HKSAR v. Cheung Tze Hong
Read the full judgment text of CACC 261/2018 on BabelCite. This Court of Appeal judgment was delivered on 22 December 2020.
1. On 18 July 2018, the appellant stood trial before Barnes J (the judge) and a jury in respect of multiple offences concerning two separate incidents of serious sexual assault against two women, referred to as X and Y. The offences alleged against the appellant were indecent assault of X on 10 December 2016 (Count 1); [1] rape of X on 10 December 2016 (Count 2); [2] false imprisonment of Y from 14 to 17 December 2016 (Count 3); [3] assault occasioning actual bodily harm of Y on 14 December 2016
Cited by 4 cases · Cites 10 cases
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CACC 261/2018 [2021] HKCA 900 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO 261 OF 2018 (ON APPEAL FROM HCCC NO 379 OF 2017) _______________
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__________________________________ REASONS FOR JUDGMENT __________________________________ Hon Zervos JA (giving Reasons for Judgment of the Court): 1.On 18 July 2018, the appellant stood trial before Barnes J (the judge) and a jury in respect of multiple offences concerning two separate incidents of serious sexual assault against two women, referred to as X and Y. The offences alleged against the appellant were indecent assault of X on 10 December 2016 (Count 1);[1] rape of X on 10 December 2016 (Count 2);[2] false imprisonment of Y from 14 to 17 December 2016 (Count 3);[3] assault occasioning actual bodily harm of Y on 14 December 2016 (Count 4);[4] rape of Y on 15 December 2016 (Count 5);[5] rape of Y on 16 December 2016 (Count 6);[6] rape of Y on 17 December 2016 (Count 7);[7] and robbery of Y on 14 December 2016 (Count 8).[8] 2.During the course of the trial, the appellant on 20 July 2018 pleaded guilty to Counts 1 to 7. After he unsuccessfully sought to reverse his pleas, the judge on 20 August 2018 sentenced him to a total term of 18 years’ imprisonment. 3.On 3 September 2018, the appellant applied for leave to appeal against his conviction and sentence.[9] The application was heard by a Single Judge on 5 November 2019, who refused the appellant leave to appeal against his conviction and sentence on the grounds filed but granted leave on an amended ground against conviction on Counts 1 and 2 only, which concerned whether the judge erred in convicting the appellant on those counts because of a material misdirection or an insufficient or inadequate factual basis to do so.[10] 4.The appellant was represented by Mr Selwyn Yu, SC, and Ms Pauline Leung, in respect of his appeal on Counts 1 and 2. However, the appellant represented himself in respect of a renewal of his application for leave to appeal against his conviction on Counts 3 to 7. He filed his renewal application on 14 November 2019 and a written submission in support on 27 March 2020. 5.At the conclusion of the hearing, we allowed the appeal against conviction on Counts 1 and 2 and ordered the appellant to be retried in respect of those two counts. We refused the renewal application for leave to appeal against conviction on Counts 3 to 7, and the appeal on those counts was dismissed. These are our reasons for so doing. The guilty pleas 6.Prior to his trial on 4 May 2018, the appellant applied to sever the counts relating to the two incidents, which was refused by the judge. At the commencement of the trial, on 13 July 2018, the appellant pleaded not guilty to all eight counts he faced. As the appellant had challenged the admissibility of his out-of-court statements, the judge held a voir dire on 16 and 17 July 2018. She ruled the out-of-court statements admissible, subject to some minor redactions. 7.On Wednesday, 18 July 2018, after a jury had been empanelled, prosecuting counsel presented his opening address and submitted to the jury a Trial Bundle and a set of Admitted Facts which were read into the record.[11] The next day, Thursday, 19 July 2018, the prosecution called its first witness, Y. She testified about the events in respect of Counts 3 to 8. She commenced her evidence at 10 am, giving a detailed account of how she was held captive by the appellant at his home from 14 to 17 December 2016. She described how the appellant looped a plastic strap around her neck and tied her up, hitting her and threatening to slash her face with a knife and kill her. At one stage, he heated the blade of the knife and scorched her thigh, and then made her watch a film of a person being killed slowly by strangulation with a plastic strap, telling her that he would kill her in the same fashion and that she was not to cry. He then, during this period, forced her against her will to have sexual intercourse with him on three occasions. She testified for the full day having completed her examination-in-chief by 4:30 pm.[12] 8.Y was due to continue with her evidence at 10 am the next day, on Friday, 20 July 2018, when defence counsel requested some time to take instructions from the appellant, which the judge allowed. Having taken instructions from the appellant, defence counsel requested that the appellant be re-arraigned. In the presence of the jury, the counts on the indictment were read out to the appellant and he formally entered pleas of guilty to Counts 1 to 7, and not guilty to Count 8, which was left on the court file and marked not to be proceeded with without leave of the court. Evidently, there was a plea bargain resulting in the acceptance by the prosecution of guilty pleas to Counts 1 to 7, on the basis that Count 8 was not proceeded with. The case was adjourned to Tuesday, 24 July 2018, in order for the prosecution to prepare a Summary of Facts.[13] The reversal of the guilty pleas 9.At the adjourned hearing, defence counsel informed the judge that the appellant refused to admit any of the facts contained in the Summary of Facts, and that he wanted to change his pleas to not guilty.[14] 10.The judge pointed out that a Newton hearing could be held for her to determine whether the facts in issue were proved or not.[15] It was then that the judge mentioned that challenging the facts could have a bearing on the discount the appellant would receive for his guilty pleas. She also mentioned that as the appellant had pleaded guilty late in the proceedings, that is, after Y had commenced giving evidence, the discount he would receive for his guilty pleas would be less than 20%.[16] 11.The judge stood the case down to allow defence counsel to discuss the matter with the appellant. On his return, defence counsel made a formal application for the appellant to reverse his pleas. He said the basis of the application was that the appellant was confused at the time when he pleaded guilty; that the appellant did not appreciate that after pleading guilty he could not appeal his conviction; that the appellant felt he had no chance in the trial because of the court’s order for an up-to-date photograph of the injuries to Y’s thigh, which would depict “certain permanent disabilities”; and that he, defence counsel, had given the appellant erroneous advice that by pleading guilty he would still receive a 20% discount to his sentence.[17] 12.It is to be noted that the appellant had indicated he wished to reverse his pleas before the judge mentioned the percentage discount for his late pleas, although a formal application followed. 13.The appellant gave evidence in support of his application to reverse his pleas. He said before the trial had commenced, he was told by his counsel that he would receive a 25% discount to his sentence if he pleaded guilty, which would be reduced to 20% after the trial had begun. He said he had been misled by his counsel. He next said that he did not know that if he had pleaded guilty, he could not appeal against his conviction. It would seem that the appellant would have known the consequences of pleading guilty, given his familiarity of the criminal justice system by his long list of prior criminal offences from 2008 to 2018.[18] They were the only two grounds that the appellant raised in support of his application to reverse his guilty pleas.[19] 14.The judge in a detailed ruling rejected the application by the appellant to reverse his guilty pleas to Counts 1 to 7. She ruled that his pleas were unequivocal, and the two reasons advanced by him to reverse his pleas were, in her view, untenable.[20] 15.As the appellant was in the charge of the jury, the judge reminded them of what had taken place. She mentioned to the jury that the prosecution, in opening its case, had read out certain admitted facts and produced exhibits to them. She then briefly summarised the evidence of Y that they had heard. She noted that the appellant had changed his plea and pleaded guilty to Counts 1 to 7 before them. She then directed them that as a result of the appellant having pleaded guilty to the seven counts that they should return a verdict of guilty to those counts, which they duly did.[21] The factual basis of the guilty pleas 16.After the judge had given her ruling, rejecting the application to reverse the guilty pleas, the appellant refused to agree any of the prosecution facts, notwithstanding that a set of Admitted Facts had been agreed and read out in open court before the jury, and that the judge had offered to conduct a Newton hearing on any factual matters he wished to dispute. 17.Prosecuting counsel then submitted to the judge a Summary of Facts which he noted contained matters that were also mentioned in the Admitted Facts.