HKSAR v. Siu Ying Ming

[English Translation - 英譯本]

HCMA 569/2019

[2021] HKCFI 1479

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 569 OF 2019

(ON APPEAL FROM ESCC 1899/2019)

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Before: Hon Wong J in Court

Date of Hearing: 24 May 2021

Date of Judgment: 24 May 2021

Date of Reasons for Judgment: 28 May 2021

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REASONS FOR JUDGMENT

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1.On 9 August 2019, the appellant pleaded guilty before the principal magistrate^[1] to a charge of theft^[2] and was fined. On 13 August, he wrote to the court to apply for a review of conviction on the ground of an intended reversal of the guilty plea. The principal magistrate conducted a hearing on 29 August at which the appellant applied for an adjournment in order to engage a legal representative.  The application was granted.  On 18 September, the appellant again applied for an adjournment on the same reason. The application was also granted. At the hearing on 16 October, the appellant did not appear, and there was no lawyer representing him.  At 12:15 p.m., with nothing heard from the appellant, the principal magistrate set aside and dismissed the appellant’s application for review.

2.The appellant appeals against the said order of the principal magistrate.

3.At the hearing of the appeal, after hearing submissions from both parties, I allowed the appeal and made an order directing the principal magistrate to restore the procedure of the application for review to decide whether the appellant is allowed a reversal of the guilty plea.  I now give the reasons for my decision.

Prosecution case

4.The appellant was represented^[3] when he pleaded guilty to the charge.  According to the brief facts^[4] admitted by the appellant, on 22 July 2019, the appellant took 13 books from the bookshelf of a bookshop, put them into his rucksack and left without making any payment.  He was intercepted and arrested.  Under caution, he admitted that he had stolen the books out of greed.  At that time, he did not have any cash with him.

Mitigationsubmissionsat the trial

5.At the trial, the defence submitted a letter written by the appellant and made the mitigation submissions.

6.In the letter^[5], the appellant stated that:

(1)  He had been suffering from severe skin disease since he was small, and there had not been any improvement on the illness ever since.  He needed to take medication and as a result he felt tired and confused in thinking and responded slowly.  It also affected his temperament;

(2)  He was a holder of associate degree.  He once furthered his studies in an undergraduate programme, but he failed to complete it due to health problem. He was still repaying the loan owed to the Student Finance Office;

(3)  He liked reading and was eager to learn;

(4)  He “hated” himself of “having committed an offence out of momentary greed, which he regretted for the rest of his life”, he was filled with remorse;

(5)  On reflection upon himself, he expressed that “momentary greed has caused a huge mistake”;

(6)  He was a first offender and asked for a fine; and

(7)  He was determined not to re-offend.

7.The mitigation submissions made by the lawyer and the contents of the appellant’s letter complemented each other.  Emphasis was made on the appellant’s illnesses, his momentary greed and his frank admission of guilt.  It also mentioned that the appellant had done volunteering work.

Appellant’s grounds of application for review

8.In regard to the application for review, the appellant sent a letter^[6] to the principal magistrate.  The main points of the matters raised in the letter were as follows:

(1)  He pleaded guilty in court on 9 August.  He was too nervous on the previous night that he was not able to sleep.  On the day of the hearing, he was extremely sleepy and dizzy, being spaced out and unable to think properly.  He could not fully comprehend what the lawyer said and advised, nor did he understand his explanation.  His guilty plea was not made intentionally, not prompted by a genuine consciousness of guilt or made with full understanding;

(2)  When he thought about it afterwards, he discovered that the prosecution case was inconsistent with the facts that he remembered.  Moreover, his statement to the police was not entirely prompted by a genuine consciousness of guilt or made voluntarily.  He was misled in the making of the statement;

(3)  He had to work overnight on the night in question and had also worked continuously for over 13 hours on the previous night.  In the hope that he could go home as soon as possible, he was misled by the police officer;

(4)  It was the first time he went to the police station, he was very nervous and scared.  The police officer swore at him and made him fall into the trap by improper means;

