Re Chan Hung To

HCMP000122/1977

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS NO. 122 OF 1977

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Coram: Full Bench (McMullin and Li, JJ.)

Date of Judgment: 18th April, 1977.

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JUDGMENT

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1. On the 18th of April we granted an application by CHAN Hung-to for an order to remove into this court and quash certain determinations and orders made by Mr. Daniell, a magistrate sitting in Fanling on the 9th and 16th of December and I now give a summary of the reasons then given in open court.

2. The applicant was tried upon two charges: one of dangerous driving causing death and one for using a motor vehicle with a defective tyre. The charges, it appears, were originally separately investigated but eventually were consolidated for the purpose of trial. On various preliminary appearances in court the appellant pleaded not guilty on, it would appear, three separate occasions to both of these charges. On the 9th of December the case proceeded and evidence was led for the Crown. The victim of the dangerous driving charge was in fact the applicant's own wife, although this is a fact which does not appear at any stage to have been drawn the magistrate's attention. However, by reason of the fact that a witness was not called by the Crown to identify the victim, who was taken from the scene of the accident either dead or in a moribund condition, as the person who was taken to the hospital the learned magistrate took the view that the elements of the first charge as they stood had not been fully proved. He thereupon, purporting to act under section 27 of the Magistrates Ordinance, altered the charge to one of dangerous driving simpliciter, explained the reasons for the alteration and the nature of the charge to the applicant and called upon him to plead again. This does not seem to have been a necessary procedure in view of the fact that section 11 of the Road Traffic Ordinance empowers a conviction for dangerous driving where the charge, although laid as one of dangerous driving causing death is proved only to the narrower extent of dangerous driving. The present application stems from the alteration of the charge in this way. What the applicant alleges in his affidavit is that exchanges between himself and the interpreter upon the reading of the amended charge to him led him to believe that it was advisable to plead guilty and that thereafter he would be given an opportunity of telling his story to the magistrate who could then decide who was responsible for the occurrence of the traffic accident. It was his case that immediately thereafter the interpreter also asked him whether he pleaded guilty to the second charge, the defective tyre charge, and that he was shown a photograph purporting to be a photograph of the defective tyre and that he came to the conclusion that the magistrate already believed the tyre was defective and that he therefore entered a plea of guilty to that charge as well.

3. There is no doubt that, taken on its face value, this affidavit alleges a quite improper attempt on the part of the interpreter to influence his plea by a display of irritation and by some testy and critical language. There are replying affidavits by the magistrate, the interpreter, the court prosecutor and certain other persons which totally deny that anything in the nature of coercion or other improper behaviour occurred. We pointed out to Mr. Kotewall at the beginning of these proceedings that this issue could scarcely be decided upon the affidavits as they stood but he was not disposed to ask for leave to cross-examine upon them and based the case of his client on an altogether more attenuated plea. He urged us to say that upon the affidavits as they read, even if we could not resolve the conflict on this question of impropriety, there were indications that the applicant had in any case altered his plea under what has been referred to throughout these proceedings as "self-induced mistake". It must be said at once that nothing which appears upon the affidavits and nothing which was said in the course of the hearing has put this court into a position to say that anything in the nature of an impropriety occurred whether of the extreme nature indicated by the applicant or to any other extent. On the other hand there are indications from the undisputed matters in the affidavits to show that the record kept by the learned magistrate does not necessarily show all the exchanges nor was it to be expected that it would. There might, that is to say, be some ground for the contention that there was misunderstanding by the applicant of what was said to him by the interpreter on his being called to plead to the altered charge. It is not alleged that there was an impropriety or want of care on the part of the magistrate or the prosecuting officer or anybody else connected with the event other than the interpreter. If this were the state in which matters had been left at the conclusion of the hearing we would have had no hesitation in refusing the application. It is what happened thereafter which moved us in the end to grant the relief sought. The imposition sentence was deferred for the production of probation report and sentence was not imposed until the 16th of December, a week after the ostensible plea of guilty to both charges. The applicant was convicted and discharged but he was disqualified for 18 months for all classes of motor vehicles. On the second charge, the defective tyre charge, he was convicted and discharged. It has been suggested by Mr. Wong who appeared for the respondent that it was this event which galvanized the applicant into taking the action which he has taken with before this court. That cannot be true however because between the 9th and 16th of December he had already approached the officers of UMELCO to ask for assistance as to what course of action he could take following upon his conviction in a case in which, as he alleged, he had been induced against his own judgment to plead guilty. There seems no doubt therefore that he was genuinely disturbed about the result of the conviction prior to the imposition of sentence. On the 24th of December he applied for legal aid and on the 28th he gave notice of appeal in respect of the case concerning the dangerous driving charge to the Fanling Magistracy. This application was dealt with in the usual way and the applicant entered into the usual recognizance to prosecute the appeal. The papers were placed before the same magistrate who observed from them that there had been a plea of guilty. In view of that he did not prepare a statement of findings and he instructed his clerk to inform the purported appellant that under the circumstances an appeal against conviction could not be presented. It is abundantly plain that at this juncture there was no question of any impropriety in the behaviour of the magistrate or of any of the officials involved. The clerk and interpreter who dealt with the applicant at the time of his seeking to appeal were not the same clerk and interpreter as had been involved in the court proceedings and, as to Mr. Daniell, it was never brought to his attention that the purpose of the appeal was to have the conviction set aside on the ground that there had been coercion, or something in the nature of undue influence, exerted at the time of the applicant's pleading to the altered charge. What occurred therefore was entirely per incuriam so far as everybody connected with the appellant on the official side was conoerned. Had the applicant at that point insisted upon continuing with the appeal and had the matter been represented to the learned magistrate on the basis that the appeal concerned the challenging of the conviction as the fruit of an unjustified plea there is little doubt that the magistrate would have prepared his statement of findings in the usual way. Had the magistrate refused to do so there would have been ground for the appellant to apply for a writ of mandamus to compel him to prepare such a statement. As it was, the defendant, being then wholly without legal advice or representation (although he had applied for the same), appears to have accepted the situation as being that he would not challenge this direction issued to him by the clerk on behalf of the magistrate. He thereupon agreed to sign notice of abandonment of appeal having refused to entertain the suggestion of the clerk that he might like to appeal against sentence alone.

