HKSAR v. Shum Wan Foon

Press Summary (English)

Press Summary (Chinese)

FACC No. 7 of 2013

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 7 OF 2013 (CRIMINAL)

(ON APPEAL FROM HCMA NO. 686 OF 2012)

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BETWEEN

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J U D G M E N T

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Mr Justice Fok PJ:

1.This uncontested appeal is a salutary reminder that, in order properly to exercise the discretion whether to permit a defendant to reverse his plea from guilty to not guilty, a magistrate has a duty to inquire into and adjudicate upon a defendant’s request to do so before proceeding to pass sentence.

2.This is the judgment of the Court and arises from the following facts.

The facts

3.The appellant is a cross-border truck driver.  On 21 June 2010, he was driving a 45-foot container truck from the Mainland into Hong Kong via the Man Kam To Control Point.  Upon his cargo being examined, it was discovered that it contained:

(1)   12,030 batteries, 6,000 chargers, 140 handbags, 2,000 headphones, 400 mobile phones, 479 pairs of sports shoes, 118 suits, 61 ties, 40 pairs of pants, 58 T-shirts and 6,305 watches to each of which a forged trade mark was applied;

(2)   570 pirated video game cartridges; and

(3)   12,795 batteries, 6,040 chargers, 7,270 watches, 570 video game cartridges, 20 converters and 20 remote controls that were not included in the manifests submitted by the appellant.

4.The appellant was thereupon arrested and charged with the following offences:

(1)   Importing goods to which a forged trade mark was applied, contrary to sections 12(1) and (2) as read with section 18(1) of the Trade Descriptions Ordinance, Cap.362;

(2)   Importing an infringing copy of a copyright work into Hong Kong otherwise than for private and domestic use without the licence of the copyright owner of the work, contrary to sections 118(1)(b) and 119(1) of the Copyright Ordinance, Cap.528; and

(3)   Importing unmanifested cargo, contrary to section 18(1)(a) of the Import and Export Ordinance, Cap.60.

5.Upon arraignment before the Magistrate[1] on 9 June 2011, the appellant, represented by counsel, Mr Steven Liu, pleaded not guilty to each of these charges and the case was adjourned to 18 August 2011 for trial.

6.On 18 August 2011, the appellant appeared, again represented by Mr Liu, before the Magistrate and pleaded guilty to each of the charges and admitted the facts.  He was then duly convicted on his plea.  The case was then adjourned for three weeks in order for background and community service order reports to be obtained before sentencing.  He was granted bail in the meantime.

7.At the resumed hearing on 8 September 2011, Mr Liu informed the Magistrate that the appellant wished to reverse his plea and to apply for an adjournment of 7 days in order to instruct a new legal representative.  Counsel informed the Magistrate that his instructions were limited to so informing the court and so the Magistrate then discharged counsel.

8.The Magistrate then asked the appellant, now acting in person, a series of questions to ascertain what he had done to secure the services of another lawyer to act for him.  The Magistrate clearly doubted the genuineness of the appellant’s efforts to find another lawyer, principally because it would appear the appellant only tried to do so the night before the hearing notwithstanding having been on bail during the adjournment of three weeks.  Consequently, the Magistrate refused to entertain the appellant’s application to change his plea and to adjourn the hearing.  After exchanges with the appellant as to anything he wished to add by way of mitigation in the light of the reports, he proceeded to sentence the appellant to concurrent sentences of 6 months’ imprisonment on each charge.

9.After he had served his term of imprisonment, the appellant applied for leave to appeal out of time against his conviction and leave was granted on 14 September 2012.  His application for legal aid was refused on 12 November 2012 and he acted in person at the appeal on 6 December 2012.  The appeal[2] was heard by Deputy High Court Judge J. Yau and dismissed by him in a judgment dated 16 January 2013.  The Judge did not consider the issue of whether the Magistrate had inquired adequately or at all into the appellant’s application to reverse his plea.

