theft if he had thought at that time there was any evidence of attempted robbery worthy of belief.

3. It appears from the record that the Statement of Findings is an inaccurate representation of the evidence before the magistrate.

4. In all these circumstances, I think it is unsafe to allow the conviction to stand. The appeal is therefore allowed, the conviction set aside and the sentence quashed.

Representation:

A.M. Niamatullah (D.L.A.) for appellant.

Adams for crown.