Poon Chau Cheong v. Secretary for Justice
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CACV 123/99 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 123 OF 1999 (ON APPEAL FROM HCAL 1 OF 1999)
------------------------------------ Coram: Hon. Mortimer, V.-P., Mayo and Rogers, JJ.A. in Court Date of hearing: 7 July 1999 Date of delivery of judgment: 9 July 1999 ---------------------- J U D G M E N T ---------------------- Mayo, J.A.: 1. This is an appeal from a judgment of Woo, J. who dismissed the applicant's application for judicial review. 2. To obtain a background to the factual situation which presented itself to Woo, J. the best approach to adopt is to take in grounds 1 - 11 of the grounds upon which relief was sought in the application for judicial review:
3. The relief sought on the application was:
4. Two issues arose on this judicial review. These have been formulated by Mr. Dykes, S.C. for the applicant as follows:
5. Before dealing with the substance of the first issue one matter can immediately be disposed of. 6. Mr. Dykes contended that it was a material matter that when the respondent had sought this review she had not criticised the magistrate's decision to acquit the applicant on the s.4(2)(a) offence. 7. In my view this is not a material consideration. The magistrate was properly seized of the review and it was clearly open to her to deal with the application in any way she saw fit so long as she exercised her powers in accordance with the provisions contained in the section. 8. It is desirable to set out s.104 of the Magistrates Ordinance, Cap. 227 in full:
9. For the purpose of this appeal the operative subsection is s.104(6). 10. Mr. Dykes submitted the "decision" which was being referred to in the subsection was simply the decision of the magistrate to acquit the applicant on the s.4(2)(a) information. In this connection he referred us to s.19(2) of the Magistrates Ordinance which is couched in this form:
11. Mr. Dykes went on to submit that it was clear from the subsection that a magistrate's powers were severely circumscribed and that the only "decision" which the magistrate had been empowered to make was to confirm or to dismiss the s.4(2)(a) information. It was accordingly not open to the magistrate on the review to make an order pursuant to s.27 of the Ordinance to amend the information. 12. Put another way the magistrate was only empowered to invoke s.27 during the currency of the proceedings before her. 13. Mr. Dykes went on to argue that having regard to the wording of s.104(6) there was no power to set aside an acquittal for the purpose of laying a new information. What the magistrate had in fact done was to take away from the applicant the positive benefit of a decision to acquit on the s.4(2)(a) information. 14. In my view it is necessary to read s.104(6) in conjunction with the other provisions relating to reviews. In particular s.104(7) is illuminating. What is clearly envisaged is that if the rehearing should be before another magistrate the case should be re-opened and wholly reheard. There can be no justification for interpreting these powers in such a way as to provide for different criteria to be applied if the hearing is before a different magistrate. 15. In this connection if there is to be a rehearing of the case I can see no reason whatever why the duty to make amendments pursuant to s.27 should be in any way limited. There is certainly nothing in the Ordinance to suggest such a limitation. This being the case it would not seem to make any difference if the amendments are effected during the currency of the hearing or on a review. 16. As was pointed out by Mr. To for the respondent the important word in s.104(6) was the word "vary". This was a clear indication that something more than reversing or confirming the decision was contemplated. 17. In my view there is considerable merit in this contention. 18. Equally I can see no reason to limit the reference to the "previous decision" in the manner proposed by Mr. Dykes. 19. What is clear is that reviews undertaken by magistrate often extend beyond the simple question of whether or not there should be a conviction or an acquittal. An obvious example being an application for the review of a sentence which has been passed. 20. Mr. Dykes also advanced reasons of policy to support his interpretation of the Ordinance. In particular he contended that if it was possible to proceed in the manner proposed by the respondent this would not promote a satisfactory degree of finality. 21. The answer to this is that the mere fact of a power to review under the Ordinance militates against finality. Any application to review a decision has to be made timeously and should be resolved without undue delay. 22. A further matter which has to be considered in this connection is the right of the parties to apply to a magistrate to appeal by way of case stated under s.105 of the Magistrates Ordinance. This of course also detracts from finality. 23. It is also perhaps of significance to note that it would appear that the respondent may have been able to achieve the same objective if instead of seeking a review under s.104 she had applied to the magistrate to state a case under s.105. 