Attorney General v. Chan Hung Hoi

THE COURT OF APPEAL

1987 No. 112
(Criminal)

BETWEEN

ATTORNEY GENERAL

AND

CHAN HUNG-HOI

___________________

Coram: Roberts, C.J.,

Date of Hearing: 7th May, 1987

Date of Handing Down: 21^st May, 1987

___________________

J U D G M E N T

___________________

Roberts, C.J.

1. This a case stated by a Deputy District Judge, on the application of the Attorney General, under section 84 of the District Court Ordinance (Cap.336).

2. CHAN Hung-hoi ("the respondent") was charged with the following offence -

"Statement of Offence

Possession of an imitation firearm with intent to commit an arrestable offence, contrary to section 18 (1) of the Firearms and Ammunition Ordinance, Cap. 238:

Particulars of Offence

CHAN Hung-hoi, on the 14th day of July, 1986, outside No. 17 Lan Fong Road, Hong Kong, had with him an imitation firearm, namely one imitation revolver with intent to commit an arrestable offence, namely, robbery."

3. He also face a second charge under section 18(l) of Cap.238, which was withdrawn at the outset of the trial.

Summary of Facts

4. On 14th July, 1986, the respondent was arrested in Lan Fong Road by police officers. When they searched him an imitation pistol was found tucked in the front of his trousers. The pistol contained six imitation bullets. In the left hand side pocket of his shirt were two withdrawal slips of the Hang Lung. Bank. On one of these were written Chinese characters saying "Have gun." Want $50,000 or open fire." On the other was written "want $50,000. Don't move". The two slips were folded and crumpled up.

5. There were admitted into evidence two cautioned statements in which the; respondent stated that he left his place of employment on 14th July, 1986, with the loaded gun and the two withdrawal slips. When he did this he had the intention of robbing. He walked to the street junction in the vicinity of the Hang Lung Bank, opposite the Lee Gardens Hotel and stood for a moment. He thought about it, felt that it was wrong because robbing was against the law and therefore left and walked to Lan Fong Road, where he was arrested.

6. The findings of fact by the Deputy Judge were as follows -

(a) the Crown had proved beyond a reasonable doubt that the respondent  was in possession of an imitation firearm.

(b) there was a prima facie case on the evidence that the respondent had the intention at the time he was arrested outside No .17 Lan Fong Road of robbing the Hang Lung Bank.

(c) she believed the respondent's evidence that he changed his mind about committing the robbery and that he still had the . imitation firearms and slips with him when arrested because he did not want to dump them in the street near the bank.

(d) that, because of the way in which the particulars of the charge were framed, it was a crucial issue to consider what intent the respondent had outside No 17 Lan Fong Hoad. The Crown's case was only made out if the respondent had the intent to rob the Hang Lung Bank when he was at that spot.

(e) that due to the condition of the slips and the respondent's demeanour and testimony in the witness box, she found that, at the time he was arrested outside No.17 Lan Fong Road, he had changed his mind about committing the robbery. Hence she acquitted him of the charge.

7. The two questions which are posed by the Deputy Judge for the consideration of this court are as follows -

"(1) Having heard the evidence of the prosecution and the defence, should I have amended the particulars of the offence of the charge to delete reference to "outside No.17 Lan Fong Road, Hong, " or

(2) Was I wrong in law, with reference to the charge, evidence and submissions presented to me at the trial, in failing to convict the respondent of an offence under s.20 of the firearms and Ammunition Ordinance, Cap.238?"

Amendment of the Indictment

8. The Crown, in its submission that the Deputy Judge should have amended the indictment to accord with the evidence presented before her, relied upon section 23 of thE; Criminal Procedure Ordinance ("Cap.221"), which is in the following terms -

"23(1) 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 far 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. "

9. This provision is in identical terms to those of section 5 (1) of the Indictments Act 1915, save that the latter section contains an additional passage dealing with the payment of costs. Therefore, it was submitted to us, English cases on the interpretation of section 5 of the Indictments Act were applicable to section 23 of Cap.221, a submission with which we agree. We also accept that this section is applicable to trials in the District Court as it is in the High Court.

10. It might have been thought that the effect bf the section, with its reference to the indictment being "defective" was restricted in its operation to circumstances in which the indictment was bad on the face of it, e.g. because of duplicity or because the particulars disclosed no offence.