4. Nothing further happened about the case until, upon the 18th of January, he was, for the first time, interviewed by a lawyer at the Legal Aid Department to whom the circumstances of his case were presumably explained. Legal aid was formally granted on the 8th of February and thereafter the present application was prepared and presented on his behalf.

5. It is needless to refer to all the authorities which were debated before us in the course of the hearing. The general principles are not in dispute. Mr. Wong has based his opposition to the making of the order primarily upon the contention that there had not been shown any excess of jurisdiction on the part of the magistrate. Subsidiary to that argument was his contention that the remedy sought was inappropriate because the applicant's rights of appeal had not been explored and exhausted. He did not dispute that certiorari to quash may issue not only where the complaint is excess of jurisdiction or error apparent upon the face of the proceedings but also where it is shown that there has been in any sense a breach of natural justice. That the magistrate had jurisdiction to convict and sentence in the way he did is not disputed inasmuch as he was acting upon a plea which appeared to him to be voluntary and unequivocal. But if there is material to suggest that the plea was not in fact a genuine plea because it was in some way vitiated by mistake or lack of comprehension (even though this be attributable primarily to the defendant himself) the possibility arises that there has been, as it were, an involuntary breach of natural justice sufficient to invoke the superior court's special intervention. Mr. Wong sought to argue, on the authority of R. v. Campbell ex parte Nomikos⁽¹⁾, that there is no authority for granting certiorari where a plea of guilty has been entered and where no question as to jurisdiction arises - at least in the sense that it is clear that the magistrate has done nothing wrong. In that case however there was no doubt about the intention to plead guilty and no question bearing upon any alleged breach of natural justice, as distinct from excess of jurisdiction, was argued. It is true that Lord Goddard, C.J. does say: (page 283) in round terms that certiorari to quash always depends on jurisdiction. And later he says:

"Another ground for refusing certiorari in this case is that I know of no case where a plea of guilty has been entered and certiorari has been granted."

It is true also that this latter proposition was considered and affirmed in R. v. Burnham Justices⁽²⁾ by Lord Parker, C.J. but there again no question arose as to the intention of the defendant to plead guilty, Lord Parker said:

"It would be very novel to grant certiorari in a case where the applicant has deliberately pleaded guilty ...."

