Read the full judgment text of FACC 18/2018 on BabelCite. This Court of Final Appeal judgment was delivered on 21 December 2018 before Chief Justice Ma, Mr Justice Ribeiro PJ, Mr Justice Fok PJ, Mr Justice Cheung PJ and Lord Phillips of Worth Matravers NPJ.
Criminal law – careless driving – guilty plea – reversal of plea – distinction between equivocal and unequivocal pleas – discretion to allow withdrawal of plea after conviction but before sentence – interests of justice – appeal against conviction. The appellant was the driver of a private car involved in a traffic accident on 3 November 2016 in which a pedestrian was injured at a safety island; he was charged with careless driving. Unrepresented, he pleaded guilty before a deputy magistrate and agreed with the police brief facts. During mitigation he suggested the pedestrian had stepped out from the safety island while on her phone and said he did not know how the accident could be avoided. After obtaining legal advice he applied to reverse his guilty plea, relying on a community service report. The deputy magistrate rejected the application and sentenced him to 150 hours of community service. The Court of First Instance dismissed his appeal against conviction, holding the plea was unequivocal and that the magistrate had not erred in the exercise of her discretion. The Court of Final Appeal allowed the appeal and quashed the conviction. The first issue considered whether an unequivocal guilty plea can become an equivocal plea by reason of what transpires at a later stage of the proceedings; the court held that it cannot – an unequivocal guilty plea is a historical fact which cannot be retroactively converted into an equivocal plea by what is later said during mitigation or in reports. The second issue concerned the principles governing the discretion to permit withdrawal of an unequivocal plea after conviction but before sentence; following S (An Infant) v Recorder of Manchester, P Foster (Haulage) Ltd v Roberts, Revitt v DPP and R v Croydon Youth Court, the discretion is unfettered but should be exercised in clear cases and sparingly, with the overriding consideration being the interests of justice, and the court should generally not conduct a mini-trial on bare assertions. The third issue was whether the deputy magistrate and the deputy judge had erred by treating a finding that the plea was unequivocal as disposing of the application to reverse plea; the court held they had, since once the plea is found to be unequivocal the court must separately consider how its discretion should be exercised in light of material emerging after conviction, particularly material that, if true, may show the defendant is not guilty. The fourth issue was whether, on the proper exercise of discretion, the appellant's plea should be reversed and the conviction quashed; applying the facts – the appellant's account that the pedestrian stepped out unexpectedly and collided with the side of his vehicle, his repeated inability to identify any precaution he could have taken, the absence of any suggestion of excessive speed and the fact that the location was not a zebra crossing – the court held that his story, if true, may show he was not driving carelessly, and that in the interests of justice the plea should be allowed to be reversed. The court set aside the order of the deputy judge, allowed the appeal against conviction, quashed the conviction and, exceptionally, did not order a retrial as the appellant had already served 150 hours of community service. An order nisi was made that the respondent pay the appellant's costs in the appeal and in the appeal before the deputy judge, with liberty to apply within 14 days for a different order on costs.
Legal issues: Whether an unequivocal guilty plea can become an equivocal plea by reason of what transpires at a later stage of the proceedings · Principles governing exercise of discretion to allow reversal of an unequivocal plea after conviction but before sentence · Whether the deputy magistrate and deputy judge erred by treating the application to reverse plea as concluded once the plea was found to be unequivocal · Whether the appellant's guilty plea should be reversed and conviction quashed
Outcome: Appeal allowed; order of the deputy judge set aside; appeal against conviction allowed; conviction quashed; no retrial ordered.
Cited by 10 cases · Cites 1 case