The Queen v. Lee Kwok Sum

HCMA001597/1983

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 1597 OF 1983

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BETWEEN

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Coram: Hon. Garcia J. in Court

Date: 7th February 1984

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JUDGMENT

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1. This is an appeal by way of case stated from the decision of the Magistrate at Kwun Tong. The case arises from the desire of the Defendant to resile from a plea of guilty made to the learned Magistrate on 6th October 1983 in respect of a charge of obtaining property by deception contrary to Section 17(1) of the Theft Ordinance, Cap. 210. The Appellant was legally represented at the trial, and after pleading guilty, he admitted the facts giving rise to the charge. The learned Magistrate then remanded him for sentence till 20th October 1983.

2. On the latter date, it was contended on his behalf that the Appellant had entered his plea under duress and that he be heard on this matter pursuant to an application for a reversal of his plea.

3. The learned Magistrate refused the application, stating as his opinion since the allegation of duress had not been stated to affect, and in fact, did not affect the truth of the admitted facts upon which the conviction of the Appellant was based. He then proceeded, to impose a sentence of 18 months' imprisonment on the Appellant.

4. Two questions of law have been posed in this Case:

Firstly, whether an application to reverse a plea of guilty by inference, includes a negation of his previous admission of the truth of the facts, and, secondly, whether the discretion to allow a reversal of a plea can be exercised judically without a hearing to enquire into allegations of duress.

5. It has been submitted on behalf of the Appellant that these two matters, that is, a plea of guilty and the admission of the facts giving rise to the charge are inseparable, neither one of which mutually excluded the other, and that once there is an application for a reversal of the guilty plea, such an application must relate to the facts as well, even though at the time such a plea was tendered, the facts were admitted as being true.

6. There is ample authority for saying that where a Defendant has entered a plea of guilty but does not admit all the essential ingredients giving rise to the charge against him, the Court should exercise its discretion both in justice and in law in reversing the plea without further enquiry and proceed with the trial of the Defendant on the charge. So also where the plea is an equivocal one, that is, the "Guilty but" plea, where for example the Defendant pleads guilty to a charge of Theft and accepts the essential facts supporting the charge, but in mitigation states that he had taken the property because he thought it had been abandoned. In such cases, the plea of guilty is affected either by a denial of the facts previously admitted or by a misapprehension of the law, although the facts supporting the charge had been admitted as being true.

7. In my view, the plea of guilty and the admission of the essential facts supporting the charge are so inextricably bound together that one could not exist without the other, and the submission made by Counsel is I think, correct, so that once an application is made before the Court to reverse the plea of guilty such an application must necessarily relate to the facts supporting the plea.

8. I would therefore answer the first question in the affirmative.

9. In paragraphs 7 and 8 of the Case stated, the learned Magistrate states :

"7.    I however was of the opinion that the allegations of duress had not been stated to affect, and in fact did not affect, the truth of the admitted facts upon which the defendant's conviction was based. 8.     I consider that I was not obliged to hear evidence of a matter, which even if established would not alter the truth of the admitted facts, and that the case of Eric Henry Dodd and others, 74 Criminal Appeal Reports at page 50 was distinguishable and not authority for saying that a hearing shall follow an allegation of duress."

10. In the case cited, that is Dodd's case, the Appellant pleaded guilty to attempted Robbery, manslaughter and having a firearm with intent, in an indictment involving 7 other Defendants and contianing 8 counts. When the jury went out to consider their verdicts in relation to the other Defendants, Dodd made an application to withdraw his plea of guilty on the ground that shortly before the trial he had been threatened by an unknown man that he and his family would be hurt unless he pleaded guilty. The Judge having heard the evidence on this topic refused the application.

11. In the appeal, O'Connor L. J. who delivered the judgment of the Court stated :

"Mr. Scrivener propounded six propositions. First, he submitted that the Court has a discretion to allow a defendant to change a plea of guilty to one of not guilty at any time before sentence; secondly, that the discretion exists even where the plea of guilty is unequivocal; and thirdly, that the discretion must be exercised judicially. We accept all three propositions. The law has been clear since the decision of The House of Lords in S. (an infant) v. Recorder of Manchester [1971] A. C. 481. Fourthly, Mr. Scrivener submitted that if the plea of guilty is not freely made it is an important matter to be taken into account in the exercise of the discretion ... Fifthly, Mr. Scrivener submits that where a defendant alleges his plea of guilty was made under pressure, the judge must hear evidence and determine that issue before ruling on the application to change the plea; and lastly, that failure to exercise discretion amounts to a material irregularity and thus makes the ruling appealable in this Court." The headnote to that Report states: "A trial judge has a discretion to allow a defendant to change his plea from guilty to not guilty at any time before sentence, even where the plea if unequivocal, and the discretion must be exercised judicially. Where a defendant has made his plea under pressure the judge should hear evidence in respect to that issue, before ruling on the application."

