Li Fung-wo v. The Queen
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CACC000210/1976 IN THE HIGH COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 210 OF 1976 -----------------
----------------- Coram: Cons, J. Date of Judgment: 26 March 1976 ----------------- JUDGMENT ----------------- 1. The appellant is a young man 20 years of age and with a clear record. He is the son of a respectable and fairly wealthy family in the New Territories and assists his father there in a grocery shop. He was arrested by the police at about lunch time on 1st January this year. Two days later he appeared in the Magistrate's Court together with another young man of only 17 years of age. They were charged with three offences of robbery to each of which they both pleaded guilty. The other young man also admitted further offences of robbery, assault occasioning actual bodily harm and membership of a triad society. What are described as "The Brief Facts of the Case" were read over to them. So far as the three robbery offences are concerned these facts occupy almost the whole of one closely typewritten page. The appellant admitted that they were correct. In response to the usual question as to sentence he asked for leniency. Sentences totalling 34 months were immediately passed upon him. The other young man was remanded in custody for various reports and was subsequently sent to a detention centre. 2. These proceedings took place on 3rd January. By a letter dated 12th January solicitors for the appellant applied for a review. The application was granted by the learned magistrate and a date was fixed to hear the review itself on the 16th. The day before the hearing an affirmation was filed by the appellant in which he sets out with considerable detail an allegation that his plea of guilty was the result of police brutality following his arrest and before he was brought to the court. A further affirmation was filed by his father but this does not really take the matter any further. At the hearing of the review the following day the appellant was represented by leading counsel. Counsel referred the magistrate to the affirmations and asked to be allowed to enter a plea of not guilty. The magistrate refused the application. 3. It is now sought to appeal against that decision. The appeal is apparently brought under section 113 of the Magistrates Ordinance. This provides as follows:
It is suggested that the words "who did not plead guilty" have no application in the present instance because if what the appellant alleges is true his plea is a plea made under threats of pressure and therefore a nullity:Reg. v. Inns(1). This would be so, but of course by the same token the conviction would also be a nullity. Nor does section 105 of the Ordinance, which provides for appeal by way of case stated, help the appellant. That section is limited to points of law and excesses of jurisdiction. The appellant is thus in a difficult situation. If what he alleges is true he has a right to relief but the usual methods do not provide for him. When faced with a similar situation in Reg. v. Inns just referred to the English Court of Appeal fell back upon residual powers. In the present instance counsel who appears for the Crown, while not formally conceding that this Court has similar powers, very fairly does not oppose that the case proceed on the footing that it does. And I am content in those circumstances to inquire into the merits. 4. In all the cases of which I have been appraised where it has been sought to set aside a plea of guilty the existence of the facts supporting the application have not been in question. They have either appeared on the record itself or have been accepted. In a case such as the present, where those facts are very much in dispute, then nuturally the person seeking the change must somewhere and somehow prove that those facts do exist. The appellant chose as his forum the court of the learned magistrate and elected to rely alone on the two affirmations that I have already mentioned. It is said that the magistrate should not have rejected those affirmations out of hand. With respect I do not think he did. He listened to all that counsel wished to say and retired to consider the matter before he came to his decision. At the same time he gave his reasons. Briefly, he compared the contents of the affirmations with the demeanour of the appellant at the trial and other circumstances. It is said that he should not have made up his mind without first questioning the appellant and those others whose names had been mentioned in the appellant's affirmation. I do not see why that should be so. The onus was upon the appellant. He was represented by very experienced counsel. They presumably put before the magistrate all that they were able to on his behalf. A magistrate is not required to undertake some unspecified form of inquisitorial investigation. He is required to come to a decision on what is put before him. In this instance the magistrate did so. He decided that the appellant's affirmation was not true. I cannot say that his conclusion in the circumstances was not justified. In so far as there may be an appeal before me in this respect it is dismissed. 5. Appeal has also been lodged against sentence. It is said that in itself a total of nearly three years is too much for a man such as the appellant. I am not prepared to agree. He is a young man, but he is a man and not a child. He comes from a good family, which makes it sad for the family, for they will suffer as well as he. It is said that the magistrate should not have passed the maximum sentence upon someone with a clear record. With respect he did not do so. The maximum sentence for robbery is imprisonment for life. That reflects the gravity with which the legislature of our society views this offence generally and which a magistrate should bear in mind when passing sentence in respect of a particular instance: Reg. v. Chan Kang-chew(2). A clear record is a matter always to be considered, but it will not exclude the imposition of a substantial sentence where, as for example in crimes of violence, such a sentence is otherwise called for. In the present instance the robberies were all carried out by a number of persons, in two instances there was an invasion of private property and the victims were tied up and in the third knives were used. To my mind the sentences imposed in this case were proper. 6. Then it is said that they should be reduced because they are disproportionately heavy in relation to the detention centre order passed against the other young man charged together with the appellant. The Court of Appeal in England has often, but not always interfered where sentences passed upon two offenders at the same time and in respect of the same offence have been so disparate that one is left with a real sense of grievance. The first instance would seem to have been in 1955: Reg. v. Richards(3). The principle is still apparently accepted there: Reg. v. Brown(4). It was also at one time accepted in this Colony. However the matter came before the Full Court in 1973 in Reg. v. Leung Hoi(5). In a judgment delivered by Pickering, J., as he then was, the authorities were extensively reviewed and the court came to the conclusion that the principle only applied where the grievance is justified. And in particular that whatever the subjective feeling of the appellant, as far as the courts are concerned his grievance cannot be justified where the sentence passed upon him is a proper one as far as it relates to him alone. That is the view I have already taken of these particular sentences. I am therefore precluded from inquiring further and the appeal against sentence is dismissed. Representation: B. Bernacchi, Q.C., and Patrick Woo (Alfred Lau & Co.) for appellant. Sharwood, Crown Counsel, for respondent. (1) [1975] 60 Cr. App. R. 231 at 233 (2) [1963] H.K.L.R. 300 at 302 (3) [1955] 39 Cr. App. R. 191 (4) [1975] New Law Journal 116 (5) [1973] H.K.L.R. 238 |