[22] The Admitted Facts were extensive and addressed the incidents in relation to both X and Y. In respect of X, the photographs of her injuries were produced as well as the report of the forensic pathologist who had examined her. Also produced was CCTV footage, depicting X entering and leaving the building where the appellant resided at the relevant time. It was an admitted fact that the appellant’s DNA was present in vaginal swabs taken from X. In respect of Y, the photographs of her injuries were produced as well as a forensic pathologist’s report of the injuries that she sustained. Also produced was CCTV footage at the building where the appellant resided and at a restaurant, depicting the appellant together with Y at the relevant times. It was an admitted fact that police seized from the appellant’s residence on 11 December 2016, a variety of sex toys and packets of condoms; and on 18 December 2016, white plastic cable ties, adhesive tape, scissors, a long fruit knife and other items.[23] 18.The judge explained to the appellant that she would treat the Summary of Facts as the case against him.[24] After the facts were read into the record, the judge gave the appellant yet a further opportunity to challenge any of the facts but he refused.[25] 19.The judge in her reasons for sentence explained that for the purpose of sentencing, she would take into account the facts that she had set out in relation to X and Y,[26] as well as the impact reports on each of the victims.[27] The sentencing of the appellant 20.In sentencing the appellant, the judge noted that besides his guilty pleas, there was no other meaningful mitigation advanced on his behalf. As a result of the circumstances and lateness of his pleas, the judge gave the appellant a 10% discount on his sentences.[28] 21.In respect of the offences involving X, the judge adopted a starting point of 4 years’ imprisonment on Count 1, and 9 years’ imprisonment on Count 2. She stated:
22.Of Counts 1 and 2, the judge adopted an overall starting point of 9 years’ imprisonment, which she reduced for the appellant’s guilty pleas to 8 years’ imprisonment. 23.In respect of the offences involving Y, the judge adopted a starting point of 5 years’ imprisonment on Count 3, 2 years and 6 months’ imprisonment on Count 4, and 15 years’ imprisonment on each of Counts 5, 6 and 7. She stated:
24.Of Counts 3 to 7, the judge adopted an overall starting point of 15 years’ imprisonment, which she enhanced by 1 year to 16 years’ imprisonment because he was a repeat offender. She then reduced the sentence by 2 years to 14 years’ imprisonment for the appellant’s guilty pleas. 25.Taking into account the totality principle, the judge made 4 years’ imprisonment of the overall sentence on Counts 1 and 2 consecutive to the overall sentence of 14 years’ imprisonment on Counts 3 to 7, resulting in a total sentence of 18 years’ imprisonment.[31] Reversing a guilty plea 26.The underlying principles applicable to an application to reverse a guilty plea were expounded by the Court of Final Appeal in HKSAR v Shum Wan Foon.[32] A fundamental requirement is that a plea of guilty should be entered voluntarily, and hence a court will only accept an unequivocal plea of guilty. It follows, if circumstances arise where a guilty plea is made under duress, inducement or misrepresentation it will be treated as a nullity. Even after a plea of guilty has been entered, a court has a discretion to allow a defendant to change his plea to one of not guilty at any time prior to passing sentence. 27.The duty of a judicial officer when faced with an application to reverse a guilty plea was discussed by Fok PJ in Shum Wan Foon. He said that where a defendant applies to change his plea from guilty to not guilty, it is incumbent on a judicial officer to make sufficient inquiries to ascertain the basis of the defendant’s wish to reverse his plea and to decide if that basis is sound in fact and in law.[33] He explained that what will amount to sufficient inquiries will depend on the circumstances of the case and the basis on which it is alleged the defendant should be permitted to reverse his plea.[34] He concluded on a cautionary note that the discretion to permit a defendant to reverse his plea should not be exercised lightly and judicial officers should be wary of applications to reverse pleas which are merely being used as a delaying tactic. He cited with approval Lord Upjohn’s remarks in S (An Infant) v Recorder of Manchester[35] that this discretionary power is one which should only be exercised in clear cases and very sparingly.[36] 28.On a further occasion, the Court of Final Appeal in HKSAR v Chan Chi Ho Lincoln,[37] discussed the key considerations that apply when dealing with an application to reverse a guilty plea. Cheung PJ (as the Chief Justice then was), with whom the other judges agreed, highlighted the following principles. First, there was a crucial distinction between an equivocal plea and an unequivocal plea of guilty, because only an unequivocal plea could be accepted by the court, whereas it could not accept an equivocal plea as it had no discretion in the matter. This was so because an equivocal plea did not possess the necessary quality in terms of an admission of guilt that would entitle the court to make a finding of guilt and dispense with a trial to prove the offence charged by evidence. Accordingly, an equivocal plea, or a conviction resulting from the erroneous acceptance of an equivocal plea, would be a nullity and must be set aside.[38] Secondly, a plea was equivocal if a defendant added to his plea of guilty a qualification which, if true, might show that he was not guilty of the offence charged. Whether a plea was equivocal was to be determined at the time it was made, and if it was so determined, the court could not, and should not, accept it. However, if a defendant only made such a qualification after conviction, that did not turn the unequivocal plea into an equivocal one.[39] Thirdly, a conviction was not complete, and the court did not become functus, until sentence was passed. Where it emerged after conviction but before sentence that there were matters which might show that the defendant was not guilty, the court had a discretion to allow a change of plea and should, whether on application or on its own initiative, consider exercising it.[40] Fourthly, the discretion to allow the reversal of an unequivocal plea after conviction but before sentence was an unfettered one, which should be exercised in clear cases and very sparingly. However, the overriding consideration in the exercise of the discretion must be the interests of justice.[41] 29.Cheung PJ also pointed out that the thresholds for deciding whether a plea was equivocal and for invoking the court’s discretion to allow the change of an unequivocal plea were different. He noted that for a plea to be equivocal, there must be a qualification which, if true, might show that the defendant was not guilty of the offence. While in seeking to invoke the court’s discretion to allow the change of an unequivocal plea, the circumstances would not be limited to those involving such a qualification.[42] 30.The circumstances in which an unequivocal plea of guilty may be rendered a nullity were addressed by the Court of Appeal in HKSAR v Wong Chi Yuk.[43] The Court identified the following circumstances:
31.In summary, in exercising the court’s discretion to allow a reversal of a guilty plea, the overriding consideration is the interests of justice. It is therefore incumbent on the court to make sufficient inquiries to determine whether the vitiating factor alleged by the defendant exists, the nature and extent of which will depend upon the particular facts and circumstances of the case. 32.As to the evidential foundation on which a defendant is convicted following a plea of guilty, the authorities are not entirely consistent. In HKSAR v Chan Wing Hong,[45] the Court of Appeal made some general statements about the practice in Hong Kong when a defendant enters a plea of guilty. The complaint in that case was that the judge erred in refusing the applicant’s withdrawal of his guilty plea. The applicant faced one count of assault with intent to rob and one count of wounding with intent. After a voir dire, a plea bargain was struck where the applicant entered a plea of guilty to the first count on the basis that the second count was not proceeded with. The proceedings were adjourned to enable the preparation of a Summary of Facts. However, at the resumed hearing the applicant discharged his counsel and applied for a reversal of plea on the ground that he had not pleaded guilty as an exercise of free will. After the judge had disallowed the application, the applicant refused to admit the Summary of Facts and accordingly, the prosecution called and tendered evidence in order to address the matter. It was after hearing the evidence that the judge formally convicted the applicant of the first count. The Court was of the view that the applicant’s plea of guilty was equivocal and vague, and the decision to convict was not made in accordance with “due process of law”. The conviction was quashed and a retrial was ordered. 33.It would seem that the Court in Chan Wing Hong was dealing with the particular circumstances in that case where evidence had been presented by the prosecution after a plea of guilty, denying the applicant “due process of law.”[46] The Court said:
