HKSAR v. Yu Chi Wing

CACC000352/2002

CACC 352/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 352 OF 2002

(ON APPEAL FROM DCCC NO. 403 OF 2002)

____________________________________

_______________________________

Coram: Hon Stock JA, Yeung JA and Burrell J in Court

Date of Hearing: 10 July 2003

Date of Judgment: 10 July 2003

________________

J U D G M E N T

________________

Hon Stock JA giving the judgment of the Court:

Introduction

1This case is now an application for leave to appeal out of time against conviction, although when it first came before us on 13 December last, it was merely an application for leave to appeal against sentence. In the light of the history which this judgment recounts, we then expressed concern about the propriety of the plea of guilty upon which sentencing had proceeded, and granted the applicant legal aid for an application against conviction.

2We say at once that the District Court Judge, Deputy Judge Jenkins, was faced at all times with a most unusual situation and that he quite properly was very concerned with whether the plea of guilty which ultimately was tendered by the applicant was or was not equivocal.

The charges and facts

3The applicant was originally charged with two offences, assaulting a police officer, contrary to section 36(b) of the Offences Against the Person Ordinance, Cap. 212; and attempted possession of arms and ammunition without a licence contrary to section 13 of the Firearms and Ammunition Ordinance, Cap. 238. The summary of facts then prepared made no suggestion that there was any intention permanently to deprive the officer of his pistol; yet for some reason which, given the very unusual circumstances of the case, we find difficult to understand, the charge was changed to attempted robbery, and the summary of facts added no more than a sentence to say that the applicant was attempting to rob the police officer of his pistol. It is that puzzling change that has caused so much trouble in this case.

4The applicant is aged 35 years. The offence took place on 19 March 2002. He pleaded guilty on 20 June before the District Court Judge, Deputy Judge Jenkins. Mitigation followed but the judge was concerned about the plea, whether it was equivocal, for the facts put forward in mitigation did not seem to match the plea. The matter was adjourned and resumed on 25 June, and further mitigation was advanced, and on the basis of the plea the judge sentenced the applicant to a term of two years' imprisonment.

5The facts of the offence were summarised thus by the judge in his Reasons for Sentence:

"2. The circumstances surrounding the commission of the offence and the location of it are unusual to say the least. The admitted facts reveal that at about 4.20 am on 19 March this year you had gone to the Yau Ma Tei Police Station to make a crime report, namely, that the evening before you had seen three to four people following you whom you believed were going to ambush you. After giving a statement to the police you appeared to police officers to be afraid to leave the police station and accordingly you were allowed to wait in the front report room for friends to pick you up later.

3. Later, PC34409, who was on duty in uniform in Yau Ma Tei Police Station, happened to go into the front report room and was attending to an enquiry made of him by a member of public when you got up and grabbed his neck from behind with your arm. You had then attempted to take his pistol which was loaded with six rounds of ammunition from his holster, but fortunately you were thwarted by PC34409 and some colleagues of his."

6The officer suffered some tenderness to his neck and was treated in hospital and discharged.

Psychiatric assessment

7The applicant has a long string of previous convictions going back to 1981 for theft, loitering, possession of drugs, a robbery in 1990, possession of obscene materials, blackmail and copyright offences.

8Two psychiatric reports were placed before the District Court, each dated 6 June 2002. They disclose a long history of drug addiction; and one report says that "his drug abuse was complicated by the development of psychosis, characterized by auditory hallucinations, paranoid ideas and mood disturbances. These symptoms tended to resolve when he stopped to take the substances."

9After his arrest, he was remanded to Lai Chi Kok Reception Centre and he suffered withdrawal symptoms, and was referred to the Siu Lam Psychiatric Centre at the end of April this year. The assessment by Dr Grace Chan was that he gave a coherent account of his conduct in the police station, saying that he had no intention of grabbing the revolver from the officer, but was merely upset that the complaint which he had made had not been taken seriously. Dr Chan concluded that he was paranoid, and that it was quite feasible for someone with strong paranoid traits or under the influence of some psychotropic substance to overreact to otherwise normal situations. She then said that under treatment he had been showing improvement, and that inpatient treatment was not indicated.

