Attorney General v. Lo Man-cheuk

CACC000690/1980

N THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 690 OF 1980.

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Coram: Macdougall, J.

Date of Judgment: 3rd September, 1980.

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JUDGMENT

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1. This is an appeal by way of case stated from the decision of a magistrate.

2. The respondent was charged with an offence under section 30 of the Summary Offences Ordinance which reads as follows:-

3. The learned Magistrate dismissed the case on the ground, inter alia, that the charge was defective and stated that he had come to this conclusion because of certain obiter dicta of Huggins J., as he then was, in Li Wing v. The Queen, Criminal Appeal No. 300 of 1971.

4. That case was an appeal against sentence in which the learned judge, having observed from the record of proceedings that the trial magistrate had not followed the correct procedure on a plea of guilty to an offence under section 30 of the Summary Offences Ordinance, gave leave to the appellant to appeal against his conviction. The charge was framed in the same manner as that in the instant case.

5. In the course of his judgment Huggins J. observed:

6. With respect I do not agree that a charge framed in the manner in which those in this case and Li Ming's case were framed is defective.

7. In my view the language of section 30 makes it clear that all that need be alleged is that the defendant had in his possession or conveyed in any manner the thing concerned and that it is reasonably suspected of having been stolen or unlawfully obtained.

8. Having been so charged, a defendant who fails to give an account to the satisfaction of the magistrate how he came by that thing, is rendered liable to the penalty prescribed by law.

9. However, since legislation couched in terms similar to section 30, although not necessarily dealing with the same subject matter, has caused difficulties in various jurisdictions, I propose to embark upon a review of a number of reported cases in order to support the view that I have taken.

10. In Lee Fan v. Dempsey [1907] 5 CLR 310 the High Court of Australia was concerned with the operation of section 65(1) of the Police Act 1892 of Western Australia. It reads:

"every person who shall commit any of next following offences shall be deemed an idle and disorderly person within the meaning of this Act, and shall on conviction be liable to imprisonment for any term not exceeding six calendar months with or without hard labour." Then follows an enumeration of eight separate categories of persons, of which the first is (1) "Every person having no visible lawful means of support or insufficient lawful means of support, who being thereto required by any Justice, or who having been duly summoned for such purpose, or brought before any Justice, shall not give a good account of his means of support to the satisfaction of such Justice."

11. The court unanimously held that upon prima facie proof of the absence of lawful means of support, the onus falls on the accused to prove the existence of such means to the satisfaction of the Justice.

12. At page 314 of the report Griffith C J said:

"..... the accused cannot be convicted of the substantive offence until (1) it has been proved that he is without visible lawful means of support or has insufficient lawful means of support, and (2) he has failed to give a good account of his means of support to the satisfaction of the justices. But, in my opinion, this second condition is not an element of the charge to be made against the defendant, but a condition precedent to his conviction on the charge of being an idle and disorderly person, because he has no visible lawful means of support or has insufficient lawful means of support. If, on proof of this fact, and on being lawfully called upon, he fails to give a good account of is means of support, he may be convicted there and then."

13. At page 315 the learned Chief Justice went on to say:

14. In Zanetti v. Hill 1962-63 36 ALJR 276 the High Court of Australia in considering the same section unanimously held that it requires a person against whom a prima facie case has been made out by the prosecution that he is without sufficient visible lawful means of support to give a good account of his means of support to avoid his being deemed an idle and disorderly person. The court was equally divided in deciding whether the evidence led by the prosecution was sufficient to justify the inference that the defendant's means were not derived from a lawful source and whether he was therefore rightly called upon to give a good account of his means of support. This latter consideration is not a matter which concerns me on this appeal.

15. Dixon C J at page 279 said:

"It is hardly necessary to emphasize, fifty years and more after the decision in Lee Fan v. Dempsey (1907), 5 C.L.R. 310, that the words of s. 65(1) referring to a failure to give a good account do not describe an ingredient in the offence; they describe only a condition which must be fulfilled before a defendant can be convicted. The complaint in the present case rightly alleged the offence as being deemed an idle and disorderly person on 11th July, 1961, because of having no visible lawful means of support or insufficient lawful means of support, making no mention of his not giving a good account."

16. In Andrews v. Lucas (1876) ILTR 146 the Court. of Exchequer was required to consider section 53 of the Dublin Metropolitan Police Act (5 Vice., sess. 2 c. 24) which enacted that "any person who shall be brought before a Justice, charged with having in his possession anything which may be reasonably suspected of being stolen or unlawfully obtained, and who shall not give an account, to the satisfaction of the Justice, how he came by the same, shall be deemed guilty of a misdemeanour."

