HKSAR v. AU YEUNG BOON FAI

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JUDGMENT

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Keith J.A. (giving the judgment of the Court):

Introduction

1. Part VII of the Magistrates Ordinance (Cap. 227) relates to appeals from magistrates' courts. Two forms of appeal are provided for: appeals by way of case stated, and appeals under section 113. Although appeals under section 113 appear under the heading "Alternative Procedure", they constitute the vast majority of appeals. Appeals by way of case stated are comparatively rare. This case raises the important question whether someone who has unequivocally pleaded guilty in a magistrates' court may nevertheless appeal against his conviction by way of the alternative procedure provided for by section 113, on the ground that, on the admitted facts, he could not in law have been convicted of the offence to which he pleaded guilty.

The facts

2. The facts can be stated shortly. In September 1998, the Appellant stayed at the Newton Hotel in North Point for five days. He knew that the hotel would want to take an imprint of a credit card as a "deposit", so that in the event of the hotel's bill not being paid the hotel could use the imprint to charge the credit card company for the accommodation and other services which the Appellant would receive during his stay. Accordingly, the Appellant asked a friend of his to lend him his credit card for that purpose. He promised his friend that he would only use the credit card for that purpose, and that he would pay the hotel's bill himself. However, at the end of his stay, the Appellant used his friend's credit card to pay the hotel's bill, which amounted to $6,383.40.

3. In September and October 1998, the Appellant stayed at the Grandfield Pacific Hotel in Wan Chai for almost four weeks. Almost exactly the same thing happened. On this occasion, the hotel's bill amounted to $28,040.00. The only difference was that this time there may have been an issue as to whether the Appellant's friend knew that her credit card was going to be used as a "deposit". The brief facts which the Appellant had admitted recorded that the Appellant had taken his friend's credit card and had later returned it to her purse. However, when the Appellant's counsel was addressing the magistrate in mitigation, he said that "in both charges, what happened was the lady and the gentleman in question gave permission to the defendant to use the credit card as deposit". The magistrate who sentenced the Appellant did so on the basis that what was said in mitigation was correct.

The charges and the proceedings in court

4. Leaving aside a third charge which was not proceeded with, the Appellant was originally charged with two charges of obtaining services by deception, contrary to section 18A(1) of the Theft Ordinance (Cap. 210) ("the Ordinance"). However, those charges had been amended by the time the Appellant appeared at Eastern Magistrates' Court on 30th December 1998. They had been amended to charges of theft, contrary to section 9 of the Ordinance. In each charge, the Appellant was charged with having stolen a chose in action, namely, a debt of the amount of the hotel bill owed by the credit card company to the Appellant's friend, that chose in action being the property of the Appellant's friend. The Appellant, who was legally represented, tendered unequivocal pleas of guilty to those amended charges. The "brief facts" were then read, and the Appellant agreed that they were correct.

5. At that stage; the magistrate expressed some concern about the amended charges. He proceeded to hear the Appellant's counsel in mitigation, and after a short adjournment he decided that the charges should be re-amended to describe in a different way the choses in action which the Appellant was alleged to have stolen, namely, a credit balance of the amount of the hotel bill with the credit card company. Thus, the particulars of the first charge as re-amended were that

"on the 9th day of September, 1998, at Newton Hotel, 218, Electric Road, North Point, in Hong Kong, you did steal a chose in action, namely, a credit balance of $6,383.40 with Aeon Credit Service (Asia) Co. Ltd., belonging to Chew Kwan Kit."

The particulars of the second charge as re-amended followed that wording. Both the court prosecutor and the Appellant's counsel were content with those proposed re-amendments. They were therefore put to the Appellant, who unequivocally pleaded guilty to them. He confirmed that he still admitted the "brief facts" which had been read out previously.

6. The magistrate sentenced the Appellant to four months' imprisonment on each charge, to be served concurrently with each other. A suspended sentence of two months' imprisonment was activated, but that was ordered to be served concurrently as well. In due course, the Appellant filed notices of appeal against both his conviction and sentence. Those appeals were lodged pursuant to section 113 of the Magistrates Ordinance rather than by way of case stated. When the appeal came before Verina Bokhary J. on 18th May, she directed, pursuant to section 118(1)(d) of the Magistrates Ordinance, that the appeal be argued before the Court of Appeal. That is how the appeal is now before us, though the appeal against sentence has today been abandoned.

The jurisdiction to entertain the appeal against conviction

7. Section 113 (1) of the Magistrates Ordinance provides:

"Any person aggrieved by any conviction, order or determination of a magistrate in respect of or in connection with any offence, who did not plead guilty or admit the truth of the information or complaint, may appeal from the conviction, order or determination, in manner hereinafter provided to a judge."

Since the Appellant pleaded guilty, and tendered unequivocal pleas of guilty at that, an appeal against conviction under section 113 is not, on the face of it, open to him. However, in R. v. Li Tung Hing [1992] 2 HKC 427, Leonard J. held that the court can entertain an appeal against conviction from a magistrates' court under section 113, even when an apparently unequivocal plea of guilty has been recorded, if upon the admitted facts the Appellant could not in law have been convicted of the offence with which he had been charged. That is the Appellant's case here. It is contended by Mr. Ernest Lim on his behalf that the Appellant could not in law have been convicted of the two re-amended charges of theft to which he had pleaded guilty.

8. Leonard J.'s reasoning is set out at pp. 428G-429C:

We do not regard this line of cases as all that helpful. They were decided under statutory regimes which were very different from section 113. Forde was decided under the Criminal Appeal Act 1907, and Shannon and Lee were decided under the Criminal Appeal Act 1968. Unlike section 113, neither of those Acts prohibited appeals against conviction following pleas of guilty.

