Hong Kong Case Law: Decisions & Judgments

Topic

Charge amendment

Legal area

Court

22 Oct 2021

香港特別行政區訴鍾偉釗

Citation

[2021] HKCFI 3055
Court

Court of First Instance
Case number

HCMA150/2020

The trial judge properly accepted the prosecution witness as credible and, on viewing the contemporaneous video and totality of evidence, the Crown proved beyond reasonable doubt that the appellant committed common assault; the appellant's contention of self-defence lacked evidential foundation (he did not give evidence and the conduct on video was inconsistent with a genuine belief of being under attack), therefore the conviction stands.
9 Aug 2021

香港特別行政區訴 N.H.M.

Citation

[2021] HKCFI 2223
Court

Court of First Instance
Case number

HCMA7/2021

Appellate court accepted PW1 identified the appellant as the person who threw the bottle and that the act was intended to challenge police, but held prosecution did not prove beyond reasonable doubt the specific subjective mens rea required by s17B(2) (intent to incite others to breach public peace); amendment of the charge at appellate stage would be unfair and, after balancing public interest and prejudice to the appellant, the court declined to remit for retrial and quashed the conviction.
5 Sept 2003

HKSAR v. CHENG SIU WING

Citation

HKSAR v. CHENG SIU WING
Court

Court of First Instance
Case number

HCMA619/2003

The magistrate lawfully amended the charge under s.27, the amendment was not time‑barred, and the accepted primary eyewitness evidence plus the actual public intervention and ensuing struggle established that the appellant's conduct (attempting to photograph under a woman's skirt) constituted disorderly conduct likely to cause a breach of the peace; the magistrate's credibility findings were reasonable and the conviction was therefore safe.
11 Jun 2002

HKSAR v. YIP HON WING

Citation

HKSAR v. YIP HON WING
Court

Court of Appeal
Case number

CACC484/2001

The Court held that section 32 permitted amendment because the transcripts of covert recordings provided prima facie evidence supporting the broader particulars; the defence had not been misled by the prosecution and suffered no substantial injustice that could not be cured by recall or further cross-examination; fresh consent of the Secretary for Justice was not required in the circumstances; conviction was therefore safe and the sentence of 2 years 3 months was not excessive.
19 May 2000

CHAN PUN CHUNG AND ANOTHER v. HKSAR

Citation

CHAN PUN CHUNG AND ANOTHER v. HKSAR
Court

Court of Final Appeal
Case number

FAMC3/2000

The certified legal question—whether abolition of common law conspiracy precludes post‑commencement prosecution for pre‑commencement conduct not covered by existing transitional provisions—is at least reasonably arguable and merits determination by the Court of Final Appeal; accordingly leave to appeal is granted to decide that legal issue.
19 May 1995

R. v. FUNG WAI LEUNG

Citation

R. v. FUNG WAI LEUNG
Court

Court of First Instance
Case number

HCMA109/1995

The conviction was unsafe because the magistrate's inference from possession left two possible distinct findings (that the appellant had taken the vehicle or that he drove it knowing it was stolen) but he failed to elect which limb of s14(1) was proved beyond reasonable doubt; therefore the appeal must be allowed and the conviction quashed, though no retrial was ordered given delay and time already served.
12 Oct 1989

THE QUEEN v. YAU LEE CONSTRUCTION CO LTD

Citation

THE QUEEN v. YAU LEE CONSTRUCTION CO LTD
Court

Court of First Instance
Case number

HCMA733/1989

The magistrate erred as a matter of law by purporting to amend/substitute charges under s.51(2) Cap.221 rather than under s.27 Cap.227, by failing to read the substituted charges and obtain a plea, and by wrongly finding no suspended scaffold when evidence supported that it was a suspended scaffold and that the appellant failed to ensure its safety; accordingly the appeals are allowed and fines set aside.
14 Oct 1988

THE QUEEN v. WING TAI PILONNER COMPANY LIMITED

Citation

THE QUEEN v. WING TAI PILONNER COMPANY LIMITED
Court

Court of First Instance
Case number

HCMA683/1988

The conviction was quashed because the amended particulars did not accurately state the material divergence that the evidence established (failure to drill through the boulder to reach a recognised secure foundation). It was unfair to convict on a different allegation (pile length of 1.4m) without having followed the Magistrates Ordinance amendment procedures required to change the charge to the allegation proved; therefore the conviction and sentence were unsafe.
31 Dec 1987

THE QUEEN v. LAU SHUI LEUNG

Citation

THE QUEEN v. LAU SHUI LEUNG
Court

Court of First Instance
Case number

HCMA868/1987

The magistrate was wrong to treat buying and carrying multiple small packets as prima facie evidence of trafficking; on the evidence the trafficking conviction could not be sustained and must be quashed and substituted with a conviction for possession for the purpose of unlawful trafficking, and the sentence reduced to 15 months to run from the expiration of the sentence currently being served.
19 Apr 1983

THE QUEEM v. SO KAM YUEN

Citation

THE QUEEM v. SO KAM YUEN
Court

Court of Appeal
Case number

CACC305/1983

Because the magistrate convicted the appellant of an offence different from that charged without complying with Section 27 of the Magistrates Ordinance and such non-compliance is of substance (as conceded by Crown and supported by authority), the conviction had to be quashed and the sentence set aside.