Attorney General v. Chung Yim-fai

CACC000757/1978

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Coram: Cons, J.

Date of Judgment: 11th September, 1978.

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JUDGMENT

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1. This is an appeal by way of case stated. The respondent was charged before a magistrate with possession of offensive weapons contrary to section 33(1) of the Public Order Ordinance, Cap. 245. He was found with four carving knives. At the conclusion of all the evidence the learned magistrate in effect found the offence proved but thought it proper to amend the charge to one of possession contrary to section 17 of the Summary Offences Ordinance. Cap. 228. He took the view that an element of public risk distinguished the former from the latter. With every respect to him that is a view no longer open. It was excluded by the decision of the Full Court in Reg. v. Liu Kam-man ⁽¹⁾. I can find no distinguishing feature in the present instance. There is a slight suggestion by counsel for the respondent that in coming to the decision that the words of section 33(1) were plain and unambiguous, the Full Court misled themselves by looking at the section and the ordinance in isolation; that they might have found ambiguity, as it were in the law overall, if they had compared it with section 17 of the Summary Offences Ordinance. But counsel did not urge the point strongly and I do not think there is anything in it. The existence of section 17 was clearly known to the court. The first question posed by the case stated is:

"Whether I was correct in law in holding that, in the absence of evidence that the possession by the Respondent of the offensive weapon constituted a risk to public order, I could not convict the Respondent on the charge preferred under section 33(1) of the Public Order Ordinance?"

My answer is "No". The second question does not now arise.

2. The third question is this:

"If the answer to the 1st question is 'No', whether I had the power or jurisdiction under section 27 of the Magistrates Ordinance to amend the information (Charge) preferred by the said Detective Inspector AU YEUNG Pak-hung in the manner and to the extent set out in paragraph 1(b) of this Case or at all?"

Section 27(1) provides as follows:

"No objection shall be taken or allowed to any complaint, information or summons for any alleged defect therein in substance or in form, or for any variance between such complaint, information or summons and the evidence adduced in support thereof, and the adjudicating magistrate shall in all cases give judgment upon the substantial merits and facts of the case as proved before him, and convict the defendant of the offence with which he was charged with such variation as has been warranted by the evidence or of any offence which under the provisions of section 10(2)(c) could have been tried therewith."

3. Clearly there is no defect in substance or in form. Likewise it is difficult to say there is variation between the information and the evidence adduced in support. The evidence did in fact prove the offence originally charged. It is said however that it went further and showed possession not only without reasonable authority or lawful excuse but also with intent to use for an unlawful purpose; and this was sufficient variation to justify the amendment. In my view that is not so. The Attorney General has well-established prerogative powers and duties in relation to criminal proceedings. "In exercising these powers he (is) not subject to direction by his administrative colleagues or to the control or supervision of the court": per Viscount Dilhorne in Gouriet's Case ⁽²⁾. What charge should be preferred in any particular circumstances is a matter for the Attorney's discretion and for his discretion alone. No magistrate should seek by the use of section 27 to exercise that discretion in his stead. There may well be circumstances which influence his choice that are not apparent to the magistrate or which, although perfectly legitimate in themselves, might not perhaps commend themselves to the magistrate. My answer to the third question is "No". There was nothing in the instant circumstances to require amendment in any way whatsoever.

4. The conviction under the Summary Offences Ordinance is therefore quashed and the matter remitted to the magistrate together with my opinion that he ought to record a conviction for the offence originally charged.

Representation:

Mr. M. Lunn, Crown Counsel, for appellant.

Mr. R. Nguyen (Haldane & Co.) for respondent.

(1) Cr. App. 1972 No. 100

(2) Times Newspaper, 26th July, 1977