Hong Kong Case Law: Decisions & Judgments | LexChat

Topic

Variance between complaint and evidence

Legal area

Court

18 Aug 1995

ATTORNEY GENERAL v. FUNG KA KEUNG

Citation

ATTORNEY GENERAL v. FUNG KA KEUNG
Court

Court of First Instance
Case number

HCMA502/1995

Identity of the named prostitute was immaterial to the s.137 offence; the variance did not mandate dismissal and the magistrate was obliged to amend under s.27 if no injustice resulted; however the magistrate erred in reviewing his decision under s.104 in the absence of the parties; appeal allowed and matter remitted to be dealt with on the complaint as amended.
20 Dec 1993

THE QUEEN v. WONG KEI HUNG AND ANOTHER

Citation

THE QUEEN v. WONG KEI HUNG AND ANOTHER
Court

Court of First Instance
Case number

HCMA576/1993

The Court held that for the 1st appellant there was a material variance between the complaint (alleging forged trademarks) and the evidence (showing genuine trademarks with non-genuine components); the Magistrate erred in allowing amendment after the prosecution case because the injustice (wasted costs plainly exceeding the magistrate's s.27(3)(d) limit of $5,000) could not be cured by the limited costs power, and accordingly the convictions and fines of the 1st appellant were set aside. For the 2nd appellant the omission was a non-material defect and the amendment was valid; his conviction a…