HKSAR v. Leung Wai Chung

HCMA 1014/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1014 OF 2005

(ON APPEAL FROM STCC NO. 8844 OF 2005)

____________

BETWEEN

____________

Before: Deputy High Court Judge E Toh in Court

Date of Hearing: 7 December 2005

Date of Judgment: 7 December 2005

_______________

J U D G M E N T

_______________

1.The Appellant had been charged with one charge of being the employer of a person not lawfully employable and she was originally charged jointly with another person but on the day of the trial the other Defendant had pleaded guilty to a lesser offence of employer failing to inspect document of a new employee, and after a mitigation by the legal representative of that co-defendant, the co-defendant was subsequently fined.

2.The Appellant was then tried by the learned Magistrate and initially she pleaded not guilty but subsequently she changed her plea to guilty.  The matter was adjourned for 14 days and reports were prepared.

3.On the day of the sentence, the Appellant was represented and applied for a reversal of plea.  The matter was dealt with by the learned Magistrate by hearing evidence from the Appellant.

4.The Appellant’s evidence, in brief, was that she had been legally represented because she had shared the same lawyer as her co-defendant.  But that lawyer, and I must add here that it appeared that he was failing in his duty to this Appellant by not informing her earlier, but on the very day of the trial, at 9:15 am told the Appellant that he could not represent her anymore.  The Appellant tried to obtain the services of a lawyer from the Duty Lawyer Service but, unfortunately, the Duty Lawyer Service had no lawyer available to represent her.

5.The Appellant agreed in evidence that the learned Magistrate had clearly explained the procedures to her and she said that she had wanted to defend the case.  The brief facts had been put to the court and when she had chosen to represent herself, in the transcript which I have read, it showed that the learned Magistrate was trying his best to make sure that the Appellant understood the procedures, the consequences of a plea of guilty and a plea of not guilty and I can say that I find no fault at all with the learned Magistrate.

6.But at the end of the day, it appeared that what the Appellant is saying is that she did not plead guilty out of her own free choice because it appeared that she felt that she had no one to help her and the fact that if she pleaded guilty she will be able to get the discount for her sentence.  At the end of the day, she made the choice of pleading guilty but subsequently after the adjournment for reports she had obtained legal advice and her legal representative applied to the learned Magistrate that she be allowed to reverse her plea.

7.The learned Magistrate upon hearing the application considered that her plea was clear and unequivocal.  He had made sure that she understood all the correct procedures and that he had made sure that she was not misled or under duress and that a plea was clear and unequivocal and so he considered that the integrity of the plea was not affected by any extenuating circumstances.  So, he rejected the application.

8.The Appellant today represented by Ms Ling and I must commend Ms Ling for her very clear written submissions.  One of the grounds of appeal is that the learned Magistrate was wrong because the plea was in fact equivocal and unclear and Ms Ling’s other appeal ground is that the plea of guilty was not an exercise of free choice and it did not result from a deliberate and informed decision.

9.After reading through the transcript what became clear to me was that this was a lady who because of the little education that she had, I understand that from the papers that the Appellant is only educated up to primary five, was indeed demonstrating some confusion at the beginning as to what her plea should be, she maintained that she was not the employer.  She had no authority to hire or not to hire anyone.  She was also concerned about the sentence that she would receive and the learned Magistrate had told her very properly about the sort of discount that she was likely to get and also very properly told her that in most cases, for this type of offence, she should expect a custodial sentence unless there are extenuating circumstances.  So the Appellant finally then pleaded guilty.

10.The problem that concerns this court is that this Appellant was, to use a common parlance, “left high and dry” at the 11^th hour by a lawyer who told her 15 minutes before the beginning of the trial that he was not going to represent her.  Perhaps this may be due to the fact that he was not being paid by the Appellant but by her co-defendant.  However, according to the Appellant, she had paid $2,000 already to the lawyer.  That was not the type of conduct that a professional person should indulge in.  He should have known before appearing in court that there is a possibility of a conflict of interests between the two defendants and should have made earlier arrangement so that this Appellant would be properly represented when the time came.  This was not done and this Appellant faced at the 11^th hour the critical problem of whether she should go ahead to represent herself or take advantage of a plea and reduced sentence.  She had unfortunately no assistance from the Duty Lawyer Service because they did not have a lawyer available, she did all she could at the time.

11.Understandingly, the learned Magistrate not knowing fully the background with the bird’s eye view that this court has, had rejected her application for a reversal of the plea at the time.  But now, with the benefit of hindsight and this court having read through the transcript of what transpired, is concern that somehow justice had not been done in this case.  In the circumstances peculiar to this case, I have to agree that taking into account all the background and circumstances that the plea made by the Appellant at the time was indeed equivocal and that she should had been allowed to reverse her plea.

12.So the conviction of the Appellant is therefore set aside and the appeal is allowed.  And this court is grateful to both counsel for their research in this case, which has assisted this court to a large extent.

Mr Harish Melwaney, Senior Government Counsel, for the Respondent

Ms Vickie Ling, instructed by Messrs Chak & Associates, for the Appellant