Fung Kwok Ming v. The Queen
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CACC000807/1971 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 807 OF 1971 -----------------
Coram: Rigby, C.J. Date of Judgment: 21st January, 1972. ----------------- JUDGMENT ----------------- 1. This is an appeal against the refusal by a magistrate to allow the appellant to change his plea, which was originally one of guilty, to one of not guilty. The appellant is an 18 year old youth. He was arrested on the 20th of September in connection with a charge of robbery and within a period of 24 hours he was brought before a magistrate. He was unrepresented before the magistrate and he pleaded guilty to the charge of robbery preferred against him. It is quite unnecessary at this stage to go into the alleged facts of that charge. The facts were apparently read out in court and the record shows that the appellant admitted those facts. The learned magistrate then remanded the appellant in custody to a training centre until the following day pending the production of his criminal record. In fact, later that same afternoon the appellant was again brought before the magistrate and the appellant's record was produced to the magistrate. It would appear from that record that the appellant had a previous conviction, in February 1970, when he was then placed on probation for two years for the offence of robbery. Thereupon the learned magistrate made an order that the appellant be remanded for a period of two weeks to a training centre pending the production of a probation office report and a report from the Commissioner of Prisons as to the appellant's suitability to be sent to a training centre. It is clear that whilst the appellant was still at that training centre, and before he had been brought back for sentence, solicitors acting on his behalf, on the 1st of of October, wrote to the magistrate saying that they had been instructed to appear for the appellant on the adjourned hearing and to apply for leave for him to be permitted to reverse his previous plea from one of guilty to one of not guilty. When the case then next came before the magistrate, counsel on his behalf asked leave for him to change his plea. The magistrate very rightly and properly said that he was not prepared to give such leave unless reasons were given as to why that should be permitted. Counsel then said that he would call the appellant and the appellant would give evidence to the effect that he had pleaded guilty originally to the charge when before the court because he had been previously beaten whilst he was in police custody and he was told that unless he pleaded guilty before the magistrate he would again be beaten up whilst remanded in police custody pending trial. The magistrate then heard evidence given by the appellant in support of that contention. Having heard that evidence the magistrate, in his discretion and for the reasons which he has stated in his Statement of Findings, refused to permit the appellant to reverse his plea and the magistrate then proceeded to sentence. 2. The learned magistrate, in a most careful Statement of Findings has set out that he appreciated that the appellant could change his plea for good reasons but that it was a matter for the discretion of the magistrate as to whether he allowed this to be done. Quite clearly, the position in law is that a person who has pleaded guilty to a charge is, in the discretion of the trial judge or the trial magistrate, permitted to change his plea, but there must be good and sufficient reasons given before the court permits this to be done. As I have said, the appellant gave evidence before the magistrate stating that at the time of his arrest he had been beaten by two detectives and compelled to admit the offence of robbery and he was told that he would be further beaten if he should fail to admit the offence in court. He has questioned at some length by the magistrate as to the nature and the extent of the beating and he said that he had been beaten by the two detectives for a matter of some 15 minutes. The learned magistrate did not believe the appellant, and he has given three reasons as to why he disbelieved him. First, he has said that if the appellant was beaten up as he alleged, one would have expected marks to have remained on his body and one would further have expected him to seek medical attention for his injuries whilst he was under detention on remand at the training centre. Mr. Bernacchi, who appears on behalf of the appellant, has said that if, indeed, there was a beating as alleged, it would seem highly unlikely that the police officers would have beaten the appellant to such a degree as to leave marks upon his body. Further, he has submitted - and it is a not unreasonable contention - that the appellant still, even if there were injuries, would not have made any complaint, or asked for medical attention, when he had reached the remand centre. But it is the third reason given by the learned magistrate as to why he disbelieved the appellant that seems to me the most difficult to appreciate. The appellant said that when he pleaded guilty to the charge he expected that he would then be sent to a training centre pending sentence. On the other hand, he said that if he pleaded not guilty he anticipated that he would be remanded in police custody pending trial. The inference was, of course, that if he was remanded in police custody, having disobeyed the instructions given earlier to him that he was to plead guilty - if, as I say he was further remanded in police custody - he would, according to his allegation, be subjected to further treatment of the kind which he said that he had previously received. The learned magistrate said that this explanation struck him as being made-up and a far-fetched one and contributed to his belief that the appellant was not telling the truth. For my part, I find that a little difficult to understand. On the face of it, it seems a perfectly reasonable and logical explanation. The appellant had some previous knowledge of court procedure. On the previous occasion when he was before a court he had pleaded guilty and had then been sent to a training centre pending production of a probation officer's report and sentence. It is common knowledge that in some instances where an accused person Pleads not guilty, a magistrate does make an order that he be remanded in police custody pending trial. In such circumstances the explanation given by the appellant as to why he originally pleaded guilty appears to me to be not so unreasonable as to warrant or justify its complete rejection. 3. Whilst I do most fully appreciate that the magistrate had an entire discretion in making his decision as to whether or not he should allow the appellant to alter his plea, if that decision is based upon reasons given which cannot entirely justify or support that decision, then it is right to say that his discretion has not been properly exercised. 4. In all the circumstances of this case, albeit with some doubt, I have come to the conclusion that this appeal ought to be allowed. I reach this decision the more readily when one bears in mind that the defendant is a youth of 18 and that he was in fact unrepresented at the time he was brought before the learned magistrate. For the reasons I have given I am of the opinion that this appeal should be allowed and that leave should be granted to the appellant to reverse his plea from 'guilty' to 'not guilty' and that there should be a trial of the appellant upon the charge as preferred against him. 5. Application has been made for him to be allowed bail pending trial; no objection being raised by the Crown, the appellant will be committed to bail on his own recognizance in the sum of $100.00 together with his father as surety in the sum of $500.00. 6. Whilst for my part I have every confidence that this case would be most properly tried by the original magistrate, it may well be that it would be preferable, and I so order, that it be tried by a different magistrate. Representation: |