34.The Court discussed the usual practice employed when taking a plea of guilty, emphasising that a court should make sure that the elements of the offence have been established before convicting a defendant upon his plea of guilty. There was no discussion as to the significance of a plea of guilty with respect to conviction, nor was there any reference to relevant authority on this point. If the Court’s comments are to be taken that a court cannot convict a defendant on a plea of guilty alone, then we consider they have been made per incuriam. The Court based its decision on the applicant having been denied “due process of law” by the prosecution presenting evidence after his plea of guilty, which it considered was “equivocal and vague”, and the judge wrongly relying on this evidence to convict him of the offence. 35.It has been said that a plea of guilty is a formal admission by the defendant of all the elements of the offence charged. Indeed, there would be cases where the statement and particulars of the offence on which a defendant has pleaded guilty provide sufficient details to establish the elements of the offence for conviction. The critical requirement is that there is sufficient evidence before the court to establish the elements of the offence. This may be satisfied by the guilty plea itself or by the guilty plea together with evidence that has either been agreed or adduced. 36.This was alluded to in HKSAR v Agara Isaiah Bishop,[47] where the applicant complained that the trial judge erred in not allowing him to reverse his plea of guilty to the offence of trafficking in a dangerous drug. McWalters JA, in giving the judgment of the Court of Appeal, examined the circumstances in which the applicant entered his plea of guilty and found that there was nothing to suggest it may have been equivocal. One of the matters he examined was the absence in the Summary of Facts of a statement that the applicant had knowledge of the dangerous drug. He held that the applicant was well aware that pleading guilty would require him to acknowledge that he knew he was in possession of a dangerous drug and that by his plea, he was making such an admission. He also noted that there was nothing in the Summary of Facts inconsistent with the elements of the offence of trafficking in a dangerous drug, and that the absence in it of an assertion that the applicant had knowledge of the drugs was irrelevant. He went on to explain:
37.It is also apparent from Chan Chi Ho Lincoln that a court can make a finding of guilt based on a guilty plea alone. Cheung PJ noted that a guilty plea was an answer of admission of guilt by a defendant given in reply to the court’s demand to plead. In turn the court may, based on the guilty plea, and very often together with the defendant’s agreement with the brief facts, make a finding of guilt and enter a conviction against the defendant of the offence charged, without requiring proof of the offence by evidence at trial.[49] He further noted that an equivocal plea was a guilty plea accompanied by a qualification which rendered it ambiguous and unless clarified, “does not possess the necessary quality in terms of an admission of guilt that would entitle a court to make a finding of guilt and dispense with the trial to prove the offence charged by evidence.” He said it was for this reason that such a plea could not be accepted and form the basis of a conviction.[50] 38.Of particular relevance in this appeal are Cheung PJ’s comments as to the nature of an unequivocal plea, where he said:
39.Similar remarks were made by Lord Hughes, giving the judgment of the English Court of Appeal in R v Asiedu,[51] that a defendant who pleads guilty is making a formal admission in open court that he is guilty of the offence, although he may, by a written basis of plea, limit his admissions to only some of the facts alleged by the prosecution, so long as he is admitting facts which constitute the offence.[52] He characterised an unequivocal plea of guilty as a voluntary confession of guilt by a defendant in open court .[53] He stressed it was therefore of cardinal importance that a defendant makes up his own mind whether to confess by way of plea of guilty or not, which clearly was a decision for him because only he knows the true facts.[54] Once an unequivocal plea of guilty has been entered by a defendant, it is, as described by Cheung PJ in Chan Chi Ho Lincoln, “a historical fact”[55] that does not lose its evidential quality or probative force unless it is successfully reversed or overturned. In this regard, the significance of an unequivocal plea of guilty cannot be underestimated. 40.From the review of the authorities, the entering of a guilty plea is an important step in the criminal trial process and is not a matter that is taken lightly. Only a defendant knows the true facts and whether he or she is guilty of the offence charged. It is for this reason that an unequivocal and undisturbed guilty plea is a material fact that has substantial evidential force to the validity of the conviction. The appeal on Counts 1 and 2 41.Mr Yu argued that the appellant’s convictions on Counts 1 and 2 should not stand for two reasons. First, the judge’s direction to the jury to return a verdict of guilty on an admission of guilt was a material misdirection in law. Secondly, the conviction following the jury’s verdict of guilty in the absence of underlying material facts rendered it unsafe. 42.In the present case, after the appellant had pleaded guilty to Counts 1 to 7 and unsuccessfully sought to reverse his pleas, the judge directed the jury to return a verdict of guilty on those counts. At that stage, the evidence before the court consisted of the Admitted Facts and the evidence of Y, having completed her examination-in-chief. 43.Mr Yu took issue with the way the judge dealt with the change of plea by the appellant before the jury. He contended that the normal practice was for the verdict to be taken from the jury as the defendant was in their charge. This would require the judge to explain what had happened and tell the jury that what they had listened to may seem to them to be the strongest possible evidence of guilt, inviting them to return a verdict. He noted that an alternative approach would be for the judge to exercise his discretion to discharge the jury and have the defendant re-arraigned and to convict him on his own plea. He submitted that a conviction would be unsafe if the judge took the verdict away from the jury by directing them to return a verdict of guilty without letting them consider the matter.[56] 44.Mr Yu accepted that a judge was entitled to direct the jury to convict but only if there was “something in the nature of a formal admission of guilt”.[57] As to this requirement, he argued that a plea of guilty without an evidential foundation supporting all essential ingredients of the offence charged did not constitute a formal admission of guilt. He submitted that facts must either be proved and accepted, or found by the jury, before the jury may consider returning a verdict of guilty, or the judge may direct the jury to return such a verdict.[58] 45.According to Mr Yu, the evidence in relation to Counts 1 and 2 did not support all essential ingredients, which only consisted of the Admitted Facts. This was compounded by the judge treating certain information and material as evidence when it was not correct to do so. 46.Whilst accepting the pleas of guilty to Counts 1 and 2 were unequivocal, Mr Yu coagulated his argument by questioning whether the convictions on these counts were safe if there was a lack of sufficient evidential foundation before the jury, whether admitted by the appellant or adduced at trial.[59] Directing a verdict of guilty 47.The case often referred to in the authorities when addressing the issue as to whether, and in what circumstances is a judge entitled to direct a jury to return a verdict of guilty is the House of Lords decision of DPP v Stonehouse.[60] The appellant in that case was charged with attempting to obtain property by deception, having fabricated the appearance of his death by drowning abroad in order for his wife to claim on his life insurance in England. At his trial, the judge in directing the jury, told them that the conduct of the defendant constituted an attempt in the jurisdiction. The majority (Lord Salmon, Lord Edmund-Davies and Lord Keith of Kinkel) held that the judge should have left it to the jury to decide whether or not the evidence established the attempt charged and should not have directed them that it did, even though the conduct in law would constitute an attempt. 48.Lord Salmon in his speech highlighted the critical importance of the defendant being in the charge of the jury, and that it was for the jury to determine on the evidence before them the verdict that they should return. He said:
49.In similar terms, Lord Keith of Kinkel said:
50.As no miscarriage of justice resulted, the proviso was applied and the appeal was dismissed. For his part, Lord Salmon considered that the judge’s technical slip made no difference to the result of the trial. He reasoned that, “[t]here was no possibility that any reasonable jury could have had the slightest doubt that the facts proved did establish the attempt charged and accordingly would certainly have brought in a verdict of guilty.”[63] 51.Soon after Stonehouse, the English Court of Appeal in R v Gent,[64] also addressed the issue, in similar circumstances, where the trial judge had summed up to the jury with the direction to convict based upon the appellant’s evidence which he said amounted to an admission that he had agreed with a co-conspirator to supply amphetamines to another. Lloyd LJ, giving the judgment of the court, said:
