Yeung Wai Hung v. The Queen

HCMP001541/1990

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS NO. 1541 OF 1990

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BETWEEN

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Coram: Hon. Liu, J. in Court

Date of hearing: 29 June & 3 July 1990

Date of delivery of judgment: 23 July 1990

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JUDGMENT

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1. The applicant stood charged with two offences before Mr P.J. Line, a magistrate. He pleaded guilty to the first charge and the second charge as amended. His pleas were "vacated" by the magistrate. He took the magistrate to appeal on a Case Stated. The Case Stated was reserved for the consideration of the Court of Appeal. The points of law stated in the Case did not arise from a final adjudication. The applicant was held to have no right to apply for a Case to be so stated. The appeal was dismissed. The applicant invoked s.128 of the Magistrates Ordinance and the supervisory jurisdiction of this Court for judicial review pursuant to leave granted by Deputy Judge Suttill. This court was moved by Mr Miu. The motion was resisted by Mr Marshall for the magistrate.

2. I was exhaustively assisted on a broad spectrum. In the final analysis, I conclude, this motion falls to be decided within a very narrow compass, resting on the nature of the action taken by the magistrate, the applicant's alleged grievance and the relief prayed for in this review. The magistrate "vacated" the applicant's pleas. The complaint is that he had no power to "vacate". A mandamus is applied for to direct the magistrate to restore to the record the pleas of the applicant's. It is exclusively upon these substantive issues, the alleged wrongful act, the complaint and the desired remedy that this motion must be entertained. They should not be allowed to be clouded by the subsidiary prayers. The subsidiary prayers would, if granted, require the magistrate to proceed to sentence the applicant on the basis of the said pleas, to desist from trying the applicant on the amended charge of Assault Occasioning Actual Bodily Harm, and to make consequential declarations. They are procedural measures designed to implement the applicant's objective if and when it is achieved. Shortly put, the complaint is that the magistrate had no power to "vacate" the applicant's pleas, and the remedy sought is a mandamus ordering the magistrate to restore to his record these two pleas. In essence, these matters pertain to jurisdiction. Mr Miu, counsel for the applicant, raised belatedly also a question of prejudice. There are then only these relatively plain questions to which the Court must address itself.

3. On the 29th November 1989, the applicant and his co-defendant appeared before the magistrate jointly charged with an offence of common assault. He alone faced an additional charge of assaulting a police officer which was amended to resisting arrest for plea. He pleaded guilty to common assault and assisting arrest. His co-defendant pleaded not guilty to the joint charge of common assault.

4. The record kept by the magistrate was not made available. The parties before me were content to rely on the statements contained in the previous Case Stated and the papers filed in this motion.

5. Categorizations of the stages in the plea procedure may conveniently be taken from the judgment of Watkins L.J. in R v. Telford Justices, ex parte Darlington (1988)87 Cr. App. R. 194 at pp. 198 and 199. "Upon a plea of guilty being tendered to" a magistrate or "the making of a plea of 'Guilty' ", he may "accept (it) and cause (it) to be entered upon the record". He may refuse to accept "that plea and (order) a plea of 'Not Guilty' to be entered" upon the record.

6. What transpired here before the magistrate was described by him in paragraph 4(a) of his Case State :

"The (applicant) entered a plea of guilty to the offence of common assault and to the amended charge of resisting arrest." (Emphasis added).

It is worthy of note that the plea of the co-defendant was similarly described in paragraph 4(b) of the Case Stated :"The (applicant's) co- accused entered a plea of not guilty to the joint charge of common assault". (Emphasis also added) The trial of the co-defendant on the offence of common assault was thereupon proceeded with and evidence was heard. The "Not Guilty" plea of the co-defendant must have been accepted and entered on the record. The question that immediately leaps to mind is whether or not the applicant's pleas had likewise been accepted.