10.On 22 April 2013, the appellant applied to the Appeal Committee for leave to appeal to this Court on the ground of substantial and grave injustice.  The Appeal Committee[3] granted that application on 24 September 2013.

The duty to inquire into an application to reverse a guilty plea

11.It is a self-evident proposition that a plea of guilty should be entered voluntarily.  A guilty plea made under duress, inducement or misrepresentation is a nullity: see, for example, The Queen v Lam Yin [1995] 2 HKCLR 124 at p.127 line 20-24; R v Li Yuen Chu [1994] 2 HKC 621; and HKSAR v Wong Chi Yuk [2000] 3 HKLRD 125 at p.135.

12.A magistrate has a discretion to allow a defendant to change a plea of guilty to one of not guilty at any time prior to passing sentence.  This is the case even where the guilty plea is unequivocal.  The discretion must be exercised judicially.  For these propositions, see Chan Wah v The Queen [1967] HKLR 254; S (An Infant) v Recorder of Manchester [1971] AC 481 (HL) esp. per Lord Reid at pp.488H and 491A-E and Lord Upjohn at p.507E-H; and Eric Henry Dodd and Others (1982) 74 Cr.App.R. 50 at p.57.

13.Where a defendant applies to change his plea from guilty to not guilty, it is incumbent on a magistrate to make sufficient inquiries to ascertain the basis of the defendant’s wish to reverse his plea and to decide if that basis is sound in fact and in law.  Authority for this proposition can be found in the judgment of Huggins JA (as he then was) in Wong Ching-wah v The Queen [1976] HKLR 412 where he said, at pp.413-414:

“What, however, worries me is that the learned magistrate did not apparently make any proper enquiry into the facts at the time that [the defendant’s solicitor] made his application. The question was then one of fact, whether or not the plea was her plea or whether it was a plea made under duress. That, in my view, was a matter which should have been investigated as a matter of fact and probably on oath. No enquiry was made: the magistrate merely says that in all the circumstances he was satisfied that the plea should not be allowed to be withdrawn. His conclusion may have been right, but in my view there was not sufficient enquiry. I am not going to embark upon an enquiry at this stage and justice requires that this girl be given the opportunity to reverse her plea and make her defence.” (Emphasis added)

14.In The Queen v Lee Kwok Sum, unrep., HCMA 1597/1983 (7 February 1984), Garcia J held, citing Wong Ching-wah as authority, that the discretion to allow a reversal of a plea cannot be exercised judicially without a hearing to inquire into allegations of duress.

15.There are other examples of the application of this principle where the issue is not one of duress but of inducement and misrepresentation: see, Law Hau On v The Queen, unrep., CACC 578/1982 (3 August 1982); R v Li Yuen Chu [1994] 2 HKC 621; and The Queen v Lam Yin [1995] 2 HKCLR 124.  As Sir Alan Huggins VP held in Law Hau On v The Queen (at p.4):

“It is easy to be wise after the event but it must be said that in the event it is unfortunate that the magistrate did not inquire into the allegation, for we would then know the real facts. As it is, there is a possibility that the Appellant pleaded Guilty when he would not have done so had he not been induced by circumstances which he could now reasonably believe to have amounted to a trick. However remote that possibility I think that justice requires that his plea be declared null and void and that there should be a venire de novo. It matters not that the magistrate may well have been right when he said that on the basis of the admitted facts it would have been difficult for anyone to advise the Appellant to do otherwise than enter a plea of Guilty: the Appellant was entitled, if he wished, to have the case formally proved against him.” (Emphasis added)

16.What will amount to sufficient inquiries will depend on the circumstances of the case and the basis on which it is alleged the defendant should be permitted to reverse his plea.  In The Queen v Lam Yin [1995] 2 HKCLR 124 Keith J (as he then was) considered that it would be necessary for the magistrate to adjourn the application for leave to change the pleas to a date upon which the appellant and immigration officer could give evidence about the alleged conversation said to be the basis of the misrepresentation inducing his guilty pleas (see pp.127-128).  In that case, whether the immigration officer actually said what the appellant claimed, and what its impact on the appellant actually was, were issues of fact which had to be determined before the magistrate could decide if the original pleas were nullities.  In other cases, the magistrate’s duty to inquire may not require the adjournment of the case if any factual issues that need to be resolved in order for the magistrate to exercise a fully-informed discretion can fairly be determined there and then.