52.Although Lloyd LJ left open the possibility that there was a category of cases where a judge could direct a jury to return a verdict of guilty against a defendant in their charge, he did not explain in what circumstances such a case would arise. 53.The issue came again before the English Court of Appeal in R v Kelleher.[66] Mantell LJ, giving the judgment of the Court, stated that so long as a defendant remains in the charge of the jury he can only be acquitted or convicted by the verdict of the jury. He went on to explain that a defendant, having pleaded not guilty, may change his plea to guilty, and in that event he should be re-arraigned in the presence of the jury. After which the jury may be invited to return a verdict, or alternatively discharged, allowing the defendant to be re-arraigned and to convict on his own plea. He pointed out that the latter approach left open the possibility of abuse by a manipulative defendant. He said that it was not the usual practice, and queried whether it could ever be the correct practice, for the judge to direct a verdict of guilty. He said the judge “will usually invite someone to act as a foreman, explain what has happened, say that what they had listened to may seem to them to be the strongest possible evidence of guilt, invite consultation without retirement and then to take a verdict which invariably will be one of guilty.”[67] 54.Mantell LJ referred to the majority decision in Stonehouse, quoting the comments of Lord Salmon, and the judgment of Lloyd LJ in Gent. He stated that where a defendant changes his plea to guilty, the usual practice is for the defendant to be re-arraigned before the jury with a verdict taken from them as the defendant is in their charge. 55.In R v Wang,[68] the Appellate Committee of the House of Lords was asked to answer in what circumstances, if any, was a judge entitled to direct a jury to return a verdict of guilty. The factual context in which this question was addressed is of particular relevance in understanding the answer that was given. The case concerned an appellant who was charged with the two counts of having an article with a blade or point in a public place, namely a sword and a knife. He testified that he was a Buddhist and practised Shaolin, a traditional martial art. He claimed he had the articles with him because he did not like to leave them at his home and that he liked to stop at remote and uninhibited places to practise Shaolin. After the conclusion of the defence case, the trial judge was of the view that there was no defence to the counts. He directed the jury to return verdicts of guilty, which they did. 56.Lord Bingham of Cornhill, giving the opinion of the Appellate Committee, referred extensively to the majority opinions in Stonehouse, noting that they had been followed in Gent and Kelleher, amongst other cases. He held that the decision of all factual questions, including the application of the law as expounded by the trial judge to the facts as they found them to be, was a matter for the jury alone and it was for them to decide whether the appellant was guilty or not guilty. He further held that there were no circumstances in which a judge was entitled to direct the jury to return a verdict of guilty, adding that the nuances of the appellant’s evidence were pre-eminently matters for evaluation by the jury that could, and should, have been the subject of their consideration. 57.It is apparent that the Appellate Committee was not addressing the question in the context of where a defendant makes a formal admission of guilt or enters a plea of guilty. This is of particular significance in understanding the statement of principle in that case when addressing the issue engaged in this appeal. 58.The Hong Kong Court of Appeal has also addressed this issue in HKSAR v Lui Tsi Fai.[69] In that case, the appellant was charged with murder. He admitted responsibility for the killing but advanced the defence of manslaughter at trial. At no stage during the trial did he suggest that there should be a complete acquittal. The judge directed the jury that there were only two options open to them: to convict for manslaughter or murder. After an extensive review of the authorities in England and Australia, the Court was of the opinion that juries should not be directed to convict in the absence of a formal admission of guilt,[70] applying the comments in Gent, that if there is a category of case in which the judge is entitled to direct the jury to convict, “it must be confined to wholly exceptional cases where, for example, there has been something in the nature of a formal admission of guilt.” The Court went on to discuss what might satisfactorily constitute a formal admission, and mentioned that apart from a plea of guilty, Yager v R[71]was one such illustration.[72] 59.In Yager, the applicant had been convicted of importing a quantity of cannabis. She admitted that the material in her possession was “plant material of the genus cannabis”, but did not admit that it was “cannabis sativa”. The trial judge ruled that he would direct the jury as a matter of law that the phrase “plant of the genus cannabis sativa” in the legislation embraced all plants of the genus cannabis. The majority, having held that the use of the term “genus cannabis sativa” intended the relevant section to cover all plants of the genus cannabis,[73] also held that in the circumstances of the case, given the formal nature of the admissions, the judge was entitled to direct the jury to return a verdict of guilty.[74] When addressing the judge’s direction to the jury to convict, Mason J (as he then was) said:
60.The Court in Lui Tsi Fai held there had been a material misdirection by the judge in not leaving to the jury the option to acquit the appellant. In its review of the authorities, the Court said that if there was a category of case in which a judge was entitled to make a direction to convict, it had to be confined to wholly exceptional cases where there was something in the nature of a formal admission of guilt.[76] The Court noted in that case no formal admission of guilt had been made, only an evidential admission.[77] The Court, however, applied the proviso, concluding that the misdirection did not have any impact on the jury’s findings as to the verdict of guilty on the count of murder, meaning that a full acquittal could never have been an option even if properly directed.[78] 61.The appellant sought to challenge on appeal to the Court of Final Appeal the application of the proviso. Bokhary PJ (as he then was), giving the determination of the Appeal Committee,[79] rejected the argument that it was unconstitutional to apply the proviso where the trial judge misdirected the jury that they must return a guilty verdict. His judgment was cited with approval by the Court of Final Appeal in Leung Fei Wah,[80] which also discussed and applied the judgment of the Court of Appeal in Lui Tsi Fai. 62.In Leung Fei Wah v HKSAR,[81] it was accepted before the Court of Final Appeal that the trial judge had misdirected the jury by telling them to convict on an indecent assault count if they found the appellant guilty on a related robbery count. The Court referred to Lui Tsi Fai and Wang, and to Stonehouse, which it noted was the primary authority and applied in the two previous cases. The Court left unanswered whether or not under Hong Kong law there was a category of rare cases where the judge is justified in directing a guilty verdict, having noted the Court of Appeal in Lui Tsi Fai applied the approach in the decision of the English Court of Appeal in Gent and referred to the conclusion of Mason J in Yager that the formal admission at trial entitled the trial judge to direct a verdict of guilty. Notwithstanding the judge’s direction to the jury, the Court applied the proviso, satisfied that a reasonable jury would inevitably have found the appellant guilty of indecent assault. 63.A case of some significance in this review of the law on directing a verdict of guilty is the decision of the English Court of Appeal in R v Poole.[82] The appellant in that case had pleaded guilty during the trial to a count upon which the jury had been in charge since the start of the trial. The judge discharged the jury and accepted the guilty plea as if it had been taken before a jury was sworn. The issue before the Court was whether, where a defendant tendered a guilty plea on re-arraignment while in the charge of the jury, the jury’s verdict had to be taken. The Court held that there was no possible unfairness or disadvantage to a defendant, who elected to change his plea after the start of the trial, if his plea was treated in precisely the same way as it would have been if it had been tendered before the jury was sworn. It involved a personal statement made publicly by the defendant that he was guilty of the crime alleged in the indictment. The protection to which he was entitled was the absolute freedom to enter whatever plea he wished.[83] The requirement that the jury should enter the verdict after a change of plea was little more than a formality and should not act as a limitation on the trial judge’s discretion to discharge the jury from giving the verdict, when, in his judgment, it was right to do so.[84] The Court could not perceive the slightest disadvantage to the defendant, if, following a change of plea, the judge discharged the jury, and then approached the issue by accepting the plea as if it had been taken before a jury was sworn.