Cheung Yiu Kwong v. The Queen

CACC000551/1980

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Coram: Power, J.

Date of Judgment: 5th August, 1980

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JUDGMENT

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1. In this matter the appellant pleaded guilty to a charge of conspiracy to rob. Originally he faced four charges, two of theft, one of possession of offensive weapon and one of conspiracy to rob. He pleaded not guilty to all four charges and then, after an adjournment, pleas were again taken and he again pleaded not guilty to all four charges. However, upon his third appearance he pleaded guilty to the charge of conspiracy to rob and maintained his pleas of not guilty to the other three charges. The Crown offered no evidence against him on those three charges, and he was sentenced to detention in a training centre on the charge of conspiracy to rob. He now appeals against that sentence.

2. The appellant is sixteen years of age and he has told this court that he did not agree with the suggestion made by the person, who was originally the third accused, that they should go out to rob. He admitted that such a suggestion had been made but said that he did not indicate to the others that he was agreeable to it. When asked why he had pleaded guilty to the charge of conspiracy to rob he said that his father had told him to do so and that a police officer had told him that if he pleaded guilty the other charges would be dropped. In normal circumstances I would not have been disposed to give very much weight to these suggestions. However, in the Training Centre Suitability Report, which the learned magistrate relied upon, the In-take Officer stated: "He (the appellant) stated that he would not repent for something he had no involvement." The learned magistrate did not raise this statement with the accused. It appears that he was telling the In-take Officer that he had no involvement in the conspiracy to rob. It is regrettable that this matter was not raised by the learned magistrate for the accused's comment at the time when he was sentencing him. When I asked the accused why he had made that statement to the In-take Officer, he said that it was because he had not committed the offence. When I asked him why he had pleaded guilty, he said that he had been persuaded to do so by his father and had also been influenced by the indication given to him that if he pleaded guilty the other charges would be dropped. It is unfortunate also, perhaps because three of the charges were not proceeded with after the plea of guilty, that, as far as the notes of evidence reveal, no statement of facts was ever read to the appellant.

3. In all of the circumstances I felt that the only appropriate course was to allow the subject matter of the charge to be fully ventilated at a hearing. I therefore gave the accused leave to enter an appeal out of time against conviction and, having considered all of the facts and bearing in mind his age, I then allowed him to withdraw his plea of guilty and to enter a plea of not guilty.

4. The conviction is quashed and the appellant is ordered to be tried upon charge of conspiracy to rob.

Representation:

Appellant in person.

Mr. Martin, S.C.C. for Respondent/Crown.