Hong Kong Case Law: Decisions & Judgments

Topic

Variance between charge and evidence

Legal area

Court

22 Jul 2011

HKSAR v. PABUSTAN GEMMA ALTECHE

Citation

HKSAR v. PABUSTAN GEMMA ALTECHE
Court

Court of First Instance
Case number

HCMA145/2011

The magistrate erred by treating a charge of 'dropping' under s4B(1) as if it were 'allowing to fall' and by characterising the offence as one of strict liability without following the mandatory amendment procedures in s27; because 'dropping' requires proof of a conscious act (mens rea) and there was a material irregularity the conviction was quashed and sentence set aside.
9 Dec 2004

CHAN WAI CHUNG v. HKSAR

Citation

CHAN WAI CHUNG v. HKSAR
Court

Court of Final Appeal
Case number

FAMC20/2004

The magistrate lawfully exercised the mandatory duty under s.27 to propose and make the amendment after hearing evidence and submissions; the amendment did not change the substance of the prosecution case and caused no prejudice or injustice; ss.31/32 were inapplicable; there is no point of law of great and general importance nor any reasonably arguable departure from accepted norms — leave to appeal is dismissed.
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.
31 May 2002

HKSAR v. ADEOLA AREMU GEORGE

Citation

HKSAR v. ADEOLA AREMU GEORGE
Court

Court of First Instance
Case number

HCMA182/2002

Conviction was unsafe because the magistrate convicted the appellant on a factual basis (shoplifting from the Prada shop) different from the charge particularisation (theft by finding on Des Voeux Road) without amending the charge or giving the defence opportunity to meet the alternative case; section 27 required amendment procedures where necessary and section 23(1) does not render all place variances immaterial; accordingly the appeal is allowed and the conviction and sentence set aside.
28 Jun 1993

THE QUEEN v. SO KWOK LEUNG AND OTHERS

Citation

THE QUEEN v. SO KWOK LEUNG AND OTHERS
Court

Court of First Instance
Case number

HCMA198/1993

Oral admissions at scene were voluntary and admissible despite exclusion of a later post‑recorded caution statement; knowledge of the precise nature of the goods was unnecessary for smuggling liability where defendant knew goods were being illicitly transported; mis‑pleading under the Regulations rather than the Ordinance was fatal for those counts and convictions on those counts were quashed; remaining convictions were upheld because discrepancies were immaterial and magistrate correctly assessed witnesses and applied s.27 principles to trivial variances.
19 Jun 1987

THE QUEEN v. TSUI CHIK MAN

Citation

THE QUEEN v. TSUI CHIK MAN
Court

Court of First Instance
Case number

HCMA491/1987

The substitution of the inland lot/site number (8638 for 8683) was trivial and superficial; therefore the magistrate was not required to read and explain the amended complaint under section 27 in the circumstances, the magistrate's conviction and $2,500 fine were upheld and the appeal was dismissed.
28 Feb 1978

SONCA INDUSTRIES LTD v. THE QUEEN

Citation

SONCA INDUSTRIES LTD v. THE QUEEN
Court

Court of Appeal
Case number

CACC1342/1977

The amendment to the summons was a nullity because the magistrate did not comply with the statutory requirement in s.27(2) to read and explain the amended charge in open court; handing a written copy to the appellant's solicitor without reading and explaining it did not satisfy the mandatory procedural requirement, so the conviction could not stand and was quashed.
11 Jun 1971

THE ATTORNEY GENERAL v. HO YUEN-KWONG

Citation

THE ATTORNEY GENERAL v. HO YUEN-KWONG
Court

Court of Appeal
Case number

CACC677/1970

The magistrate had statutory power under s.23(2) of the Magistrates Ordinance to adjourn on terms that included ordering the Crown to pay costs of the adjournment, but s.69(1) imposes a maximum award of $500; accordingly the magistrate's $600 order must be reduced to $500.