HKSAR v. Chan Ho Kit

CACC000128/2000

CACC 128/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. CACC 128 OF 2000

(ON APPEAL FROM DCCC 1197/1999)

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Coram: Hon Stuart-Moore, Ag. CJHC, Mayo V-P & Seagroatt J in Court

Date of Hearing: 29 November 2000

Date of Judgment: 29 November 2000

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J U D G M E N T

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Seagroatt J.:

1. On 23 March 2000, this Applicant appeared in the District Court before H.H. Judge Line. There were four counts on the indictment or four charges and he pleaded guilty to the 1st, 2nd and 4th counts. Those were:

(1) an attempted burglary in Shouson Hill Road on 2 November of last year;

(2) an assault on a Police Officer in the execution of his duty on the same night; and

(4) remaining in Hong Kong as an illegal immigrant.

2. A third charge of resisting arrest by a Police Officer was ordered to lie on the file. After mitigation the Learned Judge imposed the following sentences: on the attempted burglary 20 months; on the assault, 12 months to run consecutively and on the offence of remaining in Hong Kong as an illegal immigrant 15 months (12 months of which was to be consecutive). That made a total of 44 months or 3 years 8 months.

3. The Statement of Facts, accepted by counsel on behalf of this Applicant, was amended by the prosecution in a respect with which I shall deal shortly.

4. His appeal is in effect an assertion that his pleas of guilty were equivocal and that they were based on misleading advice and pressure from his counsel. He therefore seeks leave to vacate them.

5. The short facts according to the prosecution emerge from some observations carried out by a number of Police Officers in Shouson Hill in the early hours of that particular morning, some time after 3 o'clock. The Applicant was seen to climb over a boundary wall of a residential building and to try to enter a ground floor flat. At some stage, he climbed up to the 1st floor level, then descended and ran off chased by some Police Officers. Other Police Officers were alerted and five of them cordoned off the area.

6. The Police Constable who featured in Count 2, the assault, saw the Applicant running away from the side of No.3 Shouson Hill Road. He was carrying a 12" knife. The officer chased him, told him to stop and near No.4 Shouson Hill Road, the Defendant did in fact stop. He turned, held up his knife and advanced towards that officer. It is on this point that the Statement of Facts was amended from "waved" his knife and "dashed" towards him "and attempted to chop him".

7. That officer then drew his revolver and fired a shot at him which missed. The chase was continued and the officer was joined by another. When the Applicant reached No.5, Shouson Hill Road, he met another Police Officer who told him to stop. The Applicant then threw the knife away. A struggle resulted involving eventually 3 Police Officers and the original struggle with the 5th Police Officer was the subject of Count 3 which was ordered to lie on the file.

8. Two interviews were recorded by video tape. In them the Applicant admitted illegal entry on a cargo train from Shenzhen. He said he brought the knife with him to protect himself. He took a taxi to Shouson Hill and entered No.3 by climbing the outer wall.

9. In the grounds of the application for leave to appeal as set out, he said his counsel frightened him into an acceptance of the prosecution's amendment to the Statement of Facts. He said he pleaded guilty out of confusion at a time when the judge was about to enter the Court.

10. He then provided a record of a conversation with his counsel and that record showed counsel realistically pointing out to him the hopelessness of his position and some changes that he, the Applicant, was seeking to make to his version of events.

11. His counsel pointed out the contents of the video-taped interviews and there had been no complaint in that record to his counsel by the Applicant, about the form or content of the video-taped interviews.

12. The Applicant's concern was undoubtedly about the charge of assaulting a Police Officer and he was indicating that if that charge were withdrawn he would plead guilty to attempted theft or burglary. It is apparent that counsel had a discussion with the prosecution as a result of which the prosecution agreed not to pursue Count 3.

13. The Applicant then said that he was not going to plead guilty. But the reality of his position was pointed out to him again by his counsel. The Applicant said however to his counsel "Though I was holding a knife whilst running I did not confront the Police Officer or raise the knife. I will plead guilty to attempted theft or burglary but not to assaulting a Police Officer."

14. Pausing at this stage, it may be that his counsel had confused the position regarding the two Police Officers who featured in Counts 2 and 3. Counsel suggested the one who fired the shot after seeing the Applicant hold up the knife and advance towards him was the one who received injuries in the subsequent struggle. That was not so. It was the officer who initially struggled with him.

15. Counsel nonetheless pointed out to him that if there was a trial and he was convicted the sentence would be 5 or 6 years. When the Applicant asked how long he would serve for assaulting a Police Officer, he was told that if he pleaded guilty it would be about 3 months.

16. If what the Applicant says is correct it is likely that counsel had underestimated the appropriate sentence given the pertinent facts which were attempted burglary of residential premises, at the dead of night, carrying a knife, avoiding arrest, turning to face a Police Officer holding a knife, and being an illegal immigrant as well.

17. As the judge came into Court, the Applicant told his counsel he admitted the charges but did not raise the knife. Counsel obtained more time and further discussion ensued.

18. The Applicant said he was running and waving his hands. What is apparent from this is that the Applicant was seeking to negotiate as good a position as he could obtain in relation to the count of assault on the Police Officer but he did not appreciate that it is not necessary for a Police Officer to suffer some physical injury to justify a charge of assault in the execution of duty. The raising of the knife and turning to face the officer was sufficient if the officer apprehended the infliction of unlawful force. That is why the officer fired his revolver though we are far from saying that it was necessary for him to do so.

19. The real grievance appears to be that the Applicant received a greater sentence than he expected and, so he says, that his counsel had led him to believe was likely.

20. However, we are satisfied from all that he has set out in his various statements and the grounds that he had written that he was an illegal immigrant, he had entered the grounds of No.3 Shouson Hill Road as a trespasser with the intention of burgling and stealing, that he had a knife with him which was a significant aggravating feature, and that he ran away, tried to avoid arrest and was eventually overcome.

21. None of these matters has he ever denied and he has at no stage suggested that the video recorded interviews in which he admitted all these matters contained other than accurate and voluntary admissions.

22. He has in the course of his written submissions set out a large number of matters of detail, alleged by him to be inconsistencies and discrepancies in the statements of the prosecution witnesses, none of which is relevant to any of the issues and none affects the position disclosed by his own admissions.

23. The pleas entered by him were unequivocal pleas in our view. He well knew the position from all that counsel had explained to him. He may have been surprised by the totality of the sentence and perhaps the length of the sentence for Count 2. Nonetheless, he was given a full discount for his pleas of guilty.

24. His application is therefore dismissed. There is no merit in any of the material advanced or in any of the grounds set out, and in the circumstances, 3 months of the time that he has spent in custody will not count towards the sentence he is serving.

Representation:

Mr Arthur Luk, DDPP and Mr Derek Lai, GC of the Department of Justice, for Respondent

Applicant - Chan Ho Kit, in person