Fong Loy v. The Queen
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CACC000856/1978 IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction) CRIMINAL APPEAL NO. 856 OF 1978 -----------------
----------------- CORAM: O'Connor, J., Date of Judgment: 20th September, 1978 ----------------- JUDGMENT ----------------- 1. The appellant appeared before the learned Magistrate on a charge of assisting an offender contrary to section 90(1) Cap. 221. On the charge being read and explained to him he replied 'guilty'. The facts alleged to constitute the offence were admitted by him to be correct. He then said, 'He threatened to assault me referring presumably to the person he was charged with assisting. Of course the offence alleged required the appellant to have acted without reasonable excuse', so apart from any question if the common law defence of duress, an allegation that he acted under threats of assault would require consideration to be given as to whether or not the plea was unequivocal. The learned Magistrate in his findings says that when the appellant was asked to elaborate he would not do so, this had not been noted on the record. Before me the appellant stands by his allegation. 2. Of course I am aware that a person pleading guilty often in purported mitigation says something that he hopes will be accepted as a mitigating factor, but which he does not wish to be taken as being in derogation of his plea. Where this occurs the magistrate is quite entitled to inquire from him whether or not he is serious in making such an allegation and furthermore the magistrate would be entitled to tell him that such an allegation is not consistent with a plea of guilty or with the agreed facts. On that being pointed out to a defendant he not infrequently indicates that the matter in derogation of plea is not put forward seriously. However he is under no obligation to elaborate and if he stands by such a remark at that stage, a plea of not guilty should be entered. I therefore allowed the appeal but considered it a proper case to be sent back for plea to be retaken.
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