Law Hau on v. The Queen

CACC000578/1982

Criminal law - application for leave to reverse plea of Guilty - defendant alleging he was misled by prosecutor as to maximum sentence for offence - magistrate assumed facts as alleged by defendant but held that his will not overborne - desirable that allegation should have been investigated and facts established - possibility that defendant might think he had been tricked - venire de novo ordered.

BETWEEN

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Coram: Sir Alan Huggins, V.-P. :

Date of hearing: 27 July 1982

Date of Reasons for judgment handed down: 3 August 1982

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JUDGMENT

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Sir Alan Huggins, V.-P.

1. The Appellant was charged under Regulation 29(2) of the Road Traffic (Registration & Licensing of Vehicles) Regulations, with permitting his co-defendant to drive a motor vehicle registered as a private car for the carriage of passengers for reward or hire and under s.4(1) of the Motor Vehicle Insurances (Third Party Risks) Ordinance with permitting his co-defendant to use a motor vehicle without third party insurance. When first he appeared before the magistrate he was not professionally represented. The charges were read and explained to him and in respect of each he said "I admit".

2. The transcript of the magistrate's notes then states:

"Facts see sheet A attached. Admitted by both.”

In the record of appeal supplied (which, incidentally, was signed by the magistrate himself) there was no ''sheet A". The solicitor for the Appellant very properly wrote to the court and inquired whether something had been omitted. In reply he was sent a copy of a police "Case Summary in which appears a statement of the "Brief facts of the case". This document is nowhere endorsed by way of identification as the sheet A?? referred to in the notes and, as neither advocate who appeared before me was present at the trial, I remain without assurance that this was the statement of facts admitted by the Appellant.

3. That is not all. I called for the magistrate's original record to see whether the transcript, as amended by the addition of the Case Summary, was still incomplete. I then discovered that the magistrate's note in truth appeared to read: "F.A. admitted " by both." Even allowing that a magistrate may properly use recognised abbreviations, it is difficult to see how the initials "F.A." could stand for "Facts see sheet A attached", particularly when there was no "sheet A". Mr. Gunston not unreasonably expresses doubt whether the statement of facts contained in the Case Summary, which was not included in the first instance, was the statement of facts admitted by his client.

4. What happened next was that Mr. Gunston appeared for the Appellant on an application to the magistrate for review. He took two points, the first that his client's plea of guilty was vitiated by something which had been said to him by a police officer before he pleaded and second that only the registered owner of a vehicle could commit these offences of permitting and that even on the Case Summary the Appellant was not the registered owner. The magistrate rejected the second argument and, although it was raised again in the Notice of Appeal, Mr. Gunston has rightly not pursued it in argument, for the point is covered by the decision in Lloyd v. Singleton 1953 1 Q.B. 357.

5. On the first point, the magistrate was prepared to assume that the officer in charge of the case had told the Appellant that it was a minor matter and that the Defendant had better plead guilty and at most he'll be fined $500". The magistrate observed that 'such' words were certainly` unwise and would have been better left unsaid", but he thought that it was open to the Appellant to obtain independent advice and also ''on the basis of the admitted facts that it would have been difficult for anyone advising him to enter any other plea than guilty''. Moreover, he said he was confident from his own recollection of the proceedings that the Appellant's will had not been overborne at the time he entered his plea, because the magistrate had himself obtained an express admission from the Appellant to each of the ingredients of the offence.

6. Mr. Gunston objects that it is not safe to rely on the magistrate's recollection of the detailed admissions made by the Appellant, as those admissions were not recorded at the time. I cannot accept that. It is entirely proper for a magistrate to satisfy himself by detailed questioning that he ought to accept an unambiguous but general plea of guilty. I do not think a busy magistrate should be expected to record the answers to such questioning, because, whether in the event he rejects or accepts the plea, they are merely corroborative of the plea which he in fact enters. On the other hand, if an issue is raised at a later date as to the propriety of the plea, I see no reason why the magistrate should not, if he has a clear recollection, place on record what had happened. He has no interest in supporting a plea which may have been invalid through no fault of his. Mr. Gunston questions whether a busy magistrate can possibly recall the circumstances of a particular plea. I have no doubt that he may, and I have no hesitation in accepting the statement of the magistrate in the present case that he confirmed the Appellant's admission of the facts set out in the statement of findings.

7. At first sight that might appear enough to justify the dismissal of this appeal, but there is another aspect of the matter which has caused me anxiety. Although the Appellant admitted all the ingredients of the offence, did he do so unaffected by any kind of improper pressure? Mr. Gunston cites Wong Chi Wah v. Reg. 1976 H.K.L.R. 417 for the proposition that the magistrate was under a duty to inquire whether the officer in charge of the case said to the Appellant what he was alleged to have said. The magistrate decided that it was unnecessary to enter upon such an inquiry because he was of opinion that, even assuming that it had been said, the Appellant's will had not been overborne. That was the test applied in the Reg. v. Crown Court at Huntingdon, ex parte Jordan 1981 2 All E.R. 872, 875b. It was a test which may properly be applied in some cases, but do not think it was an appropriate test in the present case that is really being alleged here is not so much coercion or duress as that the Appellant was misled - and I hasten to add that even if the officer did in truth use the words attributed to him there is nothing at present before the court to suggest that he intended to mislead. It was merely assumed by the magistrate that he did use the words alleged and we have no idea of the context. Nevertheless, if the Appellant was led into thinking that "at most he'll be fined $500" that could mean that he was misled into thinking that no question of disqualification arose, whereas even for permitting another person to use an uninsured vehicle the penalty includes a compulsory disqualification from holding or obtaining a licence to drive. I am not, of course, saying that a defendant who voluntarily pleads guilty can obtain a new trial simply because he is sentenced more heavily than he expected, and the position would have been very different if the plea had been entered upon acceptance of the advice of his own counsel.

It is easy to be wise after the event but it must be said that in the event it is unfortunate that the magistrate did not inquire into the allegation, for we would then know the real facts. As it is, there is a possibility that the Appellant pleaded Guilty when he would not have done so had he not been induced by circumstances which he could now reasonably believe to have amounted to a trick. However remote that possibility I think that justice requires that his plea be declared null and void and that there should be a venire de novo. It matters not that the magistrate may well have been right when he said that on the basis of the admitted facts it would have been difficult for anyone to advise the Appellant to do otherwise than enter a plea of Guilty: the Appellant was entitled, if he wished, to have the case formally proved against him.

3rd August, 1982.

Representation:

Gunston of Hampton, Winter & Glynn for Appellant.

Mitchell for Crown/Respondent.