12. It has been submitted on behalf of the Respondent that the fifth proposition advanced by Mr. Scrivener in that case was not answered directly by the Court of Appeal : the answer contained in the judgment Of O'Connor L.J. being "The short answer to the submissions made by Mr. Scrivener" that is, the second part starting from the fourth proposition, is that "the learned Judge did hear the evidence of Dodd; that he did consider as to whether that plea had been freely given."

13. The distinction, if distinction there be between Dodd's case and the present case is that the trial Judge did make an inquiry before exercising his discretion whereas in the present case no such inquiry was undertaken before the conclusion was reached that duress, even if established, would not alter the truth of the admitted facts.

14. Dodd's case was heard just after the judgment in R. v. Crown Court at Huntingdon and others, ex parte Jordan ⁽¹⁾ was delivered. In that case a husband and a wife pleaded guilty on shoplifting charges but the wife later applied to have her plea reversed on the grounds that the husband had forced her to assist him in the shoplifting by threatening her with violence and then forced her to plead guilty in Court by a threat of further physical ill-treatment if she did not do so. It was held that where it was alleged that a plea of guilty in a Magistrate's Court had been entered under duress or coercion the Crown Court had jurisdiction to inquire into the matter in order to determine whether the plea should have been treated as an equivocal plea requiring a plea of not guilty to be entered notwithstanding that the duress or coercion was not apparent to the Magistrates' Court or that there was nothing to indicate to that Court that the plea might have been equivocal.

15. Whilst no apparent duty is cast upon the Court in the above cited cases to inquire into allegations of duress or coercion made by the respective Defendants who had pleaded guilty nevertheless from my reading of the judgment of O'Connor L.J. in Dodd's case, and so also the Editor of that Report, that when an allegation of duress is made by a person who had previously pleaded guilty and applies for a reversal of that plea, an inquiry should be held to ascertain the facts of the matter before exercising the discretion as to whether to permit the withdrawal of the guilty plea.

16. This proposition is not without support in Hong Kong : in Wong Ching Wah v. The Queen, ⁽²⁾ the Appellant was a girl, aged 16, who pleaded guilty to a charge of blackmail, and was convicted. She was unrepresented at the trial but when the Court resumed to pass sentence, her solicitor submitted that she should be allowed to reverse her plea on the grounds that she had been persuaded to admit the offence. The Magistrate refused her application without apparently making any proper enquiry into the facts of the allegation, and convicted her. In his judgment, Sir Alan Huggins, J. A., as he then was, stated :

⁽¹⁾  (1981) 2 All E.R. 872

⁽²⁾ Criminal Appeal No.465 of 1976

"What, however, worries me is that the learned magistrate did not apparently make any proper enquiry into the facts at the time that Mr. Gunston made his application. The question was then one of fact, whether or not the plea was her plea or whether it was a plea made under duress. That, in my view, was a matter which should have been investigated as a matter of fact and probably on oath. No enquiry was made : the magistrate merely says that in all the circumstances he was satisfied that the plea should not be allowed to be withdrawn. His conclusion may have been right, but in my view there was not sufficient enquiry. I am not going to embark upon an enquiry at this stage and justice requires that this girl be given the opportunity to reverse her plea and make her defence."

17. At least in Hong Kong, there is no doubt that the fifth proposition of Mr. Scrivener has a precursor, and also it has been well established in principle.

18. Because, how else could a Court, as in this case, come to the conclusions expressed in paragraphs 7 and 8 of the case stated without instituting the necessary enquiry into the truth or otherwise of the allegation of duress made by the Appellant, and as to whether, if the allegation were true, he had been affected by, or influenced in his plea and in his admission of the facts giving rise to the charge?

19. In my judgment the second question must be answered in the negative.

20. In the result, this case is remitted to the Kwun Tong Magistracy for the requisite enquiry to be made, and the conviction and sentence are quashed.

Representation:

Mrs. A. Cabrelli for Crown.

Mr. Hingorani (Haldane Midgley & Co.) for Appellant.