(5)  At the hearing, he did not know that the Duty Lawyer Scheme would be available throughout.  He worried that he could not afford the legal fees and therefore pleaded guilty in haste.  The lawyer was very busy on that day.  He considered it not good to trouble others and dared not say much.  He also did not ask the lawyer for advice in details, nor did he make any enquiries about his own situation and rights;

(6)  At that time, he was not aware that forgetting to pay was a defence.  He came to know about it only after he had pleaded guilty.  That was why it had not been mentioned to the lawyer.  However, there was a real chance that he had forgotten;

(7)  He was having flu on the day in question, together with the previous long hours of work, which made his mind far from clear after taking medicine.  He did not know clearly what he himself was doing.  Had he known that forgetting to pay was a defence, he definitely would not have pleaded guilty; and

(8)  He thought that a mere sentence of fine would not leave him with any criminal record, but it was in fact the otherwise. Therefore, he wished to reverse his plea.

Reasons for non-appearance at the hearing of application for review

9.On 29 October 2019, the appellant wrote to the principal magistrate^[7] to explain his non-appearance at the hearing on 16 October and to request the principal magistrate to restore the review procedure.  In a nutshell, he started to feel unwell on 15 October and was even admitted to hospital for treatment on 16 October.  He was not discharged until 26 October and was granted sick leave until 30 October.

10.He submitted two medical certificates^[8] as proof.

Grounds of Appeal

11.In the appeal, the appellant was initially unrepresented.  The main points of the matters he raised in the papers were as follows:

(1)  He was a person with chronic illness and suffering from severe skin disease.  From year 2000 onwards, he had been on long-term medication such as tranquilizers, anti-allergy medicine, steroids, anti-inflammatory drugs and antibiotics. The side-effect of these medicines would make him disorientated and forgetful, and often feel confused and drowsy. About two to three hours before the time of the offence, he had taken tranquilizer and anti-allergy medicine. Under the influence of the medicine, he left the bookshop without making payment for the books.

(2)  On the day in question, he was feeling unwell and went to see the family doctor after work. He was diagnosed with flu and upper respiratory infection.

(3)  He took the medicine immediately after seeing the doctor. The side-effect of the medicine, together with overnight work, made his mental state even worse at the time of the offence. At that time, he felt confused, disorientated and being in a trance, and had sudden loss of memory.  In the afternoon of that day, he had a medical appointment with a dermatological clinic located at Hang Lung Centre in Causeway Bay, so he went to Causeway Bay after seeing the family doctor.  He had no plan of buying any books in the first place, he just intended to kill time at the bookshop before going to the dermatological clinic for the medical appointment.  Having set foot in the bookshop, he was attracted by several books with titles about male health, but he felt embarrassed standing in front of the bookshelf as he did not want other people to know that he was reading books on sexual health.  He did not want to stay long at that bookshelf and wanted to leave as soon as possible, thinking of putting those several books with attractive titles into the shopping bag first with no intention to steal.

(4)  At that time, his mental state was poor after taking medicine for his sickness and working overnight.  He inattentively stepped onto the elevator leaving the bookshop area.  He was stopped by the shop attendant just a few steps away from the elevator.

(5)  At the time of the offence, he had already been suffering from mental illness, having chronic low mood.  However, he did not seek help back then.  After the offence, he could bear it no more and started to seek medical treatment.  He was diagnosed as having major depressive disorder over a long period of time.  It was only under the influence of his mental illness at that time that he left the bookshop with no conscious awareness.

(6)  He was very worried of having cancer, having chronic feeling of depression and anxiety.  At the time of the offence, he was precisely under such a poor mental state. Moreover, he was sick and had taken medicine, the effect of which made his mental state even worse.  At that time, he was in a trance and confused, and did not clearly know what he himself was doing.  He had no intention to steal at the material time.

