HKSAR v. Maule, Oliver Nigel Arthur

HCMA 669/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 669 OF 2013

(ON APPEAL FROM TWS 15729 OF 2012)

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J U D G M E N T

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1.This is an appeal against conviction.

2.The appellant pleaded guilty to an offence of driving a vehicle without a “P” plate.  The date of conviction was 27 September 2013 on the same date he was fined HK$600.

3.In his notice of appeal against conviction dated 7 October 2013, the appellant said he did not understand, as an unrepresented defendant, the consequences of a guilty plea in the above case. 

4.In another case of TWS 15729/2012, he was found not guilty.  The witnesses in that case were the same as would have been in the present case.  It was the appellant’s contention that as those witnesses were found to be unsatisfactory by the magistrate, there was no sufficient evidence to support the conviction in the present case, as a result, he should be acquitted and be permitted to reverse his plea to one of not guilty.

5.It has now been two years since the date of the appellant’s notice of appeal against his conviction.  The date of the hearing of the appeal was originally fixed for hearing on 4 December 2013.  On 29 November 2013 leave was granted by McWalters J (as he then was) for a transcript to be called by the Department of Justice and the brief facts to be submitted.  The first appeal hearing date was adjourned and a second hearing date was fixed on 8 May 2014, however McWalters J also granted an adjournment of that hearing for the appellant to apply for legal aid. 

6.The third hearing date was set down on 17 February 2015.  On 5 February 2015 the appellant again applied for an adjournment as he was going to be away on a business trip on the date fixed for hearing.  His application was granted by DHCJ Tallentire (as he then was) on 5 February 2015.  At the same time the appellant also applied to amend the grounds of appeal that he had filed on 14 January 2014, and leave was granted.

7.The fourth hearing date was then fixed for 27 August 2015.  I received two letters from the appellant dated 11 August 2015 and 12 August 2015 once again applying for an adjournment of the appeal hearing as he would be absent from Hong Kong on a business trip in China.  In my letter of reply to the appellant of 13 August 2015, I informed the appellant that there was much delay in the hearing of the appeal and he had failed to amend his grounds of appeal as directed by DHCJ Tallentire, despite leave being granted to him.  However in view of his absence from Hong Kong I granted an adjournment but informed him that any further adjournment would be unlikely to be entertained.  I again directed the appellant to file and serve his amended grounds of appeal, if any, on or before 4 September 2015 before 4:00 pm.  The fifth hearing date was adjourned until today 19 October 2015 at 10:00 am. 

8.On 12 October 2015 I received a letter from the appellant telling me that he was now not going to be attending the appeal hearing in person as he will be absent from Hong Kong.  He informed the court that he was relocated to New York for his employment and would be based there permanently.  He requested that this appeal continue in his absence.

9.In the Court’s written reply to the appellant on 14 October 2015 he was informed if he or his legal representative on his behalf was absent at today’s hearing at 10:00 am the court would treat his absence as an abandonment of his appeal against conviction and his appeal will be dismissed.

10.The appellant nor his legal representatives are present in court before me today at this appeal hearing. 

11.I have considered his application for appeal.  The very brief grounds is that he was unrepresented and as a consequence he pleaded guilty. 

12.Clearly, under section 113 of the Magistrates Ordinance Cap 227, an appellant who had pleaded guilty to an offence cannot bring an appeal against conviction unless the court finds that the plea of guilty was one of a nullity.

13.In the present circumstances, the appellant has shown no grounds why this court should treat his voluntary plea of guilty to a charge of driving a car not displaying that he is a holder of a probationary driving licence as a plea of nullity.  The facts were simple.  The information was simple.  It was read to him.  He admitted he was driving a car without displaying “P” plates. 

14.Circumstances where an unequivocal guilty plea can be rendered a nullity were summarized and made clear in HKSAR v Wong Chi Yuk [2000] 3 HKLRD 125 and more recently adopted in the case of HKSAR v To-kit-yan CACC43 of 2014.

15.In the proceedings before the magistrate, the charge and the facts of the case were both put to the appellant.  He pleaded guilty to the charge and admitted the facts.  The appellant was not under any fundamental mistake or misapprehension as to the underlying facts of his case. 

16.There are no grounds to consider his plea of guilty a nullity.  The appellant’s unequivocal and unambiguous plea of guilty to the offence was not a nullity.  

17.Further in case number TWS15729/2012 the magistrate[1] mind no finding that she disbelieved the witnesses therefore this would not have had an effect on the outcome of the present case.

18.There are no merits in the appellant’s grounds of appeal. 

19.In any event, in view of the appellant’s absence at the hearing, I treat his appeal as abandoned. 

20.In the circumstances, his appeal against conviction is dismissed.

Mr Prakash L Daryanani, SPP of the Department of Justice, for the respondent

The appellant in person, absent