HKSAR v. Cheung Wai Lung

HCMA 19/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 19 OF 2008

(ON APPEAL FROM TWCC 2224 OF 2007)

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BETWEEN

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Before:  The Honourable Mrs Justice V. Bokhary in Court

Date of Hearing:  6 May 2008

Date of Judgment:  19 May 2008

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J U D G M E N T

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1.This is an appeal against a conviction after trial before John Glass, Esq. in the Magistrate’s Court at Tsuen Wan on a charge of possession of an offensive weapon in a public place, contrary to s. 33(1) of the Public Order Ordinance, Cap. 245.

2.Subsection (5) of s. 33 provides that no prosecution for an offence under the section shall be instituted without the consent of the Secretary for Justice.  The s. 33(5) consent in the present case was to institute a prosecution against the Appellant for a s. 33(1) offence particularised as follows :-

“CHEUNG Wai-lung, on the 7^th day of August, 2007, in a public place outside Ground Floor, No. 93 Pui O Lo Wai Tsuen, Pui O, Lantau Island, New Territories, in Hong Kong, without lawful authority or reasonable excuse, had with him an offensive weapon, namely aluminium pole.”

3.Pursuant to that consent and in conformity with it, the Appellant was charged with a s. 33(1) offence particularised as follows :-

“CHEUNG Wai-lung, you are charged that on the 7^th day of August, 2007, outside Ground Floor, No. 93, Pui O Lo Wai Tsuen, South Lantau Road, Lantau Island, in Hong Kong, you, without lawful authority or reasonable excuse, had with you in the said public place an offensive weapon, namely one 40 centimeter long aluminium pipe.”

4.The Magistrate amended the s. 33(1) charge by deleting the words “in a public place outside Ground Floor, No. 93” and replacing them with the words “at 3/F, 119”.  It was on the charge so amended that the Appellant was convicted.

Fresh consent was needed

5.Three discrete grounds of appeal have been filed on the Appellant’s behalf.  The first is to the effect that the amendment was one of substance so that a fresh consent was needed and that, no fresh consent having been obtained, there was no jurisdiction to proceed on the amended s. 33(1) charge.  If the amendment is to be regarded as one of substance, then, on the authority of the Court of Appeal’s decision in R v. Do Bing-hung [1988] HKLR 558, the absence of a fresh consent would be fatal to the s. 33(1) conviction.  The issue on the first ground is whether the amendment is one of substance.  Mr Benjamin Chain for the Appellant contends that it is while Ms Margaret Lau for the Respondent contends that it is not.

6.My attention has been drawn to a number of cases involving offences for the prosecution of which consent is required.  Mr Chain cited R v. Downey [1971] NI 224 decided by the Northern Ireland Court of Criminal Appeal.  In that case the consent related to the possession of a shotgun at 37 Peel Street in Belfast.  As originally presented, the indictment described the offence as having occurred at that address.  But the indictment was amended by leave to delete that address and replace it with another address, namely 2 Varna Street.  The conviction for possession of a shotgun at 2 Varna Street was quashed on the basis that the consent related to a different place and could not be regarded as sufficient to confer jurisdiction to proceed on the count as amended.

7.Giving the judgment of the court, Lord MacDermott CJ referred to its decision in R v. Taylor [1960] NI 136 and (at p. 229) said that the consent “is anything but a matter of form and that the indictment and trial should follow it in its material particulars”.

8.Ms Lau cited R v. Cain [1976] 1QB 496, a decision of the English Court of Appeal (Criminal Division).  In that case the consent referred to the Explosive Substances Act 1883 and was for the defendants to be prosecuted “for an offence or offences contrary to the provisions of the said Act”.  The defendants having been convicted of possessing explosive substances contrary to s. 4 of that Act, they appealed on the ground that the consent was insufficient.  Their appeals were dismissed.  Giving the judgment of the court, Lord Widgery CJ referred to Taylor’s case and Downey’s case and to two other cases involving consent to prosecute:  one from Canada (being the decision of the Ontario Divisional Court in R v. Breckenridge (1905) 6 OWR 501); and the other from Australia (being the decision of the High Court of Australia in Berwin v. Donohoe (1915) 21 CLR 1).