(7)  He pleaded guilty in court on 9 August 2019 because he did not know that his mental and physical states at the time of the offence could be his defence.  He had not indicated to anyone at all that his mental and physical states were both extremely poor at the time of the offence, even the Duty Lawyer on duty that day had no idea that the appellant had consulted his family doctor and taken medicine due to sickness on the day in question, had no idea that he had taken dermatological medicine on the same day, nor did he have any idea that the appellant had been suffering from mental illness.  The appellant also did not explain to the Duty Lawyer that he had just wanted to get the case over and done with as soon as possible.  At that time, he thought that after admitting his guilt at the police station, it meant that the whole case was over, and that it could not be remedied and would be a waste of effort even if he pleaded not guilty in court.   It was his misconception that he would not be entertained even if he raised his defence in court.  When he pleaded guilty, he did not know that he had not had the intention to steal.  He chose to plead guilty without knowing the full picture, not knowing that he in fact could tell the judge that he did not have the intention to steal.

12.Ms Valerie Chan of counsel began representing the appellant on 17 May 2021. The following perfected grounds of appeal were advanced for the appellant:

(1)  The appellant had all along been affected by his depressive disorder and skin disease. Because of the drowsiness caused by the medicines prescribed by the doctors, together with his mental health problem, the appellant was not able to fully understand the matters transpired and his own behaviour at the time of the offence and at the hearing; and

(2)  In the light of the ground mentioned above, the conviction was unsafe and unsatisfactory.  A change and reversal of the guilty plea should be allowed.  The case should be remitted to the magistrates’ courts for plea to be taken again.

Reasons for verdict given by the principal magistrate

13.In the statement of findings^[9], the principal magistrate pointed out the following matters:

(1)  The case was first brought up before the principal magistrate on 9 August.  The appellant, who was represented by the Duty Lawyer, pleaded guilty and admitted the brief facts which clearly supported the offence, including that he had taken 13 books, put them in the rucksack and left without making any payment, and that he admitted under caution that the theft was committed out of greed.  It was on such basis that the principal magistrate convicted him.  Momentary greed was included in the Duty Lawyer’s mitigation submissions.  In the letter written by the appellant himself, it also mentioned that “momentary greed has caused a huge mistake”.^[10]

(2)  At each step of the procedure, no abnormality was observed from the appellant’s facial expressions or behaviour.  In addition, the repeated mention of “greed” at various stages was wholly consistent with a guilty plea.  Nothing suspicious which indicated a potential problem with that plea of guilty arose.^[11]

(3)  The appellant applied for a review to reverse his guilty plea in a letter dated 13 August. He mentioned 5 points:

(1)  He was physically unwell and mentally deranged on the plea day.  He was unable to sleep on the previous night, and was [unable] to analyze properly or understand the lawyer’s explanation, etc;

(2)  On reflection after pleading guilty, the brief facts he had admitted were not the truth.  The cautioned statement was not made voluntarily either;

(3)  He did not have any general legal knowledge;

(4)  He was not aware that forgetting to pay was a defence; and

(5)  He had no idea of the serious consequence which a guilty plea would bring.^[12]

(4)  At the third hearing on 16 October, the appellant did not appear and there was no lawyer representing him.  The principal magistrate waited until 12:15 p.m.  By then, there was still nothing heard from the appellant, and there was a lack of evidential proof and submissions from the defence, it was only under such circumstances that the principal magistrate set aside his application for review.

(5)  Following the dismissal of the review, the jurisdiction of the magistrates’ courts also came to an end.^[13]

Discussion and consideration

14.Pursuant to section 113(1) of the Magistrates Ordinance^[14], a person convicted by a magistrate has the right to appeal against the conviction:

“Any person aggrieved by any conviction, order or determination of a magistrate in respect of or in connection with any offence, who did not plead guilty or admit the truth of the information or complaint, may appeal from the conviction, order or determination, in manner hereinafter provided to a judge.”

15.In general, a person convicted of an offence by his own plea of guilty cannot appeal against the conviction pursuant to the above Ordinance.^[15]

16.In the present case, the appellant pleaded guilty before the principal magistrate and admitted the facts that were sufficient to support the offence, and on such basis the principal magistrate convicted him as charged.

