Sonca Industries Ltd v. The Queen

CACC001342/1977

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 1342 OF 1977

-----------------

-----------------

Coram : Li, J.

Date of Judgment: 28th February, 1978

-----------------

JUDGMENT

-----------------

1. This appeal shows at least two aspects in the law for the administration of justice. it illustrates that out-dated provisions in the ordinance need an overhaul from time to time. It also illustrates that the life of a magistrate is by no means an easy one even though he tries minor offences as a court of first instance.

2. The appellant is convicted of the offence under the Factories and Industrial Undertakings Regulations, Regulation 23(1)(a). The particulars of offence are that the defendant on the material date at a certain address were the proprietor of an industrial undertaking, namely, Sonca Industries Limited at 34, Tai Yau Street, San Po Kong, Kowloon which was a registrable workplace in which certain dangerous parts of the machinery to wit the closing platens of one plastic injection moulding machine in the said factory were not securely fenced or in such position or of such construction as to be as safe to every person in the workplace as if such machinery were securely fenced in accordance with the provisions of Regulation 23(1)(a) of the Factories and Industrial Undertakings Regulations, Chapter 59, thereby committing an offence under Regulation 45(c) of the aforesaid Regulations.

3. The original information laid and the summons issued were without the words "or in such position or of such construction as to be as safe to every person in the workplace as if such machinery were securely fenced". The trial began on the basis of the original summons. However, at the close of the defence case, the learned Magistrate saw fit to amend the original summons by inserting the words I have just read out, namely, "or in such position or of such construction as to be as safe to every person in the workplace as if such machinery were securely fenced". Having done that, he handed the amended summons as a whole which, I presume, must have been written on a piece of paper and handed to the solicitor defending the appellant. This is evident in his statement of findings of facts on page 22 of the transcript in which he said that:

"After the close of the case for the defence, I amended the charge, which then read as follows:....."

then he recited the charge.

"I handed down the text of the amendment to Mr. Rose who said that he did not seek an adjournment or to recall witnesses. The prosecutor did likewise."

Then the hearing continued. At the end of it the learned Magistrate convicted the appellant and it is against this conviction the appellant now appeal to this court.

4. Originally, there were no less than five grounds of appeal on the merits of the case and then three additional grounds on appeal. Learned counsel for the appellant at the commencement of this appeal informed this court that he would only take two of the grounds of appeal. The first that the amendments of the summons are bad or otherwise null and void in that the learned Magistrate had failed to allow the provisions of Section 27(2) of the Magistrates Ordinance by failing or neglecting to read and explain the amendments to the appellant after purporting to make such amendments to the said summons. The next ground was that the summons in its original form was bad in law in that it did not disclose an offence under Regulation 23 (1) (a) of the Factories and Industrial Undertakings Regulations. Little argument has been centred on the second ground of appeal but learned counsel strongly urged me that the law and requirements of Section 27 of the Magistrates Ordinance had not been complied with by the learned Magistrate after the amendment was effected. Subsection (1) of Section 27 of the Magistrates Ordinance reads as this:

"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."

Subsection (2) of Section 27 reads:

"Whenever in the opinion of the magistrate there is a defect of substance or there has been any such variance as aforesaid he shall make the necessary amendment in the complaint, information or summons and shall read and explain the same to the defendant."

Subsection (3) provides:

Subsection (4) of the same section provides:

"In any case falling within subsection (2) the magistrate shall grant any adjournment which may be reasonably necessary to enable the parties to exercise their rights under subsection (3) or to enable the defendant to reconsider his defence."

5. It is contended that the learned Magistrate had not complied with the requirements in Subsection (2) and Subsection (3) of this Ordinance. On the transcripts in page 15 of the proceedings it is recorded that after an adjournment the learned Magistrate said:

"I propose to amend the summons by adding words so that the allegation reads as follows:"

and then the amended summons was recorded in full in his notes. Then prosecution inspector said: "I do not seek an adjournment or to call witnesses." Defence counsel said, "I do not seek an adjournment or to recall witnesses." Perhaps it is pertinent to observe that there is no record that the charge, the amended charge, had been read in open court nor was there any explanation of the amended charge given to the appellant at the time. However, there is something on record on page 15 which indicates that the learned Magistrate must have asked whether solicitors for the appellant wanted an adjournment or wanted to recall witnesses. For that reason I'll say that at least Subsection (3) of Section 27 had been complied with.