9. However, there is, in our judgment, another route by which Leonard J.'s conclusion can be justified. A plea of guilty which is a nullity does not amount to a plea at all. A plea which is a nullity, therefore, is not caught by section 113. The classic example of an unequivocal plea of guilty being a nullity is where the plea is tendered involuntarily, for example, where it has been induced by duress or misrepresentation. But a plea of guilty presupposes that on the admitted facts the defendant is in law guilty of the offence to which he pleads guilty. Accordingly, a plea of guilty is, in our view, a nullity if, upon the admitted facts, the defendant could not in law be convicted of the offence for which he is charged. That will happen only very rarely. After all, for it to happen at all, prosecuting counsel, defence counsel and the court will all have failed to appreciate the true ingredients of the charge to which the defendant pleaded guilty.

10. It follows that the court should proceed to hear the Appellant's appeal against his conviction on the two re-amended charges. If it is found that on the admitted facts the Appellant could not have been convicted of the charges, the appeal will be allowed. If it is found that he had to have been convicted of the charges, the court will dismiss the appeal for want of jurisdiction, because the condition on which the appeal may be entertained, namely that the pleas of guilty were nullities, would not have been established.

11. In the interests of completeness, we should add that the problem presented by the Appellant's pleas of guilty would not have arisen if his appeal had been by way of case stated on a point of law under section 105 of the Magistrates Ordinance. An appeal against conviction by way of case stated is not limited to cases in which the defendant pleaded not guilty. Thus, it would have been open to the magistrate to state a case for the opinion of the Court of First Instance as to whether he had been correct to accept the Appellant's pleas of guilty in the light of the admitted facts.

Did the admitted facts support the re-amended charges?

12. Mr. Lim contends that the Appellant could not in law have been convicted on the re-amended charges because the hotels in each charge were protected from loss by the imprints which the Appellant had given them of his friends' credit cards. If the bills were not paid by the Appellant, the hotels could debit the credit card companies with the bills. Accordingly, Mr. Lim contends that the debits on his friends' credit card accounts represent simply civil debts owed by the Appellant to his friends.

13. This argument misses the point. It would have been a complete answer to the charges if they had remained ones of obtaining services by deception. Although the Appellant may have deceived the hotels into believing that the credit cards were his - at any rate, the credit card of his male friend - that deception may well not have been causally linked to the hotel services he received. Provided that the Appellant had presented a credit card to the hotels as a "deposit", the fact that the credit card did not belong to the Appellant would not have worried the hotels. They would have known that they could have recovered the price for the services from the credit card companies. What Mr. Lim's argument does not address are the re-amended charges in which the Appellant's friends, and not the hotels, are named as the losers of the property which was stolen.

14. In our view, the only ground upon which it could be said that the Appellant could not in law have been convicted on the re-amended charges is that he did not steal anything. The argument would be that what he did was simply to incur for his friends a liability which would not have existed but for his use of their credit cards. That may or may not amount to some other criminal offence, but on this argument the creation of a debt for another person does not amount to the appropriation of property belonging to another.

15. We cannot accept this argument. The kinds of property capable of being the subject of a charge of theft include "things in action and other intangible property": see section 5(1) of the Ordinance. A similar provision exists in the Theft Act 1968 in the United Kingdom. There, the law has been correctly summarised in Griew, "The Theft Acts", 7th. ed., para. 2-146 as follows:

"When a bank account is in credit, the account holder has 'property' in the form of a thing in action - a claim available against the bank as his debtor. If he has an enforceable overdraft arrangement with the bank, this too, it has been held, gives him 'property' within the meaning of that word in the Theft Act so long as the overdraft facility has not been exhausted by drawings on the account. At any time, however, when the account is in debit and no right to draw on it exists, the account holder has no relevant property capable of being stolen by abuse of the account."

The authority cited in support of those propositions is R. v. Kohn (1979) 69 Crim. App. R. 395. Although part of the ratio of Kohn has been impliedly overruled by R. v. Preddy [1996] AC 815, that part of the ratio of Kohn which is relevant for present purposes has survived unscathed. There is no reason why the law in Hong Kong should be any different.

16. There is, in our judgment, no relevant difference between an overdraft facility with a bank and an account with a credit card company. In the same way as the bank's customer is entitled to draw amounts up to the limit of his facility, so too is the account holder of a credit card account entitled to debit his account with the cost of goods and services up to his credit limit. Accordingly, the difference between the debit balance on a credit card account and the credit limit on that account represents property which is capable of being the subject of a charge of theft. It is true that the brief facts did not state that the sums still available for use on the Appellant's friends' accounts were not less than the respective hotel bills, but the charges were made out if part of the property was capable of being stolen.

17. It follows that on the admitted facts the Appellant could properly have been convicted on the two re-amended charges to which he pleaded guilty. The result of this analysis is that the court cannot entertain the appeal because the condition on which the appeal could have been entertained, namely that the Appellant's pleas of guilty were nullities, have not been established. The appeal must therefore be dismissed for want of jurisdiction.

The other grounds of appeal

18. For the sake of completeness, we should add that Mr. Lim had two particular criticisms of the magistrate. First, it is said that the magistrate should not have engaged in the debate as to what the proper charges should have been: it is for the prosecution alone, said Mr. Lim, to decide what charges are to be laid against a defendant. Secondly, it is said that the magistrate should not have been informed of the Appellant's previous convictions before the question as to the nature of the charges which the Appellant should face had been resolved. Had it been open to us to consider these arguments, we would have rejected them. However, it has not been open to us to consider them in view of our conclusion that the Appellant's pleas of guilty were not nullities.