Chan Har v. The Queen
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CACC000707/1972 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 707 OF 1972 -----------------
----------------- Coram: Huggins, J. Date of Judgment: 13th November, 1972. ----------------- JUDGMENT ----------------- 1. In this case the Appellant was charged on two charges, the first of being a suspected person loitering with intent to commit an offence and, secondly, with going equipped for stealing. The learned magistrate records that the charges were read and explained and the Appellant is recorded as saying "Guilty - both charges". It is perhaps over technical to say that he should have insisted on the Appellant's pleading to each charge separately and recorded the plea in respect of each charge separately. I do not think anything turns upon that. The facts which were alleged and which were contained in a statement headed "Brief Facts of Case" were then read and the Appellant is recorded as having admitted those facts. The learned magistrate proceeded to conviction on both charges and passed sentence. 2. The Appellant now seeks to appeal against his convictions and the question is whether or not he has any right to be heard on such an appeal. The basis of his appeal is that he pleaded Guilty under duress. He says that he was threatened by the police at the Police Station that if he were released in respect of these charges he would be arrested again, and the Appellant alleges that it was as a result of those threats that he pleaded Guilty. He admits that he did plead Guilty and there can be no possible doubt that he intended to plead Guilty. Moreover, he fully understood what he was pleading to and what the effect of his plea would be nevertheless, he suggests that in justice he ought to be allowed to change his plea. Had he raised this matter before the magistrate before sentence was passed, of course no difficulty would have arisen, but he said not a word about it to the learned magistrate nor does he appear to have said a word about it to anyone until he came before this Court. The grounds stated in the Notice of Appeal were "that there was no evidence, or no sufficient evidence whereon to found the said conviction". 3. In my view this appeal should not be entertained. The matter has been discussed on a number of occasions in recent years but we now have an authoritative ruling upon the matter from the House of Lords. In S. (an infant) v. Manchester City Recorder 1969 3 All E.R.1230, a case which was not on all fours with the present, Lord Reid said at p.1232:
The only circumstances in which an appellate court will reverse a decision based upon a plea of Guilty is where there is doubt whether the accused ever intended to plead Guilty. In many of the cases the record disclosed an ambiguity in what was said by the accused, and it is in part because of this that it is so important that magistrates should comply with the requirements of s.19 of the Magistrates Ordinance and record in respect of each charge the plea of the defendant as nearly as possible in the words that he uses. I have already said that in the present case there is no possible doubt that the Accused intended to plead Guilty and did plead Guilty. In the course of argument I referred to the decision of the Full Court in Nadira Perven v. Reg. 1971 H.K.L.R. 1. That again was rather a different case, where the defendant had pleaded Not guilty but alleged that she gave false evidence under duress and sought leave to adduce fresh and contradictory evidence. The court had grave doubts whether it was ever possible for such evidence to be admitted. I would also like to reserve the case where there is real doubt whether a plea of Guilty made under duress can be set aside by virtue of the inherent power of the court to prevent a miscarriage of justice, but the allegation in the present case has been raised so late that in my view it is not incumbent upon this Court to allow any enquiry into it. 4. The appeal is dismissed. 13th November, 1972. Representation: |