7. The magistrate was given the brief facts of the joint charge as the opening for the trial against the co-defendant for common assault. There was no indication as to whether the prosecution also submitted the same summary account of the facts for the charge against the applicant. In reality, for a joint charge, it may reasonably be inferred that the facts were not dissimilar. But "the (applicant) was not asked to agree any facts" though the magistrate had apparently taken the brief facts as applicable to him. The magistrate explained in paragraph 4(g) of his Case Stated thus :

"I was not minded to deal with the (applicant) on the scant information in the brief facts when I was about to hear evidence concerning the incident which both the (applicant) and his counsel were going to hear as well."

8. In the same sub-paragraph, the magistrate concluded :

"I did not accept his plea of guilty. I did not convict him."

9. The circumstances as given by the female victim of the assault were aggravating. She was yet to be cross-examined. However, the magistrate enquired of the prosecution as to why the joint charge was merely one of common assault. It was explained that the extent of the injuries and the contents of medical report had been unknown to the prosecution.

10. In paragraph 4(j) of his Case Stated, the magistrate set out his mental process :

"I was of the opinion that prima facie the charge was not appropriate. I considered the fairest course was to order a trial de novo before another magistrate, after an adjournment in which a medical report on the victim could be obtained, and that the (applicant's) pleas should be vacated and that there be opportunity to amend or substitute a new charge that reflected the gravity of the prosecution case. I consequently made the order directing the pleas be vacated and a trial be heard before another magistrate."

11. Thereupon counsel for the applicant objected to the proposed course with a submission "that the court had no jurisdiction to vacate a guilty plea after it was entered on the record and the trial of a co-defendant has commenced". The Case Stated did not challenge the accuracy of this basis of counsel's submission.

12. After the pleas had been "vacated", the applicant required the magistrate to state a Case, and it was thought more appropriate to re-list the case before the same magistrate on its return date, the 16th January 1990. It is now no longer felt aggreived that the case was re-listed before the same magistrate. Thereafter, the prosecution tendered an amended joint charge of Assault Occasioning Actual Bodily Harm in place of the charge of Common Assault. Under s.27(4) of the Magistrates Ordinance, the power to amend includes the power to substitute another offence for the one alleged in the information. The magistrate "amended" the joint charge accordingly as can be seen in paragraph 6(a) of the applicant's Notice of Application for leave for judicial review.

13. In the same sub-paragraph, the applicant encapsulated his substantive complaint :

"It is submitted that the magistrate erred in law in ordering the vacating of the guilty pleas which were unequivocal and there were (sic) no application by the applicant to withdraw or change the pleas to not guilty."

14. S.19(1) of the Magistrates Ordinance is a re-enactment of s.13(1) of the Magistrates Ordinance 1932, except for the word "reply" which has been amended to "rebuttal". Our former S.13 drew heavily from s.14 of the Summary Jurisdiction Act, 1848 (Jervis' Act) in which almost identical language was used, namely "if he thereupon admits the Truth of such Information or Complaint". These words, in effect, prescribe the magisterial plea taking process as known to us in this territory. See p.77 Stone's Justices' Manual Vol. 1, 1947 edn. (the earliest edition available in the Supreme Court Library).

15. What is the effect of a plea "entered by the (applicant)"as given in the magistrate's Case Stated?

"In the case of a summary trial, (once plea) had been taken .... that .... would clearly be treated as the beginning of the trial." See R. v. Phipps, Ex parte Alton [1964] 2 Q.B. 420 at p.427 per Lord Parker, C.J. When a defendant appears and pleads to a charge, he "appears to take his trial; although no evidence is offered by the prosecutor, that is still a hearing." See Tunnicliffe v. Tedd 136 E.R. 995 at p.998; (1848) 5 C.B. 553 at p.560 per Coltman, J. The hearing begins with the defendant pleading to his charge. How is his plea taken to be dealt with? A plea of guilty tendered to a magistrate shall be, if accepted, entered by him upon the record as implicitly directed by s.19(1) of the Magistrates Ordinance : "then the magistrate shall convict him or make an order against him according". Under s.19(1), we have throughout followed the English magisterial practice. At least as far back as 1954, the entering of a plea upon the record was noted as signifying its acceptance :