17.On the face of it, the circumstances of the appellant did not fulfil the criteria for appealing pursuant to the said Ordinance. Nonetheless, under certain circumstances, a defendant who has been convicted on his own plea still has the right to appeal under the said Ordinance.  Such circumstances include an effectively equivocal plea^[16] or a guilty plea that can be rendered a nullity.^[17]

18.The circumstances of the present case are special.  The appellant, after being convicted and sentenced, applied to the principal magistrate for a review on the ground of reversal of guilty plea, and the application was refused under the circumstances described in paragraph 1 above.  Therefore, this is an appeal against the principal magistrate’s decision of refusal to review.  In the event that the principal magistrate should restore the review procedure or should even have granted the appellant’s application for reversal of guilty plea, the appellant will not be disallowed by the Ordinance from lodging an appeal.

19.In HKSAR v Chan Chi Ho Lincoln^[18], the Court of Final Appeal held as follows:

“(1) There was a crucial distinction between an equivocal plea and an unequivocal plea of guilty. The distinction was crucial because only an unequivocal plea could be accepted by the court. The court could not accept an equivocal plea; it had no discretion in the matter because the plea did 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 a trial to prove the offence charged by evidence. For this reason, an equivocal plea or a conviction resulting from the erroneous acceptance by the court of such a plea was often described as a ‘nullity’ and must be set aside.

(2) A plea was equivocal if the 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… .”^[19]

20.Obviously, the guilty plea of the appellant in the present case was unequivocal.  In such case, other holdings of the Court of Final Appeal in HKSAR v Chan Chi Ho Lincoln^[20] would be relevant to the consideration of the present case

(1)  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 consider exercising it;

(2)  The discretion to allow the reversal of an unequivocal plea after conviction but before sentence was an unfettered one.  The overriding consideration in the exercise of the discretion must be the interests of justice;

(3)  The threshold for deciding whether a plea was equivocal and for invoking the court’s discretion to allow the change of an unequivocal plea were different.  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.  In seeking to invoke the court’s discretion to allow the change of an unequivocal plea, the threshold for the requisite qualification need not be so;

(4)  Where what had transpired should have been sufficient to alert the magistrate that the defendant might not be guilty as charged, in the interests of justice, the magistrate should have exercised her discretion to allow the change of plea; and

(5)  Where the court had a real doubt that what was subsequently asserted was only a recent fabrication, it might probe deeper into the matter before deciding how its discretion should be exercised.^[21]

21.In that case, the guilty plea before the trial magistrate was unequivocal. However, what emerged before her subsequently was an allegation or assertion which, if true, would suggest that the appellant was not guilty as charged.  As pointed out by Cheung PJ,^[22] the trial magistrate should consider those assertions in order to decide whether her discretion should be exercised to allow the appellant a reversal of plea.  In the consideration, the trial magistrate did not have to conduct a mini-trial to inquire into matter.  When the materials before the magistrate were sufficient to alert her that the defendant might not be guilty as charged, she had to decide, with the priority consideration being the interests of justice, whether her discretion should be exercised to allow the defendant a change of plea. ^[23]

22.As the Court of Final Appeal stated in Chan Chi Ho Lincoln,the court had a discretion to allow the appellant a change of plea after conviction but before sentence.  In the present case, the application for a change of plea was made after sentence.  However, given the mechanism of review provided in the Magistrates Ordinance^[24], I am of the view that in dealing with the application for review, the magistrate still has the said discretion.

23.It was uncontested by Ms Claudia Ko, Senior Public Prosecutor for the respondent, that a magistrate still had the said discretion in dealing with the application for review.

24.One of the issues in the present case involved whether the principal magistrate was “functus officio” in the circumstances of the case.  The view of the principal magistrate was that he was “functus officio” after he had set aside and dismissed the appellant’s application for review.^[25]

25.In general, a conviction is not complete, and the court does not become functus, until sentence is passed.^[26]  However, with regards to magistrates, the circumstances are different due to the provisions on review in the Magistrates Ordinance^[27].  Where there is an application for review, the magistrate will only be “functus officio” after he has made a final decision at the conclusion of the review procedure.