24. In my view this would suggest that unless the present application was clearly outside the scope of s.104 it was likely that the legislature had it in mind to confer a power on magistrates to achieve a similar result by way of review. 25. For all these reasons in my view the magistrate did have the power to proceed in the way she did. 26. This then leads to the second issue which is raised which is when an amendment is made substituting one offence for another can the amendment be made when the time limit for laying the new information has expired. 27. Mr. Dykes' main submission on this was that s.27 of the Ordinance had to be read in conjunction with s. 23. The two sections read as follows:
28. The point being made by Mr. Dykes was that the question of time was clearly a matter of importance under the legislation. This being the case it would only be possible to over ride a time limitation if s.27(2)(b) could be invoked. 29. Mr. Dykes submitted that it could not be argued that an injustice would not arise in the present case. He referred to the fact that there were material differences between s.4(2) and s.3 offences under the Prevention Bribery Ordinance, Cap. 201 (POBO) and the fact that his client had lost the benefit of his acquittal on the s.4(2) information. 30. Mr. To submitted that he was able to derive assistance from the provisions contained in s.32 of the POBO. The section reads:
31. He argued that s.3 could be regarded as a statutory alternative to s.4. This being the case the institution of the proceedings under s.4(2) had a similar effect to an information being laid under s.3. However he did not just rely upon this as he accepted that it was incumbent upon him to demonstrate that all of the requirements of s.27 had been complied with. 32. The Divisional Court in England considered the question of amendments alleging different offences where there was a time bar operating for the different offences in R. v. Newcastle upon Tyne Justices of the Peace Ex parte John Bryce (Contractors) Ltd. [1976] 1 WLR 517. It was held such amendments could be made in an appropriate case so long as no injustice was done to the defence. May, J. said this at p.520D:
33. This case was followed by Stock, J. in AG v. Wong Lau trading as Kiu Keung Construction and Engineering Co. [1993] 1 HKCLR 257 and by Keith, J. (as he then was) in AG v. Yeung Lee Transportation and Engineering Ltd. [1995] 1 HKCLR 144. 34. Mr. Dykes made the point that there are differences between the legislative regime in England and the scheme here. However he was unable to indicate any significant differences relevant to this issue. 35. The other case which was referred to which shed light on this topic was AG. v. Fung Si Tsou [1986] HKC 567. This case also was concerned with a time bar. Roberts, C.J. had this to say at p. 573:
36. This case however is clearly distinguishable from the instant case. Here there is no question of throwing a blanket over a dead horse. Our horse is very much alive. This can be seen from the factual grounds upon which relief was sought in the judicial review cited earlier in this judgment. 37. I am satisfied that the questions which were before the magistrate and the Judge were whether there was in fact sufficient similarity between sections 3 and 4 of the POBO and if so, whether any injustice would be occasioned to the applicant if the amendment proposed was to be made. 38. On the first point it has to be said that s.4(2) virtually embraces all the ingredients required to make out a case under s.3. The main difference being the requirement under s.4(2) of establishing that there has been an inducement. This of course is an onerous requirement. The other difference is the necessity in s.3 to obtain the permission of the Governor before an advantage is accepted. This has to be balanced against the requirement under s.4(2) of having lawful authority or reasonable excuse. Looked at as a whole I am satisfied that there is sufficient similarity between the sections to bring the case within the parameters of Ex parte John Bryce. 39. The next matter which has to be considered is whether it has been demonstrated that no injustice has been occasioned to the applicant consequent upon the amendment. It is clear that both the magistrate and Woo, J. were concerned about this aspect of the matter. 40. The main contention advanced by Mr. Dykes is that the applicant has been deprived of the acquittal he obtained on the s.4(2) information. I do not think that this is a valid objection. It has to be accepted that even if this amendment had been disallowed it would have been open to the respondent to require the magistrate to state a case under s.105 of the Magistrates Ordinance. This being the case the applicant's acquittal would have been placed at risk. The fact of the matter is that the respondent is alleging that the magistrate erred in law when she acquitted the applicant and this being the case the acquittal was wrong. I do not think that the applicant has been able to establish that he has been occasioned any injustice as a consequence of this amendment. 