HKSAR v. Chung Tai Chiu

CACC000477/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.447
(Criminal)

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Coram: Nazareth, V.-P., Mayo & Stuart-Moore, JJ.A.

Date of Hearing: 13 January 1998

Date of Judgment: 13 January 1998

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J U D G M E N T

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Stuart-Moore, J.A. (giving the judgment of the Court):

1. On 17th July 1997, this Applicant pleaded guilty in the District Court to a burglary of residential premises and was sentenced to one year and eight months' imprisonment by H.H. Judge Christie. He was sentenced to a consecutive term of nine months' imprisonment for remaining in Hong Kong without authority, making a total sentence of two years and five months.

2. The pleas of guilty are set in the context of evidence that overwhelmingly established the Applicant's guilt. He was caught in possession of stolen items from the burglary for which he confessed responsibility. He explained the absence of an identity card on the fact that he had very recently sneaked into Hong Kong.

3. The Applicant now seeks leave to appeal against his conviction for burglary and the sentence that was imposed upon him on both charges.

4. In his home-made grounds of appeal, he states that "Ah Sir" told him to admit guilt so that he would be dealt with leniently. He states also that he did not steal and was misled into signing his statement.

5. The burden of proving that there are circumstances which would justify a plea of guilty being withdrawn is upon this Applicant. During the course of the hearing today, he has told us that he is not responsible for this burglary. He merely took shelter in a house and stole nothing from it. For us to permit him to change his plea, we would have to be satisfied on a balance of probabilities that the plea he entered to the court below was one that he should not have entered. In our judgment, there is no credible basis which has materialized from which it is possible to say that this Applicant should be allowed to change his plea.

6. The Applicant was legally represented at the court. In the light of very strong evidence against him, he was no doubt advised that his sentence would be shorter if he admitted his guilt than if he were found guilty after a trial. The decision as to his plea would have been left by his lawyers to him. As the Applicant himself says, when sentence was passed it was longer than he expected it to be. This may provide the reason why he would now like to change his plea. Whatever the reason may be, we are satisfied that no mistake was made about the nature of his plea. He had the benefit of legal advice, his pleas were unequivocal and they must stand.

7. There is no merit in the application so far as conviction is concerned and it is dismissed.

8. Some criticism can be made of the sentence however, and that criticism is that the sentence this Applicant received was below the guideline tariffs for these kinds of offences. The Applicant appears to have been dealt with remarkably leniently.

9. The application so far as sentence is concerned is also dismissed.

Representation:

Mr. D.G. Saw, S.C. for D.P.P./Respondent

Applicant in person.