The whole question at issue in the present case is whether there was a deliberate plea of guilty. It can scarcely be argued that there is a deliberate plea in any case where there is fundamental misconception induced either by misunderstanding or any other cause as to the nature and effect of such a plea. Prior to his decision in the case of Nomikos⁽¹⁾ Lord Goodard had indeed suggested that certiorari to quash might be available where a man had pleaded guilty under some genuine misapprehension. (See R. v. West Kent Quarter Sessions Appeal Committee Ex Parte Files⁽³⁾). He added that although the matter did not fall for decision in the case then before him he was inclined to think that in such a case the remedy would be certiorari but he added that it would take a very strong case to give rise to it. In any event there is authority from this territory to show that certiorari may apply in a case where there has been a plea of guilty even although no question arises as to the exceeding of jurisdiction by the magistrate. In The Queen v. The District Judge of Hong Kong ex parte the Attorney General⁽⁴⁾ the decision in Nomikos⁽¹⁾ was expressly reviewed, together with a number of other decisions, and although the application (which included applications for orders of certiorari and mandamus) - moved upon the ground of irregularity apparent upon the face of the record, and not upon the plea of excess of jurisdiction on the part of the magistrate, the application was nevertheless granted. That was not a case in which there had been a plea of guilty but in CHAN Kwok-choi v. The Queen⁽⁵⁾ the defendant had pleaded guilty to a charge of being a member of a triad society. After conviction and sentence he applied to the magistrate to review. Upon the review it was argued on his behalf that he had pleaded guilty under duress. The magistrate found no merit in the contention and refused to allow him alter his plea at that stage. Sir Ivo Rigby, C.J., having expressed doubt as to whether the magistrate had a discretion under section 104 of the Magistrates Ordinance to permit a defendant to withdraw a plea of guilty after conviction (the matter then being before him by way of appeal on the same ground of duress) went on to say:

"Finally, I was satisfied that these proceedings by way of appeal, were in fact misconceived since from the grounds of appeal, as filed, the defendant's remedy, if any, was not by way of appeal but by way of High Court proceedings in the form of certiorari and mandamus."

In the present case we therefore took the view that certiorari was an available remedy where the defendant wished to argue that his plea had not been a genuine one.

The applicant bases his claim to the order on the ground that there has been failure of natural justice. Although it is plain that he has failed to sustain the particulars alleged by him in support of that claim the facts which he alleges, construed upon the narrower basis upon which Mr. Kotewall was content to rely, that is upon the basis that they display not overt impropriety but something in the nature of self-induced mistake, are clearly so closely connected with what occurred at the time when he attempted to present his appeal that it appeared to us that it would be unjust to dismiss his application as failing to sustain the stronger ground when, as it appeared to the court, by a train of unfortunate circumstances, for which blame cannot be attributed to any person, he was, nevertheless, in effect deprived of his right to appeal. It is in that sense only that we found that there had been a failure of natural justice in his regard. Such failure was to some extent, like his original mistake, self-induced. Mr. Wong rightly pointed out that even if the application was refused the applicant could still avail himself of his rights under section 114(a) of the Magistrates Ordinance and apply for leave to appeal out of time. In all the circumstances however we felt that since the facts had been fairly fully explored before this court and since there was material upon which, if he were relegated to his rights on appeal, any court dealing with the case as a matter of appeal might well have come to the conclusion that the reversal of plea should be permitted, that the just and expeditious course was to grant the present application to save further delay and expense. We therefore quashed the convictions and the orders based upon them. The effect of this, since there is no application for mandamus before us, is simply to set the hands of a clock back so that, the convictions being set aside, the proceedings following upon the point in the trial at which the charge was altered and the new plea taken are to be disregarded and the applicant is returned once more to the position in which he stood at the moment when the alteration of the charge was brought to his attention. It will be for the learned magistrate to decide whether he should take the plea again or whether he should simply assume that the plea is one of not guilty and ask the defendant whether he wishes to make a defence and to call witnesses.

Representation:

R. Kotewall (D.L.A.) assigned for Applicant.

F. Wong, Senior Counsel for Respondent.

(1) 1956 2 All E.R. 280.

(2) 1959 3 All E.R. 508.

(3) 1951 2 All E.R. 728 at 732.

(4) 1956 40 H.K.L.R. 260.

(5) Crim. Appeal No. 455 of 1972.