17. At page 148 Palles C B said:

"...... the circumstances material upon the investigation of a charge under that section would appear to be - the possession of anything reasonably suspected of having been stolen, and the account (if any) given by the person charged of how he came by the same. The summons would appear to be sufficient under that section, if it alleged no more than the possession of the thing reasonably suspected of having been stolen. The account of how the person charged came by the possession is a matter of defence to be established, or at least alleged, by the person charged."

18. In Lokho S/O Rorika v. Reg. Criminal Appeal No. 186 of 1961 in the Supreme Court of Kenya, the court was concerned with an appeal against conviction in respect of a charge laid under section 9(1) of the Stock and Produce Theft Ordinance Cap 206 of the Laws of Kenya.

19. The section reads:

"9(1) Any person who has in his possession on any farm or in the immediate vicinity thereof any produce which may be reasonably suspected of being stolen or unlawfully obtained shall, if he fails to prove to the satisfaction of the court that he came by the produce lawfully, be guilty of an offence and liable on conviction to the penalties prescribed for theft;"

20. In a joint judgment of Sinclair, C J and MacDuff J the court observed:

"This Court has drawn attention on numerous occasions to the necessity of a charge following the wording of the section under which the charge is laid. The charge in the present instance did not do so with the result that an inadequate plea was taken by the learned magistrate. A properly worded charge under section 9 (1) of the Stock and Produce Theft Ordinance would be, in the present instance, in this form: -

21. In another East African case Kiondo Hamisi v Republic [1963] E A R 209 the legislation under consideration by the High Court of Tanganyika was of a similar nature. The appellant was convicted under sec 312 of the Penal Code of having in his possession property suspected of having been stolen or unlawfully obtained. The charge stated that he had been detained by the police under section 24 of the Criminal Procedure Code, and that he had in his possession a radio reasonably suspected of being stolen and had failed to give a satisfactory account of how he came by the same.

22. In the course of his judgment Spay J had this to say:

"I would observe in passing that a charge under section 312 should allege ........ that at the time when he was detained he was conveying or was in possession of (as the case may be) a specified thing which might reasonably be suspected of having been stolen or unlawfully obtained. It should not allege that he failed to account for his possession of that thing because the obligation to account does not arise until the accused is before the court."

23. Mr. Duncan who appeared on behalf of the Attorney General referred me to the case of Cheung Chee-kwong v Reg [1979] HKLR 362. In this case the Privy Council was concerned with the question of whether the wording of a charge preferred under section 10(1)(b) of the Prevention of Bribery Ordinance was bad for duplicity.

24. The material parts of the section provide that:

25. The particulars of offence set forth in the charge read:

"Cheung Chee-kwong, being a Crown Servant, namely a Building Inspector Class II of the Public Works Department of the Hong Kong Government, was on the 29th day of November 1972 in control of pecuniary resources or property disproportionate to his then present or past official emoluments."

26. Mr. Duncan made the observation that although the question as to whether or not the charge should have included a reference to the failure of the defendant to give a satisfactory explanation as to how the pecuniary resources or property came under his control, was not argued in this case, the wording of the charge had been subjected to such intense scrutiny by their Lordships and counsel that had it been defective for that reason it is astonishing that the point had not been raised. I agree.

27. Finally, Mr. Duncan referred me to Ho Shing-tuen v Reg Criminal Appeal No. 5 of 1979, a case that was also concerned with an appeal against a conviction in respect of an offence against section 10(1)(b) of the Prevention of Bribery Ordinance.

28. In referring to the matter of giving a satisfactory explanation to the court, Huggins J A said:

"Whilst it is true that there could be no conviction until the appellant failed to explain his assets, it seems to us that that failure was not an omission in part constituting the offence."

29. In the light of what in my view is transparently clear from a reading of section 30, coupled with what has been said in the cases cited above dealing with legislation analogous to, and, in some cases, almost identical to section 30, I have no doubt that the charge preferred in this case was properly laid.

30. My answer therefore to the first question posed in the stated case, namely, "whether I was right to hold that the charge as laid was defective" must be answered in the negative. It is therefore unnecessary for me to proceed to a consideration of the second question.

31. Since the charge was dismissed on a ground additional to that forming the subject of this appeal I therefore make no order remitting the case back to the learned magistrate with a direction as to how he should dispose of it.

32. In conclusion I would add that I have been authorised by Huggins J A to say that what he is reported as having said in Li Wing v Reg concerning the procedure to be followed by a magistrate in dealing with a plea of guilty to a charge brought under section 30, has been incorrectly recorded.

33. The correct procedure is as follows:

Representation:

Mr. Duncan, counsel for Appellant/Crown.

Respondent absent.