Chan Kwok-choi v. The Queen

CACC000455/1972

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO.455 OF 1972

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Coram: Rigby, C.J.

Date of Judgment: 28 October 1972

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REASONS FOR JUDGMENT

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1. This was an appeal from a decision of the Juvenile Court Magistrate, Mrs. C.B. Marr, whereby the appellant, a youth aged 15, was convicted on his own plea of guilty, of being a member of a triad society, to wit, the 14K Triad Society. Upon conviction, the magistrate ordered the appellant to be sent to a training centre. Upon the hearing of the appeal before me I dismissed the appeals, both as against conviction and sentence, stating that I would give my reasons in writing for so doing at a later date. I now do so.

2. The relevant facts may be briefly stated. The defendant came before the court on the 7th March. His brother and mother were present in court. The charge was read to him and he pleaded guilty to that charge. A brief statement of the facts was then read out by the prosecuting officer, interpreted in Punti to the defendant, and the record states that the defendant admitted those facts as correct. In mitigation, the defendant asked for a chance to mend his ways and his mother supported that plea. The magistrate called for a probation officer's report and, for that purpose, adjourned the case to the 22nd March, directing that in the meanwhile the defendant was to be remanded at the Begonia Road Boys' Home.

3. On the 22nd March the case was resumed, the defendant and his mother being present. The magistrate then had before her the report of the probation officer. That report was distinctly unfavourable to the defendant. It revealed that the defendant, instead of being a first offender as indicated by the police record of convictions, the defendant had in fact been convicted on the 18th January of unlawful possession of an offensive weapon in a public place. Consequent upon that conviction, the magistrate who dealt with the case placed the defendant on probation for 18 months with the usual requirements as to residence and reporting to the probation officer. It was clear from the probation officer's report that the defendant had in fact complied with neither of those requirements and, indeed, the probation officer was about to make a report to the court as to the defendant's breaches of the probation order when the defendant was in fact arrested on the 6th March on the present charge. The probation officer felt unable to recommend further probation and suggested an adjournment for the purpose of obtaining a report as to whether the defendant was suitable for admission to the Castle Peak Boys' Home. The learned magistrate acted on that recommendation and adjourned the case until the 7th April, the defendant meanwhile to continue to be remanded in the Begonia Road Boys' Home.

4. On the 7th April the defendant was again before the court and his mother and brother were also present. On this occasion there was before the magistrate a letter written on behalf of the Director of Social Welfare stating that the writer had studied the reports made by his officers on this boy's personality, home environment and other factors and, in consequence, the boy was not regarded as suitable for admission to the home by reason of being a member of a triad society and also by reason of his own aggressive personality and of the bad influence he would be likely to have on other inmates of the home. As a consequence of that report, the learned magistrate again adjourned the matter until the 20th April in order that the court might have before it a report as to whether the defendant was suitable for admission to a training centre; in the meantime, the defendant was again ordered to be remanded at the Begonia Road Boys' Home. On the resumed hearing on the 20th April, the defendant was before the court and again his mother and brother were present. The learned magistrate made an order convicting the defendant of the offence to which he had already pleaded guilty and the facts of which, when related, he had admitted and she then made an order that he be detained at a training centre. That was on the 20th April. On the 26th April, the magistrate received a letter from a firm of solicitors asking for a review of her decision. Section 104 of the Magistrates Ordinance makes provision for a magistrate to review a decision either on his (or her) initiative or upon an application being made to the court within seven days from the date of the decision given. It provides, however, that such application for a review must be made either by the party in person or by his counsel in open court. Clearly, the letter from the firm of solicitors did not comply with the requisite conditions. However, the learned magistrate, notwithstanding the lateness of the application made and the irregular form in which it was made, herself made an order on the record of the case in these terms:-

"I hereby agree to review my decision in this case on 17/5/72 at 2.30 p.m."

On that day and at that time, Mr. Lawrence Leong, counsel, appeared in court together with the defendant and his mother. He asked for a review of the decision on the ground that the original plea of guilty had been made by the defendant under duress because he had been threatened by a detective that he would be beaten if he did not plead guilty Mr. Leong said that it was only when the defendant had "settled" in the training centre that he told his family what he alleged had happened and as a consequence, his family consulted solicitors with a view to making an application for review. The learned magistrate pointed out that the defendant had pleaded guilty on the 7th March and had again appeared before the court, with his mother and elder brother being present on each occasion, on the 22nd March, 7th April and the 20th April. At no time on those occasions did he or his family make any statement indicating that he wished to reverse his plea or that he had been bullied into pleading guilty; nor, indeed, would it appear from the probation officer's report that he had denied the truth of the charge to the probation officer or alleged that he had been bullied into pleading guilty against his will. Accordingly the learned magistrate refused to re-open the case. The submissions made by Mr. Bernacchi, on behalf of the appellant, were three-fold:-

5. It is, I think, both relevant and convenient to deal with those submissions at one and the same time. There is ample authority for the proposition that a magistrate has power, if satisfied justice so requires it, to allow an accused person to change his plea at any time before sentence (see Stone's Justices' Manual, Vo1. 1, p.47 and the cases therein cited). But there is equal authority that such a plea cannot be withdrawn after judgment and sentence (see also Stone's Justices' Manual - as above - and the case of R. v. Marylebone Justices⁽¹⁾.) To this extent, this appeal differs from that of FUNG Kwok Ming v. The Queen⁽²⁾. That was a case in which the learned magistrate declined to permit a detained person to withdraw his plea of guilty before sentence was imposed.

6. Section 104 of the Magistrates Ordinance certainly enables a magistrate to review his decision, but it is clearly open to doubt whether a review of his "decision" includes a power to give leave to a defendant to withdraw, after sentence, a plea of guilty which, on the face of it, was in clear and unambiguous terms.

7. Section 19 of the Magistrates Ordinance provides that if the defendant admits the truth of the complaint or information the magistrate shall convict him or make an order against him accordingly. These provisions are mandatory and involve no independent decision of the magistrate. In my judgment "decision" for the purposes of section 104 of the Magistrates Ordinance means a voluntary and independent decision made by him on the facts presented to him during the course of the hearing, such as a decision to reverse a finding or a conclusion made by him on the facts as presented or a decision to alter a sentence imposed by him. In my judgment, on the clear and unequivocal plea of guilty made by the defendant and the conviction recorded, it was not open to the magistrate, after having passed sentence, to re-open the case. But if I an wrong in this view and if the power of review under section 104 includes a discretion to enable a defendant to withdraw his plea of guilty after conviction, then I was fully satisfied that for the reasons given by the learned magistrate - namely, the opportunities already given to the defendant when appearing before the magistrate to withdraw his plea she was justified, in the exercise of her discretion, in refusing him leave to withdraw his plea.

8. Finally, I was satisfied that these proceedings, by way of appeal, were in fact misconceived since on 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.

9. It was for these reasons that I dismissed this appeal against conviction - and for identical reasons that I dismissed the appeal, based on identical facts, in Criminal Appeal No. 456 of 1972. As to sentence: having regard to the reports which were before the learned magistrate I was satisfied that the order made by her committing the defendant to a training centre was a perfectly proper order.

Representation:

Bern. Q.C. & Miss J. LEONG (Sousae & Co.) for Appellant.

Sherwood, C.C. for Crown/Respondent.

(Reasons for judgment sent to parties)

(1) (1971) 1 W.L.R. 567.

(2) Crim. Appeal No. 807/71.