HKSAR v. Priyarathnage, Rnaga Thushara Jayawardhane

HCMA 247/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 247 OF 2014

(ON APPEAL FROM STCC 4122 OF 2013)

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Before: The Honourable Mrs Justice V Bokhary in Court

Date of Hearing: 2 September 2014

Date of Judgment: 2 September 2014

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J U D G M E N T

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1.Leaving aside the fresh evidence which the Appellant seeks to file, it appears that the belief which he asserted or tried to assert in the Magistrates Court was not merely that he had entered into a new contract of employment but also that he had been granted an extension of stay for the purpose of working in Hong Kong under that new contract.

2.A belief that a new contract automatically and of itself extended his stay would be a mistake of law. But the belief which the Appellant asserted or tried to assert appears to be that he had actually been granted an extension of stay by the immigration authorities. If so, he may, I say no more than may, have a good defence.

3.When he appeared in the Magistrates Court on 1 November 2013, he tendered a plea of not guilty. What was said by the Magistrate before whom he appeared on that occasion, while perfectly well-intentioned, may have distracted him from that line of defence. When he appeared before another Magistrate on 18 November 2013, he pleaded guilty, but there is no reliable sign that he had indeed altered his stance on the facts.

4.In all the circumstances, I do not regard it as safe to treat his guilty plea as unequivocal or as one with which his mind truly went. The just course would be to allow, and I do allow, the appeal in order to clear the way for him to go back to the Magistrates Court so that he may plead not guilty and the case may proceed to trial before another Magistrate.  The conviction is accordingly quashed.

Mr Christopher Grounds, instructed by David Ravenscroft & Co and assigned by the Legal Aid Department, for the appellant

Mr Prakash L Daryanani, of the Department of Justice, for the respondent