The Queen v. Woo Chan Pui-cheung

CACC001509/1983

IN THE SUPREME COURT OF HONG KONG

BETWEEN

Coram: Hon. Deputy Judge Souyave in Court.

Date: 21st December 1983

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JUDGMENT

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1. On the 18th October 1983, the appellant, a 39-year old married woman, then legally unrepresented, appeared before the Magistrate's Court to answer a charge of theft contrary to section 9 of the Theft Ordinance, Cap. 210. The particulars of offence were that on the 13th day of October 1983, at Kowloon, she stole two pairs of children's socks, the property of Dodwell Department Store. After due interpretation of the charge to her she admitted the offence. The learned Principal Magistrate recorded a plea of guilty. He then, through the Interpreter, put the "Brief Facts of Case" as alleged by the prosecution to her which were as follows (as contained in Document A attached to the record):

"Brief Facts of Case

On these facts being admitted by the appellant the learned Principal Magistrate convicted the defendant as charged on her plea of guilty.

2. The appellant had a clear record. In mitigation of sentence, the appellant asked the learned Principal Magistrate not to record a conviction as she was going to emigrate to another place. The learned Principal Magistrate did not accede to her request. She was sentenced to pay a fine of $750 and there was an order that the property recovered be returned to owner.

3. Nine days later, that is on the 27th October 1983, the appellant, by then legally represented by solicitor, applied to the learned Principal Magistrate for a date to be fixed for the hearing of an application by the appellant for a review and "to change her plea to not guilty".

4. On the 3rd November 1983, the appellant's solicitor, i.e. Mr. Hon, appeared in court before the learned Principal Magistrate and submitted that by virtue of section 104 of the Magistrate's Ordinance the court had the power to set aside the appellant's conviction and allow a reversal of plea. That he had such jurisdiction was accepted by the learned Principal Magistrate, and it was submitted by the appellant's solicitor that the reasons why the appellant had pleaded guilty in the first instance were

5. Mr. Hon drew the attention of the learned principal Magistrate to the appellant's submission that it was not a genuine plea of guilty and to Ma Kam-wing v. The Queen ⁽¹⁾ where the appellant in that case also applied for leave to reverse his plea to one of not guilty after conviction and sentence, the ground asserted in support was that he had been forced by his co-accused to admit the offences.

6. The learned Principal Magistrate rejected the appellant's application in the instant case in the following terms, as revealed in the Statement of Findings:

7. Being dissatisfied with the decision made by the learned Principal Magistrate on review, the appellant appealed to this court on the ground, as stated in her Notice of Appeal:

"That the learned Magistrate wrongly exercised his discretion pursuant to Section 104 of the Magistrates Ordinance in refusing to allow me to reverse my guilty plea and to allow me to have my trial."

8. In support of her ground of appeal, the appellant filed of record an affirmation dated 14th December 1983. In paragraph 1 thereof, she admitted the correctness of the contents of the copy of the depositions in the Magistrate's Court in the case under reference against her as representing what actually transpired at the hearing on the 18th October 1983. However, she said she would like to explain the sequence of events that led her to plead guilty to the charge of theft of which she said she was innocent. She added that there was no one to blame except herself because she misunderstood the fundamental concept of theft and that the procedure in the austere atmosphere of the court to what surrounding she had never set foot in her life except that occasion. In paragraph 2 of her affirmation, she went on to explain the sequence of events at the proceedings in court, as to the circumstances in which she was asked to plead to the charge read out to her and as to her hesitation to plead and to say "Yes" or "No", that she asked to have a chance to explain, that she was asked by the learned principal Magistrate not to waste time, that the learned Principal Magistrate stood her case down from about 10.30 a.m. to about 12.30 a.m. She went on to say "I suppose the reason for standing the case down was a chance for me to think it over what to plead. By 12.30 o'clock I was very confused. In fact I was so depressed that I thought the act of taking the articles from Dodwell and not paying for them must be guilty even though I never had the intention of stealing them. My husband was with me and he showed sign of impatience. I then thought that if I pleaded guilty I would be given a chance to explain. By that time I was the only Defendant left in Court. And when eventually, the case was called again, the clerk told me to plead "Yes" or "No". I simply said "Yes"." In paragraph 3 (last paragraph) of her affirmation, she admitted that she told the learned Magistrate that she might be emigrating with her family and that a conviction might hinder her application, but explained that by that time she was too confused and tongue-tight to be able to say anything else. She ended by alleging that she was suffering from anxiety to such a degree that at that time her reasoning had been sapped to the lowest point.