10The other report was by Dr Pang, also of Siu Lam. The applicant told this psychiatrist that he had had a feeling of being threatened, and had thought of securing his own detention in order to escape from the threats of his enemies. Dr Pang concluded that he was likely to have been suffering from a chronic debilitating mental illness, namely schizophrenia, for quite a few years including the time of the offence: "His judgment and reality testing is likely to be affected by the psychotic experience." Dr Pang added that, in the course of the applicant's detention at Siu Lam, progress had been made and that hospital treatment was not warranted, although outpatient treatment was.

The sentencing proceedings

11The applicant was represented by counsel before the District Court; not Mr Tracy who represents the applicant for the purposes of this appeal. In the course of a lengthy mitigation on 20 June, counsel told the judge that the applicant had been without sleep and in a state of fear about the gang that he thought was to attack him and that he, the applicant, thought on the date of the alleged offence that the officer was about to pull his gun out and hurt the applicant. The judge said that he was not prepared to accept that assertion unless he so found after a Newton hearing. Counsel did not immediately answer this concern, but went on to say that the applicant's conduct was to be explained by his psychiatric condition. Counsel pointed out that the applicant had not long before provided his personal details to the police, and that fact showed how unlikely it was that this conduct of his in trying to snatch the gun was in any way premeditated, or that the gun was intended for use in the commission of an offence. The judge, not surprisingly, was troubled by the unusual features of the case and what sentencing approach should be adopted, and canvassed them with prosecuting counsel who, although understanding the judge's concern, pointed out that the suggestion that the applicant was about to be attacked must have been a matter, if true, entirely within the mind of the applicant; since it was clear from camera evidence that there could have been no justification for such a fear.

12The case was adjourned to the following day, and discussion then resumed. The Court asked counsel whether the defendant's case was that he wanted to do something to ensure his detention at the police station; or was it the case that he was taking the gun to protect himself from his supposed pursuers. Counsel said that it was neither; that he wanted the gun because he, the applicant, feared attack by the policeman himself. So the judge expressed his concern about the appropriateness of the plea. It is noteworthy that, in response, counsel for the applicant went so far as to say that the applicant did not even intend to grab the gun; yet a little later, counsel said that his client had indeed intended to steal it. The discussion between counsel and the judge included frequent references to whether the applicant intended to "take the gun", though without addressing the question whether, even if so, there had been an intention permanently to deprive the officer of it - a question which in the odd circumstances of this case and the statements made by counsel really required to be addressed. No doubt that is what the judge had in mind when he raised his concerns.

13The matter was stood down for a while and discussion resumed, upon which counsel told the judge that for the applicant to seek to obtain a gun was in the circumstances wholly pointless and that the applicant had had no motive in doing so. He repeated the contention that the applicant's action had been in response to his perception of the police officer's hostility. The Court then renewed its expression of concern about the plea and asked in terms whether it was the applicant's intention to "take the gun" - not, one notes (though the judge no doubt had it in mind), to take it permanently, and counsel's answer was: "It's difficult to say". The judge remained concerned, a concern which was no doubt buttressed by the accounts in the medical reports of the applicant's assertion that he had had no intention of grabbing the gun.

14We pause here to say that the reading of the transcript to this point in its history leaves us with some doubt whether counsel for the applicant fully appreciated the essence of the court's concern, never spelt out in terms, which was not only whether there was an intention to take hold of the weapon but also, and particularly, whether there was an intention permanently to deprive the officer of it. We also think that at this stage of the proceedings matters had for some considerable time progressed in such a way that it would have been better had the judge decided to treat the plea as equivocal, as clearly it was and remained up to that point, and to order a trial of the issues.

15In the event, however, the matter was adjourned for a few days so that counsel could take further instructions, and that prosecuting counsel could see whether in the case file there emerged any information which might further assist in resolving the issue which troubled the court.

16On 25 June the parties returned. Counsel for the applicant said that the applicant wished to say that he realized what was happening as the incident progressed; invited the court to accept his plea; and the admission of the summary of facts (which included an admission that the "defendant was attempting to rob [the officer] of his loaded pistol"; and, said counsel that "he had the requisite intent to take away the pistol". That admission seemed to clinch the matter, although, again, we see no express reference to an intention permanently to deprive the officer or the police force of it.

17The judge accepted the plea.

18The Deputy Judge was then faced with a very difficult sentencing decision. On the one hand, robbery is a serious crime; and any attempt to take from a police officer his gun is a particularly serious crime. On the other hand, the facts of this case were unique, for here was an offender who was, there can be little doubt, mentally unstable at the time, and who was in a police station seeking the protection of the police at the time of the offence, having provided them with all his particulars. The judge took the view that this was not a case in which the normal sentencing tariffs were of much use. He took a starting point of three years' imprisonment and then imposed a term of two years to give effect to the plea of guilty.