[85] By parity of reasoning, a judge’s direction to a jury to return a verdict of guilty in the face of a plea of guilty by a defendant before them would not cause any unfairness or disadvantage to the defendant. The material misdirection 64.It follows that Mr Yu’s argument that an admission of guilt in the form of a plea of guilty, as we have in the present case, absent any admission of facts or sufficient evidence adduced with respect to Counts 1 and 2, did not constitute a formal admission of guilt, and cannot be accepted. A plea of guilty is clearly a formal admission of guilt. It is a confession by a defendant in open court that he has committed the offence charged and a declaration by him that he is guilty of it. 65.In our view, there is not much of a difference in substance, between directing a jury to return a verdict of guilty, and telling them that they may consider the appellant’s pleas the strongest possible evidence of guilt, and together with the other evidence adduced, return a verdict. In such circumstances, it would be perverse for a jury not to return a verdict of guilty. In our judgment, a defendant who enters a plea of guilty falls within the “category of rare cases” where the judge is justified in directing a verdict of guilty. Accordingly, there was no misdirection by the judge and this ground failed. 66.In the course of argument, Mr Yu accepted that if it was decided the judge misdirected the jury, this was an appropriate case for consideration of the proviso. To quote Mason J in Yager, it would be “an exercise in fantasy” to suggest the jury in this case might not have acted on the appellant’s pleas of guilty.[86] In our view, there was no possibility that a reasonable jury would not have returned a verdict of guilty on the appellant’s pleas that he was guilty. The evidential foundation for the convictions 67.On the issue of whether the convictions on Counts 1 and 2 were supported by a sufficient evidential foundation, Mr Yu referred to Chan Wing Hong[87]for the proposition that a trial judge cannot rely on the guilty plea of the defendant per se to convict him. He submitted that a trial judge has a positive duty to ensure that, before he can properly direct a jury to return a verdict of guilty, the jury have before them a sufficient evidential foundation containing all essential ingredients of the offence charged. 68.As part of his argument, Mr Yu contended that the term “conviction” is used in two senses. In one sense, it can refer to the judicial determination of the whole matter involving a verdict of guilty in a trial on indictment or the acceptance of a guilty plea in summary proceedings, and the passing of a sentence. In another, it can refer to a verdict of guilty or acceptance of a plea of guilty before the adjudication followed by sentence. This, he said, was confirmed in Chan Chi Ho Lincoln,[88] in which the Court of Final Appeal, when examining the court’s jurisdiction in respect of a change of plea, held that a “conviction” is not complete until sentence is passed. He submitted that in either sense of the term a sufficient evidential foundation must be laid. 69.Relying on Wong Chi Yuk [89], Mr Yu argued thatif the facts admitted by a defendant do not amount to the offence which the appellant is charged with, then the guilty plea would be rendered a nullity. 70.The underlying proposition to his argument is that a defendant who pleads guilty is making a formal admission in open court that he is guilty of the offence, so long as he is admitting facts which constitute the offence. He submitted that a conviction must therefore comprise two key components: (i) an admission of guilt, and (ii) an evidential foundation, which supports all essential ingredients of the offence, in order to convict the defendant. 71.In the present case, Mr Yu argued that there was a lack of sufficient evidential foundation before the jury when the judge directed them to return a verdict of guilty on Counts 1 and 2. He pointed out that the judge only relied upon the Summary of Facts which were neither received by the jury, nor admitted by the appellant. The Summary of Facts were therefore not facts which a court could act on unless they were admitted by the defendant. He submitted that a Summary of Facts was simply a hearsay document which may take the place of a prosecutor’s opening or may, in the event of a guilty plea, form the basis of agreed facts for sentencing. [90] 72.Mr Yu further argued that the judge erred in relying on the prosecution’s opening, the appellant’s guilty pleas simpliciter and the depositions of witnesses. He noted that the opening speech was not evidence and it was only a brief outline of the case against a defendant, summarising the evidence that the prosecution intends to call to prove its case. He next noted that depending upon the particulars of the offence, a plea of guilty may not suffice, as it did not in this instance, to properly convict the appellant. As for the depositions relied upon by the judge, they were part of the prosecution opening and therefore did not have the proper evidential quality required to support the conviction. In particular, the deposition of X was not properly before the court. He finally noted that the other evidence before the court in the form of Admitted Facts and exhibits produced thereto were insufficient to provide the evidential foundation to prove the elements of the offence to convict the appellant of Counts 1 and 2. He pointed out that this was to be contrasted with Counts 3 to 7, which concerned Y, who had testified, and as a consequence there was a sufficient evidential foundation to convict the appellant on those counts.[91] 73.On the basis of his submissions, Mr Yu contended that the absence of a sufficient evidential foundation gave rise to a material misdirection of law which rendered the conviction unsafe. 74.Mr Ira Lui, for the respondent, conceded that it would be unsafe to allow the convictions on Counts 1 and 2 to stand because of an insufficient or inadequate factual basis on which to convict the appellant. He also distinguished the convictions on Counts 1 and 2 from those on Counts 3 to 7. He pointed out that there was evidence before the court on Counts 3 to 7, consisting of the Admitted Facts and the testimony of Y, on which to convict the appellant for those counts. He submitted that, at the very least, a plea of guilty will constitute an admission of all essential elements of the offence charged. However, as to any other factual matters, they must be proven by evidence or admission. He accepted, rightly in our view, that although the judge was entitled to act upon the Admitted Facts in respect of Counts 1 and 2, she was not justified in relying upon the opening address of prosecuting counsel, which was based on the depositions of X and not admitted to by the appellant. 75.Whilst the appellant admitted the “essential elements” of the offences expressly pleaded in Counts 1 and 2, Mr Lui conceded that there was no admissible evidence or admission before the judge as to certain fundamental and important aspects of those counts that went to the physical and mental elements of the offences. These included how the indecent assault was committed against X; how the rape under Count 2 on X was committed; how physical injuries sustained by X were caused; and the appellant’s mental element in raping X, whether it was committed knowingly or recklessly. He added that the judge should have resolved the factual disputes by way of a hearing before she finally convicted and sentenced the appellant on Counts 1 and 2. He submitted that these outstanding significant factual issues would need to be resolved by a court of trial, which can receive oral testimony and rule on the admissibility of certain evidence. 76.Whilst a sufficient evidential foundation must exist when a conviction is finally recorded, Mr Lui argued that it does not necessarily have to exist when it is provisionally recorded. He submitted that the authorities imply that a jury is entitled to act upon a defendant’s plea of guilty whether or not evidence has been adduced. He cited Kelleher and Poole in which changes of plea were accepted, it appears without the need for any agreed Summary of Facts (or on any other evidential basis) as a prerequisite to a guilty plea. He submitted the comments in Chan Wing Hong were of little assistance as the plea in that case was not tendered before a jury.[92] 77.Mr Lui relied on the decision in Lui Tsi Fai.[93] It will be recalled in that case the Court of Appeal considered whether or not it was correct for a judge to direct a jury to convict in circumstances where there was no evidence to suggest the defendant, when he had killed the deceased, had done so other than unlawfully. There was nothing like a formal admission of guilt in the face of the jury, rather the judge was dealing with evidence and whether or not it was so overwhelming as to justify directing the jury to convict. The Court held that, as a matter of principle, juries should not be directed to convict in the absence of a formal admission of guilt. However, the Court made it clear that a plea of guilty to an alternative charge which the prosecution had declined to accept would still constitute a “formal admission of guilt”, despite there being an absence of admitted facts. 78.Mr Lui submitted that the only evidence before the court in respect of the counts relating to X were the Admitted Facts, which did not, even coupled with the appellant’s guilty pleas, provide a sufficient basis for a conviction on Counts 1 and 2. He contended that the unequivocal pleas entered by the appellant on those counts were nullities as they fell within the circumstances that the admitted facts were equivocal as to guilt.