Tsang Wood-ning v. The Queen

CACC000829/1980

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL No. 829 OF 1980

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Coram: Penlington, J. in Court

Date of Judgment: 16 November 1980

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JUDGMENT

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1. The appellant in this case was convicted on a charge of going equipped for stealing, which he had originally been charged, and on an additional charge of conspiracy to rob, a considerably more serious offence which was added by the learned Magistrate after the Crown had closed its case and after the appellant had concluded his evidence in chief. The appellant, who was unrepresented, had pleaded not guilty to the original charge and also to the conspiracy charge. His defence was that a table fork which was found on him was taken from his home when he went to work so he could have a meal on the public light bus on the way. When two other young men who were sharing a taxi with him later on the same day suggested they rob the driver he did not agree to join in though he did give them the fork. When the taxi stopped his two companions got out and left him to argue with the driver over the fare. When the driver was not paid he summoned a nearby police constable who searched the appellant and the fork was found on him. He made a statement later on in the police station, which he did not dispute was voluntary, in which he said he and his friends had decided to rob the taxi-driver but changed their minds because he was too old.

2. The appellant was convicted on both charges and placed on probation in respect of each one for two years.

3. I am satisfied that there was evidence on which the Magistrate could hold that at some stage, having either formed the intent himself to rob, or knowing that his companions were going to, the appellant was in possession of the fork with the intention that it be used for stealing. The appeal against conviction on the A charge therefore fails.

4. There are three complaints about the charge of conspiracy to rob.

5. The first is that having added the charge the Magistrate failed to advise the appellant of his right to recall witnesses or apply for an adjournment. Section 27(3) and (4) of the Magistrates Ordinance provide that if a charge is amended the defendant shall have the amendment read over and explained to him, which was done. He pleaded not guilty. There is nothing on the record to show that his rights to recall witnesses or to ask for an adjournment were explained to him. I do not accept that failure to record such procedural steps means they were not followed, but even if it was not done I do not consider such omission fatal. The appellant had not in any way challenged the prosecution evidence nor the voluntariness of his statement. There was no reason whatever to believe he would do so in relation to the new charge. If a charge is amended or a new one laid during the course of a hearing and a defendant is not represented it may be that his rights should be explained to him and under some circumstances a failure to do so may make a resultant conviction unsatisfactory. I do not consider that the case here.

6. The second ground was that the Magistrate had no power to add an additional charge in the way he did, pursuant to Section 27(1) of the Magistrates Ordinance. That subsection reads 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."

Here there was no defect in substance or in form in the information and the evidence was not in variance with it because the Magistrate convicted on it. Conspiracy to rob is not an alternative charge to one of going equipped for stealing and section 10(2)(c) which relates to a series of acts does not seem relevant. Certainly the Magistrate did not consider it an alternative to the original charge as he convicted on both of them. I do not consider that a Magistrate can never add a further charge when the evidence justifies such a course but I do not think he should have done so here. This is particularly so when one considers that the additional charge was much more serious than the original one and was only added when the defendant was being cross-examined.

7. In C.A. 757/78 Cons J., as he was, said:

"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 proved 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. 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."

8. I agree with that statement and indeed I would have thought it one with which, in a wider context, the Crown would not quarrel.

9. I am therefore of the opinion that the learned Magistrate, on the particular facts of this case could not add an additional charge of conspiracy in the way he did and the appeal against conviction on that charge is allowed and the conviction quashed.

10. This matter was very fully and ably argued before me and I am grateful to Counsel for their assistance.

Representation:

Mr. Max. Lucas P.C. for the Crown

Miss Rose Yeung instructed by H.M. So & Co. for Appellant