THE QUEEN v. JACQUELINE HAMILTON

THE QUEEN v. JACQUELINE HAMILTON

The omission of the essential element 'with intent to avoid payment' from the particulars was a material defect because the offence requires a specific intent to permanently avoid payment; the magistrate failed to exercise the mandatory power under s.27 to amend the charge and, being apparently unaware of the...

Source-derived case information.

Citation
THE QUEEN v. JACQUELINE HAMILTON
Parties
Appellant: Jacqueline Hamilton; Respondent: The Queen
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
2 September 1987
Case Number
HCMA581/1987
Procedural Posture
Magistracy Criminal Appeal / Appellate Hearing in High Court; Conviction Quashed and Matter Remitted for Retrial
Outcome
Appeal allowed; conviction quashed; fine and compensation order set aside; matter remitted for trial on a properly drawn charge before another magistrate
Legal Topics
Making Off Without Payment, Mens Rea, Charge Drafting, Magistrates' Procedure, S.27 Magistrates Ordinance
Source Language
en
Criminal Law Theft Procedural Law Making Off Without Payment Mens Rea Charge Drafting Magistrates' Procedure S.27 Magistrates Ordinance

Source-derived case record

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 7 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

Jacqueline Hamilton

Appellant

The Queen

Respondent

Procedural Posture

Magistracy Criminal Appeal / Appellate Hearing in High Court; Conviction Quashed and Matter Remitted for Retrial

Legal Issues

  1. 1 Whether omission of the words 'with intent to avoid payment' in the charge rendered the conviction invalid
  2. 2 Whether the statutory intent under s.18C requires an intent permanently to avoid payment rather than merely to delay payment
  3. 3 Whether the magistrate was obliged to amend the defective charge under s.27 of the Magistrates Ordinance

Ratio Decidendi

The omission of the essential element 'with intent to avoid payment' from the particulars was a material defect because the offence requires a specific intent to permanently avoid payment; the magistrate failed to exercise the mandatory power under s.27 to amend the charge and, being apparently unaware of the required specific intent, could not have properly determined guilt on that element; accordingly the conviction was unsafe and must be quashed and a retrial ordered.

Court Disposition

Appeal allowed; conviction quashed; fine and compensation order set aside; matter remitted for trial on a properly drawn charge before another magistrate

Orders

  • Conviction quashed
  • Fine of HKD 2000 and default sentence set aside