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Hksar v Cheung Wai Lung

Judgment Cited authorities 5 Cited in Precedent Map Related
Vincent
Judgment Date19 May 2008
Year2008
Citation[2008] 3 HKLRD 635
Judgement NumberHCMA19/2008
Subject MatterMagistracy Appeal
CourtHigh Court (Hong Kong)
HCMA000019/2008 HKSAR v. CHEUNG WAI LUNG

HCMA 19/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 19 OF 2008

(ON APPEAL FROM TWCC 2224 OF 2007)

____________

BETWEEN

HKSAR Respondent
and
CHEUNG WAI LUNG（張偉龍） Appellant

____________

Before: The Honourable Mrs Justice V. Bokhary in Court

Date of Hearing: 6 May 2008

Date of Judgment: 19 May 2008

_______________

J U D G M E N T

_______________

1. This is an appeal against a conviction after trial before John Glass, Esq. in the Magistrate’s Court at Tsuen Wan on a charge of possession of an offensive weapon in a public place, contrary to s. 33(1) of the Public Order Ordinance, Cap. 245.

2. Subsection (5) of s. 33 provides that no prosecution for an offence under the section shall be instituted without the consent of the Secretary for Justice. The s. 33(5) consent in the present case was to institute a prosecution against the Appellant for a s. 33(1) offence particularised as follows :-

“CHEUNG Wai-lung, on the 7th day of August, 2007, in a public place outside Ground Floor, No. 93 Pui O Lo Wai Tsuen, Pui O, Lantau Island, New Territories, in Hong Kong, without lawful authority or reasonable excuse, had with him an offensive weapon, namely aluminium pole.”

3. Pursuant to that consent and in conformity with it, the Appellant was charged with a s. 33(1) offence particularised as follows :-

“CHEUNG Wai-lung, you are charged that on the 7th day of August, 2007, outside Ground Floor, No. 93, Pui O Lo Wai Tsuen, South Lantau Road, Lantau Island, in Hong Kong, you, without lawful authority or reasonable excuse, had with you in the said public place an offensive weapon, namely one 40 centimeter long aluminium pipe.”

4. The Magistrate amended the s. 33(1) charge by deleting the words “in a public place outside Ground Floor, No. 93” and replacing them with the words “at 3/F, 119”. It was on the charge so amended that the Appellant was convicted.

Fresh consent was needed

5. Three discrete grounds of appeal have been filed on the Appellant’s behalf. The first is to the effect that the amendment was one of substance so that a fresh consent was needed and that, no fresh consent having been obtained, there was no jurisdiction to proceed on the amended s. 33(1) charge. If the amendment is to be regarded as one of substance, then, on the authority of the Court of Appeal’s decision in R v. Do Bing-hung [1988] HKLR 558, the absence of a fresh consent would be fatal to the s. 33(1) conviction. The issue on the first ground is whether the amendment is one of substance. Mr Benjamin Chain for the Appellant contends that it is while Ms Margaret Lau for the Respondent contends that it is not.

6. My attention has been drawn to a number of cases involving offences for the prosecution of which consent is required. Mr Chain cited R v. Downey [1971] NI 224 decided by the Northern Ireland Court of Criminal Appeal. In that case the consent related to the possession of a shotgun at 37 Peel Street in Belfast. As originally presented, the indictment described the offence as having occurred at that address. But the indictment was amended by leave to delete that address and replace it with another address, namely 2 Varna Street. The conviction for possession of a shotgun at 2 Varna Street was quashed on the basis that the consent related to a different place and could not be regarded as sufficient to confer jurisdiction to proceed on the count as amended.

7. Giving the judgment of the court, Lord MacDermott CJ referred to its decision in R v. Taylor [1960] NI 136 and (at p. 229) said that the consent “is anything but a matter of form and that the indictment and trial should follow it in its material particulars”.

8. Ms Lau cited R v. Cain [1976] 1QB 496, a decision of the English Court of Appeal (Criminal Division). In that case the consent referred to the Explosive Substances Act 1883 and was for the defendants to be prosecuted “for an offence or offences contrary to the provisions of the said Act”. The defendants having been convicted of possessing explosive substances contrary to s. 4 of that Act, they appealed on the ground that the consent was insufficient. Their appeals were dismissed. Giving the judgment of the court, Lord Widgery CJ referred to Taylor’s case and Downey’s case and to two other cases involving consent to prosecute: one from Canada (being the decision of the Ontario Divisional Court in R v. Breckenridge (1905) 6 OWR 501); and the other from Australia (being the decision of the High Court of Australia in Berwin v. Donohoe (1915) 21 CLR 1).

9. In Breckenridge’s case the consent referred to the Act in question (which was concerned with the importation and employment of aliens), and was for the prosecution of a named individual for “violation of the above Act and amendments thereto”. It was held that that document was not such a consent as the Act required and conferred no jurisdiction to entertain or try the charge. At p. 503 Meredith CJ said :-

“The written consent should, in my opinion, at the least contain a general statement of the offence alleged to have been committed, not necessarily in the technical form which would be required in an information or conviction, but mentioning the name of the person in respect of whom the offence is alleged to have been committed and the time and place, with sufficient certainty to identify the particular offence intended to be charged.”

10. In Berwin v. Donohoe the prosecution was under s. 3 of the Trading with the Enemy Act 1914. The consent given was “to a prosecution being instituted against Alfred George Berwin for an offence against the Trading with the Enemy Act”. At p. 26 Isaacs J said :-

“A complicated set of circumstances may be reviewed by the Attorney-General, and his consent to a prosecution under the Act may be given in general terms leaving it to the Crown Solicitor to formulate the charge. If the precise form of the charge were necessary to be stated, then the provisions in the Justices Acts and the Crimes Act permitting amendments and guarding against the old fatalities for variances would be...

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