17.But, as the underlined passages from the judgments cited above show, what the magistrate must not do is anticipate the outcome of the inquiry he is obliged to undertake as to the reason for the change of plea and, on that basis, refuse to make any or any sufficient inquiries.

18.It should not, however, be thought that the discretion to permit a defendant to reverse his plea should be exercised lightly and magistrates will have to be wary of applications to reverse pleas which are merely being used as a delaying tactic.  As Lord Upjohn said in S (An Infant) v Recorder of Manchester at p.507G:

“… this discretionary power is one which should only be exercised in clear cases and very sparingly.”

Discussion

19.As indicated at the beginning of this judgment, the appeal is uncontested by the respondent and the parties have filed a Joint Case.  It is jointly submitted that by failing to inquire into the appellant’s application for a reversal of his plea of guilty, the Magistrate departed from an established legal norm to the appellant’s disadvantage and that justice requires that the appeal be allowed.  It is further submitted that, on the Magistracy Appeal, the Judge failed to correct the error of the Magistrate and did not direct his mind to the failure of the Magistrate to inquire into the appellant’s application to change his plea.

20.The Joint Case asserts that, at the hearing before the Magistrate on 8 September 2011, the appellant, acting in person, tried to explain to the court that he was misled by his former lawyers but the court stopped him.

21.The following parts of the transcript of the hearing on 8 September 2011[4] are important:

“Judge:	Your counsel has told me that you do not require his assistance anymore, is that right?
D1:	I – he – I, this way, no way out.  I plead not guilty.
Judge:	Hold on.  Please answer my question directly.  You have given instruction to your counsel that you do not need him anymore.  Is that right?
D1:	I’ll engage another one.
Judge:	You should know that if you are no longer represented by Mr. Liu, today you need to handle this case by yourself.  You clearly know that, right?
D1:	Yes, I know, I know.
Judge:	Then what do you want to apply for?
D1:	I’d apply for further extension.  I’ll engage another lawyer.
…
Judge:	Hold on, you are not answering my question.  I was asking you why you need, do not need the representation by Mr. Liu and then you could continue to handle your case.
D1:	Because I – he has told me to plead guilty, but I don’t.
Judge:	It is not necessary for you to tell me the communication between you and your counsel. I am only asking you why you believe you can handle this case on your own.
…
Judge:	Okay.  As today you do not need the assistance from Mr. Liu, today you have to handle this case by yourself.  I will put this case – no, I will finish it first.  What have you got to say in mitigation?  The reports have been explained to you.
D1:	I beg for further adjournment.
Judge:	Anything else? Any more application?
D1:	I beg for further extension and for retrial.
…
Judge:	Go on.  Anything else to say in mitigation?
D1:	Please adjourn for me to defend [the case] again – retrial.
…
Judge:	Really no?  The reports have been explained to you, right?  Is that right?  Have the reports been explained to you?
D1:	No, I – they said they would defend for me, this lawyer.  After engaging this lawyer, and then he said my probation.
Judge:	Hold on.  I am not interested in the communications between you and your lawyer.  And it is not necessary for me to know that either.  I only want to clarify with you. Have the reports been explained to you?”

22.The appellant made it clear to the Magistrate that he wished to plead “not guilty” and, in view of his earlier plea, this was clearly a change of plea. In addition to saying he wished to plead not guilty, he expressly disavowed his guilty plea and asked for a retrial.  In the context of the case, his request for a retrial was a clearly request for his plea of not guilty to be tried and his conviction, which had earlier been entered on his guilty plea to each of the charges, to be reconsidered.

