Ma Kam Wing v. The Queen
Read the full judgment text of CACC 718/1975 on BabelCite. This Court of Appeal judgment.
1. The main issue which calls for consideration in this appeal is whether a magistrate may properly exercise his power of review under Section 104 of the Magistrates Ordinance and allow a reversal of a plea of guilty after conviction and sentence.
Cited by 6 cases
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CACC000718/1975 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 718 OF 1975 -----------------
----------------- Coram: Yang, J. in Court. Date of Judgment: 9 October, 1975 ----------------- JUDGMENT ----------------- 1. The main issue which calls for consideration in this appeal is whether a magistrate may properly exercise his power of review under Section 104 of the Magistrates Ordinance and allow a reversal of a plea of guilty after conviction and sentence. 2. The Appellant who has acted in person in the court below and in this Court, first appeared before the trial magistrate in South Kowloon Magistracy on 31st May, 1975 on a charge of blackmail and another charge of theft. He admitted, or pleaded guilty to, both charges and also admitted the facts outlined by the Prosecution. In mitigation the Appellant stated that he had committed the offences because his father was unemployed. The case was then adjourned for a probation officer's report. On 13th June, 1975, the trial magistrate, having considered the probation officer's report, sentenced the Appellant to imprisonment for 9 months on the charge of blackmail and 6 months on the charge of theft, sentences to run concurrently. 3. Then certain peculiar events followed. Immediately upon hearing the sentences the Appellant informed the trial magistrate that his co-accused had forced him to admit the offence. The magistrate then made the following notes:
4. It is the brevity and ambiguity of those notes which have given rise to the misunderstanding I shall mention below. The trial magistrate did not say whether he had treated the Appellant's complaint as an application for a review. He did not say whether he had reviewed his decision upon such an application or on his own initiative. He did not say what was his decision that he thought was the subject matter of his review. Indeed he did not say whether he accepted a reversal of the Appellant's pleas. He did not say whether he had set aside the conviction and sentence. He did not say whether he adjourned the case for a trial de novo or for some other purpose or purposes. The importance of taking reasonably full and intelligible notes of proceedings by magistrates is more than illustrated in the present case. There are no court reporters in a magistrate's court and his notes are the only official records that the parties and the appellate court have. If fuller notes had been taken by the trial magistrate, in all probability this appeal could have been avoided 5. On 30th June, 1975 the Appellant appeared before a second magistrate who, for reasons which need not be gone into here, adjourned the case to 7th July, 1975. On that day the Appellant again came before the second magistrate who adjourned the case to 19th August, 1975, at the same time granting bail. 6. On 19th August, 1975 the Appellant, who was by that time no longer in custody but on bail, appeared before a third magistrate who held that he had no jurisdiction "to try, on the same charges, a person who has already been convicted and sentenced. 7. In his Statement of Findings, the trial magistrate stated that upon hearing the Appellant's complaint, he adjourned the case "to be heard," which indicates that he had at the relevant time in fact ordered a new trial. The trial magistrate also referred to "this accepted change of plea of the said appellant," thereby indicating that he had given leave to the Appellant to change his pleas, which I presume meant that he had allowed the Appellant to reverse his pleas of guilty to pleas of not guilty to both charges. 8. The third magistrate on being confronted with the trial magistrate's notes may perhaps be forgiven for concluding that the trial magistrate had not reviewed anything and that the conviction and sentence still stood. This might well be the initial reaction of most persons. However, further reflection, and perhaps consultation with the trial magistrate, would have revealed what those notes were intended to convey. It is highly unlikely that any stipendiary magistrate would not be aware of the provisions of Section 104 of the Magistrates Ordinance, and it seems clear that the only reasonable explanation that could be given to those notes and to what transpired before the second magistrate was that a reversal of pleas had been allowed on review and that a trial de novo before another magistrate had been ordered. 9. So the true position of the unfortunate and probably by then very bewildered Appellant when he left the third magistrate's court was that there were two criminal charges against him left suspending in the air to which he had now pleaded not guilty and upon which there was no magistrate to adjudicate. The Appellant must have thought that his conviction and sentence still stood, for he now appeals against conviction on the ground that "there was no evidence, or no sufficient evidence whereon to found the said conviction" and against sentence on the ground that it was too severe. 10. I must now refer to Section 104(1) of the Magistrates Ordinance, which reads:
11. Mr. Lucas, counsel for the Prosecution, submits that the Appellant in reality did not apply for a review of the decision of the trial magistrate but applied to reverse his pleas. The magistrate was therefore wrong in re-opening the case as he did. Mr. Lucas refers to an unreported judgment of Rigby, C.J. in Chan Kwok-choi v. The Queen (Criminal Appeal No. 455 of 1972) in which he said, by way of obiter dictum:
12. It is with the greatest respect and deference that I differ from this view. It is true that Section 19 of the Magistrates. Ordinance is mandatory but the magistrate must first make a decision and finding to the effect that the defendant has admitted the truth of the complaint or information in fact. Whilst the mental process may not be apparent in a simple and straightforward case, it must nevertheless always be followed. In most cases, the magistrate, upon a plea of guilty, determines immediately that that plea is an admission of the truth of the complaint or information. If, however, an accused says he pleads guilty because he wants to avoid the trouble of coming to court on an adjourned date, or if it appears that he might have pleaded guilty under a mistake of law or fact, or if he pleads guilty when he appears to be under the influence of drink, the magistrate must determine whether to accept that plea as a genuine admission of truth. It is only upon his determination that the plea amounts to an admission that he is obliged by law to convict or to make an order against the accused. 13. The trial magistrate, by treating the Appellant's complaint as an application for a review, must have decided to review his decision to accept the Appellant's pleas as admissions of the two charges. Upon reviewing this decision, he set aside his original acceptance of the Appellant's admissions and permitted a reversal of pleas. 14. Quite apart from the magistrate's power to review, the matter (if the proper procedure were adopted in this Court) might be pursued in another way. If an accused was not able to exercise a free choice in pleading to a charge, the plea would be treated as a nullity and a new trial would be ordered (See R. v. Brook (1970) Criminal Law Report 600). 15. The present appeal is misconceived. There is neither conviction nor sentence to appeal from. The proper procedure would have been for the Prosecution to ask for a mandamus for the case to be tried. 16. For the reasons I have stated, I dismiss the appeal with my opinion that the case should be remitted back to South Kowloon Magistracy to be tried by a magistrate there.
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