9.In Breckenridge’s case the consent referred to the Act in question (which was concerned with the importation and employment of aliens), and was for the prosecution of a named individual for “violation of the above Act and amendments thereto”.  It was held that that document was not such a consent as the Act required and conferred no jurisdiction to entertain or try the charge.  At p. 503 Meredith CJ said :-

“The written consent should, in my opinion, at the least contain a general statement of the offence alleged to have been committed, not necessarily in the technical form which would be required in an information or conviction, but mentioning the name of the person in respect of whom the offence is alleged to have been committed and the time and place, with sufficient certainty to identify the particular offence intended to be charged.”

10.In Berwin v. Donohoe the prosecution was under s. 3 of the Trading with the Enemy Act 1914.  The consent given was “to a prosecution being instituted against Alfred George Berwin for an offence against the Trading with the Enemy Act”.  At p. 26 Isaacs J said :-

“A complicated set of circumstances may be reviewed by the Attorney-General, and his consent to a prosecution under the Act may be given in general terms leaving it to the Crown Solicitor to formulate the charge.  If the precise form of the charge were necessary to be stated, then the provisions in the Justices Acts and the Crimes Act permitting amendments and guarding against the old fatalities for variances would be inoperative.  If the defence definitely challenges the fact that the Attorney-General has examined the facts of that particular case, the prosecution may be put to prove that he has; but, as I say, no such challenge was made here.”

11.Giving the judgment of the court in Cain’s case Lord Widgery CJ said as follows at pp 502G – 503A :-

“Accordingly, our view of the present case can be summarised as follows.  First, the purpose of requiring the Attorney-General’s consent to prosecutions under the Act of 1883 is to protect potential defendants from oppressive prosecutions under an Act whose language is necessarily vague and general.  Hence it is not necessary that the Attorney-General should have considered and approved every detail of the charge as it ultimately appears in the indictment. His duty is to consider the general circumstances of the case, and to decide whether any, and, if he thinks fit, which, of the provisions of the Act can properly be pursued against the defendant who has been charged before the magistrate with one such offence.  If the Attorney-General considers that the prosecutor should be at liberty to pursue any charge under the Act which is justified by the evidence, there is no constitutional objection to his giving consent in the wide terms adopted in the present case.  Furthermore, when consent is given in any terms it should be presumed that the Attorney-General has made the necessary and proper inquiries before giving that consent.”

12.I have already mentioned the Court of Appeal’s decision in Do Bing-hung’s case.  Giving the judgment of the court, Yang Ag CJ (as he then was) noted that the decision of the Privy Council in Gokulchand Dwarkadas Morarka v. R [1948] AIR 82 appears not to have been cited to the court in Cain’s case.  As to the circumstances in Morarka’s case, Yang Ag CJ said this at p. 560H – I :-

“There the sanction of the Government of Bombay was required for prosecution of an offence under the Cotton Cloth and Yarn Order 1943.  Again the consent was given in wide terms.  It referred to the name of the alleged offender and said that consent was given “for breach of the provisions of cl. 18(2) of the said Order”.  There was no reference to any particulars of the alleged offence.”

13.Then Yang Ag CJ cited this statement made by Sir John Beaumont at p. 84 when giving the Privy Council’s judgment in Morarka’s case :-

“The sanction to prosecute is an important matter; it constitutes a condition precedent to the institution of the prosecution and the Government have an absolute discretion to grant or withhold their sanction.  They are not, as the High Court seems to have thought, concerned merely to see that the evidence discloses a prima facie case against the person sought to be prosecuted.  They can refuse sanction on any ground which commends itself to them, for example, that on political or economic grounds they regard a prosecution as inexpedient.  Looked at as a matter of substance it is plain that the Government cannot adequately discharge the obligation of deciding whether to give or withhold a sanction without a knowledge of the facts of the case.  Nor, in their Lordships’ view, is a sanction given without reference to the facts constituting the offence a compliance with the actual terms of cl. 23.  Under that clause sanction has to be given to a prosecution for the contravention of any of the provisions of the Order.  A person could not be charged merely with the breach of a particular provision of the Order; he must be charged with the commission of certain acts which constitute a breach, and it is to that prosecution―that is, for having done acts which constitute a breach of the Order―that the sanction is required.  In the present case there is nothing on the face of the sanction, and no extraneous evidence, to show that the sanctioning authority knew the facts alleged to constitute a breach of the order, and the sanction is invalid.”