26.The question is, in the circumstances of the present case, whether the review procedure had effectively concluded.

27.As seen from the transcript of the review hearing and the statement of findings of the principal magistrate, although the application for review, as pointed out by the principal magistrate, lacked evidential proof and submissions, the main reason for setting aside the application for review appeared to be the appellant’s non-appearance.  The principal magistrate also stated that following the dismissal of the review, the jurisdiction of the magistrates’ courts also came to an end.

28.The appellant lodged his notice of appeal on 15 November 2019.  However, when he learnt of the said result on 29 October 2019, he wrote a letter to the principal magistrate, asserting that his non-appearance was only due to illness and requesting the principal magistrate to conduct a further hearing to consider his application.

29.Obviously, the principal magistrate did not conduct any further hearing.  As mentioned above, he considered that the jurisdiction of the magistrates’ courts came to an end after the dismissal of the review.

30.As Ms Ko fairly pointed out, the disposal of the application by the principal magistrate might be questionable as a matter of procedure.

31.Although there is no authority directly related to the review procedure of magistrates, the Court of Appeal has considered in R v Lee Kam Chuen^[28] whether a judge of the High Court was “functus officio” and therefore could not further consider the merits of the appeal after the appellant’s appeal had already been dismissed for his non-appearance.

32.In that case, the appeal was originally set down before a deputy judge.  At the hearing of the appeal, the appellant did not appear. Given that the notice of hearing should be deemed to have been received by the appellant in pursuance of section 115(3) of the Magistrates Ordinance, the deputy judge dismissed the appeal. Later, the deputy judge came to know that the appellant in fact had not received the notice, he therefore ordered that the hearing should be relisted.  At the relisted hearing, the prosecution raised the issue of “functus officio”. The trial judge transferred the issue for the consideration of the Court of Appeal. 

33.In the judgment of the Court of Appeal, Mortimer J^[29] stated that:

(1)  The deputy judge made the order dismissing the appeal on the presumption that the notice of hearing had been received by the appellant;

(2)  The presumption was rebuttable;

(3)  The dismissal of appeal was made under such presumption with no consideration of the merits of the appeal;

(4)  Under such circumstances, the decision was not final but only made procedurally as the learned judge, in making the decision, must have intended that the appellant could apply for a hearing on the merits if the relevant presumption was rebutted;

(5)  The court should proceed to consider the merits of the appeal when the presumption was rebutted on such a procedural basis;

(6)  If the learned judge had purported to make a final order in such circumstances, it would have been a nullity^[30]; and

(7)  In such circumstances, the concept of “functus officio” was not applicable.

34.The circumstances in Lee Kam Chuen were not completely the same as those in the present case.  However, I am of the view that the considerations by Mortimer J could be applied to the present case.

35.In the instant case, looking at the materials before the principal magistrate back then^[31], there was nothing wrong for him to dismiss the application for review. Now the appellant has provided sufficient evidence to prove that his non-appearance at the hearing of the review was due to illness.  He has also made clear that his non-appearance did not indicate his intention to abandon the application for review.  His assertion is not manifestly incredible.

36.Under such circumstances, given that the principal magistrate had never taken into account the merits raised by the appellant, the proper approach should have been to set down a hearing date in order to consider the appellant’s application for review.  Had the application been disposed of in such manner, the appeal lodged by the appellant under the present circumstances could have been avoided.

37.Both parties of the appeal agreed that a disposal in the said manner would be appropriate.