6. Looking at the facts of this case, it appears that the appellant is a corporation who was represented by solicitors at the hearing. The learned Magistrate handed the amended summons to the solicitors of the corporation and asked him whether he wanted an adjournment or to recall witnesses. Apparently, there was no explanation as to the amended charge being given to the solicitor who appeared for the appellant in the court below. It is also pertinent to observe that as the corporation is a legal person and it would be difficult indeed for the learned Magistrate to explain the amended charge to the appellant. It is contended that as the appellant had a manager in court and the manager must be deemed to be the representative of the appellant. There is no record that the manager was to be the representative of the appellant. He was there in court intending to give evidence and the Magistrate at the beginning of the trial ruled that he should remain outside the court before he gave evidence. I am referred to Section 19(A) of the Magistrates Ordinance which enables a corporation to be represented by one of his staff or any representative at the hearing. One must bear in mind that before the enactment of Section 19(A) was added to the Magistrates Ordinance, a corporation must appear by solicitors or counsel. No representatives would be allowed to represent a legal person. Thus I am of the opinion that at the trial in the court below the solicitor appearing for the appellant was, to all intents and purposes, the representative of the corporation, the appellant. The learned Magistrate, having amended the charge, handed the charge down to the solicitor representing the appellant. Indeed, no explanation was given to solicitors concerned. Looking at it from a common sense point of view, one would have felt that to explain an amended charge or the significance of an amended charge to a solicitor amounts to gilding the lily and that to hand over the copy of the amended charge to the solicitor for the appellant would amount to informing him of the amended charge. For all intents and purposes, in my opinion, the spirit of that Section 27 has been complied with. However, we do not stop at that.

7. Mr. Lee, the learned counsel for the appellant cited two cases before me and drew my attention particularly to a recent case of YIU Ka-chi v. the Queen. In that case the appellant was convicted of certain offences of permitting premises to be used as a brothel, and there was in the course of the trial an amendment. The amendment having been effected, it was only the amended part that was read out in open court. The whole of the amendment was not read out and learned counsel appearing for the accused merely said that he had no objection and then the trial procceded. Needless to say, there was no compliance whatsoever with any part of the requirements in Section 27 of the Magistrates Ordinance in that case. It was quite right, with due respect to the Court of Appeal of the Full Bench, that the appeal should be allowed. The other case was YEUNG Chiu v. the Queen in Criminal Appeal 1043 of 1975 in which there was an amendment in the middle of the trial and the learned Magistrate neglected to ask the accused person to plead again to the amended charge and failed to ask the accused whether he had any further witnesses to call or recall or whether he wanted an adjournment. The provisions in Subsection (3) had not been complied with and further there was no indication that the charge had been read and explained to the accused in open court. In that case the appeal was allowed and the conviction quashed.

8. Coming back to the present case that, although the spirit of the Ordinance had been complied with, there is no literal compliance with the letter of the law. Whether the requirements or the provisions in Section 27 of the Magistrates Ordinance is a draconian code or prescribe some draconian measure or not I will not express any opinion. However, it has been held time and again that the letter of the law must be complied with. For this reason I asked learned counsel for the Crown a question in reference to Section 19 of the Magistrates Ordinance. The short question was that:

"For an English speaking defendant if the learned Magistrate does not cause the summons to be read to the accused but merely shows him the summons and asks him to plead, whether that trial would be a nullity?"

The answer, it is conceded and quite rightly conceded as I consider, is that such a trial would have been a nullity. The requirement in Subsection (2) is that the amended charge be read and explained and I take it that it must have meant that the amended charge should be read in open court and not have pieces of paper changing hands between the Bench and the Bar. There may or may not be a good reason for this practice. But the Court is an open court. Those who attend court must know what is the charge against the accused in court. This is why I say that the life of a magistrate is by no means easy. For all I know, according to the records in the transcript, he might have read the amended charge in open court at the time or immediately after the amendments. However, there is no note in the transcript indicating that he did so. It may be a technicality. Nonetheless the requirement of the law has not been complied with. I have no option but to rule that this amendment is a nullity.

9. Learned counsel mentioned something about the solicitor for the appellant in the court below's failing to cite to the learned Magistrate the definition of the term "securely fenced". I am inclined to accept learned counsel's explanation that it was an unfortunate misunderstanding. To the learned Magistrate he might feel, and indeed with some justification that he was misled. Reading the transcript and having the explanation of learned counsel, I can't help feeling that the solicitor appearing for the defendant in the court below felt that he was so sure of his argument being valid and should be accepted by the learned Magistrate that he ignored the point about the definition of the term "securely fenced". The whole record shows that even after that explanation was drawn to this attention, he merely said that the evidence has already referred to this term "securely fenced" and that the Divisional Inspector had also referred to this matter that, in his opinion, it was not securely fenced. Then he proceeded to deal with matters of law in practice in England. However, this is by the way an observation.

10. In conclusion, I have given the reason that as the letter of the law had not been complied with and with appreciative sympathy and understanding with the learned Magistrate, I have no option but to rule that the amendment was a nullity.

Representation: