1997, No. 471

HKSAR Respondent


Coram: Hon. Power, V.-P., Mayo and Stuart-Moore, JJ.A. in Court

Date of hearing: 18 March 1998

Date of delivery of judgment: 18 March 1998




Mayo, J.A. (giving the judgment of the Court):

1. The Appellant appeals against his conviction in the District Court of trafficking in a quantity of dangerous drugs.

2. The facts of the case were all too familiar. The Appellant was arrested on 2nd February 1997 and found to be in possession of 27.62grammes of a mixture containing 19.75 grammes of heroin hydrochloride. On 21st March he appeared before a Magistrate at North KowloonMagistracy to answer a charge of possessing a dangerous drug, contrary to section 8 of the Dangerous Drugs Ordinance, Cap. 134.

3. The charge was read and explained to the Appellant by the Magistrate and he admitted the charge.

4. Immediately following this the prosecutor made an application to amend the charge. The purpose of the amendment was to amend thecharge to the offence of trafficking in this quantity of dangerous drugs. The solicitor representing the Appellant did not opposethe application and it was granted. A further application was then made for an adjournment to enable the prosecutor to effect thenecessary amendment. This was granted.

5. On 18th April a fresh charge of possession for the purposes of trafficking was presented to the Magistrate Court and before the Appellantwas afforded an opportunity of pleading to the charge the prosecutor applied to the court pursuant to section 88 of the Magistrates Ordinance, Cap. 227 for the case to be transferred to the District Court. This application was acceded to and the proceedings were adjournedto the District Court.

6. When the case came before Deputy Judge Wright an application was made to the judge to refer the case back to the Magistrate for completionof the proceedings which had been commenced there.

7. The judge dealt with this application in this way:

“The basis of this was that once the Defendant had admitted the substance of the complaint or information the Magistrate should haveconvicted him pursuant to the provisions of sec. 19 of the Magistrates Ordinance, Cap. 227: to then bring him before this Court on an amended, more serious charge would be unfair to the Defendant and is an abuseof the process of the Court.

It is true that that section provides for a Magistrate to proceed to convict a defendant in those circumstances. However, the conductof a prosecution is at all times in the hands of the prosecuting authority up to final disposal of a matter. It clearly has the rightto determine the appropriate venue of any prosecution as well as the nature of any charge to be preferred. A Magistrate may not dealwith an indictable matter – such as this offence – in a summary manner without the consent of the prosecutor. By asking for a pleato be taken on the earlier charge the prosecution gave its consent. It would make a nonsense of the legislation to find that thatconsent could not be withdrawn. That is the effect of the actions of the prosecutor in North Kowloon Magistracy. Once that happenedthe Magistrate had no power to continue to deal with that charge in a summary manner. Once the prosecutor preferred the present chargeagainst the Defendant and required its transfer to the District Court, the Magistrate was obliged to effect that transfer in accordancewith the provisions of sec. 88 of the Magistrates Ordinance.

It is settled that a matter may be transferred or a charge amended at any time up to final disposal by a Magistrate. Consequently,the actions of the prosecutor and, come to that, the Magistrate in North Kowloon were competent and proper. In these circumstancesit is hard to see how it could be seriously suggested that there is any abuse of the Court’s process.”

8. The question which has to be considered is whether the judge had indeed disposed of the case according to section 19 of the Magistrates Ordinance.

9. Section 19(1) provides:

“(1) Where the defendant is present at the hearing, the substance of the complaint or the information (or the summons which has beenissued under section 8 pursuant to such complaint or information) shall be read over to him, and explained if necessary, and he shall be asked whether headmits or denies the truth of the complaint or information. If the defendant admits the truth of the complaint or information, hisadmission shall be recorded as nearly as possible in the words used by him, and the magistrate shall convict him or make an orderagainst him accordingly; but if he does not admit the truth of the complaint or information as aforesaid, then the magistrate shallproceed to hear upon oath the complainant or informant and such witnesses as may be produced in support of the complaint or information,and also to hear the defendant and such evidence as may be adduced in defence; and also to hear and examine such other witnessesas the complainant or informant may examine in rebuttal, if the defendant or his counsel has examined any witnesses or given anyevidence other than as to the defendant’s general character. (Amended 48 of 1949 s. 5; 49 of 1965 s. 6; 59 of 1994 s. 3)”

10. Mr. Mullick for the Appellant contended that it was necessary to interpret the subsection literally. We can see no reason why thisshould be the case. There may be many practical reasons why the Magistrate should not accept the plea and proceed to convict thedefendant. Amongst other things at that stage the agreed facts have not been established. One of the matters which arises is whetherhe is able to entertain any application for an amendment. Section 27 of the Magistrates Ordinance is cast in wide terms and there is nothing to indicate that the Magistrate is precluded from entertaining an application for an amendmenteven at this stage in the proceedings.

11. For the purposes of this application what is noticeable is that even if a defendant admits the truth of the charge laid against himit is still necessary for the Magistrate to convict him under the section before it can be said that the case has been completed.According to the transcript to the proceedings for the Magistrate this was not done.

12. It would appear from R. v. Redbridge Justices Ex parte Sainty [1981] RTR 13 that a prosecutor does have power to withdraw a prosecution at any time prior to the conclusion of a case.