9. The learned Principal Magistrate, on being asked by letter addressed to him from the appellant's solicitors to comment on the applicant's affirmation, declined to do so adding that "had the contents of paragraph two thereof been put forward at the hearing of the application for review on November 3rd, 1983, appellant would have been corrected".

10. It is observed that despite her various allegations in her affirmation, the appellant clearly agrees that the notes of the proceedings of the learned Principal Magistrate reflect what actually transpired at the hearing, that she admitted the charge of theft and pleaded guilty thereto and also the brief facts of the prosecution case, which I have set out in extenso earlier, before the conviction was recorded and the sentence was passed. Indeed, at the hearing of this appeal, Mrs. Yew, learned counsel for the appellant, clearly stated that the appellant accepted she pleaded guilty to the offence on the 18th October 1983, that the facts alleged by the prosecution were read over to her and she accepted them as correct. Learned counsel went on to say that she had to accept what are contained in the Statement of Findings as to what happened at the hearing of the 18th October 1983.

11. I am indebted to learned counsel on both sides for their industry in making researches of decisions on the matter in issue. Learned counsel for the appellant cited the decisions to which I will now refer.

12. In Chan Ching-chi and The Queen, ⁽²⁾ the facts were that the appellant had pleaded guilty to possession of dangerous drugs and sentenced by a magistrate. The court allowed his appeal against conviction and ordered a new trial on the ground that although he admitted the facts outlined by the prosecutor, there was no admission that he knew that the bags in his possession contained drugs. The court observed that that the presumption of knowledge under section 15 of the Dangerous Drugs Ordinance, Cap. 134, was rebuttable, there was some doubt whether the appellant appreciated that knowledge was essential ingredient of the offence, and to eliminate the possibility of injustice it was desirable to order a trial de novo.

13. In Lee Fu-yuen and another v. The Queen, ⁽³⁾ the facts were that the appellants in separate cases pleaded guilty on legal advice to charges of employing persons under the age of 18, contrary to regulation 63(l) of the Miscellaneous Licences Regulations. In mitigation, the appellants denied knowing the employees were under 18. Both appellants appealed on the ground that their pleas were entered on the erroneous advice that the offence was an absolute one. The Court held that the offence was not an absolute one, and therefore the pleas ought not to have been accepted in the face of the mitigation that was given. The appeal was allowed and the case remitted for trial.

14. The next case cited was Wong Ching-wah v. The Queen ⁽⁴⁾, which was that cited to the learned Principal Magistrate on the application for review. In that case, the appellant, a girl of 16 who was unrepresented at her trial, pleaded guilty to a charge of blackmail and was thereupon convicted by the Magistrate and afterwards sentenced to detention in a training centre. On the day she came up for sentence, she was represented by a solicitor who submitted that she should be allowed to change her plea on the grounds (inter alia) that she had been persuaded to admit the offence, namely, that she was wrongfully induced by the arresting officer to enter a plea of guilty. No enquiry was made by the Magistrate into that allegation of duress. He merely said that in all the circumstances he was satisfied that the plea should not be allowed to be withdrawn. The Court held: (1) The question whether or not the appellant's plea was made under duress was a matter which should have been investigated as a matter of fact and probably on oath at the time when the appellant's solicitor raised the issue. (2) That due to the Magistrate's failure to make such proper enquiry, justice required that the appellant be allowed to reverse her plea and made her defence. The appeal was allowed and an order for retrial made.

15. In an application by Chan Hung-to ⁽⁵⁾ for an order of certiorari, the applicant applied for the quashing of his conviction and disqualification by a Magistrate's court for the offence of dangerous driving on the ground that when he pleaded guilty to that offence on an amended charge, he was under a misapprehension in that he believed he would be given an opportunity of telling his story to the Magistrate who would then decide who was responsible for the traffic accident. The Full Court held that where there had not been a deliberate plea of guilty that is, when there had been some fundamental misconception induced either by misunderstanding or by another cause as to the nature and effect of such a plea, certiorari to quash the conviction would be an available remedy.