11. However, it is apparent from the English authorities that this section has been construed in far wider terms, so as to include, for example, case in which

(a) the indictment does not accord with the evidence adduced in the depositions, either because of inaccuracies or deficiencies in the indictment, or because the indictment charges offences not disclosed by that evidence or fails to charge an offence which is so disclosed;

(b) for the same reasons as in (a), the indictment does not accord with the evidence given at the trial; (See R. v. Hall ⁽¹⁾ and Johal & Ram ⁽²⁾, in which the latter case reference is made to several of the older authorities).

(c) the evidence lead in support of the indictment discloses more than one

12. offence; (See R. v. Jones & Others⁽³⁾

13. In the Exercise of the power conferred by section 5, the courts have gone so far as to order amendments to an indictment -

(a) involving the substitution of a different offence for that originally charged in the indictment; or

(b) the inclusion of an additional count for an offence not previously charged (see R. v. Johal & Ram⁽²⁾ above);

(c) at any stage of the trial, provided that having regard to the circumstances of the case and the pow0r of a court to direct a separate trial of any accused or to postpone a trial, the amendment can be made without injustice. (See R. v. Smith⁽⁴⁾ and R. v. Harris⁽⁵⁾). The high water mark of this discretion was reached in R. v. Dossi⁽⁶⁾ in which an indictment was amended after the jury had returned with a conditional verdict.

14. It was suggested to us, however, that the wording of section 23 imposes upon a trial judge an obligation, at least at the close of the Crown case, to examine the evidence and, if it did not support the indictment as drafted, himself to initiate the necessary amendments.

15. However, counsel for the appellant was unable to cite to us any authority in which this approach to the section had been adopted. The only case which deals with the matter, by implication rather than directly is R. v. Smith & Others ⁽⁴⁾, at page H183, where Humphreys, -J. , delivering the judgment of the Court of Criminal Appeal observed -

"The Court was not informed whether the indictment in this case was drawn in, the office of the Clerk of Assize or whether it was submitted to counsel for revision before being signed, but we think it desirable to point out that the responsibility for the correctness of an indictment lies in every case upon counsel for the prosecution, and not upon the Court. No counsel should open a criminal case without having satisfied himself upon that point. If in his opinion the indictment needs amendment, the necessary application should be wade before the accused are arraigned and not, as in this case, after all the evidence for the prosecution has been called. There may well be amendments which would be properly made at the commencement of a trial which would be oppressive and embarrassing to the accused if made at the close of "the case for the prosecution."

16. This passage re-states the principle that it is for the Crown, not the court, to monitor the correctness of the indictment and to apply for amendments to it where appropriate.

17. Nor do we consider that the wording of the section imposes an unavoidable duty on the judge, since it is qualified by the phrases "as the court thinks necessary to meet the circumstances of the case" and "the required amendment cannot be made without injustice".

18. It may be that, strictly speaking, it is inaccurate to refer to a judge's "discretion", to order an amendment of the indictment. However, references to it as a discretion are frequent, both in the cases and in the appropriate paragraphs of Archbold.

19. It can perhaps be properly described as a section which leaves some degree of discretion in the hands of the judge, though one which is significantly fettered by its wording.

20. It goes without saying that, before exercising his power to direct an amendment in the circumstances, he should invite the parties, and in particular the defence, to express their views.

21. In this instance, there is nothing in the case stated to indicate that the question of the exercise of the power under section 23 was raised by anyone during the course of the trial. It appears as if the matter had only occurred to the Deputy Judge while she was delivering her judgment, since the first reference to an amendment of the indictment occurs in the last paragraphs of her judgment.

22. Thus our conclusions on the operation of section 23 are as follows -

(a) The trial judge has a power to consider, of his own motion, whether to amend the indictment in accordance with its provisions.

(b) There is no duty on him to exercise that power of his own motion.

(c) If application is made for such amendment by the Crown or the defence, the judge is obliged to consider the application.

(d) In considering that application, the judge is obliged to make such amendment as is necessary to meet lithe circumstances of the case", unless the required amendments "cannot be made without injustice".

(e) This power may be exercised at any time during the course of trial, in the case of a District Court up to the moment of delivery of judgment.

23. Applying these principles to this case, we consider that -

(a)    since the matter was not raised by counsel at all, the Deputy Judge was under no obligation to initiate any amendments herself;

(b) there is nothing to indicate that these matters were in her mind before she began to prepare her judgment;

(c) had an application been made to the Deputy Judge, or had she considered the matter herself, at any point before she began to deliver judgment, it may well have been right for her to amend the indictment so as to delete the words "outside No.17 Lan Fong Road".