23.Despite the basis of any complaint of misrepresentation against the appellant’s former lawyers not being clearly asserted, it is apparent from the transcript that the appellant informed the Magistrate that the guilty plea was not voluntary (“he has told me to plead guilty, but I don’t”) and that the appellant considered that his former lawyers had represented to him that they would defend him (“they said they would defend for me, this lawyer.  After engaging this lawyer, and then he said my probation”) but this was self-evidently no longer the case.

24.In those circumstances, particularly since the appellant was acting in person and had indicated difficulty to the Magistrate in expressing himself (“Please listen to me, my Hakka is not good – my Punti is not very clear”) it was incumbent on the Magistrate to make further inquiries to ascertain precisely what it was that the appellant was trying to say.  Clearly, he was indicating a desire to change plea and the Magistrate was aware of that.  What was critical was the reason for that desire to reverse his plea and this was what the Magistrate was duty bound to inquire into.

25.Although the allegation of misrepresentation or improper pressure was not raised as clearly as it could have been at the hearing before the Magistrate on 8 September 2011, when the appellant’s Magistracy Appeal was heard, the appellant, again acting in person, did clearly express to the Judge that:

“It was the lawyer engaged for him by the company who owned those goods to induce him to plead guilty.”[5]

This stance was also repeated in the appellant’s letter to the High Court requesting an extension of time for the Magistracy Appeal and in his affirmation seeking leave to appeal to this Court.

26.The appellant may or may not have been induced by misrepresentation or improper pressure to enter his guilty plea.  But if he was, the plea was a nullity and should not have been accepted.  That factual question is one which the Magistrate was obliged to inquire into and resolve, if necessary, by hearing the evidence of the appellant and his former lawyers.  Depending on the scope of the issue and the evidence relevant to it, the Magistrate may or may not have been able to conduct that inquiry then and there.  However, he did not make that or any inquiry into the circumstances of the appellant’s wish to change his plea and instead thought the appellant was simply employing delaying tactics.  That may or may not have been the case but, without a sufficient inquiry into the appellant’s reason for wanting to change his plea, the Magistrate was not in a position properly to exercise his discretion to permit or refuse the plea reversal.

Disposition

27.For the reasons set out above, the appellant’s appeal should be allowed and his conviction on each charge quashed.

28.In the Joint Case, the respondent takes the stance that, in view of all the circumstances of the case and the appellant, including the nature of the offences and the fact the appellant has already served his term of imprisonment, it is not in the public interest to have the case remitted to a magistrate for a re-trial.  It is therefore submitted that his conviction should be quashed without requiring him to stand another trial.  In response to a request from the Court, further written submissions on the question of a remitter were sought from the parties and duly provided, the parties indicating that they were content for the Court to resolve the question of whether there should or should not be a remitter on the basis of the further written submissions alone and without an oral hearing.

29.The further joint submissions maintain that it is appropriate, if the appeal is allowed, to dispose of the appeal without ordering a remitter to the magistrate to inquire into the appellant’s application to change plea.  It is submitted that the long lapse of time since the original trial and Magistrate’s refusal to permit the appellant to reverse his plea and the fact that the appellant has fully served his sentence constitute special circumstances justifying a different outcome to that in other cases where either a remitter was ordered or an inquiry held by the judge hearing the magistracy appeal.  It is submitted that the lapse of time and circumstances of the appellant would result in his being materially prejudiced in any inquiry into the plea reversal. Furthermore, it is submitted that it is not in the public interest to have a re-trial.

