HKSAR v. Choi Yiu Wai David

HCMA459/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 459 OF 2011

(ON APPEAL FROM ESCC 5325 OF 2010)

---------------------------

BETWEEN

---------------------------

Before : Hon Barnes J in Court

Date of Hearing : 9 December 2011

Date of Judgment : 9 December 2011

Date of handing down Reasons for Judgment : 16 December 2011

------------------------------------------------------

REASONS FOR JUDGMENT

------------------------------------------------------

1.The appellant pleaded guilty before a Deputy Magistrate (“the magistrate”) to one charge of theft, contrary to section 9 of the Theft Ordinance, Cap. 210. The particulars of the charge was that he has stolen two computer monitor screen protectors valued at $600 from a public library on 21 July 2010. Upon conviction he was fined $1000 and ordered to pay compensation in the sum of $600.

2.The appellant appealed against conviction on the basis that the plea was a nullity. After hearing I allowed the appeal, quashed the conviction and the fine and the compensation order.  As the plea was a nullity, I ordered the case to be remitted back to the lower court for plea.  I now give my reasons for my judgment. 

Background

3.It is necessary to set out what has happened in the lower court before dealing with the appeal.  

4.On 28 December 2010, the appellant appeared before the magistrate at Eastern Magistracy.  That was his first appearance and he was represented by a lawyer under the Duty Lawyer Scheme.  The appellant pleaded guilty when the charge was put to him and he admitted the summary of facts.  

5.The facts disclosed that on 21 July 2010, the appellant signed in with his own name to use two computers on the day in question.  A member of staff later found the screen protectors missing from the two computers.  CCTV footage captured the appellant taking the two screen protectors from the computers.  The appellant went to the same library again on 13 December 2010 and he was identified as the person who had taken the screen protectors in July.  A report was made to the police and the appellant was arrested.  During a video-recorded interview, the appellant admitted the offence, saying that he had stolen the screen protectors out of greed.  

6.Upon the admission of the above facts, understandably the magistrate duly convicted the appellant and eventually fined him and ordered him to pay compensation.  

7.On 26 January 2011, the appellant wrote to the magistrate requesting for a review of his sentence.  In this letter the appellant said he was extremely remorseful and will not re-offend.  He also mentioned for the first time he was a mental patient and that it was important for him not to have a criminal conviction.  The magistrate then set down a date for hearing on 31 January 2011. 

8.During that hearing, the appellant confirmed his commission of the offence once again before the magistrate.  He again told the court that he was a mental patient and asked the court to deal with him by way of a Community Service Order or Binding Over Order so that there would be no criminal record against his name.  The magistrate made it clear to the appellant that the statutory limit of 14 days for a review had elapsed and the hearing on 31 January 2011 was not a review hearing.  The magistrate explained to the appellant that as a result of his plea, a conviction was inevitable.  The magistrate also advised the appellant of the applicability of the Rehabilitation of Offenders Ordinance.  

9.The appellant then applied to appeal against conviction out of time.  In support of that application the appellant filed an affirmation explaining his condition at the time of plea and under what circumstances he came to tender his plea.  Among the exhibits attached to the affirmation was a medical report by Dr Tung Fu Yin (“Dr Tung”), giving his opinion as to the appellant’s condition at the time.  Suffice it to say that leave was granted for the appellant to appeal out of time. 

Additional evidence

10.Before me, the appellant applied to have the affirmation he made in support of leave to appeal out of time with exhibits to be adduced as additional evidence for the appeal.  The appellant also applied to have an affirmation of Dr Tung admitted into evidence.  Dr Tung basically confirmed the contents of his report attached to the appellant’s affirmation were true, and provided details of his professional qualification and experience in his affirmation. 

11.Having considered section 118(1)(d) of the Magistrates Ordinance (Cap. 227) in relation to the power of a judge to receive additional evidence, and having considered the guidance given by the Court of Appeal in HKSAR v Cheng Wui Yiu CACC532/2004, I was of the view that the additional evidence was relevant to the issue whether the plea tendered was a nullity and such evidence was likely to be credible.  I therefore allowed the additional evidence. 

