Kei Chi Kong v. The Queen
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CACC000642/1968 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CRIMINAL APPEAL NO. 642 OF 1968 -----------------
Coram: Huggins, J. Date of Judgment: 4 December 1968 ----------------- JUDGMENT ----------------- Huggins, J. 1. The appellant pleaded guilty before the learned magistrate to a charge of obtaining money by false pretences or by means of some other fraud. The particulars of offence were that he and another "did, on the 12th of September 1968 at Kowloon in this Colony with intent to defraud, obtain from Lau Wu $5000, Hong Kong currency, by falsely pretending that he was in the position to authorize Lau Wu, Li Tin and Yau San to undertake the construction work of a canidrome in Ma Wan, New Territories". He has appealed to this court against his sentence, but upon the case coming before me I asked what exactly was the nature of the pretence that was alleged. In my view the charge as framed was ambiguous and it failed to give particulars which would justify the calling upon the appellant to plead. The fact that he did plead is perhaps unfortunate because it is impossible without knowing the precise nature of the pretence to decide what would be a proper sentence for his offence. I adjourned this matter for counsel to consider the case further and invited counsel for the Crown to submit to me a draft of particulars of offence which would shew clearly what was the charge it had been intended to lay. This he has now done and the particulars are that on the date in question with intent to defraud the appellant obtained from Lau Wu the sum of $5000, Hong Kong currency, "by falsely pretending that Citadel International Corporation Far East General Office U.S.A. were looking for a contractor to build a canidrome in Ma Wan, New Territories, and that they said sum of $5000, Hong Kong currency was required as a deposit for the contract for the contruction work of the said canidrome". 2. The solicitor for the appellant (who did not appear for the appellant in the court below) tells me he is instructed that then the appellant pleaded he never intended to plead guilty to a charge of this nature and the solicitor's partner (who did appear below) has apparently confirmed that this was his understanding of the pretence which was alleged. It was then understood that what was suggested was a pretence that Government permission of some king had been obtained for the building of a canidrome. 3. It is submitted to me that whatever the understanding was at that time the admission of the appellant before the magistrate of all the facts which were set out in the "brief facts of case" submitted to the learned magistrate shows that he has admitted all the necessary ingredients of the offence as now alleged. In my view that is not a satisfactory manner of dealing with the case. The appellant was entitled to know at the time of pleading what he was charged with and in my view the only satisfactory course is for me now to direct an amendment to this charge and to remit it to the learned magistrate for the case to proceed. How the Crown will present their case is a matter entirely for them, but in my view it would not be right for me to treat this as a proper and valid conviction. 4. I therefore set aside the conviction and the sentence and remit the case to the learned magistrate in the form in which I have indicated. 4th December 1968. Representation: Mr. M. Wong for the Respondent |