[94] Discussion 79.As gleaned from the review of the cases, if a defendant decides to plead guilty to a count on the indictment in respect of which the jury have been put in charge, the procedure to be followed is usually for the plea to be entered in the presence of the jury, and for the jury to be invited to return a verdict of guilty on the basis of the defendant’s confession in the form of his plea to the count on the indictment.[95] However, it would appear in principle a jury can be discharged without returning a guilty verdict upon the defendant’s plea.[96] 80.When addressing the issue as to whether a judge could direct a jury to convict, the Court of Appeal in Lui Tsi Fai held that where a plea of not guilty was made, such a direction should not be given regardless of the strength of the evidence against the defendant. If there was a category of cases in which a judge was entitled to make such a direction, it had to be confined to wholly exceptional cases where there was something “in the nature of a formal admission of guilt”. Even in cases where a plea of guilty was made, the court must make sure that the elements of the offence have been established before convicting him. 81.Both parties agreed there was no factual basis for a conviction on Counts 1 and 2. Mr Lui accepted there was no admissible evidence as to how the indecent assault was committed against X, as the mode of offending was not pleaded in Count 1. He also accepted that there was no factual basis to say how the rape in Count 2 was committed. 82.In light of this concession, we felt it was necessary to examine what was before the judge when she convicted the appellant of Counts 1 and 2, even though the parties did not address this issue in detail. We first turn to the statement and particulars of the offences of the two counts as contained in the indictment, which read:
83.We next turn to the relevant provisions of the two offences. The offence provision for indecent assault is section 122 of the Crimes Ordinance, Cap 200, which so far as material reads:
84.In order for the prosecution to prove this offence, it must establish:
85.The offence provision for rape is section 118 of the Crimes Ordinance, which so far as material reads:
86.Importantly, the offence provision for rape defines what constitutes a rape in subsection (3). It follows that where a defendant pleads guilty to the offence, he is admitting that he had unlawful sexual intercourse with the victim, who at the time did not consent to it, and that he knew that she did not consent to the intercourse or was reckless as to whether she consented to it. 87.We observe that when a defendant pleads guilty, he is admitting his guilt to the offence charged. This includes: (1) the statement of the offence, setting out the offence provision under statute or common law, which may provide further definition of the elements of the offence; and (2) the particulars of the offence, setting out the particulars of the elements of the offence, which may be described in some detail. As for (1), the offence provision of rape defines what constitutes a rape, so when a defendant pleads guilty to the offence, he is admitting that he has committed the rape as defined. As for (2), the particulars of the offence of indecent assault may include a description of how the assault was indecent. Whilst a plea of guilty will constitute an admission of all essential elements of the offence, it is not in itself an admission to any matters of aggravation or the specific mode of participation in the events of the offence, unless such matters are contained in the statement and particulars of offence. Any dispute as to matters beyond such essential elements admitted by the plea must be resolved by the application of ordinary legal principles appropriate in a criminal trial.[98] 88.In addition to the appellant’s guilty pleas to Counts 1 and 2, there was the conclusive evidence of the Admitted Facts pursuant to section 65C of the Criminal Procedure Ordinance, Cap 221.[99] The facts set out in respect of Counts 1 and 2, included: photographs of the injuries to X taken at 5:10 am on 11 December 2016; a description of recent injuries to X by a forensic pathologist, who examined her at 6.00 am on 11 December 2016; the finding of the appellant’s DNA in the vaginal swabs taken by the forensic pathologist from X; the finding of no external wounds on X’s neck and wrists, and no vaginal bleeding by a medical practitioner, who examined her at 7:24 am on 11 December 2016; sketches which depicted the layout of the appellant’s flat and bedroom; photographs of the appellant’s flat and bedroom; the seizure of items from the appellants room at 6:40 pm on 11 December 2016, including a variety of sex toys and items, condom packets and a 18 cm long silver metal bar; photographs of X’s clothing taken at 2.20 pm on 12 December 2016; and CCTV footage that captured X entering at 6:29 pm and leaving at 7:56 pm on 10 December 2016 the building of the appellants flat.[100] However, unlike the case in respect of Y, X had not given evidence and hence details about the indecent assault and rape were not before the court. 89.We were of the view that there was a sufficient evidential foundation to convict the appellant on Counts 1 and 2. Where we felt the judge erred was that she took into account information and material which was not evidence properly adduced before the court, consisting of the prosecuting counsel’s opening address and the Summary of Facts, both of which referred to matters from the depositions of X. She relied on this information and material to convict and sentence the appellant for the two counts.[101] It was on that basis that we concluded that the convictions on the two counts were unsafe. 90.When the reversal of plea was first raised the judge warned the appellant that if he was not going to admit the facts, she would treat the facts as those already outlined by the prosecution.[102] Although, she did remark that based on his guilty pleas, she would direct the jury to find him guilty without him admitting to the facts.[103] She then went on to acknowledge that she did not have any information in respect of X, except for the appellant admitting he had indecently assaulted and raped her. She mentioned the admitted fact that he had sex toys at his home, and that the basis of the indecent assault was that he had put a sex toy into her vagina against her will and forced her to have oral sex.[104] This information had come from prosecuting counsel’s opening address.[105] 91.After the judge ruled against the appellant’s application to reverse his guilty pleas, she indicated she would proceed to direct the jury to convict the appellant and that prosecuting counsel would read the Summary of Facts.[106] She informed the appellant that she would treat the Summary of Facts as the case against him, which she noted was basically what the prosecution had outlined to the jury, as well as incorporating aspects of Y’s evidence.[107] 92.When the jury returned, the judge drew their attention to prosecuting counsel’s outline of the case against the appellant, the admitted facts and the exhibits produced. She also gave a brief summary of Y’s evidence. She reminded the jury of the appellant’s guilty pleas and directed them to return a verdict of guilty on the seven counts, which they did.[108] The judge again gave the appellant an opportunity to challenge any content in the Summary of Facts, which he refused to do. She informed the appellant that she would treat the Summary of Facts as the case for sentence.[109] 93.The judge’s reliance on the Summary of Facts for the purpose of sentencing, was then mentioned in her reasons for sentence. She explained:
94.As stated by Dawson and McHugh JJ, in Maxwell v R,[111] the question of what amounts to a conviction admits of no single, comprehensive answer, and that the answer to the question depends on the context in which it is asked. They point out that a verdict of guilty by a jury or a plea of guilty upon arraignment has been said to amount to a conviction, but it has also been said that there can be no conviction until there is a judgment of the court, ordinarily in the form of sentence following upon the verdict or plea. 95.In this instance, the appellant was in the charge of the jury and entered pleas of guilty to Counts 1 to 7 before them. The pleas of guilty were unequivocal and an application to reverse the pleas was refused. The appellant indicated in the meantime he would refuse to admit facts in respect of the counts. On the basis of the appellant’s guilty pleas and the evidence that had been presented to the jury, namely the Admitted Facts and the evidence of Y, the judge directed that they return a verdict of guilty on the counts, which they did. There can be no complaint about the pleas of guilty and the judge’s direction to the jury to return verdicts of guilty. 