(d) in the circumstances of this case, no possible injustice could have been caused to the defendant by virtue of such an amendment, since the respondent admitted, both in his statement to the police and in his evidence, that a few minutes before his arrest, he was carrying an imitation firearm with an intent to commit an arrestable offence.

(e) the Deputy Judge, in the absence of any application to her to consider doing so, was under no duty to amend the indictment, so that the answer to the first question posed is "No".

Section 22 of Cap. 221.

24. An alternative argument put forward on behalf of the applicant was that no amendment was necessary to the indictment, in view of section 22 of Cap.221, which provides that an indictment shall not be held "insufficient for want of the averment of any matter unnecessary to be proved, " or if a number of specific matters are omitted - e.g. the time at which the offence was committed, where time is not the essence of the offence, or want of any statement as to the value of any matter or thing.

25. We do not agree that Section 22 could be of assistance to the Crown in this case, since the time at which the defendant held the necessary intent was of importance.

26. In R. v. Allamby⁽⁷⁾, an indictment alleged that the defendant was in possession of a knife in the County of Wiltshire on one day, whereas the evidence established that he was in possession of the knife in Cornwall on another day. The Court of Appeal held that the evidence did not amount to proof of the charge laid in the indictment.

27. It is of note, however, that no application was made during the course of the trial for an amendment of the indictment to accord with the facts presented. Had such an application been made; on the authorities, it is likely that it would have succeeded.

Section 20 of the Firearms and Ammunition Ordinance, (Cap. 238)

28. The second question relates to the failure of the Deputy Judge to convict the respondent of an offence under section 20 of Cap.238.

29. By section 18(5) of Cap.238, if a defendant is acquitted of a charge under section 16(1), but it is proved that he is guilty of an offence under section 20, he shall be convicted of the latter offence.

Section 20(1) reads -

"Subject to subsection (2) and (3), any person who is in possession of an imitation firearm commits an offence and is liable to imprisonment for 2 years. "

By section 20(3) it is a defence to a charge under section 20(1) if the defendant satisfies a magistrate that -

"..............................................

(c) he was not in possession of the imitation firearm for a purpose dangerous to the public peace, or of committing an offence, or in circumstances likely to lead to -

(i) the commission of an offence; or

(ii) the possession of the imitation firearm for a purpose dangerous to the public peace,

by himself or 3 any other person. "

30. On the face of it, the special defences under section 20(3) only apply if the defendant "satisfies the magistrate". In this instance, of course, the trial place before a Deputy Judge in the District Court. The argument was put forward with much diffidence, by Crown Counsel that a defendant cannot invoke the defences provided for in section 20(3) where trial takes place in the High Court or the District Court.

31. It seem indisputable that it cannot have been the intention of the Legislature that such defences should be available before the magistrate but not before a higher court, and that the reference to a "magistrate" is no more than an error, the result of inserting subsections (4) and (5) into the result section 18 in 1984, without ensuring that the necessary consequential amendment was made to section 20(3), so as to substitute for the word "magistrate" the word "court".

32. To avoid this obviuous mistake, with the injustice it would cause, we think that the power contained in section 18(5) must be construed as entitling a court to convict of the lesser offence under section 20, only if the evidence establishes such an offence, as it would not do if any of defences provided by section 20(3)(c) would have succeeded. And that the context requires that the word "magistrate" shall be deemed to include lithe court in which the indictment is tried".

33. If this interpretation of the sections involves, as we fear it does, an unnatural staining of language, we remain unrepentant, since we think that it is the task of the court, if this is at all possible, to reach an interpretation which is both a reflection of the obvious intention of the Legislature and avoids what would otherwise be a substantial injustice.

34. For the sake of completeness, it is to be observed that the Deputy Judge accepted the argument that the respondent could not be convicted of any offence under section 20(1), save on the basis of her previous finding that the respondent had no intention to rob when he was intercepted out side No .17 Lan Fang Road. This finding was not challenged before us by the Crown.

35. We are, therefore, of the opinion that the answer to the second question posed is that the Deputy Judge was not wrong in law in failing to convict the respondent of an offence under section 20 of Cap.238.

Mr. G.J.X. McCoy, Senior Crown Counsel, for the Appellant /Crown Prosecutor

Mr. F. Fong (Robert W.H. Wang & Co.) for the Respondent

1 [1968] 52 Cr. App. R. 528

2   [1972] 56 Cr. App. R. 348

3  [1949] 59 Cr. App. R. 120

5 [1976] 62 Cr. App. R. 28

6 [1918] 13 Cr. App. R. 158

7 [1974] 1 W.L.R. 1494