30.The authorities are not entirely consistent as regards disposition where there has been a failure to make proper inquiry on an application to change plea.  In R v Li Yuen Chu, Woo J remitted the case to the magistrate to inquire into the application to withdraw the guilty plea (see p.623).  In The Queen v Lam Yin, Keith J adjourned the magistracy appeal before him to a date when he would himself hear evidence to decide the issues of fact relevant to the change of plea application (see p.128).  The report of the case in Wong Ching-wah v The Queen suggests that Huggins JA ordered a re-trial (see p.414).  However, it would seem from the judgment that his intent was that “this girl be given the opportunity to reverse her plea and make her defence”.  It is not clear, therefore, whether the re-trial was in fact a remitter of the issue of duress in relation to the original plea.  Finally, in Law Hau On v The Queen, Huggins VP declared the original plea null and void and ordered a venire de novo, i.e. (it would seem) a re-trial on what would presumably be a fresh plea of not guilty (see p.4).

31.As between the choices of remitter or re-trial, in ordinary circumstances the more appropriate disposition may be remitter of the issue of whether the appellant should be permitted to change his original plea of guilty on the basis it was, in law, a nullity.  The remitter of the issue of whether the change of plea should be permitted does not assume the nullity of the original plea of guilty and is appropriate because the conviction is not quashed because the appeal court considers the appellant should have been acquitted after trial. Rather it is because the appellant was deprived of the opportunity to change his plea and to have the case against him formally proved.  In contrast, an order for re-trial makes the assumption of nullity of the original plea.

32.In ordinary circumstances, therefore, the appropriate disposition where there has been a failure to make proper inquiry on an application to change plea is an order remitting the matter to a magistrate to inquire into that application.  The remitter will clarify whether the original plea should stand, in which case a conviction will follow, or whether a trial should proceed on the basis of a not guilty plea.  There would ordinarily be a public interest in having a proper determination of a defendant’s guilt or innocence of the offences with which he has been charged.  That is all the more so in the present case where the offences in question are serious offences attracting (as in this case) a custodial sentence.

33.In the present case, however, in the light of the parties’ joint further submissions, the Court is persuaded that it should, exceptionally, not order a remitter of the change of plea issue to a magistrate.  There has now been a lapse of nearly three years since the original plea was entered on 9 June 2011 which will inevitably make the trial of the remitter and, if the change of plea is permitted, of the charges against the appellant more difficult.  More significantly, the appellant has already served his prison sentence and so, even if the change of plea were not permitted on the remitter (so that the original guilty plea were to stand), the appellant would be convicted on his guilty plea and the matter would then proceed to sentencing at which time the magistrate would take into account the fact that the appellant has already served a 6-month term of imprisonment for the offences.

34.Finally, the costs being agreed between the parties, the Court makes an order that the respondent pay the appellant’s costs of the appeal, to be taxed if not agreed, and shall pay the appellant an agreed sum of $1,392 in respect of disbursements for the application for leave to appeal.  The appellant’s own costs of the appeal are to be taxed in accordance with the Legal Aid Regulations.

The practice and procedure for uncontested appeals

35.Following the grant of leave to appeal, which was contested, the solicitors for the appellant informed the Registrar that the Department of Justice had agreed that the appeal should be allowed by way of the Mok Kin Kau procedure.[6] Subsequently, the solicitors for the appellant informed the Registrar that the parties had agreed the contents of the Joint Case and duly lodged the same.

36.As the discussion above shows, the Court was not initially persuaded by the Joint Case as to the appropriate disposition of the appeal and therefore invited the parties to make further submissions on that question.  This is therefore a timely opportunity to provide some guidance as to the practice and procedure to be adopted when parties may be minded to invite the Court to apply the Mok Kin Kau procedure.

37.Where a party is minded to concede an appeal, therefore, the following points of practice and procedure should be noted:

(1)   It is axiomatic that the decision whether or not to allow an appeal is one which lies with the Court.  Similarly, even where the parties do not contest an appeal, the question of whether to grant leave to appeal in the first place is one which lies with the Appeal Committee.  The parties’ agreement either that leave to appeal should be granted or that an appeal should be allowed does not in any way bind either the Appeal Committee or the Court.