"If there is any doubt concerning the defendant's understanding of the charge to which he has pleaded, it is of course the Court's duty to ascertain as far as possible whether the defendant understands or not, and meanwhile to delay acceptance of the plea. There may be other reasons for delaying the acceptance of the plea - as where one of two persons jointly charged with conspiracy pleads guilty and the other not guilty. Once the magistrate has considered such matters and has decided to accept the plea of guilty, he will so indicate by entering it on his record." (R. v. The Magistrate, Hong Kong, [1954] H.K.L.R. 127 at p.130 per Gould, acting Chief Justice)".

16. This is as convenient a place as any to quote a commentary of Sir Trever Gould, as he was later in time, in the same case regarding deletion or withdrawal of an accepted and entered plea of guilty (at pp. 130-132) :

"The matter does not end there, however, for there is authority for saying that in some circumstances it is proper to delete an accepted and entered plea of guilty and to enter a not guilty plea in its stead.  The case of R. v. Campbell, [1953]2 W.L.R. 587, indicates what cannot be done. It decided that after sentence has been passed after a plea of guilty, leave cannot be given to retract that plea. (There is in Hong Kong a special power conferred by ordinance to review cases which in fact does give an equivalent power but which need not be discussed now). Before sentence, however, pleas have been altered in certain circumstances. One type of case is where a plea has been entered but entered wrongly because of misapprehension by the defendant of the ingredients of the offence. The example commonly given is R. v. Ingleson, [1915]1 K.B.D. 512 where the accused, charged with stealing and receiving, pleaded that he was guilty 'of taking the horses not knowing that they were stolen'. It was held that this was wrongly entered as a plea of guilty and all proceedings on it were bad. A recent case indicates that a mistake of that sort can be rectified by the court which takes the plea, even though there was nothing to indicate that there was a misunderstanding until after the plea of guilty had been accepted and entered. I refer to R. v. Durham Quarter Sessions Ex parte Virgo, [1952]1 A.E.R. 466 in which a defendant pleaded guilty to theft of a bicycle. The solicitor for the prosecution recited facts which defendant did not dispute. He then said : 'It was a mistake, I thought it was my mate's cycle. My mate said 'take it home'. My mate's bike is identical.' He did not ask for his plea to be altered but was convicted and sentenced. The Divisional Court held that the court of summary jurisdiction ought to have entered the plea of not guilty, which would have involved in the circumstances altering the plea of guilty already accepted."

"There is another class of cases in which it has been held that even though no question is raised as to the particular defendant's comprehension of the charge, a plea of guilty can be withdrawn before sentence. Where a defendant is charged as accessory after the fact together with the principal felon, the former can be permitted to withdraw his plea if the latter is acquitted. R. v. Rowley, 32 C.A.R. 147. (The correct procedure in such a case of course is for the court not to accept the plea of guilty until after the trial of the principal offender.)  The same practice applies in joint conspiracy trials. R. v. Plummer, [1902] 2 K.B. 339. In that case, one of the three defendants jointly charged with conspiracy together, pleaded guilty and was sentenced. The other two were tried and acquitted. A court of five judges held that the conviction of the defendant who pleaded guilty was bad (as he alone could not be guilty of conspiring) and that the court which took the plea had power to permit it to be withdrawn at any time before sentence."

"If then a court enters a plea of guilty where the plea is followed by words would show or ought to show that the defendant is under a mistake or that there is some ambiguilty in his plea, the plea has been wrongly entered and the court can permit its withdrawal at any time before sentence. Again, if after a plea of guilty has been entered, it comes about that conviction of the defendant on the charge would be illegal or improper, the court can alter the plea. It seems clear also that the court can take such action even though the mistake, ambiguilty, or legal impediment only becomes known to the court after it has accepted and entered the plea of guilty, provided sentence has not been passed (subject again to the Hong Kong provisions above mentioned about reopening a case)."

At p.137 Reece J. had this to say :

"In my opinion, it is clear that the local law makes it imperative on the magistrate at the time when the plea is taken either to convict him or to make an order against him and sub-section (3) requires a minute or memorandum to be made of the conviction or order, etc. and the conviction or order shall afterwards be drawn up by the magistrate in proper form under his hand and seal."

17. A conviction primarily means the final adjudication concluded with a sentence or other sanction. See S. (An Infant) v. Recorder of Manchester, [1971]A.C. 481 at p.506, per Lord Upjohn. The word "conviction" has also been used to connote, in its narrower sense, an acceptance of a guilty plea followed by its entry upon the record. See In Sheridan, (1936)26 Cr. App. R. 1; [1937] 1 K.B. 223.

18. The magistrate's record or a copy transcript of it has not been included in the papers for this application for judicial review. The magistrate categorically stated that he did not convict the applicant. If he had accepted the plea, he would have been driven to convict the applicant as directed by s.19(1) and act in accordance with s.19(3) of the Magistrates Ordinance. There was no compliance with s.19(3). The pleas of the applicant could not have been accepted. As a matter of fact, the magistrate affirmed that he did not accept the pleas. It matters not, therefore, what capital may be made of the meaning ascribed by the magistrate to the word "entered" in "the (applicant) entered a plea of guilty" and  his making an entry of the applicant's pleas. The magistrate's intention was clear. Those pleas had not been accepted by him.

19. Moreover, an accepted and entered plea with all its grave consequences should not be left to speculation. A plea is "a prisoner's own confession". R. v. Dudley Justices, Ex carte Gillard, [1986]82 Cr. App. R.186 at p.189 per Kennedy, J. The acceptance of a defendant's confession by his plea followed by his conviction in the narrow sense of that term is a crucial phase in the administration of criminal justice. S.19(1) and (3) provide a statutory format which call for strict observance. Proof of a defendant's confession by his plea must be compelling. No confession should be inferred from past events based on surmise or recollection, particularly when confession by a defendant's own plea is refuted by the presiding magistrate. In conclusion, the fact that the applicant (not, be it noted, the magistrate) "entered" a plea to each of the two charges and the fact that the magistrate made an entry in his record from which the same was later ordered to be "vacated" did not have the effect of converting an otherwise unaccepted plea into an accepted one. I have reached the conclusion that the magistrate did not accept the applicant's pleas. It is also my view that the magistrate cannot be taken as having   accepted these pleas and did not, even in the narrow sense, convict the applicant.

20. I pass then to consider whether the magistrate could defer his acceptance of the pleas of the applicant. In Ma Kam-wing v. R. [1975] H.K.L.R. 612, at p.616, Yang J., as he then was, reminded magistrates of their duty to "determine whether to accept (a) plea as a genuine admission of truth". In 1965, Hogan C.J. dealt with a somewhat similar situation. That is the case of R. v. Wong Cho-kui [1965] H.K.L.R. 575 where Sir Michael gave an account of what transpired in a murder trial at pp. 577 & 578:

"The first ground of appeal submitted to us is that the judge was wrong because, an indication having been given, at the start of the proceedings but in the absence of the jury, that the appellant and others were prepared to plead guilty to manslaughter, the Crown having indicated their willingness to accept that plea, and the judge having announced that he had glanced through the depositions and was disposed to accept it, the matter had really come to an end and the accused, the appellant before us, was in effect convicted of manslaughter. Therefore, it is said, the court was wrong in subsequently saying that it would not accept this plea and that the trial should proceed on the charge of murder.

"The issue raised by this contention appears to have been dealt with very clearly by the Court of Criminal Appeal in England in the recent case of R. v. Cole [1965] 2 A.E.R. 29. When counsel for the appellant had his attention called to this case he endeavoured to meet it by distinguishing the facts and ignoring the principle; but the decision delivered in that case by the Lord Chief Justice, clearly states a principle that covers the circumstances of the case before us. Lord Parker said (at p.30) :-

'This court is satisfied that this argument really fails in limine, in that a plea of guilty, once recorded, does not rank as a conviction at all; it only ranks as a conviction when the offender is in fact sentenced.'

"In the present case the judge never even approached the stage of sentencing the appellant. He made it quite clear that he wished to hear Crown Counsel's opening statement of the case before deciding whether it was proper to accept the pleas and, having heard it, refused to accept them. He directed that the case should  continue on the charge of murder at a time when it was quite open to him to do so. In the circumstances the first ground of appeal must fail."

21. Gould, acting C.J., was not disposed to provide the professions with an exhaustive list of the many "other reasons for delaying the acceptance of (a) plea". Hogan, C.J. approved the practice of our courts to hear the "opening statement of the case before deciding whether it was proper to accept" a guilty plea. Was that not how the magistrate, Mr P.J. Line, had chosen to conduct himself? Did he not act properly, as did many before him, in postponing his acceptance of the pleas? What is the justification for him to be put through all these proceedings from Case Stated to judicial review?

22. Much play was made of the decision in Chief Constable of West Midlands Police v. Gillard, supra. It was a decision on an entirely different sub-section of the English Magistrates' Act, 1980, under which "the court may .... after (it) has begun to try the information summarily .... discontinue the trial and proceed to inquire  into the information as examining justices .... before the conclusion of the evidence for the prosecution". See s.25(2) of the Magistrates' Act 1980. The appeal to their Lordships' House converged on a construction point on s.25(2) in the procedural framework in which the Magistrates' Act 1980 was set. No parallel may be drawn.

23. Mr Miu, counsel for the applicant, further contended that the magistrate should have accepted the unequivocal pleas of guilty tendered to him on the basis that all essential ingredients of the offences then charged were admitted. Mr Miu leaned heavily on the judgment of Watkins L.J. in R. v. Telford Justices, Ex parte Darlington, supra. at p.199 where the Lord Justice said :

"I think it is only necessary to refer in this context to Newton (1983) 77 Cr. App. R. 13; Chief Constable of West Midlands Police v. Gillard (1986) 82 Cr. App. R. 186, [1986]A.C. 442; Williams v. R. (1983) 77 Cr. App. R.329, and St. Helens Magistrates' Court, ex parte Critchley (1988) 152 J.P. 102, [1988] Crim. L.R. 311."

"What those cases make clear is that in a situation where a defendant upon being asked how he pleads to a charge pleads guilty, and upon the facts advanced by the prosecution it appears that the plea involves a clear admission of the whole of the ingredients of the offence charged, the defendant has thereby made an unequivocal plea which the justices have to accept and cause to be entered upon the record. That having been done, they then have to turn their minds to, if it exists, any area of dispute as to facts which do not go to the ingredients of the offence but to matters affecting sentence."

24. In Stone's Justices' Manual, Vol. 1, (1990), after the decision in R. v. Telford Justices, Ex parte Darlington, supra. paragraph 3-21 at p.499 now reads as follows :-

"Where a defendant, charged with an offence triable either way, makes an unequivocal guilty plea and upon the facts advanced by the prosecution it is indicated that the plea involves a clear admission to the whole of the ingredients of the offence, the justices are obliged to accept the plea and record it."

25. On these authorities, Mr Miu urged upon me that the magistrate was left with no option but to accept the applicant's unambiguous pleas and that once the pleas were accepted (as they should have been), s.27(1)(b) of the Magistrates Ordinance could not be invoked to amend or introduce a new charge by way of amendment. From the outset, this argument would seem to suffer from a fundamental flaw by ignoring a magistrate's duty to deter his acceptance of a guilty plea for ascertaining, inter alia, "genuineness". Evidently, if no or a different charge should have been laid, a defendant may not even have any or any proper charge to hang his confession on. Moreover, it would also be open to the magistrate to withhold his acceptance of that plea for a great many other purposes.

26. Next I trurn to what a magistrate may be confronted with after he has deferred his acceptance of a guilty plea. I should begin with the possibility of amendment under s.27 of the Magistrates Ordinance. Properly read, s.27(1)(b) together with its (i) & (ii) and s.27(2) direct a magistrate to amend, subject to the two exceptions specified in sub-section (2), the "variance" between the charge and the evidence but to dismiss it unless no injustice would be caused. The two exceptions so specified are :

27. It is all too true that in summarising the facts of an offence in the information for the purpose of sentencing, evidence is not being given. We have been reminded by Lord Scarman in R. v. Dudley Justices, Ex parte Gillard supra. at p.197 that "the prosecutor or his advocate, summarising the facts of an offence for the information of the court following a plea of guilty, is certainly not giving evidence." In consequence, Mr Miu mounted his argument in this way : once a plea is accepted and entered upon the record (as it should allegedly have taken place with regard to the pleas to the original two charges in this case), no evidence, except for sentencing, needs to be led and there would be no "evidence adduced in support of" the charge for making a comparison with the charge itself as. envisaged by s.27(1)(b). Mr Miu submitted that since the applicant's pleas had been or should have been accepted, there would be no "adduced" evidence for comparison and s.27(1)(b) could not be called in aid.

28. The magistrate did not accept the plea or cause it to be entered upon the record. He did not convict the applicant. He was perfectly entitled to put off his acceptance pending verification of one or the other of the matters anticipated in the authorities I have alluded to. In this case, a variance between the joint charge and the "brief facts" came to his notice during the deferment. The magistrate, as Mr Marshall rightly submitted, would be obliged to address himself to the need for amendment under s.27(1)(b). The whole situation then developed into one in which the magistrate's power to amend immediately became the core issue. Could he act on the evidence not yet adduced to amend, including the substitution of a new offence under s.27(4) of the Magistrates Ordinances?

29. After a plea of "Not Guilty", from the summary facts a magistrate may have sufficient cause, under s.27(1)(b), to consider amendment, including substituting a new charge in place of the one being alleged in the information under s.27(4). The magistrate is to compare evidence in the "brief facts" to be adduced (but not yet adduced) with the charge for considering the need, if any, for amendment. The law cannot be so absurd or impractical as to require the magistrate to slavishly follow through the elaborate process of accepting the plea, causing it to be entered upon the record, commencing the hearing and taking all the evidence affecting the variance before making his comparison with the "adduced" evidence under s.27(1)(b). If the plea is one of "Guilty", there would be an added thankless chore of having to eject it and order one of "Not Guilty" to be entered upon the record. In my judgment, the law cannot be that inflexible and the words "at variance with the evidence adduced" in s.27(1)(b) include and were clearly intended by the Legislature to include also "variance with the evidence (to be) adduced".

30. For or in anticipation of an amendment, it cannot be objectionable to a magistrate "vacating" a recorded tendered plea in the sense of expunging it from his notes for good housekeeping purposes. On the authorities, he has even the power to "delete" an accepted and entered plea. There is no reason why he should not also enjoy the right to erase from his notes the entry he made of a plea which he has not accepted. However, the "vacating" of a plea not accepted such as that in this case would seem to be quite unnecessary.

31. It is of course not the case of Mr Marshall that the magistrate had accepted the plea and entered it upon the record. I have endeavoured to show how the magistrate in this case had become bound by s.27(1)(b) to consider amendment during the deferment of his acceptance of the pleas tendered. For the reasons I am about to give, it would appear that the magistrate did retain the power to amend. Similarly he would  have retained his power to amend or allow a withdrawal of a charge if indeed the plea had been accepted and entered  upon the record. Once the power of amendment is exercised or a charge is withdrawn, an accepted and entered plea falls with the replaced charge and both the prosecution and the defence would start afresh with a clean slate.

"Magistrates who try a case are not functi officio until they have passed sentence or have otherwise finally adjudicated". See R. v. Dudley Justices, Ex parte Gillard supra. at pp.190 & 191, per Kennedy J. A judicial determination involves, so explained Lord Upjohn in S. (An Infant) v. Recorder of Manchester, supra. at p.506, "two matters, a finding of guilt or the acceptance of a plea of guilty followed by sentence." The learned Law Lord continued . "Until there is such a judicial determination, the case is not concluded, the court is not functus officio and a plea of autrefois convict cannot be entertained. This has been the law from the earliest times : see Hale's Pleas of the Crown (1778), Vol. 2 Ch. 32, p.251, and it is equally applicable in a court of summary jurisdiction .........".

32. This view was embraced as recently as in the applicant's appeal by way of Case Stated by the Court of Appeal in Magistracy Appeal No. 96 of 1990, the reasons. for the judgment of which were handed down on the 17th May 1990. In Allan v. Wiseman [1975] R.T.R. 217 at p.220, Lord Widgery C.J. expressed a similar view that a magistrate is entitled to amend until he has become functus officio. In my opinion, it was open to the magistrate to continue to exercise his power to amend until sentence.

33. That a magistrate has power to amend until sentence seems also to be well supported by his power to withdraw. Withdrawal of the charge would, as I have said earlier, bring about the same effect to an accepted and recorded plea. "By long practice a summons may with the permission of the court be withdrawn without an adjudication. This does not, however, as a rule, have the effect of putting an end to the ground of information or complaint." Halsbury's Laws of England, 4th edn., Vol. 29 (1979) p.185, para. 328. The passage was cited with approval by Ackner L.J. in R. v. Redbridge Justices, Ex parte Sainty [1981] R.T.R. 13 at p.18, Letters A & B. Stone's Justices' Manual at p.36 para. 1-88 of the 1990 edn. confirms the legality of the same established practice :

"Withdrawal, substitution of charge. - clear authority exists enabling justices to grant an application to withdraw a summons without an adjudication."

34. Sainty was a case where a withdrawal of the charge was allowed before plea as the defendant had not been called on to plead. See p.18, Letters H-J. Kempster J.A. allowed a charge to be withdrawn before plea in A.G. v. Wong Kwai-lok, [1984] H.K.L.R. 364. Although in a case as archaic as the Jervis' Act, Tunnicliffe v. Tedd (1848) 136 E.R. 995, a withdrawal was not granted after the making of the plea, in the cases following, the focus was on final determination or adjudication. The King (McDonnell) v. The Justices of County Tyrone [1912] 2 I.R. 44 was another case of withdrawal with the consent of the justices before plea. At p.48, in his judgment; Palles, C.B. highlighted the absence of adjudication or adjudication on the merits. At p.52, Gibson, J. shared the same approach that a withdrawal with the consent of the justices "could not have a more binding effect than 'dismissed without prejudice'. The word only indicates that the case is struck out without hearing or adjudication". In Owens v. Minoprio [1942]1 K.B. 193, at p.197 Viscount Caldecote, C.J. also attached significance to absence of adjudication in a withdrawal before plea.

35. An example of a withdrawal after a plea of not guilty and during the evidence of the third prosecution witness is found in David v. Morton, [1913]2 K.B. 479. The law seems to be that irrespective of the acceptance or non-acceptance of a plea, the prosecution may, with leave, withdraw a charge before sentence. After all, Lord Upjohn was adamant that until sentence a magistrates' Court is not  functus officio and "retains full jurisdiction over all matters before it". S.(An Infant) v. Recorder of Manchester, supra. at p.191. On the, same parity of reasoning, Mr Marshall submitted that there could be no valid objection to the joint charge being amended before sentence and that the magistrate continued to be seized with the matters canvassed in this case until sentence. I agree.