13. It is clear that a Magistrate can amend a summons at any time up to the time when he passes sentence. Liu, J. as he then was consideredthis matter at p. 727 of R. v. YEUNG Wai-hung [1990] 2 HKLR 718:

“It is of course not the case of Mr. Marshall that the magistrate had accepted the plea and entered it upon the record. I have endeavouredto show how the magistrate in this case had become bound by s.27(1)(b) to consider amendment during the deferment of his acceptance of the pleas tendered. For the reasons I am about to give, it wouldappear that the magistrate had power to amend before sentence. He would have, until sentence, retained his power to amend or allowa withdrawal of a charge even if the plea had been accepted and entered upon the record. Once the power of amendment is exercisedor a charge is withdrawn, an accepted and entered plea falls with the replaced charge and both the prosecution and the defence wouldstart afresh on a clean slate.

‘Magistrates who try a case are not functi officio until they have passed sentence or have otherwise finally adjudicated’. See R. v. Dudley Justices, ex parte Gillard supra, at pp.l90 & 191, per Kennedy, J. A judicial determination involves, so explained Lord Upjohn in S.(An Infant) v. Recorder of Manchester, supra, at p.506, ‘two matters, a finding of guilt or the acceptance of a plea of guilty followed by sentence.’ The learned Law Lord continued:’Until there is such a judicial determination, the case is not concluded, the court is not functus officio and a plea of autrefois convict cannot be entertained. This has been the law from the earliest times: see Hale’s Pleas of the Crown (1778), Vol. 2 Ch 32, p.251, and it is equally applicable in a court of summary jurisdiction…’.

Lord Upjohn further observed:

‘The court, whether High Court, quarter sessions or a court of summary jurisdiction retains full jurisdiction over all matters beforeit until sentence, that is, until the final adjudication of the matter.’

This view was embraced as recently as in the applicant’s appeal by way of case stated by the Court of Appeal in Magistracy AppealNo. 96 of 1990, the reasons for the judgment of which were handed down on 17th May 1990 (see [1990]2 HKLR 324). In Allan v. Wiseman [1975] RTR 217 at p.220, Lord Widgery, C.J. expressed a similar view that a magistrate is entitled to amend until he has become functus officio. Therefore, it was open to the magistrate to continue to exercise his power to amend until sentence.”

14. The judge then goes on to say:

“An example of a withdrawal after a plea of not guilty and during the evidence of the third prosecution witness is found in David v. Morton [1913]2 KB 479. The law seems to be that irrespective of the acceptance or non-acceptance of a plea, the prosecution may, with leave,withdraw a charge before sentence. After all, Lord Upjohn was adamant that until sentence a magistrates’ court is not functus officio and ‘retains full jurisdiction over all matters before it’. S. (An Infant) v. Recorder of Manchester, supra, at p.l91. On the same parity of reasoning, Mr. Marshall submitted that there could be no valid objection to the joint charge beingamended before sentence and that the magistrate continued to be seized with this case until sentence. I agree.

At p.507 in S. (An Infant) v. Recorder of Manchester, supra, Lord Upjohn spoke of a withdrawal of a guilty plea in these words:

‘If the court upon all the facts before it, thinks it is proper to accept a plea of guilty then the court may permit that plea tobe withdrawn and the plea of not guilty accepted at the later stage up to sentence, that is, until the complete adjudication of conviction.’

Withdrawal of a plea is somewhat different in nature from the withdrawal of a charge, but the observation of Lord Upjohn lends weightto the view that a magistrate retains jurisdiction over all matters until sentence.

The general power to amend, particularly as fortified by s.27(4) of the Magistrates Ordinance, and the power to allow a charge to be withdrawn are both exercisable before as well as after plea. Even if the magistrate had acceptedthe plea and caused it to be entered upon the record, in the circumstances of this case, his power to amend the first joint chargeon the application of the prosecution would have been equally exercisable.”

15. We are satisfied that this analysis of the law is correct. In the present case no conviction had been recorded when the prosecutionintervened and sought to amend the charge. This is a different situation to that which prevailed in R. v. MA Kam-wing [1975] HKLR 612 where the Magistrate had convicted the defendant.

16. The next question to consider is whether the Appellant was in any way prejudiced by making the admission that he did that he hadbeen in possession of the dangerous drugs. We do not think that this could have been the case. He had made his position clear earlieron that he accepted that he had been in possession of the dangerous drugs. It was his contention that the purpose of the possessionwas to enable him to consume the dangerous drugs himself.

17. AG v. B. Patterson-Todd Esq. [1985] 1 HKC 416 is authority for the proposition that a Magistrate is bound to order a transfer to the District Court under section 88 of the Ordinance.

18. In these circumstances it was incumbent upon the Magistrate to transfer the case to the District Court and the District Court wasproperly seized of the matter.

19. This was the sole ground of appeal raised by Mr. Mullick for the Appellant and we are satisfied that he has been unable to establishthat there has been any material irregularity.

20. The Appellant himself in his home made grounds of appeal complains that the judge did not sufficiently consider the case he was advancingnamely that the dangerous drugs were for his own consumption. Mr. Mullick informed us that he would not be advancing submissionson this ground.

21. The conviction was in no way unsafe or unsatisfactory and this appeal is dismissed.

(N.P. Power) (Simon Mayo) (M. Stuart-Moore)
Vice-President Justice of Appeal Justice of Appeal


Mr. P.S. Chapman, S.A.D.P.P. (D.P.P.) for Respondent

Mr. John Mullick, instructed by M/S Bobby Tse & Co for Appellant