41. Following from this I am satisfied that the magistrate was right to amend the information in the way she did notwithstanding the time bar point. 42. For all of these reasons I consider that Woo, J. was right in declining to grant the relief which was sought in the judicial review. In my view this appeal should be dismissed and the respondent should be entitled to her costs. Rogers, J.A.: 43. There are two issues in this appeal. The first is as to whether the Magistrate on the hearing of a review under Section 104 of the Magistrates Ordinance, Cap. 227 was entitled not only to reverse the decision previously given and set aside the acquittal of the Applicant on the charge under Section 4(2)(a) of the Prevention of Bribery Ordinance, Cap. 201 but also to amend the charge to one under Section 3 of the Prevention of Bribery Ordinance. The second issue is as to whether Section 27 of the Magistrates Ordinance and Section 32 of the Prevention of Bribery Ordinance can together give a Magistrate power to amend a charge previously brought under Section 4(2)(a) to one under Section 3 of the Prevention of Bribery Ordinance, in circumstances where the amendment would be made on a date after the expiration of the two-year period limited by Section 31A of the Prevention of Bribery Ordinance for the laying of an information under Section 3. The power to amend the charge 44. Section 104 of the Magistrates Ordinance gives the Magistrate a power to review his decision in a matter. Subsection (1) provides that a party may apply to the Magistrate to review his decision in a matter. Subsection (5) provides that a Magistrate may re-open a case on his own initiative to review his decision in a matter. 45. Subsection (6) provides that:-
On this wording, it would seem that the power of the Magistrate to re-hear a case wholly and to take fresh evidence in effect means that the hearing before the Magistrate would be a complete re-hearing. If a Magistrate were to take the course of re-hearing the case wholly, it would appear that the relevant evidence upon which the Magistrate would act would be the evidence given at the re-hearing. Nevertheless, Mr. Dykes S.C. argued that the powers of the Magistrate were confined to reversing, varying or confirming the Magistrate's previous decision. In this case the previous decision was one under Section 19(2) of the Magistrates Ordinance whereby the Magistrate dismissed the information. The powers under that subsection are limited to convicting or making an order against the Defendant or dismissing the complaint or information as the case may be. 46. In my view, such a construction of Section 104 gives that Section too narrow a meaning. On the face of the matter, if the Magistrate has power to re-hear the case, he or she must have all his or her other ancillary powers as well. 47. Section 27 of the Magistrates Ordinance provides that:-
48. Subsection (2) provides that:-
49. At Common Law, the power of amendment in criminal proceedings was strictly limited. Even where the power existed, it would not be exercised if there were any question of prejudice to a Defendant. 50. The power of amendment in criminal proceedings was enhanced under the Criminal Procedure Act 1851 and, in particular, Section 1. Even there however the powers of the Court to permit amendment were strictly limited. 51. But that is only a matter of historical interest. Section 27 not only now clearly gives a power to amend an information which would include changing the offence of which the Defendant is charged but, as has been held by this Court, imposes an obligation on the Magistrate so to do where the requirements in the section are met. 52. The powers under Section 27 of the Magistrates Ordinance have to be read in conjunction with the provisions of Section 32 of the Prevention of Bribery Ordinance which reads as follows:
Subsection (4) therefore makes clear that the Magistrate is not prevented from allowing an amendment which would permit the finding of guilt of an offence other than that with which the accused is charged if that is permitted under any other law. It would follow therefore that the Prevention of Bribery Ordinance would not exclude the possibility of the amendment of an information to change the offence charged from one offence to another. It would seem a finding of guilt on an offence charged on an amended information would clearly be less objectionable than a finding of guilt on an offence for which a person has not been charged. 53. Subsection (1) merely provides that it is not an objection to conviction for an alternative offence that the consent of the Secretary for Justice, under Section 31 of the Ordinance, has not been obtained. 54. On the face of it, there may seem to be a conflict between Section 27(1)(i) and Section 27(2)(b) in that subsection (1) would appear to exclude amendment except where the Magistrate is satisfied that no injustice would be caused whereas the second subsection permits an injustice provided that it may be cured by an order as to costs or an adjournment or leave to recall and further re-examine witnesses or call other witnesses. In my view, it is clear that subsection (2) is the guiding subsection and that the injustice will be permitted provided that it is curable. 55. I had at one stage considered that the argument that the powers under Section 104(6) of the Magistrates Ordinance might be limited as argued by Mr. Dykes because Section 104(8) provides that:-
