Tang Wan-ming v. The Queen

CACC000054/1979

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Coram: Yang, J.

Date of Judgment: 5 March 1979

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JUDGMENT

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1. This is the appellant's appeal against a magistrate's order placing him on probation without a conviction being recorded.

2. The appellant is sixteen years of age. On 7th November 1978 he appeared in person at the Fanling Magistracy and pleaded guilty to stealing a bicycle. The learned trial magistrate adjourned the case for seven days and called for a probation officer's report. At the adjourned hearing, the appellant was represented by a solicitor, who applied to the learned magistrate for leave to reverse the plea of guilty on the ground that the appellant had been told by the police to plead guilty. It was submitted on behalf of the appellant that he was simply pushing the bicycle to its resting place and the police told him that that amounted to stealing. This statement however seemed to contradict what the appellant had told the probation officer. To the probation officer the appellant said that he had taken the bicycle away for a joy ride. The trial magistrate refused the appellant's application.

3. There is before me an affirmation made by the appellant to the effect that inter alia he had been assaulted by the police and was told to admit stealing.

4. In my view the proper course for the learned magistrate to take would be to give the appellant the opportunity of disclosing to the court his version of how he had come to plead guilty, particularly in the light of the fact that he was only sixteen years of age and not legally represented when plea was taken. He should have been permitted to give evidence and call witnesses if any, after which the Crown should then be permitted to adduce evidence in rebuttal. It is after having heard the evidence relevant to the issue before him, and also arguments advanced by both parties, that the magistrate might properly decide whether to allow a reversal of plea.

5. It would appear in the present case the learned magistrate refused the appellant's application for reversal of plea because he was thought to have made inconsistent statements to his solicitor and to the probation officer. For my part I do not know that the statements were in fact inconsistent, but even if they were, I would not think that the inconsistency by itself constituted sufficient ground to dismiss the appellant's application.

6. The plea of guilty is in my view unsafe. The order of magistrate is therefore set aside. Case remitted for new plea and new trial before another magistrate.

Representation:

Mr. A.J.J. Sanguinetti (Director of Legal Aid) for Appellant.

Mr. H.F. Boa, Crown Counsel for Respondent.