14.Finally Yang Ag CJ said as follows at p. 561 E – G :-

“It was submitted by the Crown that in order to give his consent to the original charge the Attorney General must be presumed to have considered all the facts and to have consented to a prosecution under s. 3.  The amendment by changing “favour” to “gift” was a matter of detail and if the Attorney General was prepared to consent to one he must have also been so prepared to the other.  We do not agree with that proposition.  Whether or not a consent which does not give particulars is valid, here the consent does give particulars and we are satisfied that any amendment of substance requires a fresh consent.

In the light of the fundamental difference sought to be brought about by the amendment to the charge, the Attorney General’s consent under s. 31 was essential.”

15.I am not concerned with what the position might be if the consent in the present case simply referred to Pui O Lo Wai Tsuen as the place where the offence is alleged to have occurred or, indeed, if the consent made no reference to any place at all.  Here the consent referred to outside the ground floor of No. 93; the charge as originally formed did the same; and then the place where the offence was alleged to have occurred was amended to the third floor of No. 119.  It appears that No. 119 is about 20 to 30 metres away from No. 93.  And it is to be noted that in addition to that horizontal difference, there is also the vertical difference between a place outside ground floor level and a place at third floor level.

16.Neither of these differences are trivial on its face or in itself.  Most important, however, is what lies behind them, which is this.  The place referred to in the consent and the charge as originally framed is the place where it was alleged that the Appellant, carrying an aluminium pole, was stopped in the street by a patrolling police officer at 01:18 hours on 7 August 2007.  The place referred to in the charge as amended is the place where it is alleged that the Appellant, brandishing an aluminium pole, had threatened a number of persons at a holiday flat at 0:10 hours on that date.  They were different incidents.  Where a prosecution requires consent, a fresh consent is needed if an amendment of the charge is one of substance.  Whether an amendment is of substance so that a fresh consent is needed is a question of fact and degree in all the circumstances.  That question was not present in anybody’s mind at the trial.  Now, on appeal, it falls to be considered for the first time.  I have considered it, and have come to this conclusion.  Having regard to the differences as to time, as to place and as to the nature of the two incidents concerned, the amendment by which this case was shifted from one incident to another was indeed one of substance such as to require a fresh consent.  No fresh consent having been obtained, the prosecution proceeded in the absence of jurisdiction.  The conviction must therefore be quashed.  On the first ground therefore, the appeal is allowed and the s. 33(1) conviction is quashed.

17.There is strictly speaking no need to deal with the other two grounds of appeal, but since I have heard argument on them I will deal with them.

Identification unsafe and unsatisfactory

18.The second ground of appeal concerns identification.  The witness who gave evidence of what happened at the holiday flat was only able to give a general description of the man who brandished an aluminium pole.  In the street he identified a man other than the Appellant.  And he was unable to pick out the Appellant at an identification parade at which the Appellant was on parade.  The identification relied on by the Magistrate was based on the similarity between the aluminium pole described by this prosecution witness and the one which the Appellant had, for innocent purposes he said.

19.There is no evidence of anything distinctive about the aluminium pole produced in evidence.  In my view, the identification is unsafe and unsatisfactory.  If the second ground had been reached, I would have allowed the appeal on it.

Finding of intent unsafe and unsatisfactory

20.The same is true of the third ground.  Since the aluminium pole was not offensive per se and had not been adapted for offensive use, the Magistrate convicted on the basis that the Appellant intended to cause injury with it.

21.I do not regard a finding to that effect to be either safe or satisfactory.  The evidence was that the man brandishing an aluminium pole while complaining about the noise which the occupants of the holiday flat were making, had threatened to get someone to hit them if they were noisy again.  That is not consistent with that man hitting those persons himself, whether with an aluminium pole or in any other manner.  Whatever may be said against such a threat, it is inconsistent with the case presented against the Appellant.

Appeal allowed, conviction quashed

22.As I have said, the appeal is allowed and the s. 33(1) conviction quashed.

Mr Benjamin Chain, instructed by Messrs Christine M Koo & Ip (assigned by the Director of Legal Aid), for the Appellant

Ms Margaret Lau, of the Department of Justice, for the Respondent