HKSAR v. Chow Yim Sheung

HCMA 145 & 146/2021
(Heard together)

[2021] HKCFI 2544

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 145 OF 2021

(ON APPEAL FROM ESCC 2409 OF 2020)

________________

________________

And

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 146 OF 2021

(ON APPEAL FROM WKCC 494 OF 2021)

________________

________________

Before:  Hon Campbell-Moffat J in Court

Date of Hearing: 27 August 2021

Date of Judgment: 27 August 2021

____________________

JUDGMENT

____________________

1.On 4 February 2021, the defendant appeared before Principal Magistrate Bina Chainrai at the Eastern Magistrates’ Courts under ESCC 2409/2020 and WKCC 494/2021. Under ESCC 2409/2020 she was charged with possession of dangerous drugs contrary to s8 of the Dangerous Drugs Ordinance, Cap 134 (“the DDO”) and of possession of apparatus fit and intended for the ingestion of dangerous drugs contrary to s36 of the DDO. She pleaded guilty to both charges. Under WKCC 494/2021, she was charged with theft contrary to s9 of the Theft Ordinance, Cap 210. She also pleaded guilty to this charge.

2.On 18 February 2021 the defendant was sentenced to 6 months’ imprisonment under ESCC 2409/2020 and to a period of 2 months’ imprisonment under WKCC 494/2021, one month of which was to run consecutively to the term of imprisonment under ESCC 2409/2020, making a total term of imprisonment of 7 months.

3.By reason of her Notice of Appeal dated 26 February 2021, the appellant appeals against her conviction only.  She does so by reliance upon the format provided within the F101 without more.  The appellant has served her sentence and has failed to appear.

Unequivocal Plea

4.The appellant pleaded guilty to all charges before the learned Principal Magistrate, at which stage she had the benefit of legal representation.  She may not avail herself of her right of appeal under s113(1) of the Magistrate’s Ordinance, Cap 227, unless there are grounds to believe that the pleas which she tendered were a nullity[1].  That is not the basis upon which she has advanced her appeal in writing.  Only a fundamental mistake would be accepted as a ground for nullifying a guilty plea.  No such mistake has been relied upon or identified.  As the appellant failed to appear, no enquiry could be made of her.  The appeal against conviction in respect of both sets of proceedings must therefore fail.

5.This appeal is dismissed.  There will be no order as to costs.

Ms Claudia Ng, SPP of the Department of Justice, for the respondent.

The appellant, in person, absent.