HKSAR v. Wan Siu Kei

HCMA000852/2000

HCMA 852/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 852 OF 2000

(ON APPEAL FROM TWCC 1567/2000)

____________

____________

Coram: Deputy High Court Judge To in Court

Date of Hearing: 16 January 2001

Date of Judgment: 16 January 2001

_______________

J U D G M E N T

_______________

Background:

1. The Appellant pleaded guilty to one charge of offering taxi services in the airport without permission of the Airport Authority, contrary to sections 35 and 36 of the Airport Authority Ordinance, Cap 483; one charge of doing an act tending and intended to pervert the course of public justice, contrary to common law; and one charge of resisting a police officer in the due execution of his duty, contrary to section 36(b) of the Offences Against the Person Ordinance, Cap 212. He was fined $1,000 for the 1st Charge, and sentenced to 2 months imprisonment for the 2nd Charge, and 1 month imprisonment for the 3rd Charge concurrently. By the time of hearing of the appeal, he has already served his sentence.

2. The facts of the case as admitted by him are as follows. On 2 April 2000, the Appellant intercepted PW1, a tour group operator returning from Thailand and offered his taxi for hire, less the Tsing Ma Bridge fee. PW1 accepted the offer. On the way to the car park where his taxi was parked, the Appellant gave PW1 his name card and told him that if intercepted by the police, PW1 should tell the officers he had called the Appellant to pick him up as he was the Appellant's regular customer. He told PW1 that if the police should question him further, he should threaten to make a complaint. As they approached his taxi, they were intercepted by PC34010. He told the officer that he had been called to pick up PW1. But PW1 told the officer what had actually happened and that the Appellant had instructed him to mislead the officer. At that time, PC46920 joined in the inquiry. The Appellant became aggressive and walked away from the officers. Despite warning from the officers that he was under arrest, the Appellant kept walking away. When the officers tried to stop him, a struggle ensued.

Appellant's ground of appeal:

3. The Appellant said that he had previously been prosecuted by the police twice for offering taxi service, but was acquitted on the first occasion and as a result of which the police offered no evidence against him on the second occasion. He said that the present case was a frame up because the officers had a grudge against him. He said he had an appointment to meet a Japanese customer at the airport, but he was late. Then he offered his taxi service to PW1. It was PW1 who suggested the story about having arranged to pick PW1 up at the airport.

4. He said that the solicitor's clerk told him to admit to the 1st Charge and that his solicitor would bargain with the prosecutor to drop the 2nd and 3rd Charges. He agreed. He was only informed by the clerk that the prosecution could only make a decision about the plea bargain on the hearing day. By then it was too late for him to instruct another firm of solicitors. On the day of hearing, he was informed that the police insisted to proceed on all the three charges. He said the clerk induced and coerced him to plead guilty saying that the magistrate was well acquainted with his solicitor and assured him that he would not receive a custodial sentence if he pleaded guilty to all the charges. He said when his case was set down for trial, the magistrate has warned him that his case must proceed on the trial day and no application for adjournment would be entertained. Hence he pleaded guilty. He said he disagreed with the facts when they were read out to him and as a result the case was stood down. He was then threatened by the solicitor's clerk and hence he admitted the facts as well. He did not have the opportunity to discuss his case with counsel.

5. What he said above is at variance with his detailed statement in support of his appeal. Today, he admitted offering taxi service whereas in his statement, he said he was driving with PW1 on board before he was stopped by the officers and he took the initiative to explain to the officers what had happened.

6. What he said about his protest when the facts were read out to him does not agree with the transcript of the proceedings. The transcript shows that after pleading guilty to the 1st and 2nd Charges, he told the magistrate that he wanted to consult the lawyer as a result the court stood down for 20 minutes. When hearing resumed, he pleaded guilty to the 3rd Charge, and when the facts were read, he freely admitted them.

Conclusion:

7. The Appellant's story about framing up is inherently incredible in view of the evidence from PW1 and that the incident was witnessed by an officer of the Airport Authority. He was obviously exaggerating his case about his protest when the facts were read to him. In fact, it is not clear what his case is in view of the conflicting accounts in his statement and his submission in court. The Appellant had been invited to obtain affirmations in support of his appeal; but failed to do so. Though on his account, it is unlikely that the solicitor's clerk would offer anything useful, however, his counsel could have probably supported at least part of his account, if what he said was true. But no affirmation in support has been filed. I find his account today incredible.

8. The Appellant was represented by a very experienced and competent counsel. As the transcript shows, he had a brief adjournment to consult his counsel. If he had told his counsel what he said in court today, I am sure his counsel would have advised him to reverse his pleas to the 1st and 2nd Charges and to plead not guilty to the 3rd Charge and if necessary to apply for an adjournment so as to prepare his case for trial. However, after the consultation, there was no application to reverse his pleas to the 1st and 2nd Charges, and he pleaded guilty to the 3rd Charge and freely admitted the facts.

9. In conclusion, the Appellant has not advanced any credible ground to support a reversal of his pleas. He was then represented by counsel. His pleas were unequivocal and his admission of the facts were unambiguous and unconditional. His convictions were proper in view of his unequivocal pleas and unconditional admission of facts. His appeal is therefore dismissed.

Representation:

Appellant in person

Mr P K Madigan, Senior Government Counsel of Department of Justice, for the Respondent