12.Gleaning from the additional evidence before me, I learnt that the appellant was born in November 1979 so he is now 32 years of age.  At the time of the alleged offence he was aged 30.  He had a clear record and was a university graduate holding a job as a banking officer.  Since 1999 he started attending the psychiatric clinic at a government hospital (exhibit “CYWD 16”).  The problem faced by the appellant was that he has recurrent thoughts that his head was shrinking and he has to frequently check the circumferences of his head to confirm his head was not shrinking.  He became anxious and tense especially when he saw his reflection.  He was diagnosed with delusional disorder and later diagnosed of obsessive compulsive disorder (“OCD”).  He has been prescribed medication.  

13.On 23 December 2010, when he went to the library, he has not taken his psychotropic mediation for fear of feeling tired over the Christmas holidays.  He became nervous and irritated when he saw his image reflected on the screen protector so he removed it.  He was later accused of and arrested for the theft of two screen protectors on 21 July 2010.  Under caution, he told the police he had removed the screen protectors for convenience. He said he did not intentionally take them away.  He tendered his apology and asked for a chance.  (A copy of the notebook entry was exhibited as “CYWD-3” to his affirmation.)  The appellant could not remember where he had put the screen protectors after removing them on 21 July 2010. 

14.The appellant referred to a medical certificate from a Dr Edwin Chan (exhibit “CYWD-4”) and recalled that on 21 July 2010, he was suffering from a “runny nose” and had taken Chlorpheniramine for treatment.  He did not take the medication for his psychiatric problem for fear of feeling too tired. 

15.After his arrest on 23 December 2010 the appellant was taken to the police station and a video-recorded interview was conducted.  The appellant said he saw his own image on a television inside the interview room.  He claimed that partly due to his own tenseness and partly because he was scared — as the police threatened and induced him — he involuntarily made the admission. 

16.The appellant said that when he arrived at the Eastern Magistracy on 28 December 2010, he had not resumed taking the psychotropic drug.  He was very anxious and nervous when he had a conference with the duty lawyer — partly because he was in a court building and partly because of his OCD condition, he again felt his head shrinking.  The appellant did not disclose his mental condition to the duty lawyer.  The time allocated for the conference was very little and the appellant formed the belief that simply by removing the screen protector, without any dishonest intent, he was already guilty of theft.  The appellant was informed of the likely consequence of having to pay a fine if he pleaded guilty, and he himself formed the belief that he could explain to the magistrate after plea and conviction so that no criminal record would be recorded.  He believed he would be punished heavily if he did not plead guilty on that day.  After conviction the appellant then found out there was no opportunity for him to address the magistrate.  He was extremely nervous and anxious during the court proceedings due to his mental condition, and he could not understand fully the plea and procedure which was conducted in English.  

17.As to the medical condition of the appellant, Dr Tung confirmed that the appellant was his patient from January 2007 to December 2010.  Dr Tung referred to the appellant’s recurring thought of his head shrinking and became very anxious until he confirmed with measurement that his head had not shrunk.  The appellant was prescribed psychotropic medication for treatment of depression and anxiety disorder including OCD.  Dr Tung said the appellant has complained of feeling tired as a side effect of taking the psychotropic medication prescribed.  After relating what the appellant had told him as to what had happened, Dr Tung was of the opinion that the appellant’s obsession became more frequent when he stopped taking the psychotropic medication since 22 December 2010 and he would become more anxious whenever the obsession came into his mind.  It was Dr Tung’s opinion that the appellant did not show adequate ability in fully understanding the consequences of pleading and not pleading guilty at the time.  Dr Tung was of the view that the extreme anxiety significantly impaired the appellant’s reasoning ability and was of the opinion that the appellant was not mentally fit to plead on 28 December 2010.  Dr Tung also mentioned that without the disclosure of his mental illness, it would be very difficult for a layman to notice that the appellant was suffering from OCD. 

Grounds of appeal

18.Mr Christopher Grounds and Ms Rita So, counsel for the appellant, basically advanced one ground of appeal with the usual ground of the conviction being unsafe and unsatisfactory as the second ground.  The ground of appeal was that the plea tendered was a nullity.  Although five sub-grounds were mentioned, it is only necessary to deal with ground 1 (1) – (3).  