This application

19In the light of this history, we granted the applicant legal aid on 13 December and the application for leave to appeal out of time against conviction, despite the plea, is now pursued.

20We have now seen the applicant's proof of evidence which was prepared for the trial and which is dated 6 June 2002. In it, the applicant said that he never intended to commit robbery. He stated that he apprehended an attack by the officer and, to prevent it, he pressed his hand against the officer's right hand to stop the officer withdrawing the pistol from his holster. That proof of evidence clearly did not sit well with a plea of guilty.

21We also have a note or statement from counsel who appeared for the applicant at the District Court stage. Counsel says that he conferred with the applicant in Siu Lam Psychiatric Centre on 6 June 2002. The applicant intended to maintain his plea of not guilty. The applicant said that he thought that the officer was hostile, and that he, the applicant, wanted to prevent an attack. Counsel advised, quite properly, that psychiatric reports should be obtained. There was a hearing, for the case to be mentioned, on 11 June, and after the hearing there was a conference in the cells. Counsel explained to the applicant that the Court would decide "whether to accept his version or not, in particular whether he had the necessary intent to rob the gun. The defendant considered for a while and told us he decided to plead Guilty." Counsel says that he then advised the defendant that a heavy sentence might be imposed, but the defendant maintained his plea. The applicant confirmed that he agreed with the summary of facts. Counsel refers then to conferences which took place when the Court was raising its doubts about the plea. There is in counsel's statement an account to the effect that the applicant said that he was confused, that his recollection of the incident was limited, and that he had to give the matter some consideration and would provide further instructions the next morning. The following morning the applicant said that he would stick to the summary of facts and that "he accepted that he had the requisite intent at the material times."

22What does not emerge from counsel's statement is whether it was specifically explained, or explained sufficiently, to the applicant, that robbery was not proved by the mere taking of the gun but only if there was also an intent to take it permanently. We have considerable doubt in the light of the history of the matter, including the applicant's mental condition, that it was a point which he, the applicant, in any event, understood.

Conclusion

23The respondent does not oppose this appeal. We have to say that the justice of the matter in this most unusual case appears to us to demand that the appeal be allowed, for we think it clear from this history that the conviction for the offence of robbery, albeit founded on a plea of guilty, is not safe or satisfactory. Whether one proceeds on the basis that the plea was equivocal, or that the evidence shows that the applicant did not appreciate the nature of the charge, is a question which seems to us to be unnecessary to determine as between the two. Up to the last day of proceedings before the judge, there can be no doubt in our minds but that the plea had been equivocal, even though it may be said with some force that, given counsel's statement to the court on 25 June, the judge was entitled then to proceed as he did; although, as we have already indicated, the better course, in our respectful judgment, would have been for a plea of Not Guilty to have been entered before that day, and for the matter to have been tried.

24It will be rare for an application to succeed on the basis that an appellant did not appreciate the nature of the charge; and the courts will always treat such suggestions after a plea of guilty and sentence with considerable circumspection, for it is an obvious avenue of potential abuse. But if in the rare case it can be proved, then it affords grounds for saying that a conviction is neither safe nor satisfactory: see R v Forde (1923) 2 KB 400, 403; R v Liberti (1991) 55 A Crim R 120; R v Ferrer-Essis (1991)55 A Crim R 231 and R v Pauli (1991)55 A Crim R 297. We think that that is shown in this case; and that accordingly the conviction is not safe. Therefore, we shall grant the applicant leave to appeal out of time and, treating the hearing of the application as the appeal, we allow the appeal and set aside the conviction and sentence.

25The appellant has served almost all of his sentence. Indeed, he is due for release in less than three weeks. In these circumstances, we do not think it appropriate to order a retrial which, but for this fact alone, we would certainly have ordered for the original offences of attempting to obtain possession of a firearm and assaulting a police officer. Both counsel for the appellant and the respondent concede that these are not offences for which this Court can substitute convictions for the robbery conviction. Accordingly, the appellant is discharged.

Representation:

Mr M P Tracy assigned by DLA for the Applicant

Miss Lynda MA Shine, SGC of the Department of Justice for the Respondent