16. In Law Hau On v. The Queen, ⁽⁶⁾ the facts were that the appellant who was then legally unrepresented, pleaded guilty to a charge under Regulation 29(2) of the Road Traffic (Registration and Licensing of Vehicles) Regulations of permitting his co-defendant to drive a motor vehicle registered as a private car for the carriage of passengers for reward or hire and to a charge under section 4(1) of the Motor Vehicle Insurance (Third Party Risks) Ordinance of permitting his co-defendant to use a motor vehicle without third party insurance. He was convicted and sentenced. It is not clear from the reported case what the actual sentences imposed were but mention is made in the judgment that for the offence of permitting another person to use an uninsured vehicle the penalty includes a compulsory disqualification for holding or obtaining a licence to drive. Afterwards, the appellant, then legally represented applied to the Magistrate for review on the ground that his plea of guilty was vitiated by something which had been said to him by a police officer before he pleaded guilty, namely, that it was a miner matter and that the appellant had better plead guilty and at most he would be fined $500. The application was refused. On appeal, the Court held that in the circumstances justice required that his plea be declared null and void and ordered a venire de novo as the Magistrate did not inquiry into the allegation that, although the appellant admitted all the ingredients of the offence. he did so unaffected by any kind of improper pressure.

17. In Fong Loy and The Queen, ⁽⁷⁾ the facts were that the appellant was charged before the Magistrate's Court with assisting an offender contrary to Section 90(1) of Cap. 221. On the charge being read over and explained to him he replied "guilty" and then admitted the facts alleged to constitute the offence. He then said "He threatened to assault me", presumably referring to the person who was charge with assisting. The learned Magistrate did not inquire into this allegation that he acted under threats of assault which would require consideration to be given as to whether or not the plea was unequivocal. For that reason, the appeal was allowed and the case was remitted for plea to be re-taken.

18. Learned counsel for the appellant submitted that the 2nd ground on which the application for review was based raised matters concerning mens rep on the part of the appellant, that at the trial the appellant was mistaken or had misunderstood the nature and effect of her plea of guilty, and that at the trial she thought she would have been given a chance to explain if she pleaded guilty. Further she submitted that the learned Principal Magistrate did not make proper enquiry as to the two grounds Mr. Hon for the appellant put forward for a reversal on review of the appellant's plea of guilty. On the authority of the decisions referred above, learned counsel submitted that this appeal should be allowed and a venire de novo ordered.

19. Learned counsel for the respondent in his submission drew my attention to R. v. McNally ⁽⁸⁾ where it was held that "the question whether or not a prisoner should be allowed to withdraw a plea of guilty before he is sentenced is entirely a matter of discretion for the trial judge, but once judgment has been pronounced a plea cannot be withdrawn." The second part of this statement cannot apply where the court concerned has a right to review its own decision and is within the time-limit to exercise that right. Here, the situation was that the appellant applied to the learned Principal Magistrate to review his decision to convict, which he had jurisdiction to do under section 104 of the Magistrate's Court Ordinance, and to reverse her plea of guilty which she claims was a nullity for the two reasons she gave. The application for review was made within the time-limited specified in section 104.

20. Learned counsel for the respondent further argued that all the cases cited on behalf of the appellant do not apply to the instant case in that (1) the appellant's plea was not a "guilty" but "plea (2) the appellant voluntarily pleaded guilty to the charge and also admitted all the brief facts of the prosecution case which themselves proved all the ingredients of the offence charged (3) at the review proceedings the learned Principal Magistrate did enquire into all the grounds put forward on behalf of the appellant for the review of his decision, and was satisfied that the appellant understood her plea of guilty and such plea was genuine (4) that in mitigation, the appellant did not raise any of the points raised in her affidavit that she was confused or that she misunderstood the nature and effect of her plea or she thought that if she pleaded guilty she would have been given a chance to explain.

21. I am fully satisfied that none of situations in the cases referred by learned counsel for the appellant exists in the present case. We are concerned in the present case with a situation where the appellant unequivocally admitted the charge and also the brief facts of the prosecution case which themselves proved the offence. The learned Magistrate enquired into all the grounds put forward by the appellant's solicitor for the review. He obviously came to the conclusion that there was no truth in any of them for he said he was satisfied that both her admission of the offence and her admission of the brief facts of the prosecution case were genuine admissions. I think that there was material on which he could reasonably come to these conclusions and he has given full and valid reasons in support thereof. I was of the opinion that the learned Magistrate was right to refuse the appellant's application and to affirm his decision to accept the appellant's plea as a genuine admission of the truth of the charge.

22. For these reasons, this appeal was dismissed.

(1)    (1975) H. K. L. R. 612.

(2)    [1965] H.K.L.R. 598.

(3)    [1978] H.K.L.R. 522

(4)    [1976] H.K.L.R. 412

(5)    [1977] H.K.L.R.  l98

(6)   Criminal Appeal No.578 of 1982

(7)   Criminal Appeal No.856 of 1978

(8)  [1954] 2 All E.R. p.372

Representation:

Mrs. Lily Yew instructed by M/s. Hon & Co. for the appellant.

Mr. Anthony To, Crown Counsel for the Crown.