38.If the principal magistrate had conducted the review hearing, given the appellant’s unequivocal plea of guilty, it would have been the principal magistrate’s duty to consider the appellant’s assertion in order to decide whether the discretion should be exercised to allow the appellant a reversal of plea.^[32]

39.A plea of guilty is a serious matter that a reversal of which must not be allowed lightly.  Although the discretion to allow a reversal of plea is an unfettered one^[33], it should not be exercised arbitrarily but must be on a legal basis with the overriding consideration of the interests of justice.^[34]

40.If the materials before a magistrate show that the defendant may not be guilty as charged, given the overriding consideration of the interests of justice, it shall be more likely that he would exercise the discretion to allow a reversal of plea unless the materials do not appear to be truthful.  Moreover, the circumstances as a whole shall also be considered as justice is to be done not only from the perspective of the defendant, the overall benefit of society and the possible circumstances faced by the prosecution must also be taken into account.

41.In Shum Wan Foon,^[35] the Court of Final Appeal stated that in circumstances similar to the present case, ordinarily, remitting the case to the trial court to continue the consideration of the merits of the case would be more appropriate than a direct order for re-trial, particularly in cases of serious offences.  However, in exceptional circumstances, the appellate court could also make the decision after consideration of the merits where appropriate.^[36]

42.The court has taken the following matters as reasons that amounted to exceptional circumstances:

(1)  The defendant had already served his prison sentence^[37];

(2)  A further prosecution would be difficult due to a long lapse of time^[38];

(3)  Whether the defendant should be believed on his story should be a matter for trial^[39];

(4)  The case demonstrated obvious circumstances that the court should exercise the discretion to allow the defendant a reversal of plea^[40]; and

(5)  The appellate court was able to determine based on the papers submitted by both parties^[41].

43.The above is of course not an exhaustive list of examples which may amount to exceptional circumstances.  Different circumstances in the consideration of the case in its entirety may also amount to exceptional circumstances.

44.In the present case, the offence with which the appellant was charged was not serious.  It involved a theft of 13 books from the bookshop.  He was fined on his own plea of guilty.  The offence occurred on 22 July 2019.  The prosecution evidence was simple and straightforward, though not completely undisputed. The prosecution’s main allegation against the appellant does not appear to be the major issue in dispute.

45.After careful consideration, I am of the view that there are no sufficient grounds for the present case to depart from the ordinary disposal as mentioned above at paragraph 41 and be determined by the appellate court.  The materials before me include some medical reports which give certain support to the assertion of the appellant.  Therefore, it is hard to conclude without having any inquiry that the appellant’s assertion was untrue.  However, the mental state and intention of the appellant at the time of the offence and at the hearing could not be determined simply by the medical reports.  The present assertion of the appellant was in many ways inconsistent with what transpired at the trial, including the brief facts he admitted and the mitigation submissions. Therefore, it is necessary to probe deeper into the appellant’s assertion to see whether it is a recent fabrication, and whether the circumstances are sufficient for the court to exercise the discretion to allow a reversal of plea.  The information provided in the submissions made by both parties was insufficient to enable the court to determine on the issue.  In the circumstances of the present case, the hearing of the present appeal is not a suitable venue to inquire into the relevant matter.  In practical considerations, the relevant matter could not be disposed of on the day of the present hearing.  Both parties of the appeal shared the same view on this point.

46.For the reasons stated above, I considered it appropriate for the principal magistrate to restore the review procedure to deal with the appellant’s application.

47.Accordingly, I allowed the appeal.  And I exercised the power under section 119(d) of the Magistrates Ordinance and ordered the principal magistrate’s order in respect of the application for review be set aside and directed the principal magistrate to restore the procedure of the application for review.

48.To avoid misunderstanding, I make it clear that:

(1)  I hold that the appellant’s non-appearance in the review hearing was not unjustified, and that it is justified to proceed with the application for review. Accordingly, the principal magistrate should restore the review procedure; and

(2)  I allowed the appeal not because I found the principal magistrate should exercise his discretion to allow the appellant a reversal of plea.  Whether the discretion should be exercised is for the principal magistrate to decide after his consideration.

Valarie CHAN, instructed by Messrs Paul W. Tse, for the Appellant.

Claudia KO, Senior Public Prosecutor, of the Department of Justice, for the Respondent.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.