Re Fong Ping Sum

HCMP000494/1979

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Coram: Cons and O'Connor, JJ.

Date of Judgment: 4 October 1979

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JUDGMENT

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Cons, J.:

1. The applicant in these two proceedings was brought before the learned magistrate to answer two informations. The first is to the following effect:

2. The second is in substantially the same terms but relates to a different date and a different vehicle. The applicant pleaded guilty to both informations. On the first he was fined and on the second he was conditionally discharged and the radio unit confiscated.

3. He now comes to this court by way of certiorari and asks that the orders of the learned magistrate be quashed. He seeks that relief upon two grounds:

4. I will deal with the second ground first. It has no substance. The information is not happily worded and may perhaps have contributed to the misconception alleged in the first ground. But the information on its face does disclose an offence in law. It may be that in point of fact that particular offence could not have been substantiated by the prosecution against the applicant, as Mr. Suffiad submits, by reference to the "Brief Facts of the Case" annexed to the magistrate's record, and that what the draftsman had really intended was to charge the applicant under section 32 of the Ordinance which imposes criminal liability upon directors who consent to or who connive at an offence committed by their company; or it may be that the draftsman intended to rely upon some direct personal responsibility of the applicant himself within his own company, as Mr. Reid for the Crown suggests. But it does not matter. Neither is relevant to the question that we have to decide to in these proceedings. That question must be answered by simply looking at the charge itself.

5. On the other hand the first ground succeeds. I am satisfied that the applicant pleaded guilty under a genuine misapprehension as to the true position. He ought not to be bound by those pleas. He feels that he personally has a good defence to the charges and he should have the opportunity to put that to the magistrate.

6. I should add that in my view it was not proper in these circumstances to bring proceedings by way of certiorari. I appreciate that there is precedent for this cause of action: Reg. v. Chan Hung-to⁽¹⁾. But that was a special case where by the quirks of circumstance the applicant had been deprived of his right of appeal. Certiorari is a proceeding of last resort and should not be lightly undertaken. The applicant ought first to exhaust all other avenues which, in the present instance, should have been an application to the magistrate for review and then, if necessary, an appeal. I understand that those advising him took the view that an appeal was not open because he had pleaded guilty. With every respect that is not so where the ground of appeal is that the plea was invalid. Authority for this is referred to in Archbold, 40th edition, para. 367 and echoed in Reg. v. Chan Hung-to, already referred, at pp. 201 and 203.

7. It has been suggested that the application should be dismissed and the applicant left to seek leave to appeal out of time. For my part, I am not disposed to adopt that course. The applicant has shown a genuine case and I would not like to see him involved now in extra expense. I wish to emphasize, however, that this case should not be taken as a precedent.

8. I would, therefore, allow the application and quash the two convictions. The two informations should be remitted to the magistracy concerned for a fresh hearing.

O'Connor, J.:

9. I agree and have nothing to add save that where the prosecution are relying on s. 32, they ought in the statement of offence, to refer to both s. 32 and the section creating the offence that the defendant is alleged to have consented to or connived at.

Representation:

A.R. Suffiad (Yeung & Ko) for the applicant.

C.W. Reid, Counsel for Crown, for the respondent.

(1) 1977 H.K.L.R. 198