Your World of Legal Intelligence
 Hong Kong | 1-800-335-6202

The Queen v Mak Chi Kin And Others

Judgment Cited authorities 11 Cited in Precedent Map Related
Vincent
Judgment Date28 November 1973
Subject MatterCriminal Case
Judgement NumberDCCC150/1973
CourtDistrict Court (Hong Kong)
DCCC000150/1973 THE QUEEN v. MAK CHI KIN AND OTHERS

DCCC000150/1973

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CRIMINAL JURISDICTION

CASE NO. 150 OF 1973

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

The Queen
against
1. Mak Chi Kin
2. Chan Hoi On
3. Armando Da Silva

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

Coram: Addison, D.J. in Court.

Date of Judgment: 28th November, 1973.

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

Reasons for a Ruling

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

1. On the day fixed for the hearing of a trial of two charges of corruption brought against three defendants, each of whom had pleaded not guilty on an earlier occasion before my brother, Judge Collier, the Crown applied to the court for leave to prefer an additional charge of Blackmail, contrary to section 23(1) of the Theft Ordinance, Cap.210, as an alternative charges to one of those charges of corruption.

2. Leave was granted and I stated I would later give my reasons for allowing the application. This I now do.

3. The powers of a magistrate to transfer offences to the District Court is contained in Part IV of the Magistrates Ordinance, Cap.227. Section 89(1) thereof provides that

"An order of transfer shall operate as a stay of proceedings before the magistrate touching the charge or complaint to which the order refers and all process relating to the transferred charge or complaint shall be transmitted to the District Court."

4. The procedure upon transfer of the charge is regulated by section 75 of the District Court Ordinance, Cap. 336 (1972 Edition). That section enacts as follows:-

"75. (1) Where a charge or complaint has been transferred to the Court by a magistrate in accordance with the provisions of Part IV of the Magistrates Ordinance, the Court shall have jurisdiction and powers over all proceedings in relation to the offence therein alleged similar to the jurisdiction and powers the Supreme Court would have had if the accused person had been committed to that court for trial on indictment, save that nothing in this section shall be deemed to give jurisdiction to hear and determine such charge or complaint.
(2) Where a charge or complaint has been transferred as aforesaid, the Attorney General shall, unless he enters a nolle prosequi, deliver to the registrar a charge sheet setting forth the charge or charges preferred in the name of Her Majesty against the accused person, and any such charge may allege the commission of any indictable offence not included in any of the categories specified in Part III of the Second Schedule to the Magistrates Ordinance and any offence triable summarily only, whether or not the offence was included in the order transferring the charge or complaint to the Court.
(3) Such charge sheet shall be delivered within fourteen days after the date of the order of transfer or such longer period as the Court may, in any particular case, allow on any application made by or on behalf of the Attorney General."

The power giving the court jurisdiction to hear the complaint is conferred by section 74 of Cap.336, which provides, inter alia,

"The Court shall have jurisdiction to hear and determine in accordance with the provisions of this Ordinance all such charges as the Attorney General may lawfully prefer under the provisions of section 75...."

5. Thus jurisdiction to hear and determine, in accordance with the provisions of the Ordinance, a charge, lawfully preferred by the Attorney General under section 75 is conferred by section 74 whilst the jurisdiction and powers over the proceedings relating to transferred charges derive from section 75 which are declared to be "similar to the jurisdiction and powers the Supreme Court would have had" if a committal on indictment had occurred.

6. The practice and procedure of the District Court in its criminal jurisdiction is set out in section 79 of the District Court Ordinance.

7. The relevant sub-sections are as follows:-

"79. (1) Subject to the provisions of this Ordinance and as may be prescribed, the procedure and practice for the time being in force in the Supreme Court in relation to criminal proceedings therein shall, so far as the same may be applicable, be followed as nearly as may be in criminal proceedings in the Court; and where it is necessary for the purpose of rendering such procedure and practice conveniently applicable, "indictment" and "count" shall be understood to refer to "charge sheet" and "charge" respectively."
"79. (4) Where any provision of the Criminal Procedure Ordinance is applicable to criminal proceedings in the Court, such provision shall be read with such verbal alterations and modifications not affecting its substance as are necessary to render it conveniently applicable; and in particular, and without prejudice to the generality of the aforesaid, any such provision relating to a "jury" or a "verdict of a jury" shall be understood to refer to a judge and the functions of a judge as a judge of fact."
"79. (5) Nothing in this section shall be taken to authorize -
(a) the institution of any criminal proceedings in the Court save in accordance with the express provisions of this Part."

8. As I have already stated the Crown sought leave to prefer an alternative charge of blackmail. The reason for making the application was to have a "long-stop" in the event of the trial court coming to the conclusion that the money demanded from the complainant was not solicited by the defendants "as an inducement to or otherwise on account of their abstaining from performing an act in their capacity as public servants."

9. A summary of evidence had been filed with the court and delivered to the defence prior to the date of hearing, but by no stretch of the imagination, could this be regarded as a document in the nature of a deposition or depositions.

10. The Crown argued that the substantive charge of corruption was "defective" within the meaning of that word in section 23(1) of the Criminal Procedure Ordinance, Cap.221.

11. That sub-section is in these words:-

"Where, before trial or at any stage of a trial, it appears to the court that the indictment is defective, the court shall make such order for the amendment of the indictment as the court thinks necessary to meet the circumstances of the case, unless, having regard to the merits of the case, the required amendments cannot be made without injustice."

This sub-section has been taken bodily from the Indictments Act, 1915, s. 5.

12. Mr. Niamatullah, who appeared on behalf of the prosecution, referred me to several cases one of which was R. v. Martin (1961) 2 All E.R. 747, the headnote of which reads:-

"A new count may be added to an indictment by way of amendment before arraignment if that can be done without injustice."

13. The facts of the case were that counsel for the prosecution, on examining a copy of the draft indictment, discovered that two of the counts did not charge the offence alleged in the depositions, accordingly a further count was drafted by him and notice was given to the other side of his intention to apply at the trial for its inclusion. The trial judge allowed the Crown's application to amend by including the new count.

14. On appeal against that ruling it was held by the Court of Criminal Appeal that the indictment...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT