HKSAR v. Yi Mei Ling

HCMA000569/2002

HCMA 569/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 569 OF 2002

(ON APPEAL FROM NKCC 3262 OF 2002)

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Coram: Deputy High Court Judge Wong in Court

Date of Hearing: 5 November 2002

Date of Judgment: 5 November 2002

Date of Reasons of Judgment: 18 November 2002

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REASONS OF JUDGMENT

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1.On 28 May 2002, the appellant, YI Mei-ling appeared before a magistrate in North Kowloon Magistracy on a charge of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong, contrary to s.38(1)(b) of the Immigration Ordinance, Cap. 115. She was represented by Mr Yeung Shak-nung of the Duty Lawyer Services. According to the audio record, the charge was read to the appellant. She pleaded guilty. The summary of facts were read out in Punti. The facts, which were set out by the magistrate in his Statement of Findings, were:

"On Sunday 26 May 2002, at about 6:10 p.m., police officers went to the premises of the 'Si Si Wong Finger Cure' in Tung Choi Street, Kowloon, under the authority of s.16 of the Protection of Children and Juveniles Ordinance, Cap. 213. The officers found the appellant in a room with a male member of the public. The male member of the public told the police officers that he had gone to the premises to hire a prostitute. A male had greeted him and had offered him the services of a prostitute at a cost of $340. The male then brought the appellant to the member of the public in a room.

The appellant was found to be an illegal immigrant and subsequently admitted to a police officer that she had worked in Hong Kong after having sneaked into the SAR from the mainland on the day of her arrest."

The appellant then said that she agreed. After this, the magistrate said to Mr Yeung:

"Thank you, I'm grateful. Mr Yeung, you've agreed and signed my copy of the brief facts. Anything known, Miss Chow?"

Miss Chow replied: Clear record. Mr Yeung began his plea in mitigation in these terms:

"She's now 24 years old, single, unemployed. Both her parents are dead, she lives with her elder sister in mainland China. Her elder sister is now married and makes no financial contribution to her. So she came to Hong Kong to earn ... (indistinct), some money to ... (indistinct) She is now very remorseful now for the greater ... (indistinct), Sir."

Finally, the magistrate said:

"Defendant, on your own admission, I find you guilty of the offence and the charge, and convict you thereof. You will go to prison for a period of 15 months."

2.The appellant appeals against conviction and sentence.

3.It was agued before this court by Mr A A Hoosen on behalf of the appellant that her plea of guilty was a nullity on the grounds that:-

1. She was induced to plead guilty by misrepresentations made by police officers after her arrest that a person guilty of sneaking into Hong Kong would be quickly returned to the mainland; and/or

2. No offence ever took place as she had entered and was in Hong Kong on a valid two-way permit; the charge and the guilty plea were based on a fiction.

In support of these grounds, an affirmation of the appellant, YI Mei-ling, was filed on 2 November 2002. In the affirmation, she claimed that she entered into Hong Kong on 26 May 2002 legally on a two-way permit in the name of "LIU Shao Lan" which had her photograph affixed on it. She said that the two-way permit was placed inside a pocket of the jeans she was wearing on that day. After her arrival in Hong Kong, she went to her cousin's home in Kowloon and had a shower. She changed her clothes after the shower and forgot to take out the two-way permit which she left in her cousin's home together with the pair of jeans. She also said that she had a Godmother in the mainland with the surname "Yi" and she had been given the name of "YI Mei-ling". She only used the name "LIU Shao Lan" in official documents and records. As to her plea of guilty, she said:

"9. There were also other girls being arrested by the police on 26 May 2002. At that time, I heard some of them say that one could return home (in China) very soon if one sneaked into Hong Kong unlawfully.

10. When I was brought to the police station, before any statement was taken from me, again I heard one police officer say that one could return home (in China) very soon if one sneaked into Hong Kong unlawfully. Afterwards a police officer asked me whether I wanted to go back to China sooner. I answered, "yes". He then said that "That means you sneaked into Hong Kong unlawfully." I replied 'If you say so then I sneaked into Hong Kong unlawfully.

11. On 28 May 2002, I was brought to court. Relying on what I had heard as aforesaid I decided to plead guilty to the charge even though I clearly knew that I was not landed in Hong Kong lawfully. If I had known that I would be sentenced to 15 months' or any substantial term of imprisonment, I would definitely have pleaded not guilty to the charge."

4.When this appeal first came before Deputy High Court Judge Carlson on 13 August 2002, the respondent was directed to carry out an investigation. The result of the investigation was that one LIU Shao-lan arrived in Hong Kong on 26 May 2002 at 9:46 a.m. on a two-way permit and there was no movement record thereafter. The respondent is unable to say whether LIU Shao-lan is the appellant.

5.The first question raised in this appeal is whether the appellant can now appeal against her conviction after pleading guilty to the charge. In this connection, we have to look at s.113(1) of the Magistrates Ordinance, Cap. 227 which provides:

"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."

From the audio record, which I need not repeat, it is abundantly clear that the plea of guilty was beyond the slightest doubt unequivocal, voluntary and clear. It does not fall under any one of the circumstances referred to by Woo JA in HKSAR v. Wong Chi-yuk [2002] 3 HKLRD 125.

6.In my view, the plea of guilty is clear and unequivocal and is not and cannot be treated as a nullity. The allegation of inducement is so vague and unclear that must be viewed with great suspicion. As the appellant said in paragraph 11 of her affirmation that had she known that she would receive a 15 months' sentence she would definitely have pleaded not guilty to the charge. Why didn't she immediately tell the magistrate or the lawyer representing her that she had been induced to plead guilty and that she in fact had a still valid two-way permit which would be a complete defence to the charge against her. Why did this document come to light at the eleventh hour at the time of the appeal? And it was in a different name. The two-way permit, no matter where it has come from or who the holder may be, has raised more questions than it answered. The admission of fresh evidence during an appeal is governed by s.83V of the Criminal Procedure Ordinance, Cap. 221 and the party seeking to adduce the evidence must satisfy the court that the evidence is credible and it was not available at the trial. The affirmation of the appellant is clearly not credible and cannot be admitted. Counsel for the appellant submitted that the plea was based on a fiction. Not so, if there is any fiction, the appellant is the author of that fiction. She created it.

6.There is no substance in the argument and the appeal against conviction is dismissed.

7.The appeal against sentence is also dismissed as the sentence of imprisonment of 15 months is a proper sentence passed in accordance with the guidelines laid down in R v So Man-king & ors. [1989] 1 HKLR 142.

Representation:

Ms Winnie Lam, Government Counsel for HKSAR

Mr A A Hoosen, instructed by Messrs Edmund Cheung & Co.,assigned by the Director of Legal Aid, for the Appellant