19.Mr Grounds together with Ms So contended that the plea tendered was involuntary due to the appellant’s mental illness and/or capacities at the time of the plea so that he was unable to exercise free choice and/or unfit to plead.  Counsel relied on the authority of HKSAR v Wong Chi Yuk [2000] 3 HKLRD 125 to support their contention (Ground 1(1)). 

20.Further, counsel submitted that in view of the expert opinion of Dr Tung, the appellant’s plea did not result from a deliberate and informed decision, citing Wong Chi Yuk (above) in support (Ground 1(2)). 

21.Further still, counsel submitted that the plea made was not the appellant’s true act, citing R v Peters (1973) 58 Cr.App.R 328. (Ground 1(3)). 

Discussion

22.A person convicted of an offence by his own plea of guilty could not generally appeal against that conviction.  Only a fundamental mistake should be treated as a ground for nullifying a guilty plea.  The circumstances and the extent of the mistake must be sufficient to vitiate the intent of the defendant in pleading guilty, making the act of the plea not the defendant’s true act.  An unequivocal guilty plea could be rendered a nullity if the plea was tendered involuntarily, for example, was not an exercise of free choice, or that the plea did not result from a deliberate and informed decision (see Wong Chi Yuk, above). 

23.For the purpose of this appeal, I do not find it necessary to refer to those cases concerning whether an abandonment of appeal is a nullity (as in the case of Peters). 

24.I have to say that on the face of it, without the information about this peculiar mental illness suffered by the appellant, the plea tendered does not appear to be a nullity.  Indeed the magistrate could not be criticized for saying so.  The appellant’s conduct (again, without knowledge of his mental condition) does have the appearance of a scenario which suggests that the appellant has simply made a mistake in relation to his belief that he could plead to the magistrate after his conviction not to have a criminal conviction recorded against his name.  

25.However, I bore in mind the fact that the appellant was a man of clear record before this incident and the theft of two screen protectors valued at $600 was not a run-of-the-mill kind of theft.  The fact that the appellant has a long history of mental illness (since 1999) was supported.  He has consulted Dr Tung since 2007.  This is not a case in which a defendant sought private expert psychiatric opinion to advance his case after the commission of the offence.  

26.Another matter I bore in mind is the fact that the appellant was clearly able to function well within our society despite suffering from OCD: he finished a university degree and he managed to hold down a responsible job as a bank clerk.  Nevertheless, there is no dispute that he has this mental illness.  Clearly, as Dr Tung says, his condition was such that a layman would not notice it unless the appellant mentioned it.  

27.I can fully understand the appellant not telling the duty lawyer or the magistrate about his mental condition when he appeared in court on 28 December 2010.  I can also appreciate the lack of time to have a long conference with a duty lawyer when one has to appear in court for the first hearing.  Accepting that the appellant had not taken the prescribed psychotropic drug at that time, while his outward appearance and behaviour did not alert others of his mental condition, it is a fact that he was not a man free of any mental illness at the time.  As such, there is a real likelihood that the appellant’s mental process was affected to such an extent that his mind did not truly go with his act, making his act of pleading guilty not a true act. 

28.I am not suggesting, for one moment, that any defendant suffering from mental illness would be able to argue his guilty plea was a nullity.  Each case would depend on its own facts.  I do not perceive the present decision opening a flood gate — as feared by the respondent.  

29.Having considered all the circumstances surrounding the appellant’s plea, the nature of the allegation of theft and the appellant’s background, particularly his mental illness and mental condition at the time when he entered his plea, I am of the view that it is only fair to allow the appellant to have a chance to defend himself when his earlier plea was not his true act.  

30.For these reasons, I allowed the appeal and remitted the case back to the magistracy for plea. 

Mr Andrew Cheng Chi Hang, Ag SPP of Department of Justice, for HKSAR

Mr Christopher Grounds and Ms Rita So K.Y., instructed by Messrs Ernest Li & Co., for the Appellant