96.At that stage of the proceedings, evidence had not been given by X in respect of Counts 1 and 2. A Summary of Facts had been presented to the appellant which he refused to admit or to indicate the parts with which he disagreed. The judge treated the Summary of Facts as the case against the appellant in respect of Counts 1 and 2, which set out factual matters that were derived from the depositions of X. As stated by Cheung PJ in Chan Chi Ho Lincoln, a conviction is not complete until sentence is passed. The judge convicted and then sentenced the appellant in respect of Counts 1 and 2, relying on those factual matters. The judge erred in taking into account factual matters that had not been adduced or admitted in convicting the appellant of Counts 1 and 2 and therefore the convictions were unsafe and unsatisfactory. What the judge should have done was to conduct a Newton hearing as she had earlier suggested. A Newton hearing takes the form of a trial without a jury, with the judge as the finder of fact. The judge will hear evidence and make a determination to the criminal standard of beyond reasonable doubt as to the factual basis for sentence.[112] The order of retrial on Counts 1 and 2 97.Mr Lui contended that there were a number of challenges faced by this Court in resolving the factual shortcomings in respect of Counts 1 and 2. He submitted that to do so would require evidence from X and the appellant, as well as requiring the prosecution to produce the first video recorded interview of the appellant, the voluntariness of which was disputed at trial. He submitted therefore that the most appropriate course was for there to be a retrial on Counts 1 and 2. Mr Yu had nothing to say on the issue of retrial, although he suggested it should be conducted before another judge because the judge had accessed information and material which she should not have considered when convicting and sentencing the appellant. 98.We found: (1) that the appellants pleas of guilty to Counts 1 and 2 were unequivocal and there was nothing to suggest that they should be overturned; (2) that there was a sufficient evidential basis for the pleas of guilty on Counts 1 and 2; and (3) that the judge was entitled to direct the jury to return a verdict of guilty on Counts 1 and 2. However, we considered that the judge erred in treating the prosecution opening and the Summary of Facts as the case against the appellant in respect of Counts 1 and 2. In the unusual and particular circumstances of the case, the conviction and sentence on Counts 1 and 2 were in our view, tainted by the judge’s reliance on the prosecution opening and the Summary of Facts. 99.We therefore considered that the judge miscarried and we quashed the convictions on those counts, which included the sentencing of the appellant. We ordered a retrial in light of the submissions, but we stress that the appellant’s guilty pleas on those counts were properly and validly entered and remain “a historical fact” that can be relied upon by the prosecution in future proceedings. The events that followed the pleas of guilty are matters that may be taken into account when sentencing the appellant upon his conviction of those counts, if and when that takes place. The renewed application on Counts 3 to 7 100.At the hearing, the appellant had nothing to say in respect of his renewal application on Counts 3 to 7. He had filed a written submission in which he advocated that it was legitimate for him to reverse his guilty pleas and that the judge should have recused herself and discharged the jury. He argued that it was unfair and wrong for the judge to convict him of the counts in the absence of a Summary of Facts. He also argued that if the convictions on Counts 1 and 2 were wrong then so were the convictions on Counts 3 to 7. Overall, he complained that the proceedings were unfair when he applied to reverse his pleas of guilty and when the judge convicted him on Counts 3 to 7. 101.In our view, the judge correctly ruled that the appellant’s pleas of guilty were unequivocal. She properly conducted an inquiry into the matter, during which she received evidence from the appellant. She was clearly guided by the relevant legal principles as stated by the authorities. 102.Whether a plea is equivocal is to be determined at the time it is made. In the present case, the appellant entered his guilty pleas on Counts 1 to 7 before the jury on Friday, 20 July 2018. He did so as a result of a plea bargain with the prosecution that it not proceed with Count 8. There was no reluctance, nor qualification by him when he pleaded guilty to the counts. The appellant’s subsequent assertions on Tuesday, 24 July 2018, through his counsel and in his evidence, that his pleas of guilty were equivocal were without merit. 103.In supporting his application for a reversal of plea, the appellant testified that there were two reasons why his guilty pleas should be reversed. First, he claimed he had been misled by his counsel as to the sentencing discount he might receive if he pleaded guilty after commencement of the trial. He was told by his counsel that in such circumstances he would receive a discount of 20% to his sentence. He testified:
In the end, the judge gave him a discount of 10% but that was within her discretion, taking into account the particular circumstances that arose when he pleaded guilty to the counts. 104.Secondly, the appellant asserted he did not know that on pleading guilty, he could not appeal his convictions. When asked by the judge if there were any other grounds for the reversal, he said there was nothing else. 105.In respect to the first reason, counsel for the appellant admitted that he had rendered erroneous advice to the appellant about sentence. It raised the question whether the erroneous advice came within the circumstance where the plea had been induced by fraud or made under a fundamental mistake. It is well recognised that not every legal error or mistake would render an unequivocal guilty plea a nullity. In particular, it has been held that where wrong legal advice goes only to the sentence and ancillary matters, like confiscation, the guilty plea is not rendered a nullity. In R v Saik,[114] the appellant complained that he pleaded guilty because he was given erroneous advice in respect of the length of sentence he was likely to receive and the security of his matrimonial home in confiscation proceedings. In addressing this issue, the English Court of Appeal set out the following relevant statements of principle:
106.In the present case, it is difficult to fathom how the erroneous advice as to the percentage discount upon a plea of guilty went to the heart of the appellant’s decision to plead guilty. He knew the true facts and whether or not he was guilty of the offences. It appears he discussed with his counsel the percentage discount he would receive upon a plea of guilty at different stages of the proceedings but this would not be a matter that went to his decision to admit guilt to these offences. 107.Nothing in the appellant’s version as to the advice from counsel about sentence would suggest that there was any element of pressure or influence on his decision to plead guilty, nor could it have induced a person who genuinely believed that he was not guilty of the offences to plead guilty. This was clearly not a sufficient factor to vitiate the intent of the appellant in tendering his guilty pleas. 108.The second reason that the appellant did not know that he could not appeal his conviction upon pleading guilty, was also without merit. First, it would not have gone to the heart of his decision to plead guilty. Secondly, he would have appreciated the consequences of a guilty plea in light of his previous brushes with the law. Thirdly, as a matter of law a defendant can appeal a conviction as he had sought to do in this application. 109.After giving an overview of events leading to the application for a reversal of plea, the judge discussed the basis of the application and the evidence in support of it. Of the first reason that counsel had given the wrong advice in respect of the percentage discount to the sentence, she said “that whatever percentage a court deems fit to give to a defendant who had pleaded guilty is always a question of discretion. No one can promise a defendant the exact percentage. In any event, in my view, a misunderstanding as to the percentage to be given for a guilty plea does not make a defendant’s plea of guilty equivocal.” Of the second reason that the appellant mistakenly thought that after he had pleaded guilty, he could still appeal against conviction, she said that such a mistaken thought was not logical and did not make the plea entered by the appellant an equivocal one.[115] 110.The judge carefully applied the relevant principles to the facts and circumstances of the case and concluded that the appellant’s pleas of guilty were unequivocal. We can find no fault in the judge’s reasoning for her ruling. 111.In our view, the judge properly dealt with the application by the appellant to reverse his pleas. She heard evidence and received submissions on the application, after which she found that by his pleas, the appellant was freely confessing his guilt to the counts. She also found, correctly in our view, that the likely percentage discount to the appellant’s sentence, at that stage of the proceedings and in the circumstances in which he had entered his pleas, had no bearing upon his acceptance of guilt. We entirely agreed the pleas were unequivocal pleas of guilty and the judge was perfectly entitled not to exercise her discretion to allow the pleas of guilty to be withdrawn. There was nothing unsafe about his convictions on Counts 3 to 7. Conclusion 112.For the foregoing reasons, we allowed the appeal against conviction on Counts 1 and 2 and ordered the appellant to be retried in respect of those counts on a fresh indictment before another judge. We refused the renewal application for leave to appeal against conviction on Counts 3 to 7 and the appeal on those counts was dismissed.