(2)   On the other hand, in order to avoid or reduce the incidence of costs, the Appeal Committee or the Court (as the case may be) may exercise a discretion to dispense with the need for an oral hearing of either the application for leave to appeal or the appeal itself where the application or appeal is uncontested and it is readily apparent that leave should be granted or the appeal allowed.

(3)   It is likely that uncontested appeals will be a small proportion of the cases which come before the Court.  It would appear that, since Mok Kin Kau’s case was decided in January 2008, there have only been four uncontested appeals.[7]

(4)   Where a respondent to an application for leave to appeal wishes to consent to the grant of leave whether with or without a view to conceding the appeal if leave is granted, the Registrar should be informed of this by joint letter from the parties upon or as soon as practicable after the filing of the Form B[8] and a consent summons submitted for approval.  The respondent’s consent may be forthcoming at that stage, or after the applicant’s written submissions have been filed, or after the respondent’s written submissions have been filed.  If the consent involves a change of stance on the part of the respondent from that set out in written submissions opposing leave to appeal, a brief explanation for that change should be given by the respondent or respondent’s solicitor.

(5)   If the Appeal Committee agrees to grant leave on such consent, it will do so on the papers and without the need for an oral hearing.  If the respondent has conceded the application for leave with a view to conceding the appeal, it will direct a Joint Case to be filed by the parties in respect of the appeal.  The parties should endeavour to agree any ancillary orders and costs consequent on the appeal being allowed and include such agreement, or state their respective positions on those matters, in the Joint Case.  If necessary, further procedural directions prior to the determination of the appeal by the Court itself may be made by a single permanent judge of the Court or the Registrar (as the Court thinks fit).

(6)   When leave to appeal has been granted in the ordinary way upon an oral hearing of the leave application, should a respondent to an appeal then wish to consent to the appeal being allowed, the parties should by joint letter inform the Registrar of this fact and submit a consent summons containing any agreed directions for approval. This should be done as soon as practicable after the grant of leave but may occur at any stage, for example, following the filing of the appellant’s written case or even following the filing of the respondent’s written case.  In any event, a brief explanation for the change of stance should be given by the respondent or respondent’s solicitor.  A single permanent judge of the Court or the Registrar (as the Court thinks fit) will give directions for the further conduct of the appeal, which will normally include a direction for the filing of a Joint Case.  The parties should endeavour to agree all ancillary orders and any costs consequent on the appeal being allowed and include such agreement, or state their respective positions on those matters, in the Joint Case.

(7)   If satisfied that the appeal should be allowed, the Court will proceed to determine the appeal on the papers and without an oral hearing, handing down a judgment explaining its decision.  Any outstanding ancillary orders or costs consequent on the appeal being allowed will be dealt with on the basis of the parties’ written submissions.  The Registrar will notify the parties of the date when judgment will be handed down.  The notice of handing down will usually state that it will be unnecessary for counsel to appear but that it is expected that a representative for each party be present in court. In cases involving an appellant on bail, however, the appellant will normally be required to attend.

(8)   At any stage the Court (or Appeal Committee) may, by direction of a single permanent judge, rescind a direction for the appeal (or application for leave to appeal) to proceed on an uncontested basis without a hearing and direct that the appeal (or leave application, as the case may be) be listed for an inter partes hearing in the normal way.

38.It is anticipated that the above practice and procedure will apply to all future appeals, whether civil or criminal, which are uncontested.  There may be exceptional cases in which, notwithstanding the fact the appeal is uncontested, the interests of justice will require an inter partes hearing be held or the Court may, for some other reason, decline to exercise its discretion to dispense with an oral hearing.  In such cases, the Court’s usual practice and procedure will apply.

Order

39.Accordingly, the Court:

(1)   Allows the appeal and quashes the appellant’s conviction on each charge;

(2)   Makes the orders as to costs in paragraph 34 above.

Joint Written Submissions by:

Mr Edmond Lee SADPP, of the Department of Justice, for the Respondent

Ms Margaret Ng, instructed by ONC Lawyers, assigned by the Director of Legal Aid, for the Appellant