36. At p.507 in S.(An Infant) v. Recorder of Manchester, supra. Lord Upjohn spoke of a withdrawal of a guilty plea in these words :-

"If the court upon all the facts before it, thinks it is proper to, accept a plea of guilty then the court may permit that plea to be withdrawn and the plea of not guilty accepted at the later stage up to sentence, that is, until the complete adjudication of conviction."

Withdrawal of a plea is somewhat different in nature from the withdrawal of a charge, but the observation of Lord Upjohn lends weight to the view that a magistrate retains jurisdiction over all matters until sentence.

37. The general power to amend, particularly as fortified by s.27(4) of the Magistrates Ordinance and the power to allow a charge to be withdrawn are both exercisable before as well as after plea. Ever if the magistrate had accepted the plea and caused it to be entered upon the record, in the circumstances of this case, the exercise of his power to allow amendment to the first joint charge on the application of the prosecution would have been equally valid.

38. I should mention in passing that the Attorney General's powers and duties on matters relating to criminal charges are well entrenched. "In the exercise of these   powers (the Attorney General) is not subject to direction by his ministerial colleagues or to the control or supervision of the courts". See Gouriet v. Union of Post Office Workers, [1977]3 A.E.R. 70 at p.88 letter h, per Viscount Dilhorne. It was not suggested that in tendering the amended joint charge of Assault Occasioning Actual Bodily Harm through the prosecution, the Attorney General was acting otherwise than with propriety. The matter was initially broached by the magistrate but the ultimately amended joint charge was formally initiated by the prosecution.

39. An accepted plea of guilty is a confession of fact. This is not a case of accepted and entered pleas. Mr Miu sought to make much of likely prejudice to the applicant. If the magistrate had or must be taken as having so accepted the pleas and entered them upon the record, they might not have been wholly inconsequential even after deletion. See R. v. Rimmer [1972] 1 A.E.R. 604. The possible prejudice in Rimmer was acknowledged by Lord Scarman as "a fully justified sense of grievance". See R. v. Dudley Justices Ex parte v. Gillard supra. at p.198. The applicant is now facing a new joint charge which is not said to be unjustified on the prima facie evidence and the medical report. In reality, disclosure of the applicant's pleas, even as accepted and recorded pleas, at the new trial would be remote in the extreme. Further, these pleas, if sought to be introduced and relevant, would hardly be expected to be admitted by any magistrate in the exercise of his discretion. Even on the assumption that these pleas had been accepted and entered upon the record, there could have been, in my view, no real fear of prejudice or injustice to the applicant. On that assumed premise, even if I had allowed the point of prejudice to be run, Mr Miu would not have succeeded.

40. Indeed, for a variety of reasons it was open to the magistrate to defer acceptance of the pleas. A magistrate has power to ponder over a plea of guilty. He has a duty to vet it. Subject to that, in the absence of any need for amendment or substitution of a new charge, a guilty plea admitting the essential ingredients of the charge must obviously be accepted. The magistrate in this case legitimately withheld the acceptance of the applicant's pleas, and it came about that he found himself having to consider and later allow the amended charge as tendered. In my view, he had power so to defer and so to amend until sentence and he acted properly within jurisdiction as he did.

41. Many aspects stemming from the assumption of an accepted and entered plea have been examined in deference to the efforts made by counsel. This application may be shortly disposed of in the way I have just summarised, although it has understandably taken a great deal of time in collating what authoritative support there is for a ground procedure so commonly practised here for more years than I care to remember.

42. The applicant's motion is wholly unfounded in principle and it is completely devoid of merits. It remains for me to dismiss this application with, subject to what the parties have to say, costs to the respondent.

43. I order that the motion be dismissed with an order nisi for costs in favour of the responsdent.

Representation:

Mr  Nelson Miu instructed by M/s. Hermes W.K. Lui & Co. for the Applicant

Mr W. Marshall Q.C. & Miss R. Drake, Sr. Crown Counsel (Mr S.K. Fok, Crown Counsel) (D.P.P.) for the Respondent