Mr Ira Lui, ADPP of the Department of Justice, for the respondent Mr Selwyn Yu, SC and Ms Pauline Leung, instructed by Lau Pau & Co, assigned by the Director of Legal Aid, for the appellant [1] Contrary to section 122(1) of the Crimes Ordinance, Cap 200. [2] Contrary to section 118(1) of the Crimes Ordinance. [3] Contrary to common law and section 101I of the Criminal Procedure Ordinance, Cap 221. [4] Contrary to common law and section 39 of the Offences Against the Persons Ordinance, Cap 212. [5] Contrary to section 118(1) of the Crimes Ordinance. [6] Contrary to section 118(1) of the Crimes Ordinance. [7] Contrary to section 118(1) of the Crimes Ordinance. [8] Contrary to sections 101(1) and (2) of the Theft Ordinance, Cap 210. [9] The appellant filed on 3 September 2018 a Notice of application for leave to appeal against conviction and sentence (Form XI), in which he set out a series of complaints about his conviction and sentence. This was substituted by his Perfected Grounds of Appeal Against Conviction and Sentence dated 14 May 2019. [10] [2019] HKCA 1238 per Zervos JA. [11] The Admitted Facts were not included in the Appeal Bundle. [12] Appeal Bundle, 586 – 629. [13] A summary of these events is provided by the judge in her Reasons for Sentence. See Appeal Bundle, 31B – J. [14] Appeal Bundle, 70I – 74T. [15] Appeal Bundle, 31R – S, 72H – J, 73P – R, 74A – B, 77R, 84U – 85B, and 91D – R. [16] Appeal Bundle, 72K – O. [17] Appeal Bundle, 75E – 76R. [18] Appeal Bundle, 64 – 66, the appellant’s criminal record. [19] Appeal Bundle, 79T – 80Q. [20] Appeal Bundle, 82P – 84K. [21] Appeal Bundle, 25J – 26D, 31K – N, and 85E – 87H. [22] Appeal Bundle, 14 – 24, Summary of Facts. [23] Appeal Bundle, 108 – 113, the Admitted Facts. [24] Appeal Bundle, 84S – 85B. [25] Appeal Bundle, 91D – R. [26] Appeal Bundle, 32F – 35L. [27] Appeal Bundle, 35N – 36B. [28] Appeal Bundle, 45A – B. [29] Appeal Bundle, 42F – N. [30] Appeal Bundle, 42P – 43L. [31] Appeal Bundle, 30 – 46, Reasons for Sentence. [32] HKSAR v Shum Wan Foon (2014) 17 HKCFAR 303, at [11] and [12]. [33] Ibid., at [13]. [34] Ibid., at [16]. [35] S (An Infant) v Recorder of Manchester [1971] AC 481, 507G. [36] HKSAR v Shum Wan Foon, at [18]. [37] HKSAR v Chan Chi Ho Lincoln (2018) 21 HKCFAR 588. [38] Ibid., at [22] – [24]. [39] Ibid., at [25]. [40] Ibid., at [26] – [39]. [41] Ibid., at [40] – [45]. [42] Ibid., at [46] to [49]. [43] HKSAR v Wong Chi Yuk [2000] 3 HKLRD 125. [44] Ibid., at 135D – I. [45] HKSAR v Chan Wing Hong, unrep., CACC 622/2002, 4 July 2003 (English translation). [46] Ibid., at [44]. [47] HKSAR v Agara Isaiah Bishop, unrep., CACC 76/2015, 14 December 2015. [48] Ibid., at [53]. [49] HKSAR v Chan Chi Ho Lincoln, at [31]. [50] Ibid., at [32]. [51] R v Asiedu[2015] 2 Cr App R 95. [52] Ibid., at [19]. [53] Ibid., at [31]. [54] Ibid., at [32]. [55] HKSAR v Chan Chi Ho Lincoln, at [33]. [56] Appellant’s Submissions, at [9]. [57] Appellant’s Submissions, at [9(e)]. [58] Appellant’s Submissions, at [15] and [16]. [59] Appellant’s Submissions, at [19]. [60] DPP v Stonehouse [1978] AC 55. [61] Ibid., at 79F – 80C. [62] Ibid., at 94C – G. [63] Ibid.,79G – H. [64] R v Gent(1989) 89 Cr App R 247. [65] Ibid., at 250. [66] R v Kelleher[2003] EWCA Crim 3525. [67] Ibid.,at [36]. [68] R v Wang [2005] 1 WLR 661. [69] HKSAR v Lui Tsi Fai [2003] 2 HKLRD 927. [70] Ibid., at [29]. [71] Yager v R [1977] 13 ALR 247. [72] HKSAR v Lui Tsi Fai, at [30] and [40]. [73] Per Barwick CJ, Gibbs, Stephen and Mason JJ, Murphy J dissenting. [74] Per Barwick CJ, Stephen and Mason JJ; Gibb J held a ruling of law may lead logically to a verdict of guilty and a trial judge may point this out to a jury in a manner emphasizing the jury’s duty, but he may not direct a jury to enter a verdict of guilty. However, the trial judge had not expressly directed the jury to enter a verdict of guilty. Murphy J dissenting. [75] Ibid., 259, lines 30 – 50. [76] At [40]. [77] At [43]. [78] At [48]. [79] Lui Tsi Fai v HKSAR, unrep., FAMC No 53 of 2003, [2004] HKEC 268. [80] Leung Fei Wah v HKSAR (2006) 9 HKCFAR 118, 129D – H. [81] Leung Fei Wah v HKSAR (2006) 9 HKCFAR 118. [82] R v Poole[2002] 2 Cr App R 13. [83] Ibid., at [21]. [84] Ibid., at [23] and [26]. [85] Ibid., at [26]. [86] Yager v R [1977] 13 ALR 247, 259, lines 20 – 45. [87] HKSAR v Chan Wing Hong, unrep., CACC 622 of 2002, 4 July 2003. [88] HKSAR v Chan Chi Ho Lincoln (2018) 21 HKCFAR 588. [89] HKSAR v Wong Chi Yuk [2000] HKC 158, 168F – G. [90] R v Tam Kit-nin [1982] HKC 40, 41F – G, per O’Connor J. [91] Appellant’s Submissions, at [24]. [92] Chan Wing Hong, at [28] – [30]. [93] HKSAR v Lui Tsi Fai [2003] 2 HKLRD 927. [94] Category (2) in HKSAR v Wong Chi Yuk, at 135D – I. [95] R v Hancock (1931) 23 Cr App R 16. [96] R v Poole [2002] 2 Cr App R 191, at [23] – [26]. However, a contrary view has been suggested by Australian authority: R v Meissner (1995) 184 CLR 132. [97] R v Court [1989] AC 28. [98] R v Newton (1983) 77 Cr App R 13; and Williams v R (1983) 77 Cr App R 329. [99] Appeal Bundle, 108 – 113, Admitted Facts, Exhibit P1. [100] Ibid., at [1] to [9]. [101] Appeal Bundle, 70Q – U (judge’s remarks), 85J – 86D (directions to the jury); 31K – 32G, 34P – 35P, 41Q – 42O (judge’s reasons for sentence); and 99K-106S (prosecuting counsel’s opening address). [102] Appeal Bundle, 70R – T. [103] Appeal Bundle, 71M – P and 72G and Q – S. [104] Appeal Bundle, 72C – E. [105] Appeal Bundle, 100O – S. [106] Appeal Bundle, 84M – R. [107] Appeal Bundle, 84S – 85B. [108] Appeal Bundle, 85J – 86D. [109] Appeal Bundle, 87Q – S; and 91D – R. [110] Appeal Bundle, 31O – 32E. See also 34P – 35L. [111] Maxwell v R (1996) 184 CLR 501, 507 – 509. [112] R v Underwood [2004] EWCA Crim 2256. [113] Appeal Bundle, 80D – F. [114] R v Saik [2004] EWCA Crim 2936. [115] Appeal Bundle, 84D – K. |
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