The insertion of a provision giving specific powers in certain circumstances might be thought to cast doubt on the proposition that there was a blanket incorporation of all powers. It seems to me however that this subsection is merely making it clear that even where the Magistrate is deciding whether or not a case should be re-opened or re-heard and before that decision is actually taken, he or she has the power to secure the attendance of the parties and the witnesses. Subsection 104(7) makes it clear that the Magistrate may review a case and decide that it should be re-opened or re-heard and then order that the re-hearing should take place in front of another Magistrate. It might be observed that without the power of compelling attendance of the parties under subsection 104(8), there would be no other power given to a Magistrate to compel the attendance of the parties after an acquittal and before another hearing takes place; evidence may be necessary for the Magistrate to come to a conclusion as to whether there should be a re-hearing hence the attendance of the witnesses might be necessary. The fact that the subsection encompasses not only the initial stages of a review but any re-hearing as well does not, it seems to me, militate that the Magistrate would not have all his or her other powers as well. 56. In my view, the powers under Section 104(6) are wide enough to include the power of a Magistrate under Section 27 to amend the information as to the offence charged. The prejudice The time limit 57. One of the important points in this case is that Section 31A prohibits the laying of information in respect of an offence under Section 3 after a period of two years from the time when the subject matter of the information arose. In this case, a period of two years had not elapsed between the events, the subject of the information and the laying of the original information. The amendment by the Magistrate took place after the two-year period had expired. 58. It is trite law in civil proceedings that an amendment of pleadings once made takes effect from the date of the original pleading. That really is a matter of logic because the original document has been amended. Whilst I have found no direct authority in respect of criminal proceedings, the statement of Yates J. in R. v. Wilkes 19 State Trials 1075 (the North Briton case) at page 1121-2 that in relation to Common Law amendments, there was no difference between civil and criminal proceedings lends support for the proposition that amendments in respect of criminal proceedings are treated in the same way as amendments in relation to civil proceedings. It may be noted that the other judges Aston and Willes J.J. concurred with what he said. 59. Once therefore it is established that an information may be amended, the question arises first as to whether the information can be amended after the expiry of a limitation period and secondly, whether the amendment is in any event impermissible because the Defendant would be prejudiced by the amendment. 60. I see no absolute bar to an amendment which permits the alteration of the offence charged to an offence which would be time barred at the date of the amendment. The divisional court in the case of R. v. Newcastle-upon-Tyne Justices ex. parte John Bryce (Contractor) Ltd. [1976] 1 W.L.R. 517 considered that, on the wording of Section 100 of the Magistrates' Courts Act 1952, an amendment was permissible even if the effect of it was to bring into contention a charge in respect of an offence which had not been previously charged after the expiry of a relevant time limit. Mr. Dykes criticised reliance on the decision upon the basis that the wording of the section and derivation of the section in the Magistrates' Courts Act 1952 was different from the Magistrates Ordinance in Hong Kong. Clearly the wording is different. I am far from convinced however that the wording of the Ordinance is narrower. Following a long line of authorities based in part upon previous similarly worded legislation May J. and Lord Widgery C.J. held that the power to amend was included in Section 100 of the Magistrates' Courts Act 1952. Lord Widgery said:
Lord Widgery was following the same principle as was May J. at p.520F where he indicated that the power to amend should only be exercised where it would do justice between the parties and there would be no injustice to the Defendant. 61. As I have observed, in Hong Kong the legislation goes further than mere permission of amendment, albeit by inference, but rather imposes a mandatory requirement upon the Magistrate to amend in circumstances where it is appropriate. The prejudice 62. It is said that the Defendant would be prejudiced by the fact that he would have been deprived of his acquittal under Section 4 of the Ordinance. It is said that there is no dispute that he should be acquitted under Section 4 of the Ordinance. In my view this deprivation of an overall acquittal is consequent upon the provisions of Section 104 which allows the Magistrate to review a case. This in itself is an erosion of the finality of criminal proceedings. The importance of this should not be underestimated. Nevertheless, it is something which follows from that section and not from the amendment. 63. In circumstances of this case, the facts to be alleged which form the basis of the charge in respect of an offence under Section 3 are all facts which had been alleged against the Applicant under the charge under Section 4(2). What must be proved under Section 3 is that the Defendant was a Crown Servant. In this case the allegation is that the Defendant was a police officer. That would bring him within the narrower category of Crown Servant in Section 3 but was also the basis on which it was alleged that he was a public servant within the meaning used in Section 4(2). Section 3 prohibits the soliciting or accepting of an advantage, but it is not limited, as is Section 4(2)(a), to it being an inducement to or reward for or otherwise on account of his performing or abstaining from performing, or having performed or abstained from performing, any act in his capacity as a public servant. Thus the narrower allegation under Section 4(2)(a) falls within the ambit of Section 3 and there is no change in the facts alleged. Finally the exception permitted under Section 3 that there has been general or special permission of the Governor falls within the wider ambit of the words "without lawful authority or reasonable excuse" in Section 4(2)(a). It is only here, as I note below, that I see any scope for discrepancy. 64. Therefore the facts alleged upon which the information in relation to Section 3 is founded are for the most part the same as those which formed the basis of the information under Section 4(2)(a). The latter section required, if anything, proof of additional facts to those required under Section 3. 65. The naturally important point where the information is in respect of an offence under a Section subject to a time limit which has expired is whether the Applicant would be in any way prejudiced as to his defence. This is of particular importance also where the offence is one which requires consent for a prosecution to be brought. I regret that I can see no prejudice to the Applicant in his defence. 66. A crucial factor is that the Applicant in this case has been put on notice that the facts and events referred to are to be the subject of a charge. The two relevant charges are very similar. The only possible prejudice which I can perceive could arise in a situation such as this would be if a Defendant had intended to rely upon the words "without lawful authority or reasonable excuse" under Section 4 without going to the trouble of showing that he had special authority of the Governor. For there to be any prejudice, the Defendant would have at least to argue that somehow the delay prevented him relying on that part of Section 3. As regards this case, not only is that not alleged but it is such a remote possibility that in my view it can be discounted. The Applicant would be put into jeopardy of conviction whereas after the acquittal he was not. That however in my view is not sufficient to make it impermissible for there to be an amendment of the charge. 67. Other matters of prejudice which have been relied upon are the disadvantage which the Applicant would suffer by reason of not being able to have an award of costs in his favour. In this case no order for costs had been applied for or granted after the acquittal. The matter is therefore somewhat academic. But even if the Magistrate were not able to make any order for costs in the Applicant's favour following the order on the review, it is not to say that any costs thrown away for which the Applicant should be compensated could not be taken into consideration at the end of the proceedings. 68. I too would dismiss this appeal. Mortimer V.-P.: 69. It had been my intention to give a separate judgment in this matter but having heard the judgments which have been delivered, there is nothing that I can usefully add. I would also - for the reasons given - dismiss this appeal. [Counsel] 70. We are prepared to certify that a point of great and general importance is involved in our decision. The point is,
[Counsel] There will be, therefore, an order that the respondent shall have the costs of the appeal and the applicant shall have his costs taxed under the Legal Aid Regulations.
Representation: Mr. Philip J. Dykes, S.C., (M/S Edmund Cheung & Co.) for Applicant Mr. Joseph To, S.A.D.P.P. (Ag.) (Secretary for Justice) for Respondent (I) Please refer to FACC7/1999 for the relevant appeal(s) to the Court of Final Appeal. (II) Please refer to FAMC23/1999 for the relevant appeal(s) to the Court of Final Appeal. |
Cases cited in this judgment